Documents of American history, Vol. 3 hq37vp159

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CROFTS AMERICAN HISTORY SERIES Dixon. Ryan Fox, General Editor

DOCUMENTS

oof AMERICAN HISTORY Edited by

HENRY STEELE COMMAGER Columbia University

THIRD EDITION

1946

FS. CROFTS & CO. NEW YORK

COPYRIGHT, 1934, 1940, 1943, BY F. S. CROFTS & CO., INC. , First printing, September, 1934 Second printing, September, 1935 Third printing, February, 1938 SECOND EDITION

Fourth printing, September, 1940 Fifth printing, December, 1941 Sixth printing, October, 1942 THIRD EDITION

Seventh printing, April, 1943 Eighth printing, June, 1943 — Ninth printing, January, 1944 Tenth printeng, June, 1945 Fleventh printing, July, 1946 Twelfth printing, October, 19-16

ALL RIGHTS RESERVED

NO PART OF THE MATERIAL COVERED BY THIS COPYRIGHT MAY BE REPRODUCED IN ANY FORM WITHOUT PERMISSION

IN WRITING FROM THE PUBLISHER

MANUFACTURED IN THE UNITED STATES OF AMERICA

To

EVAN WHO LIKED TIIEM

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 more 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

4

viii FOREWORD BY THE GENERAL EDITOR 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 responsib!e 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 lozical relation so as to suit all users; Professor Commager has wisely chosen strict chronology as his principle of arrangement. ‘his 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 consu'ted. 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 volubiity sometimes fixed upon our countrymen and supp!ant 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 orig.nal character is a document: letters, memoirs, baliads, 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 h.s 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 1 have been guided in my choice of material by any rigid principles of selection. ‘lhe 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 p.atforms; 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 1s 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 Rep'y 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 zm 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 bib‘iographies which accompany these documents pretend to be extensive. In the notes I have attempted to state only what js 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

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, capitalization 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 cooperation 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 1940 EDITION This edition constitutes not a revision but an extension of the original edition of Documents of American History. Some errors which found their way into the original edition have been detected and corrected, the conclusions in some of the introductory notes modified in the light of new evidence, and the Dred Scott decision overhauled. The bibliographies are substantially the same: any general revision would have required resetting the entire volume. The new material now included covers substantially the first two administrations of President F. D. Roosevelt. The sum total of this new material may seem, at first glance, out of proportion to the total representation from earlier periods of our history. But two considerations may be submitted in explanation of this. First, more and more important legislation was enacted during the years 1933-1940 than in any comparable period of our history. Second, the tendency of legislators, and even of judges, to verbosity and elaborateness has degenerated. in recent years, into a positive vice. The problem of getting into a few pages the essentials of laws running to twenty-five or thirty thousand words has been one of utmost difficulty and one which should excite the attention of legislators and the sympathy of students. Perhaps a further word on the principle of selection is appropriate. I have sought to include most of the important legislation covering this opening phase of the New Deal, and to couple with legislative acts appropriate judicial interpretation. In some instances where judicial opinions embraced convenient summaries of the laws challenged, I have thought it justifiable to omit the laws and rely upon the judicial summaries. There are, in addition, some treaties, party platforms, committee reports, and Presidential addresses. The inadequacy of documentary material interpreting our social and economic institutions remains deplorable. The best of such material is to be found in judicial opinions, and for the extensive space allotted these I have no apologies to make. Sooner or later almost every issue of American life comes before the courts for review. HENRY STEELE COMMAGER

TABLE OF CONTENTS

| VoLUME I DOC. NO.

PAGE

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

2. PAPAL BULL INTER CAKIERA, May 4, 1493 . .« «© «© © © © © «© © « 2 3, TREATY OF TORDESILLAS. June.7, 1494 . . . «© «© © 6 we ew ew ee el 4 4. LETTERS PATENT TO JOHN CABOT. March 5,1496 . . 2. «© «© 2© «© «© «© «© 5

5 CHARTER TO SIR WALTER RALEGH. March 25,1584 . . . «© «© «© «© « «= 6

6. FIRST CHARTER OF VIRGINIA. April 10, 1606 . . . .« 2. « »© «© «© « « 8

7. SECOND CHARTER OF VIRGINIA. May 23,1609 . . . « « © «© «© «© «+ « 10 8. THIRD CHARTER OF VIRGINIA. March 12, 1612 . . . «© «© «© «© «© © «= 12

Q. ORDINANCE FOR VIRGINIA. July 24, 1621 . . 2. «© 2 6 © ew we we ee 4S

10. LEYDEN AGREEMENT. 1618 . . . . . 0). 6 © @ © ee we ew wl le 14

11. MAYFLOWER compact. November 11, 1620 . . . . «6 © «© «© «© «© « 215

12. FIRST CHARTER OF MASSACHUSETTS. March 4,1629 . . . «© . ©» « « © 16

13. CAMBRIDGE AGREEMENT. August 26,1629 . . . . 2. «© se @ 6 ew ew (18 14. CHARTER OF FREEDOMS AND EXEMPTIONS TO PATROONS. June 7, 1629 . . . . 19

15. CHARTER OF MARYLAND. June 20, 1632 . . . . 2. 2 ew ew ee ee CO

16. FUNDAMENTAL ORDERS OF CONNECTICUT. January 14,1639 . . . . . . . 22 17. PLANTATION AGREEMENT AT PROVIDENCE. August 27, 1640 . . . . .« « « 24 18. NEW ENGLAND CONFEDERATION. May 19, 1643 . . . 2. « «© «© «© « « 26

19. MASSACHUSETTS SCHOOL LAW OF 1642. . . « © «© «© «© «© © «© « «© 28 20. MASSACHUSETTS SCHOOL LAW OF 1647. . . «© 6 «© © «© © © «© © « 29

21. CAMBRIDGE PLATFORM. 1648 . . . . 2. 6 © «© © © © © © 6 © 29 22. MARYLAND TOLERATION ACT. April 21, 1649 . . . 2. . . . .« . © - 3!

23. NAVIGATION ACT OF 1660 . . . 2. 2. 6 ee ee wee ee 8D 24. INDEPENDENCY IN COLONIAL MASSACHUSETTS

1. DECLARATION OF LIBERTIES. June 10, 1661 . . . . . 2. «2. «© « « 34

2. ANSWER TO MR. SOLICITOR’S OBJECTIONS. October 2, 1678. . . . . . 34 25. CONCESSIONS TO THE PROVINCE OF PENNSYLVANIA. July 11, 1681 . . . . . 35

26. EARLIEST PROTEST AGAINST SLAVERY. February 18,1688 . . . . . . . . 37

27. NAVIGATION ACT OF 1696 . . . . 1. wee ee ee lle lee 8B 28. PENN’S PLAN OF UNION. 1697 . . 2. . . wee wee we 8 29. PENNSYLVANIA CHARTER OF PRIVILEGES. October 28, 1701 . . . . . «. « 40

30. MOLASSES ACT. May 17, 1733. . ww wee 4D 31. ALBANY PLAN OF UNION. 1754 . . . 2. 2. wee ee ee 48

32. OTIS’ SPEECH AGAINST WRITS OF ASSISTANCE. February 24,1761 . . . . . 45

33. PROCLAMATION OF 1763. October 7, 1763 . . . . . . 2. 0. hehe OAT 34. FRONTIER GRIEVANCES FROM PENNSYLVANIA. February 13, 1764 . . . . . 50

35. sTamMp AcT. March 22, 1765 . . . . . ee ee ee ee 5B 36. VIRGINIA STAMP ACT RESOLUTIONS. May 30, 1765 . . . . . . . . . 55

37. INSTRUCTIONS OF TOWN OF BRAINTREE, MASSACHUSETTS. October 14, 1765 . . 56

38. RESOLUTIONS OF THE STAMP ACT CONGRESS. October 19, 1765 . . . . . 57 39. NORTHAMPTON COUNTY RESOLUTIONS ON STAMP ACT. February 11, 1766 . . 59

40. PETITION OF LONDON MERCHANTS. January 17, 1766 . . . . . . . . 59

41, DECLARATORY ACT. March 18, 1766 . . . . 2. 2 6© w© «© © sw se) ~~ 60

42. QUARTERING ACT. March 24, 1765 . . . . . 2. 2. © «© © «© .. 61

43. TOWNSHEND REVENUE ACT. June 29, 1767 . . . . 1. ew we ww le «63 44. FUNDAMENTAL LAW AND THE BRITISH CONSTITUTION

1. MASSACHUSETTS HOUSE TO EARL OF SHELBURNE. January 15,1768 . . . 65 2. MASSACHUSETTS HOUSE TO MARQUIS OF ROCKINGHAM. January 22,1768. . 65

3. MASSACHUSETTS HOUSE TO LORD CAMDEN. January 29, 1748 . . . . 65 Xi

DOC. NO, PAGE

xil TABLE OF CONTENTS

45. MASSACHUSETTS CIRCULAR LETTER. February 11.1763 . . . . 3. . ep 66 46, BOSTON NON-IMPORTATION AGREEMENT. August 1,1763 . . . . «2. . « « 67 47, PETITION FROM REGULATORS OF NORTH CAROLINA. October 9, 1769 . . . . 68 48. NEW YORK SONS OF LIBERTY RESOLUTIONS ON TEA. November 29, 1773 . . . 70 49. INTOLERABLE ACTS

1, BOSTON PorT ACT. March 31,1774 . . . . . 1... et eti‘. 397. or a Old cases in which the original states shall be so South Leaflets, Vol. VI. The Report of 1784 subject and to all the acts and ordinances of never went into effect. See references in Doc. the 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 con-

That 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, P. J. Treat, The National the first Jj . t d Land System, 1785-1820; A. C. Ford, Colonial ESE ine, FUDAINE Cast an west, shall 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 Olu syivama, hee geographer sna Cesig-

. ds in the Western nate the townships, or fractional parts of

of disposing nis townships, by numbers progressively from erritory. 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, mounthe 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 te 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 olfered 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 expedi-

sold 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 clemand for religious liberty. This move- Virginia:

ment was strongest in the South, where the The Memorial of the Presbytery of HanAnglican Church had long been established by — gyer humbly represents:

law. Ever since the days of the Great Awaken- . . . It is well known, that in the frontier ing, the dissenting churches had llourished in counties, which are justly supposed to conthe up-country of Virginia. The Presbyterian tain a fifth 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 build;

Numerous petitions protesting against religious urcens Or pur¢ 1asing Brees, un ing 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 religiovs, 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- 41, acy for establishing Religious Freedom. pealing the statutes requiring church attendance

and universal support of the established church, I. Wuereas 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 lreedom and equality. This complete habits of hypocrisy and meanness, and are a divorcement ofthe church and bitterly f t]©, the f the Hol h opposed not only by Episcopal butstate by thewas eparture Fom taedpian Holy author Presbyterian and other dissenting churches as of 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 ¢lesiastical, who being themselves but falstruggle for religious freedom as “the severest lible and uninspired men, have assumed docontest in which I have ever been engaged,” ninion over the faith of others, setting up and it was not until 1785 that his Lill, sponsored the; - q d € think; in his absence by Mason, Madison, Taylor, Cir Own Opimlons and Modes oO thinking George and W. C. Nicholas, passed the House: 2% the only true and infallible, and as such in January 1786 it was accepted by the Senate €ndeavouring 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 js sinful and tyrannical; that even the forcaroused world-wide remark. Sce, H. J. Ecken- . . rode, Separation of Church and State in Vir- Ing him to support this or that teacher of

ginia; C. F. James, Documentary History of the his own religious persuasion, 1S depriving Struggle for Religious Liberty in Virginia; R. B. him of the comfortable liberty of giving his Semple, Rzse and Progress of Baptists in Vir- contributions to the particular pastor whose ginia; 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 zt enacted by the General Assemof being called to offices of trust and emolu- Oly, 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 hef; 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 cxternally 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 bail 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 posilion 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 itis 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 mectings of courts, and and taxation, unfairly apportioned, was in- threatened the armory at Springfeld. 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 mectings demanded _ rising had becn 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

SuHays’s REBELLION 127 the town meetings. On the Rebellion sce 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 ae Republic, midRebellion,’ .P Renin American te Con- lot to be employed in a more conspicuous ederation an e ch Shays

Hist. Review, Vol. XJ ”W.V. Wells Life and ™anner than some oun ied ar Public Services of Samuel Adams, Vol. III, ch. citizens, i) stepping orth on acience 0 © lix.; A. E. Morse, The Federalist Party in Mas- rights and privileges of the people, more

sachusetts, ch. tii. 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 lst. 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 is 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 inter-

3d. 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 HIsToRyY 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 circum laid down the general principles of the American stances may, in the opinion of Congress, colonial system, but it did not provide in detail make it expedient.

for the establishment of an . administrative Be it ordained by the authority aforesaid structure, and it was never put into effect. The That the estates. both of resident and non. immediate impulse for the Ordinance of 1787 . sane . came from a group of land speculators, mem- resident proprietors in the said territory, dybers of the Ohio Company of Associates and ing intestate, shall descend to, and be disof 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 or grandchild to take the share of. their Rufus Putnam. These men succeeded in lobby- deceased parent in equal parts among them: ing through a moribund Congress the amous And where there shall be no children or deNorthwest tersitory. ‘The “authorship of the scendants, then in equal parts to the nex!

Ordinance is a matter of controversy, but it of kin in equal degree; and amon g colseems probable that Nathan Dane and Rufus laterals, 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. See 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 Lije, Journals, and Correspondence of Man- of the intestate her third part of the real

asseh Cutler, 2 Vols.; R. Buell, Memoirs of cate for life, and one-third part of the Rujus Putnam ; A. B. Hulbert, ed. Kecords oj personal estate; and this law relative to theofOhio Company; C. S. Lifeescents and Letq 4sha F hall a In infufull ters Samuel Holden Parsons; R. Hall, King, Ohio; an ower, remain 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. 1; A. C. Mc- or bequeathed by wills in writing, signed and Laughlin, Confederation and Constitution, ch. cealed by him or her in whom the estate

vii; F. L. Paxson, History of the American may be (being of full age), and attested Frontier, chs. vii-viil; J. B. McMaster, History by three witnesses; and real estates may be

of the People of the United States, Vol. I, conveyed by lease and release, or bargain

ch. v. and 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 Ohio. conveyances be acknowledged, or the execu-

Be it 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

Tur 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 necesamong 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 DOCUMENTS OF AMERICAN HIstToRY states, and being resident in the district, or sent. The governor shall have power to conthe like freehold and two years residence ene, 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

THe 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, fullcompensation 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 ot 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 owever, 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 shaH 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 whatevey, 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 1mpos- the same terms, authorized their respective

sibility of amending the Articles by ordinary a

processes, all led to a demand for a drastic Commissioners to meet such other Comrevision of the Articles of Confederation. The ™ussloners as were, OF 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- foi system in their commercial intercourse

tween the East and the West. These commis- lat; ‘cht be necessarv to their sioners drew up resolutions asking the co- and regu ations mug C ary

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. McLa ughlin, Confederation ane larged the object of their appointment, emConstitution, ch. xi; G. Hunt, James Madison, powering their Commissioners, “to consider

W. C. Rives, Madison. 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.”

THoete 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 under the authority of the United States, exrather than a mcre 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 Convention, it was not only the first, service, and for the space of after its

but the one which most closely approximates . the finished Constitution. Note however, that expiration; to be incapable of reclection tor the “Supreme law of the land” clause—the the space of _aiter 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 Muking of Lhe Constitu- be elected by those of the first, out of a tion, esp. p. 1391f.; A. C. McLaughlin, Com Loner number of persons nominated by the

federation and wc onstition on. ™ Bs y me individual Legislatures, to be of the age

Slates, Voll. > “8 ff conte of the Om of years at least; to hold their offices

, ao 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 morebe 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 sev-

instance, 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{f. 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- eVery 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 requisitions 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- 4- Resolved that the United States in Conpedient; to make rules and regulations for tess be authorized to elect a federal Execu-

the collection thereof; and the same from live to consist of persons, to continue

time to time, to alter and amend in such 1 Office for the term of years, to re-

manner 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 Imcrease or diminution shall be made so as each other; provided that all punishments, © 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 ot 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 4 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 1 h . P . of sympathy with the work of the Federal Con- aws 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. Lhe 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 H., and see to serve during good behaviour; their elecne p. 225; a somewhat different version 18 mM tion to be made by electors chosen for that e notes of Yates, Documents Illustrative, etc., purpose by the people. In order to this. the

p. 776 ff. Hamilton’s plan had no Constitution. perceptible - States to be divided i lect; er influence on the character of the e arvided 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 HISTORY 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 clection 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 cap-

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, chicf 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 chicfs 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 Il- Representatives and direct Taxes shall be American States, ed. by C. C. Tansill. The apportioned anong the several slates which literature on the Constitution is voluminous. Mey 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 three Years after the first Mcet-

lustrative of the Formation of the Union of the

M. Farrand, Framing of the Constitution; C. A. mace WH eae naa

Beard, Economic Interpretation of the Constitu- Ing 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 shali Geographical Distribution of the Vote on the not exceed one for every thirty Thousand,

Federal Convention; J. B. McMaster and but each State shall have at Least one F, D. Stone, Pennsylvania and the Federal Con- Representative; and until such enumeration stitution ; S. B. Harding, Contest over Ratifica- shay be made, the State of New Hampshire

tion in Massachusetis; C. E. Miner, Ratification ;

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, sce C. Borgeaud, When vacancies happen in the RepresentaAdoption and Amendment of Constitutions. tion from any State, the Executive Authority We tue PeorpLte 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 Impcachment. 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 six Years; and each Senator shall have one

Art. I V

ote.

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

cles. 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. Flouse 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 cither 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, shail be a Member of either sentatives, shall be prescribed in cach 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

Ture 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 ApBil shall not be returned by the President propriation of Moncy 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 Mhlitia

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, Dutics, 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 uniform 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 present, 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 on 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. IH 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

Tue 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. elther 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, prcserve,

protect and defend the Constitution of the Art. Il

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 timc 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 Oftice. 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 fromtowhich he fled, beJurisdelivered Art. VI , up, to be removed the State having

diction of the Crime. All Debts coutracted 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. under the Confederation.

This Constitution, and the Laws of the Art. VII

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—Presid' by Oath or Affirm:.tion, to support this Con- and deputy from Virginia Gro: READ

NICHOLAS GILMAN f BEDFORD New Hampshire {3 OHN LANGDON | Gomme Delaware Jun JouHN DICKINSON

| Rican BASSETT

Massachusetts {UFUS Ronee Kan GORHAM Jaco: Broom KING

M°HENRY _ W™ Sam" JoHNSON Maryland DAN oF St[Dano THOS JENT-

onnecticut { Rooes SHERMAN | PER DAN" CARROLL

ALEXANDER HAmIL- oo JouHN BLaiR— New York |( TON Virginia { JAMES MapIson Jr.

Wit: Livincston Ree Ne New Jersey | wee CREARLEY North Carolina SPAIGHT

Jona: DaAvTon Hu WILLIAMSON J. RUTLEDGE

| B FRANKLIN CHartes CorTEs_Tsomas MIFFLin South Carolina WORTH PINCKNEY RRS CHARLES ; EO. Ron CLYMER PIERCEPINCKNEY BUTLE

Pensylvania | THos FirzSrmons ones | JARED INGERSOLL

| JAMES WILSON . WILLIAM FEw | Gouv Morris Georgia oe 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 shal] 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-

December 15, 1791.] formed of the nature and cause of the ac-

cusation; 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- Art. VII

dom of speech, or of the press; In orSuits theatright , common law, where the value of the people peaceably to assemble, and to. vps he government for a redress of 1% Controversy shall exceed twenty dollars,

petition the 8 the right of trial by jury shall be preserved,

Bevances. and no fact tried by a jury, shall be other-

Art. IT 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 Art. VIII

be infringed. Excessive bail shall not be required, nor

Art. ITT 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 mght 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, ctates 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 in 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 mect 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

Tuer 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- Arr. XIV

dent, and of the number of votes for each, July 28, 1868

which lists they shall sign and certify, and Sec 1. All perso < bor x naturalized in the

transmit sealed to the seat of the government ee. ht person aa

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 enforce 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 a ° the Ns hall b soned

the persons having the highest numbers not °C *: *€Presehlouves Suse apporuone: exceeding three on the list of those voted for among the several States according to their as President, the House of Representatives respective numbers, counting the whole numshall choose immediately, by ballot, the Pres- ber of persons in each State, excluding Indians

ident. But in choosing the President, the 7% 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: qa (ent 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 and Judicial officers of a State, or the memstates, and a majority of all the states shall bers of the Legislature thereof, is denied to be necessary to a choice. And if the House of any of the male inhabitants of such State, Representatives shall not choose a President being twenty-one years of age, and citizens whenever the right of choice shall devolve of 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 (17) the basis of representation therein shall act as President, as in the case of the death be reduced in the proportion which the numor other constitutional disability of the Pres- ber 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 2°" of age in such State. Vice-President, if such number be a majority Sec. 3. No person shall be a Senator or Repreof the whole number of Electors appointed sentative 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 highcst numbers on the list, the Sen- or military, under the United States, or under ate shall choose the Vice-President; a quorum any 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, and a majority of the United States, or as a member of any of the whole number shall be necessary to a State legislature, or aS an execulive or Judichoice. But no person constitutionally ineli- “ll officer of any State, to support the Congible to the office of President shall be eligible stitution of the United States, shall have ento that of Vice-President of the United States. gaged in insurrection or rebellion against the

. same, or given aid or comfort to the enemies Art. XII 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

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

Arr. 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 itm 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

an ( hall b , The right of citizens of the United States to ee & fate Longress shail have power to vote shall not be denied or abridged by the

tion— Sex.

enforce this article by appropriate legisla- United States or by any States on account of

Arr. 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 4. ‘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 Stales shall be ‘ay of January, of the years in which such composed of two senators from each State, ‘rms would have ended if this article had elected by the people thereof, for six years; 20t been ratified; and the terms of their sucand each Senator shall have one vote. The Céssors shall then begin. electors in each State shall have the qualificas Sec. 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- 2Y: 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 ec: 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 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 ct as President until a President shall have

Constitution. qualified; and thevideCongress may by law profor the case wherein neither a PresidentArT. 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 is

dent shall have qualified. hereby repealed. . Sec. 4. The Congress may by law provide Sec. 2. The transportation or importation into

for the case of the death of any of the persons any State, Territory or possession of the from whom the House of Representatives United States for delivery or use therein of may choose a President whenever the right of intoxicating liquors, in violation of the laws choice shall have devolved upon them, and thereof, is hereby prohibited. for the case of the death of any of the per- Sec. 3. This article shall be inoperative unless sons from whom the Senate may choose a __ it shall have been ratified as an amendment to Vice-President whenever the right of choice the Constitution by convention in the several

shall have devolved upon them. Slates, as provided in the Constitution, within Sec. 5. Sections 1 and 2 shall take effect on seven years from the date of the submission the 15th day of October following the ratifica- thereof to the States by the Congress.

tion6.of article. . . Arr. XXII Sec. Thisthis article shall be inoperative un- ,

less it shall have been ratified as an amend- (Pending)

ment to the Constitution by the legislatures Sec. 1, The Congress shall have power to of three-fourths of the several States within sane uiier eighioen wus ot age of perseven years from the date of its submission. Sec. 2. The power of the several States is unimpaired by this article except that the

ArT. XXI operation of State laws shall be suspended to

December 5, 1933 the extent necessary to give effect to legislaSec. 1, The eighteenth article of amendment _ tion enacted by the Congress.

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 fined t

ratification was secured only after nine other ur Powers were explicit, an conned 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. F'rom these expressions, we were led to be-

. . . We beg leave, briefly, to state some lieve that a system of consolidated governcogent 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. receive 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 feel against involving themselves in a dispute had been confiscated by the State during the With the Legislature of the State, yet no obWar of Independence, against the purchasers, ject of concern or respect could come in on affidavit of the defendants that they were competition or authorize them to dispense

purchasers from the commissioners of confis- ‘th the duty th d th blic. j j cated property. The decision of the Court is one With tne duty they owed the PUupAC, In Conse

of 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 15] 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, de-

undoubtedly 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 estabLegislature 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 grad4, 1789, but not until April 2 did the House have yal waste committed on it by time. On the a quorum, and the Senate did not organize until they hand, the magnitude and difficulty of April 5. On the 6th of April the electoral votes the trust to which the voice of my country

were counted, and Washington and Adams were , . .

announced as President and Vice-President. called me, being sufficient to awaken jn the Charles Thomson was sent to notify Washington WSest 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, sec, 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 iL. flict of emotions all I dare aver is that it has

Fellow-Cilizens 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 affection-

the 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 HiIsToRY 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 econ-

may 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 execulive 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 sor the station in which I am placed

THE JupicraARY AcT oF 1789 153 may during my continuance in it be limited to with opportunities for deliberating in pertect

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 youmy 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 conspicupresent 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- apn circuit. That the eastern circuit shall con-

ganization of the judiciary to the discrction of ; Le . Congress. The framework of the Amcrican ju- sist of the districts ol 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, Delaportance in devcloping 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 Court; | S. E. aoe Supe AneC of SUPLEINLE South Carolina and Georgia; and that can JUuaiciary, . arren, Our ° .. in United States History, 1928 ed. Vol. I, ch. i. OE ed ete ee mo eat 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 exSrc. 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 inSec. 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 casc 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 manhave 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 belween a state and citizens of other under the same regulations, and the writ shall states, or alicns, 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 DesBrts 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 shall 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 te for the assumption of the State dcbts 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 — »omorialists apprehend must in the course debt. The Virginia remonstrance was dralted 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 ex-

In the House of Delegates, Sauce of American liberty. |

Thursday, the 16th of December, 1790. re General ssembly pest by various

other parts of the said act which they appre-

The 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 applics 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 ncither 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 shicld it from into the hands of the exccutive, 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 clous 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. 93. HAMILTON’S OPINION ON THE CONSTITUTIONALITY OF THE BANK 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 nationa] — in its nature soverezgn, 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 attain1791. _ Washington, doubtful of the constitu- ent of the ends of such power, and which Jefferson, and Randolph to submit written are not precluded by restriclions and eXCEPopinions on this question. For Jefferson’s opin- ons 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 gq proposition so clear, as that which affirms subsequently adopted by Marshall in his deci- that the powers of the federal government,

tionality of the measure, requested Hamilton, a,

asnington acceptc arg ; . ‘ . . : .

ea re case on i 6 eons ve arlene as to its objects, were sovereign, there is a signed the bill, February 25. On the First Bank. «aus of ne Constitution which would be see, M. St. C. Clarke and D. A. Hall, Legislutzve CCISIVE. ( is that which declares that the and Documentary History of the Bank of the Constitution, and the laws ot the United 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 gencral 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 Jegal or artificial capacity to one or more there be anything in the bill which is not persons, distinct from the mazural. 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 re/atzon 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

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 af 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 pohtical 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 implied 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 asa power of or in any department or o ficer 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 ¢est 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 ature 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 wézlity.... 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 legislaitzve tained in a constitution of government, espepower to regilate 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 meces- 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 HISTORY exercising the authorities intrusted to a gov- clause, can have no restrictive operation derernment 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. lt 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 mdependent 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 auxiliary 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 conslitulional 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 compre-

safely 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, Lo the satisfaction

the decision; Docs 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. ... prictor 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 inhcrent in, and inseparable from, the that all the specified powers of government

idea of sovereign power. are sovercign, as to the proper objects; that

3. That the position, that the government of the incorporation of a bank is a constituthe 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, in this respect, are illdoes not militate against this principle. founded. ... 4. That the word mecessary, 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. III, 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 mortmazn.

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 forfezture 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, is 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 nztions, 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 general 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 weilare 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 sub-

public. 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 judiciary; 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 octaniished that Constitution. They might

English creditor, to secure compensation from h d th I ; Georgia for property confiscated during the ave announce 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. important question now before us, by the Under this provision, could a citizen sue 2 (Constitution of the United States, and the State in the Federal Courts? That this clause legitimate result of that valuable instrument. authorized such suits against States was denied Under this view. the question is naturall in the debates in the Virginia ratifying Con- subdivided into two others. 1. Could the

by Hamilton in the Federalist, and by Madison oe . , q y

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 jin the practice, and even in the science of court.” (Elliot's Debates, 1861 ed. Vol. Ill, p. politics, there has been frequently a strong 933.) Yet in this case, the Supreme Court 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 ot 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 . . . é

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 Judiciary, 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. 11; 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 at-

tract and arrest our principal attention. This,

Witson, 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, lanUnited 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, himstill; 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 sovereign 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 HISTORY 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 con-

the 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 pcople, 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 nalr... 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 “ncutrality” 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 France 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 gtills 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 Pennsylvania ; and in which it could be transported economically , Whereas the said combinations, proceedto the coast. The dissatisfaction of the west was 42g 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 jnfluence 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 opposition by misreprePennsylvania; H. Adams, Gallatin, p. 86 ff.; W. Findley, History of the Insurrection in the sentations of the laws calculated to render Four Western Counties of Pennsylvania; Pro- them 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 prophandling of the situation in his Sixth Annual erty, and to compel those who had accepted Message, Richardson, ed. Messages and Papers, sych offices by actual violence to surrender

Vol. I. p. 162 it. or forbear the execution of them; by circuBY THE PRESIDENT OF THE UNITED STATES ang merce 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 HisTorRy 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 to 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 mecessary 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, com-

to 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 Iam_ 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 viso above recited, 1, 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,” ll 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 probinations 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 for slaves carried away during jurisdiction of any of the said posts. All the Revolution. In addition to these grievances, settlers and traders, within the precincts or arising from interference with neutral trade. jurisdiction of the said posts, Shall continue War seemed imminent in 1794, when Washing- to enjoy, unmolested, all their property of ton nominated Chief Justice John Jay as envoy CVCIY 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 cel] their lands, houses, or effects, or to recertain features profoundly unsatisiactory tO tain the property thereof, at their discretion;

of old standing, there were more recent ones 4. 4...

the majority of Americans. Washington hesi- h of th hall tj t ‘d

tated some time before sending it to the Senate sucn ° eM as sila continue to resiee

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-xii. A thor- and they shall make and declare their election

ough history of the Treaty is 5S. F. Bemis, within one year after the evacuation aforeJay . Preaty. The full text of the adjudications .aiq. And all persons who shall continue there edited by J. B. Moore, International Adjudica- aiter the expiration of the said year, without tions, Vols. I-IV. The question of appropriations having declared their intention of remaining

provided for by Articles 5, 6, and 7, have been . . .

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 citiHouse. 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, A.84 Johnston, Ora; heIng Indi ‘d tions, Vol.see I, p. ff. alsoed. to American t e indians dwe ondwelli 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 frecly 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. Il. 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

{66 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 belongy proceed 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 govern-

river 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 1s 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 thercby 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 ware' Fast-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 manufac-

States 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 Jation. 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, nage 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-lrade. Neither is this article to be articles in British or in American vesconstrued 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 hberty 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 respec-

and 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 thcir suffering inreside there, without any limitation of time. juries by the men of war, or privatecrs 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 prop-

the 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 RevoluUritain to give to the United States the right to tion.

yiavigate the Mississippi, closed that river to . Americans. Other matters of dispute between the ART. I. THERE shall be a firm and inUnited States and Spain concerned the bounda- Violable peace and sincere friendship beries 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 = oy places.

unsuccessful in 1781 and again in 1785-6. In the ART. II. To prevent all disputes on the early seventeen-nincties western discontent grew subject of the boundaries which separate

alarmingly and intrigues looking to separation oar . . 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 jJune-

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 ll 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 friendship

exist between the two contracting parties THOMAS PINCKNEY, and the said nations of Indians, it 1s 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 altera-

himself 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. See, 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- Furewell Address; J. C. Fitzpatrick, George mirers claim that he was principally responsi- Washington Himself, ch. xxii. 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 History 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 contrust, 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 naThe 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 vari-

monishes 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-

WASHINGTON’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 i, 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 specula-

it 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 itseli affecting all parts of our country, while exis unequally adapted. The Hast, 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 may manufactures at home. The West derives. disturb our union it occurs as matter of from the Hast 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 JVestern—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 misrepresentations; 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 ethcacy 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 alli-

peace by foreign nations, and what is of ances in all times have expericnced. 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 en intimate union and by the same governments, which their own for the efficacious managenient 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 attachmerits, 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 HISTORY 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 parly 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 principies, however spe- the government itself through the channels slous the pretexts. One method of assault may of party passion. Thus the policy and the

he 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 be directly overthrown. In all the countries are useful checks upon the ad-

changes to which you may be invited re- ministration of Lhe 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 govern-

ments as of other human institutions; that ments of a monarchical cast patriotism mav expericnce 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 stilution 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 1s 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 dis-

though 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 ungencrously throw-

by 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 iter 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, inof 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 intractab!e 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 césbursements 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 enmitics. 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 (who 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.

phances 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- forcign 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 prospcrity 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 stecr 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 sce 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 ob-

influence 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 tem-

The 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 perféct good faith. Here should hold an equal and impartial hand,

Jet 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 forccontroversics, the causes of which are es- ing nothing; establishing with powers so dissentially foreign to our concerns. Hence, poscd, in order to give trade a stable course, therefore, it must be unwisc 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.

Tor 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- compctent abililies will be consigned to obtion of its independence for whatever it may livion, as mysclf 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 yel 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 crror 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 mysclf 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 Y Z correspondence raised among the Fed- 1. Tue Naturarization 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. I, p. 566 ff.)

Alien anddirected Sedition Acts. Theagainst animus of these An Act s rs to and to amend the acts was particularly a group supplementary

of anti-Federalist editors and pamphletcers of act, méiuuled “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 jurisdiction of thenever federalcame courts,before but f thethe United States. or of ; tat less the question of validity ° any Stabe, UNICSS

; ...in 1812 he shall have declared hisCechare intention to courts, though the supreme court ruled Cs u ave ; s tion Lc that the federal courts do not have common Dccome a citizen of the United States, five

law jurisdiction in criminal cases. Though the Years, at least, before his admission, and shall, Alien Acts were never enforced, a number of at 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. Sec, 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- - Peer ports, 1912; C. G. Bowers, Jefferson and Ham- tory where, or for which such court is at the ilton, ch. xvi-xvii; J. S. Bassett, The Federalist time held, five years, at least, besides conSystem, ch. xvii; J. F. Mc Laughlin, Matthew forming 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 surety, 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... .

... dud provided also, that no alien, who

shall be a native, citizen, denizen or subject 2. ‘THe Atten 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. Statules 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 shali

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 coilector 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 enucted, 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

THE ALIEN AND SEDITION AcTS 177 for such time as he shall judge proper, and at __— strained, secured and removed, as alien ene-

such 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 i more sufficient sureties to the satisfaction of _ who shall become liable, as aforesaid; the the person authorized by the President to marmner 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 Sepition Act alien who may or shall be in prison in pur- July 14, 1798

suance of this act; and to cause to be ar- yo

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 An Act in addition to the act, entitled “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 in-

opinion 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 vears from the passing any person or persons, with intent as afore-

thereof. said, shall counsel, advise or attempt to pro3. Tur Auten ENEMirs Act cure any insurrection, riot, unlawful assem-

July 6, 1798 rs °r combination, whether such consparacy, ireatening, counsel, advice, or attempt sha

(U. S. Statutes at Large, Vol. I, p. 8774.) have the proposed elfect or not. he i. ‘hey

An Act respecting Alien Eneinies. 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, shall be liable to be apprehended, re- procure to be written, printed, uttered or

178 DOCUMENTS OF AMERICAN HistToRY 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 elther 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 I. eee RESOLUTIONS Kentucky Resolutions were drafted by Jefferson, ovember 16, 1798 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 dralted by Madison, and introduced by posing the United States of America, are not John Taylor of Caroline. These resolutions repre- . ee . sented not so much a constitutional as a social united on the principle of unlimited submisphilosophy: they were drawn up with the primary S10 to their general government; but that purpose not of presenting a constitutional theory Dy 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 resoived 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 8OVernment assumes undelegated powers, its to decide this question. The resolutions of 1798 acts are unauthoritative, void, and of no drew forth replics from several states; sce Doc. force: That to this compact each State acNo. 104. On the resolutions, sce E. D. Warfield, ceded as a State, and is an integral party, its The Kentucky Resolutions of 1798; N.S. Shaler, ¢o-States forming, as to itself, the other Kentucky, ch. x; C. W. Loring, Nulhfication, party: That the government created by this

ane has oe ro ae ea. Oe compact was not made the exclusive or final c Hunt, James Af adison; Ir. P. Powell, Nullifi- judge of the extent of the powers delegated 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 Federal 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, is 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 delcgated are reservea, 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 cescriber

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-

(his 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 instru-

out 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 bea 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

Lhe 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 hin, 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 govern-

magistrate 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, VIL. Resolved, that the construction ap- or prosperity of these States: And that, thereplied by the general government (asisevinced 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 concern-

of 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 con-

tion 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 ir 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 seiz. cannot 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 Federal, 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 _in2. Vircinta RESOLUTIONS evitable consequence of which would be to

December 24, 1798 eae present republican system of (Elliot’s Debates, 1861 ed., Vol. IV, p. 528-529) best, eg monarchy. an absolute, or, at 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 meéasof 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 or 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 tablishment 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 uf 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

Toe KENTUCKY RESOLUTIONS OF IL799 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.) he unfavorable character of the replies of cussion and judgment of our fellow-citizens various States to the Resolutions of 1798 led toa throughout the Union. Whether the lke 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 to obvi

tions, but added a resolution asserting that nulli- © cemled oF atemprec *0 © viate the great fication by the States was the rightful remedy truths contained in those resolutions, we have with which to mect infractions of the Constitu- 20w only to submit to a candid world. [*aithtion. 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 Madison was chairman. The report of the com- harmony of that Union, and anxious only to

mittce, drafted by Madison, can be found in escape the fangs of despotism, the good

references, see Doc. No. ee Lest, however, of censure102. or calumniation.

Madison’s Writings, cd. by G. Hunt, Vol. VI. For people of this commonwealth are regardless

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 powcr 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 solification of those sovereignties, of all unau- ever offered, tu 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 from a 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 az precedents for similar future violeion, 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 replied to the the authority of deciding on the constituVirginia and Kentucky Resolutions, disavowing, tionality of any act or law of the Congress w.th varying degrees of indignation, the constl- 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- to assume that authority would be— judiciary rather than the Icgislative is the proper Ist. Blending together legislative and judibody to pass on the const:tutionality of Congres- cial powers;

ing because of the general assertion that the ar 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- tyres: 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 RHOvE 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 ca-

1. 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 cf 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. queacies 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-

2. New Hampsuire RESOLUTION ON THE edly be, that those acts are constitutional, Vincinia AND KENTUCKY RESOLUTIONS and, in the present critical situation of our

aan 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 Genera] 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 cred.t. The result tucky river,” there shall be four land offices was somewhat unfortunate: the cred:t system en- , . ; . couraged speculation and made collections diffi- established in the said territory: one at cult. It was discontinued by the land act of 1820, Cincinnati... one at Chilicothe . . . one Doc. No. 122. See, P. J. Treat, The National Land at Marietta... and one at Steubenville. System, 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 elther 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 prescribed; ... three last payments, which shall be paid Sec. 5. That no lands shall be sold by before the same shall become due, .. . 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 same by all within forty days after the sale, the deposit, purchasers, either in specie, or in evidences payment and fees, paid and 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 Icss 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....

March 4, 1801 |

106. JEFFERSON’S FIRST INAUGURAL ADDRESS (Richardson, ed. Messages and Papers, Vol. I, p. 322)

This address is a classic exposition of democratic toward me, to declare a sincere conscious-

philosophy, 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 awful presentiments which the greatness of the United States During the Administration of the charge and the weakness of my powers Thomas Jefferson, Vol. I, ch. vii. For Jefferson, . of, , see biowraphies by H.S. Randall, J. Parton, A.J. 80 justly inspire. A rising 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 ana 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 Iederalists. 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 1s 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 goveign 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?

cussions and of exertions has sometimes TI 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 mect 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 hime 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 mankind 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 bilter 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. | 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, burthencd; 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 mucn 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

May 1 requesting Livingston to ascertain the the cession of it to us the price of someterms upon which | France would sell New Or- thing of more worth to her. Not so can 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 Chery and rest“marry ourselves to the British Acet and nation” lessness of her character, placed in a point rather than see France control the Mississippiand Of eternal friction with us, and our charthe Gulf. For reference see Doc. No. 108. acter, which, though quiet and loving peace

leans and the Floridas to the United States. At . .

, , 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 wil] 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 France, 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 th:ngs 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 {airs 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 naus 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

. - oo ee ‘ee x eS 439. " ae oot Catholic Majesty promises and engages on

ey OF Obsback Maeronso, Spain ceded tals terhis part, to cede to the French Republic, six ritory to France. This substitution of a . . powerful for a weak neighbour along the Mis- months al ter 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 subsequently 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. I, 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 M ississip pi Question, 1795-1803; J. K. Hos- States, in the name of the French Republic,

mer, The Lousiana Purchase; S. F. Bemis, - forever and in full sovereignty, the said terAmerican Secretaries of Boundary, State, Vol. II, P. Ht. ritory with all its rights and appurtenances, For the Louisiana T.9M. Marshall, History of the Western Boundary of the Louisi- 8 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 wouisiana 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 pro-

edifices 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 irom 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. ILL. 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 dlFederal 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 in the 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 MarsHati, 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 complete exposition of the principles on commission was not delivered, and President Jef- hich th be 3 by th . ferson instructed his Secretary of State Madison WC the opinion to be given by the court 1s

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 com-

issue a writ of mandamus. On the first question mission he demands? Marshall declared, in what is generally considered 2dly. If he has a right, and that right has obiter dicta, that the President had no right to been violated, do the laws of his country afwithhold Marbury’s commission. On the second, ford him a remedv?

Marshall decided that the provision of the Judi- y 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 4 mandamus 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 when a commission has been John M arsh all, Vol. II, ch. My E. 5. Corwin, signed by the President, the appointment is

The Doctrine of Judicial Review; A. C. Mc- ar

Laughlin. The Courts, The Constitution and made; and that the COMMISSION 1S 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 HtisToRy 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. appo:ntment; 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 p!ain 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. ist. 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 tu 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 h)ldact by his authority and in conformity with ing office, under the authority of the Umted

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 as-: litical 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 morc 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 princip‘es 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 tc be transcended by those departments. have proceeded further than to have defined The government of the United States 1s 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 forgolwithout 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 lim:ted, and to what purpose give this court appellate jurisdiction, where is that limitation committed to writing, i the constitution has declared their jurisdic- these limits may, at any tume, be passed by tion shall be original; and original jurisdic- those intended to be restrained? The listion 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 contcsted, 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 writ: United States; but, happily not of an in- ten constitutions contemplate them as formtricacy proportioned to its interest. IL 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 peop!e 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 History 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 con-

It 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 each 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?

tormably 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 paraniount 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, suffiwhich 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 agrecably 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 Icgislature. Why upon him, and cannot be inspected by

otherwise does it direct the judges to take an hime | oath to support it? This oath certainly ap- If such be the real state of things, this 1S

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, is 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 constitulion 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 terrispiracy. The message below contains a more tories of a power in amity with the United detailed account of the information upon which States, with the measures I have pursued for this proclamation was issued. Burr had sur- suppressing the same... . rendered to the acting Governor of Louisiana C bi vn the lat rs b Territory January 17, 1807, but subsequently at- ome time in the latter part ol september tempted to escape, only to be apprchended and I 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 United States, Vol. III, chs. x—xiv, xix, and W. F. Burr, heretofore distinguished by the favor McCaleb, Aaron Burr Conspiracy. An account of his country. The grounds of these intima-

of the trial is in A. Beveridge, Lije of John tions being inconclusive, the objects uncery Penton Vian ne chs. virix, For Burr, see tain, and the fidelity of that country known

» Parton, “anon OU 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, bie, to wit, the settlement of a pretended purunderstanding, and discretion entire confi- chase of a tract of country on the Washita dence could 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 Lo 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- all 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 cmolument 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 te 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 Ictter, .. . 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 clsewhere, 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 _ first regular arrest should take place here, process, as its functionaries may direct. The and the course of proccedings 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 that “the importation of such persons as any of place within the jurisdiction of the United

Soe ttt ced by the Conmvoss prior & een States, nor shall cause any ship or vessel to 1808. . . .” In his Sixth Annual Message, Decem- sau rom any port or place within the same, ber 2, 1806 (Richardson, Vol. I, p. 405 ff.) Jef- °° the purpose of procuring any negro, mu-

ferson wrote, “I congratulate you, {ellow- 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 aulhority 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 ves-

on the unoffending inhabitants of Africa.” Bills go) shall be so fitted out for the purpose

to prohibit the importation of slaves were J¢ pecaid or shall be caused to sail so as

promptly introduced into the House and the y “ » 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 scize, take, found, from and after the first day of Janu- and bring into any port of the United States ary, one thousand cight 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 Indices: 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 {ral commerce were aggravated by the British Britain having failed, the Unitcd 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 Eryskine having given assurances 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- IJ. 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 tg England, to an Englishman, or in the Engforce. This Act, however, expired in 1810, and ji 9, language, shall not pass through the postNathaniel Macon, Chairman of the Foreign Af- 66 d shall b zed fairs Committee, introduced the bill known as onice and sna C selzed.

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. The trade in English merchandise is

response to the proffer of the Macon Bill he forbi .

would revoke all obnoxious Decrees, was accepted [orbidden; 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- cared good prize by the preceding articles, stances English opinion demanded a revocation chal be applied to indemnify the merchants of the Orders in Council: at the critical moment, for the losses which they have suffered by in May, 1812,and Prime Perceval the capture of merchant vessels by English assassinated, the Minister revocation did notwe actually

take place until June 23—too late to avoid war. CTUISETS.

The literature on commercial warfare of these Vil. No vessel coming directly from Eng-

years 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. Ill; 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. II, IV. Numerous documents are clase by means of a false declaration, shall

given in M. Carey, The Olive Branch, 10th ed.sce be seized. andCATBO the vesselCOnNSand > f, For political and diplomatic background H. - ane’ Adams, History of the United States, Vols. IV-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-iil; J. Shouler, shall be charged with the definitive adjudicaHistory of the United States, Vol. II; i. Adams, tion of the said controversies, which may Albert Gallatin; W. E. Dodd, Nathaniel Macon; arise within the extent of our kingdom of

biographies and On the Ital B constitutionality ofof theJefferson Embargo see U. S. v.Madison. y:

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. I, 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, THe BERLIN DECREE the barbarism of the English maritime laws. November 21, 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 Councit neutral vessel coming from any such port, January 7, 1807 and destined to another such port, to discon-

a . tinue her voyage, and not to proceed to any

(American State Papers, Foreign Relations, such port; and any vessel, after being so

Vol, IIT, 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 tomake 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 procecding 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 contro] 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: uctualiy 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 colonics, together with all goods and mcr- 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 thercin, 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 encmics, 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 aftorded for the arrival of

information of this his majesty’s order at any 4, Tue Miran 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 ils cleared, bound to any foreign port or place; king, and to have become English property. and that no clearance be furnished to any

Art. IJ. Whether the ships thus dewa- 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 rev~ privateers, 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 procecding to notified of this act. | | ,

England or to the English colonies, or to Sec. 2. That during the continuance ot

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 either with or withAn Act to interdict the commercial mter- 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 . . . And if 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 olf 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 HISTORY 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 Ramsouitter 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 Bitz, 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 tw 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 depend-

den, ... follows:

officers or crew thereof, is hereby forbid- encies: We have decreed, and do decree, what

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’amoriissement. ) 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 \-a-ate a contract thus formed, and to annul a new legislature annulled the act of 1795 on the rights acauired der that t by third ground that it was passed fraudulently. The cele- 5 quired, uncer mat coh ract, y thir brated case of Fletcher v. Peck involved two persons having no notice of the Improper major constitutional questions: the interpreta- Means by which it was obtained, is a ques-

tion 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

he Anke hich te Supreme, Court HG patiuar inducements, operating on men Beveridge, Marshall, Vol. III ch. x; C. H. Has. P&S rae aooe een ee swe eootac of a state,

kins, The Yazoo Land Companies. topower, the ormation ° a contract by that are examinable in a court of justice. MarsHaLt, 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 grantor, 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 isa 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 sovercign 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 Jegis- 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, 1f 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 lar 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 two

MapiIson’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 executcd 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 opcration, the exception sert that right. A party is, thercfore, 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 stale of Georgia was restrained, either by comprehend the latter as well as the former. gencral 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, 812.see an ioe he nite er the of theates, war in ETT which Great war, fF.ciplomatic ams, f1zslory o e1803 Unite 14 Britain is

Vols. V-VI; on the political background, J. Pratt, engaged a nd foie ae unrepaives wrongs of

Expansionists of 1812. It was long charged that agnitude, t © con uct of her Govthe War Hawks forced Madison to recommend a ernment presents a SCTICS 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 repea! 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. . ce _

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 I 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- guid require a voluminous discussion NothHampshire. George Cabot of Massachusetts was Ing more can be attempted in this report than President of the Convention; among its mem- 2 general 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

necticut, Rhode Island, Vermont and New . ; , :

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 in one arriving just afler the news of Jackson’s victory at New Orleans and the Treaty of Ghent, section of the Union, the controul of public abandoned their mission. On the Convention see #airs in perpetual succession. ‘To which pri- Theodore 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.

Eighthly.—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, be 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 it an instrument of amount so paid into the said treasuries to be

coercion and war. credited, and the disbursements made as But it is 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 herea{ter 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 succesto 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 pre-

Oe G00 setting aside the Bank bonus of sented to me entitled “An act to set apart

$1,500,000 as a permanent lund for internal im- and pledge certain funds for internal improvements. The bill passed Congress February, 9 1817; Madison’s veto was his last official act. provements, and which set Ss 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 Nationa! Canals, and improving the navigation of

Land System. water courses, in order to facilitate, promote, and give security to internal commerce among

Marcu 3, 1817. the several States, and to render more casy Lo the House of Representatives of the and less expensive the means and provisions

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 “Lo 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 amiong 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 courscs, 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 secing 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 betwcen the General and the State have the effect of subjecting both the Con- Governments, and that no adequate lundstitution 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, . tv the same wisdom and virtue in the nation anything in the constitution or laws of any which established the Constitution in its acState to the contrary notwithstanding.” Such tual form and providently marked out in the @, 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’CuttocH Vv. MARYLAND © 213 117. THE RUSH-BAGOT AGREEMENT April 28, 1818 (Malloy, ed. Treaties, Conventions, etc., Vol. I, 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- vessel not exceeding like burden, and armed tions” Johns Hopkins U. Studies, Ser. XVI. , force. with like

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 no-

ernment 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 atax upon be considered as an open question, entirely the notes of all banks not chartered by the State. ynprejudiced by the former proceedings of M'Culloch, cashier of the branch Bank of the the nation respecting it. The principle now United States at Baltimore, refused to pay the d ; duced at ; tax, and action was brought against him by the conteste was Intro uced at a very car y 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 ions, and one of the most important in con- ous , struing the powers of the National Government. constiMution, to consider that instrument not See, A. Beveridge, Marshall, Vol. IV, p. 282 ff.; as 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

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 propmade in this cause is, has Congress power to osition. The convention which framed the

incorporate a bank? 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 sudown 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 naone 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 ali. 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, is 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, notwithstand-

tion, and bound the State sovereignties.... ing.” ... Lhe 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 in-

ernment 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 deThis 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’CuttocnH 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 is 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- Iected and expended, armics 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 would 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 a 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 er “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 necespretended 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 another? 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 emp!oy 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 “wecessary 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’CuLLocH 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 heing 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 atten. more mitigated sense—in that sense which _ tive consideration bestowed upon this clause cémmon 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 section 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 casc 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 confiding 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 indis-

powers, 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 HiIsToRy 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 exccuting 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 Vv. 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 pur-

CONFIDENCE. 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 inthe 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 de-

The 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.

4 Wheaton, 518 |

119, TRUSTEES OF DARTMOUTH COLLEGE v. WOODWARD 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 IH]. In cyeated. The charter is granted, and on its 1816 the State of New Hampshire altered this faith the property is conveyed. Surely in this charter, and organized, under theThe new old charter, @ transaction every ingredient new board of trustees. board of trustees vo . 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 °" mw the den . Its Significance, that the word “contract,” in its broadest

harl iver Bridge v. Warren Bridge . , . ese

joweve#s was immed bY tae decision O1 the court conse, would comprehend the political rela-

Me Doc No. 15s. There is a voluminous liters. tions between the government and Its cititure on the Dartmouth College case. See, 2€NS, 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. I; and the good government, the public judgment must il uminating 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 re-

specting divorces. That the clause in the con-

MarsHALt, C. J.: stitution, if 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 fuéion, 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 dlislimitation, 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 com-

strain 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 vo be employed A corporation is an artificial being, invisiin the administration of the government, or bie, 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. Vet 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 a 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 reinstitution, incorporated for the purpose of main the same, shall create a particular ex-

perpetuating 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- _latures. 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 mm- 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 contro! 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 trustees

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 apthe 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 perpetuate themselves, are 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 Fone the eps iatification man chon to secure Sea: All the islands in the Sabine, and the the revolting Spanish Colonies On the Treaty, said Red and Arkansas Rivers, throughout see H. B. Fuller, Purchase of Florida: T M lhe course thus described, to belong to the Marshall, Western Boundary of the Louisiana United States ; but the use of the waters, and

1,‘.t.

Purchase; S. F. Bemis, ed. American Secretaries the navigation of the Sabine to the sea, and

of State, Vol. IV, p. 7 if. of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to

. - . Art. IT. 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 sissippi. 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 en joyment of all the privileges,

this article. ... rights, and immunities of the citizens of the

Art. 111. The boundary line between the United States... . two countries, west of the Mississippi. shail ArT. Xl. 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, by a line 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, and running 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 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 ur 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

Tue MissourRt 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 he 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. Tur Tavtor AMENDMENT

passed theand House in the Senate. That January summer fallbut thefailed Missouri question was the y26, 49,1820

chief political issue before the country; Congress (Annals of the Congress of the United States, was bombarded with pctitions from State leg'sla- 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 {he 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. application . het follow; ae provision. Maine for admission as a StateThe offered Congressoftion e 0 Ow1ng

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 aDOr OF Service Is awl y Claimed In any worked out a solution to the problem which was other State, such fugitive may be lawfully provided in the Resolutions for the admission of reclaimed, and conveyed to the person claimMissouri 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

by proclamation of August 10. On the Missouri or civil rights of any person now held to Compromise see F. J. Turner, Rise of the New service or labor in the said Territory,”

West, ch. x; H. Von Holst, Constitutional and Political History of the United States, Vol. I, . 324 ff.; J. B. Mc Master, History of the People

of the iinsted States, Vol. IV, ch. vin: FC. 3. THE THomas AMENDMENT

Shoemaker, Missouri’s Struggle for Statehood, February 17, 1820 1804-1821; J. A. Woodburn, “Historical Sig- (Annals 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 nec, Ror, 12: free, Soe #8 Suates, under the name of Louisiana, which ments on Federal Relations, p. 193 ff.; C. R. lies north of thirty-six degrees and thirty King, Life and Correspondence of Rufus King, nutes 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 TarpMApGE 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 4. Missourr Enaptine Act of the United States, who shall have arrived

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 la-

lel 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 CoNSsTITUTION 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 Src. 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 Terrisissippi 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

LAND 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 slavesto 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;

Missouri 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. Statuies 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

System, 1785-1820; T. Donaldson, The Public ey 1 ’. at irom and after the first day

Domain: its History with Statistics. or July next, the price at which the public

Jands 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 it 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 all 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 aforeland sold at public sale thereafter, shall, on said; ...

228 DOCUMENTS OF AMERICAN HISTORY 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... . tor selling lottery tickets in violation of a Vir- The jurisdiction of the Court, then, being ginia statute. The defendants claimed the Pro- extended by the letter of the constitution to

tection of an act of Congress of 1802 establishing all _ der j F he | a lottery, but they were convicted and fined in the un CASES arising UNCeT i or under tne ‘aws

Virginia Court. The defendants sued out a writ of the United States, it follows that those of error to the Supreme Court under Sec. 25 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. 1V, 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.

MARSHALL, C. J... . Ist. 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 (ion 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 Ameriagainst 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 with-

tween 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 Vv. 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 jurisdiclion 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 gencral 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 enumcration of those cases to which the juris-

the great purposes for which they were so diction of the federal Courts is extended, in conlided, 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, is 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 lo 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 th:s 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 tribu-

Courts 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 therefore 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, Jaws. 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 per-

a 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 be 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 11th amendment, it is not a suit comwould be mere surplusage. It is to give juris- menced or prosecuted “by a citizen of an- | diction 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 2d. 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 subordicannot 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 legislaturer 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. If be empowered to decide on the judgment of this hypothesis be just, the argument founded 4 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 1t. 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 conment 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 coning these objects, legitimately control all in- stitution, laws, and treaties of the United

232 DOCUMENTS OF AMERICAN HIstTorRy 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, agd 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 (Keports 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 liberal-zing of the constitutions of the debts charged thereon. The governor has seaboard states, resulting in part from the demo- —_ peen chosen by the same electors, and we

cratic influence of the new western states. The pave hitherto elected citizens of elevated proposal to abolish the property qualification rank and character. Our assembly has been

for suffrage in New York State aroused intense 14.

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

Spencer and Chanccllor 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 prop-

aon of P ontical, oe id Rigs iw erty distinctions and to bow before the idol OMI MINUS 1a, Re Nowen's, Avew Fork, of universal suffrage. That extreme demo-

Sluie of on Yok Vel On kata, Wey cratic principle, when applied to the legislaCurtis, James Kent; W. Kent, Memoirs and Let- tive and executive departments of the gov-

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 and hazardous experiment of remodelling flatter ourselves that we are a peculiar people,

the constitution. Is 1t not fit and discreet: I who can run the carcer of history, exempted speak as to wise men; is it not fit and proper from the passions which have disturbed and thal 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 whicn 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

MonROE’sS 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 estimaic 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 1 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, manulactures,

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 dic 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 sulfrager The to tyrannize over the minority, and trample radicals in England, with the force of that down iheir rights; in the indolent and profli- mighty engine, would al 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. cnough to startle and awaken those who are It requires a vigilant government, and a firm pursuing the JGNJS FATUUS of universal

administration of justice, to counteract that suffrage... .

125. MONROE’S VETO OF CUMBERLAND ROAD BILL May 4, 1822 (Richardson, ed. dlessages and Papers, Vol. Il, p. 142 ff.) A detailed and comprchensive 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 Cumberland Read Bil canbe found in the Pave" the bill to the House of Representatives, in p. 144-183. See, J. S. Young, Cumberland Road: wee it originated, under a conviction that P. J. Treat, The National Land System; F. J. ongress 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 or 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 denta] 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 post-

under 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, menced, and has been so far executed. Iam from the power to make all laws necessary of opinion that Congress do not possess this and proper for carrying into execution all the power; that the 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 uniled, 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 contains a sucanct Can- embrace private and Confidential ing’s20 position, butstatement it didofnot recogni- . tion of the Latin American Republics. For this My dear sir:— Before leaving Town Tam reason, and because Secretary Adams felt that desirous of bringing before y Ou in 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

THE MonNRoE DOCTRINE 235 discussed the last time that I had the pleas- by conquest; such a declaration on the part

ure of sceing 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 aition 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 it?

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 J 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 Monror Channing, Hart and Turner, Guide to the Study Doctrine” in Massachusetts Hist. Soc. Proceed- ° and 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 voe 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 DocuUMENTS 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 resid’ng 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 ily at the time of their recognition, and to cond-tion 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, extraord-nary 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 satisfac-

- the 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 govern-

It 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 sysem no senator or representative, or person hold-

aroused widespread discontent, and the defeat of _ . cA f trust fit q h Crawford, the choice of the rump caucus of the ne an othce OF trust Or pro under t

; United States, shall be appointed lector

Republican Party in 1824, marked the death of tates, shal de app ed an Cieclor.

“King Caucus”. The caucus system of nomina- From this provision, it is apparent that the tions was supplanted by nominations by State Comvention 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 disqual-

vl Waele for Elective Office in the United ified from being placed in a stuation to vote

wes. ’ 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 meet in caucus tice which, on former occasions, has prevailed and mutually and solemnly piedge 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 Ist. A caucus nomination is against the spirit 1825, may be called on to discharge a con- of the Constitution. 2nd. It is both inexpestitutional duty, can, in the year 1824, gointe dient and impolitic. 3rd. Members of Cona 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. 5th. 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 govImpeachments 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, sued to restrain Gibbons from operating steam- empowered to enact laws on the most Inter boats 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

steamboats. This right passed to one Ogden, who h ater.

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 MarsHaL1, 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—lst. 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 _execttion, 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, there-

were 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 1s,

to regulate commerce with foreign nations, we think, furnished by the words of the inand 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 IIIstTory 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 forelgn 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

1s carried on between man and man ina state, sense of the nation on this subject 1s un: or 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 Ba!timore. 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 scem 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 itis not necessary to interfere then, comprehends navigation within the lim-

for 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 use:ess 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 Vv. 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 ot 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 itp... 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 sustain-

slaves 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 HISTORY 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 strucof 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 wumavoidable. ... 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- pals by multiplying and facilitating the comment expense. He proposed to finance such mynications and intercourse between distant projects by carefully conserving the public lands. regions and multitudes of men, are among

Adams himself, while Secretary of State, pre- th tj tant f 3 . pared a monumental Report on Weights and € Most important Means © improvement. Measures, and one of his last public acts was the But moral, political, 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 ff.; F. J. Tur- attainment of the end—the progressive im-

hath nae of ore . ee tation is. piston a provement of the condition of the governed

internal IMPFOV - Us __the exercise of delegated powers is a duty Wheeler, History of Congress, Vol. IL, p. 109 ft. as sacred and indispensable 3s 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 uni- 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 establish.

upon us to inquire whether we are not bound ment ofa 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, if 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 speculatigns on the same One hundred expeditions of circumnaviga- subject since the existence of our Constitution like those of Cook and La Pérouse would _ tion, and with them it has expanded into pro-

not 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 fecling 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 terri131. 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 Papcrs, 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 Solivar; H. Augcil, 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

to the Congress in his message of December 6, In the message to both Houses of Congress 1825. The message of December 26 presents at 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 partic.pation in the Congress. The Government of the United States to be repreproposal to send delegates to the Congress aroused sented at the Congress of American nations Pitter opposition in COMETS: party of a factional to be assembled at Panama to deliberate believed that the objects ‘ot the Congress were upon objects of peculiar concernment to this

inimical to slavery. Though the Foreign Affairs hemisphere, and that this invitation had Committee of the Senate teported 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. Sec. 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. I, p. 329 ff. .; . Other documents are in International American 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. See also, I. B. Lockey, Pan-American- appropriations, without which it can not be ism: Its Beginnings; S. F. Bemis, ed. American carried into effect... .

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 resu‘ting 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 applicab’e 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 bene-icial consequences at ized by experience. The result of this has such a meeting—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 d’s- yet so far under the dominion of prejudice pos:tions 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 shou!d be to any one of the separate Governments. .. . adm ‘tted. 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 pr.nciples of a liberal commercial inter- our disposition to comp!y with their wishes. course should be exhibited to them, and urged Having been the first to recognize their inde-

with 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 tue extent of biockades 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 B. 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 pro_the right of the President to call out the militia vide for cases of imminent danger of invaChief Justice of the Supreme Court advised the “!0% 48 well as for cases where an Tvasion 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 if it 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 ; . :

Orie arene of oe he USA effectuate 1s, ve ch.S.xxl; H.we ams, History o to é Unite ns the object. States During the Administration of James Madi- t ‘th fs he power ths contded by Conere in son, Vol. VI, ch. xvi; T. Roosevelt, Gouverneur 0 tne Tes! ent Is doubtless of a very high

Morris. and delicate nature. A few people are naturally 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, being 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 is 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 na-

In 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 aci 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 HicH ScuooLt 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 Massachusetis, January session, 1827, ch. cxlii) 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- oy householders shall be provided with such

however The Taw was not ace daily ore teacher or teachers for such term of time as

; . shall equivalent tointwenty-four months, of the Massachusetts Board of be Education, ..

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 each year; and every town or taining four thousand inhabitants, such masdistrict 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 Ilrstory 134. AMERICAN INSURANCE COMPANY vy. 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 will 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 Florida. The plaintiffs The Constitution confers alleged that theofterritorial court which ordered - absolutely on the the sale was not a legally constituted court be- S0VErnment of the Union the powers of makcause the acquisition of Florida by the United 8 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. See A. Bever.dgze, 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-

ed.) Vol. 1, 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 Poimt @ such as its new master shall impose. On such Petre was wrecked on the coast of Florida, the trans‘er of territory, it has never been held cargo saved by the inhabitants, and carricd that the relations of the inhabitants with each into Key West, where it was so!d 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 Leg:slature 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 genera] 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. a 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 cons stent with the principles validity has been denied, on the ground, that of the federal Constitution; and admitted tu 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 acrecord. shat 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

Tue §. 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 is de.ined 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 ol 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 Point 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, TILE SOUTIT CAROLINA PROTEST AGAINST THE TARIFF OF 1828 December 19, 1828 (Elliot’s Debates, i861 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, sce, H. V. Ames, State Documents South Carolina Expos:tion, drafted by Calhoun, on Federal Relations.

then Vice-President of the United States. The ; ;

Exposition is in Calhoun’s Works, 1855 ed. Vol. he 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 authoraccomplishment 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, isa 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 on im- 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 Oth. 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 1st 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 disad-

powers, 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 ¢e 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 cighteen 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 fedcrated in 1831. In many , d + “t dj _ respects similar to the Chautauqua movement of ures to Introduce unliormity an ImMPTOve 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 educaucation, 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

tauquas. shall be fitted to young minds; and teachers Constitution of schools may be permitted to use for the

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- AmeERIcAN LycCEUM 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 is highly desirable that an auxheirs or assigns, to one membership forever. iliary 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 ITISTORY proposed by Mr. Horsrooxk are fitted to ing apparatus, and other exercises in relation this object, and that a portion of them would to their schoo's. 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. at. 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 to issue certificates to the treasury, or at any loan-office of the State of amount ofwere twotohundred thousand dollars,IssOurl, whichI Mi discol ftaxes taxeordebts certificates be receivable at the treasury ISC in narge debts d cue of the State of Missouri in discharge of taxes '0 the State. The law .. . also p-edges 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.

lt seems impossible to doubt the intention

MARSHALL, 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 te

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 [n 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 ven-

interpretation 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 9: 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 admon.-tions 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 sha!l 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 pro-

In the argument we have been reminded by _ priety be influenced by them. This departone side of the dignity of a sovercign 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. Afessages and Papers, Vol. II, p. 483 ff.) President J. Q. Adams had supported a policy rendering the claim of jurisdiction. In the of interna] Improvements at national expense, but first view the question of power is an open

ca ratipal many repens ened one, and can be decided without the embar tion. On the veto, sec, W. MacDonald, Jacksonian rassments: attending the other, arising from

Democracy, ch. viii; E. C. Mason, The Veto the 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 b:ll proposing to authorize “ta 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 lo 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 exislence, 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 I 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 ot appropridte 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 principle 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 toe

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. XLII, 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 “It may be, sir, that the politicians of New into national politics. Mr. Marcy, in defending vox are not so fastidious as some gentlemen

Van Buren, announced the notorious doctrine disclosine th incinles on which

that “to the victor belong the spoils.” Though the are, as to disclosing the principles spoils system has been traced back to the Fed- they act. They boldly preach what they praceralist machine in New York politics, this specch 4#ce. When they are contending for victory,

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 successlul, 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

sor in of New Yorn 2 Amsocacy ™ the rule that to the VICTOR belongs the 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 anin- for the use of Georgia, the lands of the na-

dependent nation. Thereupon the legislature of . hich h be ed to th by th

Georgia passed resolutions alleging ownership of on waren fave Deen assur o mem y hae all Cherokee territory and extending the laws United States, Mm solemn treaties repeatedly of Georgia over the Cherokee Indians, and an- made 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 dians with the United mtates government ne uncontrolled possession of an ample domain, ndians constituted not foreign nations but do- gradually sinking beneath our superior policy See, Beveridge, Marshall, Vol. IV, p. 539 ff.; A. our arts and Our arin, 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. 1; and ref- until they retain no more of their formerly

mestic dependent nations in a state of pupilage. .2 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 II1story 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 th:nk 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 Hopewe'l, 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 acknow!mains. 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 compos-ng a state must, take effect in point of possession, when their they say, be a foreign state; each individual right of possess:on ceases. Meanwhile, they

being foreign, the whole must be foreign. are in a state of pupilage; their relation to This argument is impos:nz, but we must the United Siates 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 peopite in existence. In general, and address the president as their prea a nations nottwo owing a common allegiance, are ther. They and their country are considere

CyrEeROKEE 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 lan. attempt 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 ol 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 conventribe. 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 om‘tting 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- difficutty in considering would have suggested itself to statesmen who

them as designated by the term foreign state, considered the Indian tribes as foreign nawere 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, is, at best,

tinguishing either of the others be, in fair extremely questionable. In one article, in construction, appl-ed 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 scparate, 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 History 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 a nation, 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 con-

The 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 seeks 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 denies. 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. Story, J. and Tuompson, J. dissenting.

141. WORCESTER v. GEORGIA 6 Peters, 515 1832

Error to the Superior Court for the County of | Union, 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.

r Il. co 3

warnar nas. mace as Se ineesed nt ra dan The plaintiff is a citizen of the State ot interference with what she considered her sov- Vermont, condemned to hard labor for four 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 Tepug-

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 nup. 66 tf. See also, Cherokee Nation v. State of merous and powerful people, the personal

Georgia, Doc. No. 140. liberty of a citizen, all are involved in the

MARSHALL, C. J. This cause, in every point subject now to be considered. La

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 lst 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 and 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. Ill, p. 171 ff.) Georgia's indian policy, and the failure of Jack- terpretation of the rights of the Indians, led to

upreme Court in its in- the plan of removing the remaining Creeks,

260 DOCUMENTS OF AMERICAN IIIstory 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 fizst pained of their character and habits, and has message to Congress, and in 1839 Congress had been dictated by a spirit of enlarged liberality.

appropriated half a million dollars for the re- A territory exceedine in extent that relin.

moval of the Indians to the west. In 1834 Con- ; y ° nat renn

gress created a special Indian Territory, and by uished 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 xxi; W. MacDonald, Jacksonian Democracy, clothing, arms, ammunition, and other indis-

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 anima‘s,' 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 intergo, 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 quali:ied 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, tined 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 (Séatutes at Large of South Carolina, Vol. I, p. 329 ff.)

The tariif 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 jt no authority to afford such protection, and ation convention consider the tariff: conven- iain the truewos meaning met intoNovember andthe adopted theviolated Ordinance . ; and intent of Nullification. For Jackson’s Proclamation, see of the Constitution, which provides for equalDoc. 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 unt, Calkoun; J. S. Bassett, Andrew Jackson, and accomplishing the specific objects and Vol. II; J. Parton, Andrew Jackson, Vol. ILI; purposes which the Constitution of the rs Bowers, Party Battles of the Jackson Period, United States authorizes it to effect and ac-

a complish, hath raised and collected unneces-

‘ln Ord.nunce 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

ties. 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, empting from taxation certain foreign com- its officers or citizens; and all promises, conmodities, 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 ‘or imposing higher and excessive to secure the duties imposed by the said acts,

262 DOCUMENTS OF AMERICAN HisToRyY 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 vaAnd 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 is 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. II, 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 ficient 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 IIIsTory 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. [t 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 becn 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 incompatible with the existence of the Union, have ended in defeat and d'sgrace, 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 w:th 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 5S. 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... . a 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 falscly 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 Lo 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 objccman 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 ra-s.ng 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 dd 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 coud 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, Impos.s, and excises; in vain of the States, or to show that implication, as have they provided that they shal] 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 execuobject 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 desccnd, 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 HtsTorRy 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 de-

scribes 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

laws 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

JACKSON’S PROCLAMATION TO PEOPLE OF S. C. 267 by the law of self-defense to pass acts for gates to a 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 gtitutional 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 is 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 situationr 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 obone State in the Union have elected dele- ject is disunion. But be not deceived by

268 DocuMENTS oF AMERICAN [IIistTory uames. 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 dutics 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 Tirst 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- Yellow-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: pos.tions 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 BILuy 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 Caro-

state 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 arrogaie 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 erroneous 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 stand-

that 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 hberty 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 Peopte 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 observState; 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

of the bank became the principal issue of the . : need,

Jackson’s rejection of the finality or binding Of our country.

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- o¢ the foreign and domestic exchange. The son Vo 1. Il, chs. XXVUTARVET 5 D. R. Dewey, powers, privileges, and favors bestowed upon

Financial History, ch. ix. 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-

JacKsoNn’s VETO OF THE BANK BILu 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 when-

due 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 elections 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 cilizen or public functionary should 50 per cent, and command in market at least | 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 fifleen 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.

holders 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 II1stTory 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- dine which circumscribes the judicial departlion. 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 improper, 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 afhrmed 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 Coneress; 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 cqurt 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 Concorporating 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 “#ec- tal at will is unlimited and uncontrollable by essary” in the Constitution means “zeedful,” any other power than that which gave au“requisite,” “essential,” “conducive to,” and thority to the Constitution. Yet ths 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 shall 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 law is 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 r.ght 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 oi tution as a means of executing the rest... . executing certain powers delegated to ConThe 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 cannot, 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 really 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 Co'umbia, 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 “#eces- executing other powers i shall not be exersary” 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 olher 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 estabtishing 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 transm't 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 enterIt can not be necessary 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 docs 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 scems 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. III, 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. so 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.” W.waole, On t]tnehole. the considers P ‘de t d1t MacDonald, Jacksonian Democracy, ch. xiii; See, mA tne rresident J. S. Bassett, Andrew Jackson. Vol. II, ch. xxix; 4S 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

THE 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 alter 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 unqualified. 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 reIt 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 HIsToRY | examine the question carefully ...and in motive may lead to the expenditure of hun. his 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 p-oyed 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 committces to deprive the Govern- seen them van‘sh 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 reasonab:e 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 willinzness of the State report from the Government directors, the banks to undertake the service of the GovernPresident 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 wilingness

to acminister, if he did not take every step their own safety in the operation may be within his constitutional and legal power conidently 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... . | —

wi.» the evidence before us that tens of thou- As one of the most serious objections to sand: 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 princip‘e. 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 Llovd 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 Wéalliam 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 ina 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—Ict their Northern apologists BE HEARD. The apathy of the people is tremblc—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 DIECLARATION 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

Tuer 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 meet in Philadelphia, December 4, 1833. Only a oyrselves into a society, to be governed by banal of dlagtes cy and thst were dom he fllowing Constitution —

tion of Sentiments. See, William Lloyd Garrison: Art. I1—This Society shall be called the 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 levislate 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 yy arguments addressed to their understandand its Auxiliaries, New York, 1860, p. 3-4) ings and consciences, that Slavcholding 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 carth,” 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 por-

are created equal, and that they are endowed {jons of our common country which come by their Creator with certain inalienable ynder its control, especially m the District rights, among which are life, liberty, and the f 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 cilizens; and whereas, Slavery is contrary t0 public prejudice, that thus they may, accord-

the principles of natural justice, of our re- ing 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 it is endanger- 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 thcir slaves, and that no scheme principles of this Constitution, who contribof expatriation, either voluntary or by com- utes to the funds of this Society, and is not pulsion, can remove this great and increasing 4 Slavcholder, 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 spcedy 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 incomp!cte; 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 decis:on 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 con-

sold like cattle—never shut out from the _ stantly risen in solemnity: light 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 -thereBut 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 fe:low-beings, as brute beasts; are nlundered foundations of the social compact, a comdaily of the fruits of their toil without redress; p'ete extinction of all the relations, endcarreally 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 weep.ng 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, crucl 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 s:ave 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 cach 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 conBut 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 aholish 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 re-

with regulatory or prohibitory legislation; most gard for her own peace and security can of the states south of Virginia provided seve.€ 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 friend] t ‘ted to her by the bond even for arguing against the institution of of a triendly state, unite to 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 HIsTorRyY 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. Kesolved, 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 manncr 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 st. 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 weck of March witnessed the attack on despots, and in defence of the Republican

the Alamo.toWhile and his 188 men were Princjol f the Federal Constituti preparing defendTravis the Alamo, a convention Mncipies 0 come ONStITUtLOn oOf

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, stirnuUnited 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 Jacinto, and Texas had won its independence. and assistance to such of the Mexicans of See, G. P. Garrison, Texas; C. Goodwin, The the Mexican Confederacy as will take .up Trans-Mississippi West, ch. v.; N. W. Stephen- arms against their military despotism.

son, J exas ane te en rary Me james, 3d. That they do not acknowledge, that the The Raven, a Stography of oom ae 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- Sth. 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- of August next, to receive in payment of the son administration. Land sales rose from $2,623,- ublic lands nothing except what is directed 000, in 1832 to $14,787,000 in 1835, and . anes B EXCEP $24,877,000 in 1836. Payment, however, was fre- 2 the existing laws, viz: gold and silver, and 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. ° a 154. On the specie circular, see W. MacDonald, In order to ensure the faithful execution Jacksonian Democracy, ch. xvi; D. R. Dewey, Ff 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. ...

Circular to Receivers of Public Money, and to The principal objects of the President in

the Deposite Banks adopting this measure being to repress alleged frauds, and to withhold ged frauds, an old any countenance

TREASURY DeEparTMENT, 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 1s 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 WoopBury. 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. Ill, 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 specu.ation 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 nonres:dent proprictor-

and immediately returned to the banks, to be ship, one of the greatest obstacles to the lent out again and again, be:ng 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 bus:ness and their happy consequences which will have ensued

issues so largely as to alarm cons:derate 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 who.e 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 culliva

salutary effect. Under this view of my duty tion. Indeed, there is scarcely a m.schief I directed the issu:ng of the order which will arising out of our present land system, in be Jaid before you by the Secretary of the cluding the accunulating surplus of revenues, Treasury, requiring payment for the public which would not be remed:ed 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

CraARLES RIVER BRIDGE V. WARREN BRIDGE 285 country in general and to the new States in most profound consideration of Conparticular 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 ty 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 buld and maintain a toll bridge 65 justice. over the Charles River. The bridge was opened But we are not now left to determ‘ne for in 1786, and in 1792 the charter was extended the { ; h les by which publi , to a period of seventy years. The charter was é lirst time the ru.es Dy which public gran S not, however, exclusive. In 1828 the legislature 4T€ tO be construed in this country. The sub-

incorporated the Warren Bridge Company for Ject has already been cons-dered in this the purpose of erecting a competing br:dge 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 Un.ted 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 op‘nion of the court, and the principle

that the construction of a competing bridge con- . . ;

stituted an impairment of contract. The ques- recognized that, m grants by the public noth-

tion before the court was whether the original 48 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 establ.shing 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 leg’s-

favor of the State, and that any amb.guity 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 corporation. The charte tained Uipusignificance of the decision of the court in the PO n- c Charter contamed no stipu Dartmouth College Case, and marked what some lation on the part of the State that it would

students have regarded as a retreat from the Ot 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 po-nt. Afterwards a law was passed imed.) Vol. Il, 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 Ch-ef- heavily as to render the franchise of Justice Taney” in Constitutional History of the y He ATAMCMISE OF NG Vnited States as seen in the Development of value, and destroy the institution; that the

American Law. . charter was a contract, and that a power which 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 singu‘ar 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 re‘inquishment of such a power sp:rit of monopoly, and exclusive privileges is never to be assumcd. ... 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 HtstTory 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 communily 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, ina 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

THE 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 rail-

the 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 1t 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 satished, 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 Story, J., delivered a dissent'ng 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 seized Navy Island tacks upon the Canadian border. On December

288 DOCUMENTS OF AMERICAN [IISTORY 29, Canadian militia seized the steamer, Caro- Wells, of Buffalo, and bound for Schlosser, line, 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 Amerl- within the United States; that this deponent can territory led to a diplomatic controversy ¢ommanded the said Caroline, and that she

with . ee eeain that Ne spseauemny aa was cleared from Buffalo with a view to run Bravated tne arrest new Nore ey © between said Buffalo Schlosser, carrying Britishpysub,ect, Alexander Mc Leod, onand the charge a od 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, Back 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 States, Vol. VI, p. 434 ff.; and Brztish and Foreign the Canada shore, but without injury; that State Papers, Vols. XXVI, XXIX, passim. the said Carol.ne continued her course down WASHINGTON, January 8, 1838. the Niagara River unmolested and landed To the Senate and House of Representatives outside of certa.n scows or boats attached to

of the United States: Navy Isiand, where a number of passengers

In the highly excited state of feeling on the csemparked and. oe “eponcat he ae ances in Canada. it was to be apprehended that at about 6 o’clock in the evening this

northern frontier, occasioned by the disturb- Certain articles o Jreignt were landec, . .

that causes of complaint might arise on the eeponen case’ the sa caroline . be line dividing the United States from Her ‘@naed at line ax - . crew i. ‘i cers Britannic Majesty’s dominions. Every pre- of the Caro “ numbered ten, nth that i

authorized by the existing United laws, and as the uals, , States, came on board of the Caroline ion "was teefore taken om Oat eS sour nee te af th

the Canadian side ves hoped that no se. and requested this deponent and other ofrious violation of the rights of the United neers OF tne oat to Peymit them 0 ea

ou that an outrage of a g

States would be permitted to occur. I regret, le to vet lodeines Me the * were near by. most ag sevated. character has been com- these requests were acceded to, and the permitted ~ accompanied by a hostile though Sons thus com:ng on board retired to rest, as

_ did also the crew and officers of the Carcline,

Soe vee nel f our territory, prot except such as were stationed to watch dur-

ing the strongest feelings of resentment onthe ‘§ ‘ “cht. that about midnight this de. part of our citizens in the neighborhood and Ing i" ~ - « uned by one 0 P the watch on the whole border line, and that the excite- eat several coats filed ath ven were mak. ment previously existing pas been alarming 'y ing toward the Caroline from the river, and

increased. To guard against the possible - this deponent immediately gave the alarm currence of any similar act I have thought it ond hefore he was able to reach the dock the

indispensable to call out a portion of the Caroline was boarded by some seventy or militia, to be posted on hat prone The cighty men, all of whom were armed; that

ted to Congress , » th

rete herew MY the outraze ina they immediately commenced a warfare with sitted th "measures taken in consequence muskets, swords, and cutlasses upon the demitt ec, me ity £ fenseless crew and passengers of the Caroline of its occurrence, and the necessity for re- sader a fierce cry of “G-—d d—n them, give

sorting to them... . M. VAN BUREN. them no quarters; kill every man. Fire!

) fire!”: that the Caroline was abandoned with-

SpaTE oF New York, Niagara County, ss: out resistance, and the only effort made by. Gilman Appleby, of the city of Buffaco, either the crew or passengers seemed to be being sworn, says ‘that he left the port of to escape slaughter; that this deponent nare

Buffalo on the morning of the 29th instant in rowly escaped, navn naecenved are

the steamboat Caroline, owned by William wounds, none of which, however,

THE 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.... (ime 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 miss.ng, 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 gentle-

‘alls; 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 th:s 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 TorRONTO, UPPER CANapDA, January 8, 1838. . db and crossed over to Bultalo. Reports His Excellency Henry §. Fox ad beenthespread there and e‘sewhere along American frontier that 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 sold‘ers, 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

fol’owing circumstances: with which the United States were at peace.

In Upper Canada, which contains a popula- Volunteers were cal'ed 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 Idw of nations. open rebellion, aga:nst the Government for The civil authority of Buffalo offered some

about a month preced ng. 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 SO 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 agreeably 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 S00 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 accompanydid 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 braitorously 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 fi.) 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 lands which they had land fo nt 1 _ cleared, cultivated, and improved were put up . rors + MLERHA improvements. Fro for public sale. To circumvent the government, vided, that to each of the States which has settlers organized “Claims Associations”, whose already 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 opinion by enacting a pre-emption law by which .. . make five hundred thousand acres. .. .

setters wea awed Ho eee herring ioht Sec. 9. .. That the net proceeds of the of purchase at the » inimun, orice when wach sale of said lands shall be faithfully applied to

land was placed on sale. See, B. H. Hibbard, His- objects of internal improvement ct tory of Public Land Policies, ch. ix; S. Sato, namely, roads, railways, bridges, canals and History of the Land Question in the United improvement 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 JIISTORY of intention to become a citizen ...who gu'’shed 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, railand 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, any 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 foitlowing 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 h's own land to questions as to the right of pre-emption arisreside on the public land in the same State ing between different scttlers 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 COMMONWEALTII 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 live 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 nullificd 4 design and intention of selling and disposthe Fugitive Slave Laws. Sce, for example, Doc. 18 of, and keeping her as a slave or servant

No. 182. See, Warren, Supreme Court, (1928 ed.) for life, contrary to a statute of Penn-

Vol. 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 Freedomand vides, that if any person or persons shall

Bondage, Vol. I. 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 Jaws 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 legis!ation upon this subject is exThe 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 statc Ashmore, a citizen of Maryland; that the ... that the right to seize and retake fugis'ave 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 uncontro!lable

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 in-

The 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- eignty, 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 Hrstory destroy the rights of the owner. . . . On the 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’LEAN, 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

srohibits his removal. Now, which shall give slave. It removes all State action prejudi- |

, THE PEOPLE v. 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. fey, adjudications upon this subject; but

No. 160. precedents, in the absence of adjudications SAvAGE, 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 meymen 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 an 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 IIIstory 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 unknown 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 Parsing wages was a conspiracy. workmen and journeymen in the art and See, for example, the Trial of James Melvin and...) occupation of boot-makers, unlawOthers for Conspiracy to Raise Wages, New full iciousl d deceitfully designi York City, 1810, American State Trials, Vol. 'UHY. Perniciousty and ceceitiully designing XIII, p. 576 if.; and People v. Fisher, Doc. No. and intending to continue, keep up, form, 159. In the famous case of Commonwealth v. 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 shou'd acy. The first count alleged that the de- employ any workman or journeyman, or other

COMMONWEALTH V. IIUNT 297 person, in the said art, who was not amember 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, Co-ony,

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 neccessarily 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 gencral 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 journcyman 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 gel 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 journeyman 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 profils, and yet so far from not unlawful, are these means criminal? The being criminal or unlawiul, 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 If.; 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. 5. Burrage, Maine in the North-

States. In 1838 the dispute precipitated the eustern Boundary Conlroversy; 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- ed. American Secretaries of State, Vol. V, p. 20 ff.

eae Hearty nth ad aftsire: axe Doe Treaty to Settle and Define 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 Crimials

can representative of the Barings, was a per- Fugitive from Justice. :

THE WEBSTER-ASHBURTON TREATY 299 Art. 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 alt 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 commissioners

Governments 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; (hereof; 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 Ile 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 Ile Chapeau, which _lastSt. 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 Ie 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 fakes 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’ 38”

300 DocUMENTS OF AMERICAN HISTORY 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 eighty 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 com: that 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

162. THE CONSTITUTION OF THE BROOK FARM ASSOCIATION 1841

(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 Lterary organization in accordance with the laws of associations, is the most famous of those Utopian Divine Providence; to substitute a system experiments which flourished in the generation of brotherly codperation for one of selfish | preced.ng the Civil War. It was established at competition; to secure to our children and south of Boston, and among its members were those who may be entrusted to our care, the George Ripley, J. S. Dwight, Charles A. Dana, benefits of the highest physical, intellectual

West Roxbury, Massachusetts, some nine miles )

and Nathaniel Hawthorne, while almost the %d 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, ili~iv; O. B. Frothingham, Transcendentalism in by the competent supply of our necessary

New England, ch. vii; J. T. Codman, Brook wants; to diminish the desire of excessive

isms; M. Hillquit, History of Socialism in the ‘ovr :

F arm; 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 im-

W. 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

“ar mony a oom B. “ * aortaIcaria; mode of life;—-we undersigned do unite mana; A. Shaw, . A, , osthem ee

Bishop Hill Colony; R. J. Hendricks, Bethel and 3? 3. rvarad Association, ane adopt and Aurora. Hawthorne’s Blithedale Romance gives a ordain the following articles o agreement,

somewhat unfair p:cture 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 cu‘ture; to es- be “THE BROOK-FARM ASSOCIATION FOR tablish the external relations of life on a InpustTRY AND EpucaTIoNn.” All persons who basis of wisdom and purity; to apply the shall hold one or more shares in its stock, or

DorRoTHEA Dirx’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 inab-lity to labor from sicknor by any one member over another; nor ness or o-d age, or for medical or nursing shall any one be he!d 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 cascs the relation of rooms.... any member may be suspended, or d-scon-

tinued, at the pleasure of the Association. ARTICLE V Sec. 1. The government of the Association

ARTICLE II shall be vested in a board of Directors, Sec. 1. The members of this Association shall oar onetal our eins tection at own and manage such teal and personal Education; 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 On. ws 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 A SSIBDS, do re- its own Direction. which shall select, and in nounce all cam on any Pro i“ heir can tO concurrence with the General Direction, shall the Association or the use of their capital appoint such teachers, officers, and agents, as

invested in the stock of the Association, hall be necessary to the lot F

except five per cent, interest on the amount . , aa complete an of stock held by them, payable in the manner systematic organization of the department.

described in the prece ding section Nodeemed Directors or other officers shall be to possess any rank superior to the other members of the Association, nor shall

ArTIcLe II they receive any extra remuneration for theit Sec. 1. The Association shall provide such official services. employment for all its members as shall be Src. 6. The department of Industry shall be

adapted to their capacities, habits, and arranged in groups and scries, as far as tastes; and each member shall select and practicable, and shall consist of three pri. perform 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 c'ected every two months by

fit of the Association. — the members thereof. ...

163. DOROTHEA DIX’S MEMORIAL TO TIIE 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. Shaw 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 ane Miss Dix entered upon a larger field of complete details, if required. te of the Acces Uns astral Sunt, my pictures are dislesing, coarse, and

pean countries. See, F. Tiffany, Life of Dorothea severe, my subjects, it must be recollected, of-

Lynde Diz; A. S. Roe, Dorothea Dix. er no tranquil, refined, or composing features.

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 maked, 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 is 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 Jour-

disadvantages to all other persons brought into nal:—

association with them. I applied myself dili- Springfield. 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. Legislature 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-

DorROoTHEA D1x’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 declinéd 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 saddést 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, husA 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 II1IstTory 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 Gent:emen, 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,

either 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 nom.nce for the Presidency, and it States.... To the astonishment of the

was commonly believed that Van Buren would who’e nation, we are now informed that a be nominated by the Democrats. Farly in 1844 treaty of annexation has been actually conVan Buren vis.ted Clay at Ashland and came cluded, and is to be submitted to the senate to an agreement with him to eliminute the Texas aor question from the campaign. Accordingly on 0r its consideration. The motives for my April 17 both candidates published letters op- Silence, therefore, no longer remain, and I posing immediate annexation. Van Huren’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 serves of letters public consideration. I adopt this method known as the “Alabama letters”—but without gg being more convenient than several replies success. Clay was defeated by Polk who was to the respective communications which | 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 o1 See, C. Schurz, Henry Clay, Vol. Il; 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 Eprtors or THE NATIONAL I am constrained to treat the question ac-

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 vears ago, to become _ prehend., it is 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 considerable 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 of a 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 honorab!e 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 disso!ubut without deigning to consu:t congress, to tion of the Union. It would be to procla’m 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 wou'd 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 oi 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 Hisrory 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 instituI 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. tion 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 bjic 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 approved March 1. This ae f f t totobeb was the firstCongress occasion of theand use of the joint @ republican form o government, 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 in 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, announcea his adherence .

to these policies in his inaugural address. Of par- . .. The Republic of Texas has made ticular interest is Polk’s statement that “ovr 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 II1Istory 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 wou.d 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 comagree 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 princip‘e 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 practicab'e 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 constitu- | federation, 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—with’n 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 asNone can fail to see the danger to our cended the Missouri to its headsprings, and safety and future peace if Texas remains an are already engaged in establish:ng the bless-

PotKk’s REASSERTION OF THE MONROE DocrTRINE 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 ho-ds 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 shou'd be extended over them in respected... . the distant regions which, they have selected

lo7. 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 era in the history of the doctrine, and was secs 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”. Oa the revival of the Doc- The people of the United States can not, trine, see, D. Perkins. The Monrve Doctrine, therefore, view with indifference attempts of

gon and Texas. Note that Polk speaks of “this - .

1826-1867, ch. ii, and notes. European powers to interfere with the independent 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 princip‘e that the people of this continene standing with all nations, can not in silence alone have the right to decide their own permit any European interference on the destiny. Shou'd 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 con- ' alliances; 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 independent condition which they have asforce. We may claim on this continent a like sumed and maintain, are henceforth not to be

310 DocCUMENTS 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 Amcrican 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 self to our Union, and under these circumAmerican soil,” led toa declaration of war, May stances it was plainly our duty to extend our 13. Whether the territory between the Nueres protection over her citizens and soil.

and the Rio Grande, where this act of war took This force was concentrated at Corpus place, was actually American Territory, is highly Christi h ‘l after I had controversial. In any event Polk and his Cabinet ristl, and remained there until after I hac had determined upon war as carly as May 9, so received 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 reccive

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, sce, J. H. Smith, L he 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; E. C. McCormac, James K. December 19, 1836, had declared the Rio del United States and Mexico, Vol. 1; N. W. Stephen- Norte to be the boundary of that Republic, son, Texas and the Mexican War; G. P. Garri- Its jurisdiction had been extended and exer-

Polk; LL.M. Sears, John Slidell; G. L. Rives, The )

gon, Westward Extension, chs. xiii-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 alt 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 revecient 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 detense 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 al] 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 fronticr 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 terrilory 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 restordispatched 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 along the 49th parallel, concluded half a cen- Jaiq down in existing treaties and conventions

ary of boundary controversy in a manner between the United States and Great Britain ighly favorable to the United Byunates, the terminates. the Ii f between bound btheh convention of 1818 the United StatesStates. and Great the line of boundary Britain had joint occupancy of the territory be- territories of the United States and those of

tween the 42nd and the 54th 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 channotice. A resolution of April 27, 1846 authorized nel which separates the continent from Vanthe presicent to give notice of the termination couver’s Island, and thence southerly through

ton ‘On the Oreson Treaty. see r - wae the middle of the said channel, and of Fuca’s American Diplomacy under Tyler and Polk : Straits, to the Pacific Ocean: Provided, howJ. C. Bell, Opening a Highway to the Pacific, eve r, That the navigation of the whole of the 1838-1846; F. Merk, “Oregon Pioncers and the said channel and straits, south of the fortyBoundary,” American Hist. Rev., Vol. XXIX, nth parallel of north latitude, remain free p. 681 ff.; H. S. Commager, “England and the and open to both parties. Oregon Treaty of 1846,” Oregon Historical Qt. ArT. IJ. From the point at which the forty-

Vol. XXVIII. ninth parallel of north latitude shall be found

312 DOCUMENTS OF AMERICAN II1story to intersect the great northern branch of the the terr tory 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 Co:umbia 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 regu'ations respecting the navigation of the shall be trans. 1852, declared that the frequent service or labor, but shall be delivered up, Violations of the Constitution of the United on claim of the party to whom such service States by the Federal Government. and itsen- or labor may be due.” croachments upon the reserved rights of the This stipulation was so material to the comStates, fully justified this State in their with- pact that without it that compact would not drawal from the Federal Union; but in defer- have been made. The greater number of the ence to the opinions and wishes of the other contracting parties held slaves, and they had Slaveholding States, she forbore at that time previously evinced their estimate of the value to exercise this right. Since that time these of such a stipulation by making it a condition encroachments have cont:nued to increase, in the Ordinance for the government of the and further forbearance ceases to be a vir- territory ceded by Virginia, which obligations,

tue. and the laws of the General Government, And now the State of South Carolina hav- have ceased to effect the objects of the Con-

ing resumed her separate and equal place stitution. The States of Maine, New Hampamong nations, deems it due to herself, to shire, Vermont, Massachusetts, Connecticut, the remaining United States of America, and Rhode Island, New York, Pennsylvania, Ilito the nations of the world, that she should no’s, Indiana, Michigan, Wisconsin and Lowa, declare the immediate causes which have led have enacted laws which either nullify the

to this act. acts of Congress, or render useless any atIn 1787, Deputies were appointed by the tempt to execute them. In many of these States to revise the artic'es of Confederation; States the fugitive is discharged from the and on 17th September, 1787, these Deputies service of labor claimed, and in none of them recommended, for the adoption of the States, has the State Government complied with the the Articles of Union, known as the Consti- stipulation made in the Constitution. The

tution of the United States. State of New Jersey, at an early day, passed . . . Thus was established by compact be- a law in conformity with her constitutional tween the States, a Government with defined obligation; but the current of Anti-Slavery

objects and powers, limited to the express feeling has led her more recently to enact words of the grant.... We hold that the laws which render inoperative the remedies Government thus established is subject to the provided by her own laws and by the laws of two great princip!es asserted in the Declara- Congress. In the State of New York even the

tion of Independence; and we ho!d further, right of transit for a slave has been denied that the mode of its formation subjects it to by her tribunals; and the States of Ohio and a third fundamental principie, namely, the law Iowa have refused to surrender to Justice of compact. We maintain that in every com- fugitives charged with murder, and with inpact between two or more parties, the obli- citing servile insurrection in the State of Virgation is mutual; that the failure of one of ginia. Thus the constitutional compact has the contracting parties to perform a material been deliberately broken and disregarded by part of the agreement, entirely releases the the non-slaveholding States; and the conseobligation of the other; and that, where no quence fo-lows that South Carolina is released arbiter is provided, each party is remitted to from her obligation. .. . his own judgment to determine the fact of We affirm that these ends for which this

failure, with all its consequences. Government was instituted have been de-

In the present case, that fact is established feated, and the Government itself has been with certainty. We assert that fourteen of the destructive of them by the action of the nonStates have deliberately refused for years past slaveho:ding States. Those States have asto fulfil their constitutional obligations, and sumed the right of deciding upon the prowe refer to their own statutes for the proof. priety of our domestic institutions; and have

374 DocUMENTS OF AMERICAN History denied the rights of property established in votes have been used to inaugurate a new polfifteen of the States and recognized by the icy, hostile to the South, and destructive of Constitution; they have denounced as sinful _ its peace and safety.

the institution of Slavery; they have permit- On the 4th of March next this party will ted the open establishment among them of _ take possession of the Government. It has societies, whose avowed object is to disturb announced that the South shall be excluded the peace of and eloin the property of the from the common territory, that the Judicial citizens of other States. They have encour- tribunal shall be made sectional, and that a aged and assisted thousands of our slaves to war must be waged against Slavery until it leave their homes; and those who remain, — shall cease throughout the United States.

have been incited by emissaries, books, and The guarantees of the Constitution will

pictures, to servile insurrection. then no longer exist; the equal rights of the For twenty-five years this agitation has States will be lost. The Slaveholding States been steadily increasing, until it has now se- will no longer have the power of self-govern-

cured to its aid the power of the common ment, or self-protection, and the Federal Government. Observing the forms of the Government will have become their enemy.

Constitution, a sectional party has found Sectional interest and animosity will

within that article establishing the Executive deepen the irritation; and all hope of remedy

Department, the means of subverting the is rendered vain, by the fact that the public Constitution itself. A geographical line has opinion at the North has invested a great been drawn across the Union, and all the political error with the sanctions of a more States north of that line have united in the erroneous religious belief. election of a man to the high office of Presi- We, therefore, the people of South Carodent of the United States whose opinions and lina, by our delegates in Convention assempurposes are hostile to Slavery. He is to be bled, appealing to the Supreme Judge of the intrusted with the administration of the com- world for the rectitude of our intentions, have mon Government, because he has declared solemnly declared that the Union heretofore

that “Government cannot endure perma- existing between this State and the other nently half slave, half free,” and that the States of North America is dissolved, and public mind must rest in the belief that Slav- that the State of South Carolina has resumed ery is in the course of ultimate extinction. her position among the nations of the world, This sectional combination for the subver- as a separate and independent state, with full sion of the Constitution has been aided, in power to levy war, conclude peace, contract some of the States, by elevating to citizenship alliances, establish commerce, and to do all persons who, by the supreme law of the land, other acts and things which independent are incapable of becoming citizens; and their States may of right do.

200. MAYOR FERNANDO WOOD’S RECOMMENDATION FOR THE SECESSION OF NEW YORK CITY January 6, 1861 (E. McPherson, ed. The Political History of the Great Rebellion, p. 42 ff.) The financial and commercial interests of New tory of New York State during the period of York City, with their heavy investments in the the Civil War. South and in the textile industries, were particularly hostile to a war policy on the part of To the Honorable the Common Council: the Federal government. Thurlow Weed made Gentlemen: We are entering upon the public

strenuous efforts to commit Lincoln to a com- duties of the year under circumstances as promise policy; Governor Morgan of New York unprecedented as they are gloomy and pain-

urged moderation; and even Horace Greeley ful to contemplate For historical background, see, D. IN Alexander, It would scem that a dissolution of the Political History of the State of New York, Federal Union is inevitable. . . . . Vol. II, ch. xxvi; S. D. Brummer, Political His- If these forebodings shall be realized, and

let the “erring sisters go in peace.” oT, .

Mayor FERNANDO WoonD’s RECOMMENDATION 375 a separation of the States shall occur, mo- the State has been used by the latter to our mentous considerations will be presented to injury. The Legislature, in which the present the corporate authorities of this city. We partizan majority has the power, has become must provide for the new relations which will an instrument by which we are plundered to necessarily grow out of the new condition of _ enrich their speculators, lobby agents, and

public affairs. Abolition politicians... . It will not only be necessary for us to set- How we shall rid ourselves of this odious

tle the relations which we shall hold to other and oppressive connection, it is not for me to

cities and States, but to establish if we can, - determine. It is certain that a dissolution new ones with a portion of our own State. cannot be peacefully accomplished, except by Being the child of the Union, having drawn _ the consent of the Legislature itself. Whether our sustenance from its bosom, and arisen to this can be obtained or not, is, in my Judgeour present power and strength through the ment, doubtful. Deriving so much advantage vigor of our mother—when deprived of her from its power over the city, it is not probamaternal advantages, we must rely upon our _ ble that a partizan majority will consent to a own resources and assume a position predi- separation—and the resort to force by viocated upon the new phase which public affairs lence and revolution must not be thought of will present, and upon the inherent strength for an instant. We have been distinguished which our geographical, commercial, politi- as an orderly and law-abiding people. Let us cal, and financial preéminence imparts to us. do nothing to forfeit this character, or to With our aggrieved brethren of the Slave add to the present distracted condition of States, we have friendly relations and a com- __ public affairs.

mon sympathy. We have not participated in Much, no doubt, can be said in favor of the the warfare upon their constitutional rights justice and policy of a separation. . . . Why or their domestic institutions. . . . Our ships should not New York city, instead of suphave penetrated to every clime, and so have porting by her contributions in revenue twoNew York capital, energy, and enterprise thirds of the expenses of the United States, found their way to every State, and, indeed, become also equally independent? As a free

to almost every county and town of the city, with but nominal duty on imports, her

American Union. If we have derived suste- local Government could be supported without nance from the Union, so have we in return — taxation upon her people. Thus we could live disseminated blessings for the common bene-__ free from taxes, and have cheap goods nearly fit of all. Therefore, New York has a right duty free. In this she would have the whole to expect, and should endeavor to preserve a and united support of the Southern States, continuance of uninterrupted intercourse with as well as all the other States to whose inter-

every section. ests and rights under the Constitution she It is, however, folly to disguise the fact has always been true. that, judging from the past, New York may It is well for individuals or communities have more cause of apprehension from the to look every danger squarely in the face and ageressive legislation of our own State than to meet it calmly and bravely. As dreadful from external dangers. We have already suf- as the severing of the bonds that have hithfered largely from this cause. For the past erto united the States has been in contemplafive years, our interests and corporate rights tion, it is now apparently a stern and inevihave been repeatedly trampled upon. Being an table fact. We have now to meet it with all integral portion of the State, it has been the consequences, whatever they may be. If assumed, and in effect tacitly admitted on the Confederacy is broken up, the Governour part by nonresistance, that all political ment is dissolved, and it behooves every disand governmental power over us rested in tinct community, as well as every individual, the State Legislature. Even the common right to take care of themselves.

of taxing ourselves for our own government, When Disunion has become a fixed and has been yielded, and we are not permitted to certain fact, why may not New York disrupt

do so without this authority. .. . the bands which bind her to a venal and Thus it will be seen that the political con- corrupt master—to a people and a party that nection between the people of the city and have plundered her revenues, attempted to

376 DOCUMENTS OF AMERICAN IIIstTory : ruin her commerce, taken away the power of ably if we can, forcibly if we must,” let me self-government, and destroyed the Confed- not be misunderstood. The redress can be eracy of which she was the proud Emp’re found only in appeals to the magnanimity of City? Amid the gloom which the present and the people of the who'e State. The events of prospective condition of things must cast the past two months have no doubt effected over the country, New York, as a Free City, a change in the popular sentiment of the may shed the only light and hope of a future State and National politics. This change may reconstruction of our once blessed Confed- bring us the desired relief, and we may be

eracy. - able to obtain a repeal of the law to which 1] But I am not prepared to recommend the have referred, and a consequent restoration violence implied in these views. In stating of our corporate rights.

this argument in favor of freedom ‘“‘peace- I'ERNANDO Woop, Mayor. 201. THE CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA March 11, 1861

(Richardson, ed. Afessages and Papers of the Confederacy, Vol. I, p. 37 ff.) A Provisional Constitution had been adopted States, shall be allowed to vote for any offFebruary 8, 1861: it is reproduced in Jefferson cer, civil or political, State or Federal. Davis, Rise and Fall of the Confederate Govern- (2) No person shall be a Representative ment, Vol. II, append x K. The ‘permanent Con- who shall not have attained the age of stitution closely resembled the Constitution of the twenty-five years, and be a citizen of the United States. Even the African slave trade was Confederate Stat d who shall h prohibited. Professor Stephenson observes that on ederate ates, an Who shall not, w cn “the framers of 1861 left unstated most of their ected, be an inhabitant of that State in distinctive views”. See, N. W. Stephenson, The which he shall be chosen.

Day of the Confederacy, ch. i. (3) Represcntatives and direct taxes shall be apportioned among the several States

WE, the people of the Confederate States, which may be included within this Confedereach State acting in its sovereign and inde- acy, according to their respective numbers, pendent character, in order to form a perma- which shall be determined by adding to the nent federal government, establish justice, in- | whole number of free persons, including those

sure domestic tranquillity, and secure the bound to service for a term of years, and blessings of liberty to ourselves and our pos- excluding Indians not taxed, three-fifths of all terity—invoking the favor and guidance of — slaves. The actual enumeration shall be made Almighty God—do ordain and establish this within three years after the first meeting of

Constitution for the Confederate States of the Congress of the Confederate States, and

America. within every subsequent term of ten years, in such manner as they shall by law direct.

ART. I The number of Representatives shall not exSec. 1.—All legislative powers herein dele- ceed one for every fifty thousand, but each gated shall be vested in a Congress of the State shall have at least one Representative; Confederate States, which shall consist of a and until such enumeration shall be made,

Senate and House of Representatives. the State of South Carolina shall be entitled Sec. 2. (1) The House of Representatives to choose six; the State of Georgia ten; the shall be chosen every second year by the peo- State of Alabama nine; the State of Florida ple of the several States; and the electors in two; the State of Mississippi seven; the State each State shall be citizens of the Confederate of Louisiana six; and the State of Texas six. States, and have the qualifications requisite (4) When vacencies happen in the reprefor electors of the most numerous branch of _ sentation of any State, the Executive authorthe State Legislature; but no person of for- ity thereof shall issue writs of election to fill

eign birth, not a citizen of the Confederate such vacancies. |

CONSTITUTION OF THE CONFEDERATE STATES 377 (5) The House of Representatives shall shall not extend further than removal from choose their Speaker and other officers; and office, and disqualification to ho!d and enjoy shall have the so'e power of impeachment; any office of honor, trust, or profit, under the except that any judicial or other federal officer Confederate States; but the party convicted resident and acting soley within the limits of — shall, nevertheless, be liable to and subject to any State, may be impeached by a vote of indictment, trial, judgment, and punishment two-thirds of both branches of the Legisla- according to law.

ture thereof. SEC. 4. (1) The times, places, and manner Sec. 3. (1) The Senate of the Confederate of holding elections for Senators and RepreStates shall be composed of two Senators sentatives, shal: be prescribed in each State from each State, chosen for six years by the by the Legislature thereof, subject to the Legislature thereof, at the regular session provisions of this Constitution; but the Connext immediately preceding the commence-- gress may, at any time, by law, make or ment of the term of service; and each Sen- alter such regulations, except as to the times

ator shall have one vote. and p:aces of choosing Senators.

(2) Immediately after they shall be assem- (2) The Congress shall assemble at least _ bled, in consequence of the first election, once in every year; and such meeting shall they shall be divided as equally as may be be on the first Monday in December, unless into three classes. The seats of the Senators they shall, by law, appoint a different day. of the first class shall be vacated at the ex- SEC. 5. (1) Each House shall be the judge piration of the second year; of the second _ of the elections, returns, and qualifications of class at the expiration of the fourth year; and its own members, and a majority of each of the third class at the expiration of the — shall constitute a quorum to do business; but sixth year; so tnat one-third may be chosen a smaller number may adjourn from day to every second year; and if vacancies happen day, and may be authorized to compel the by resignation or otherwise during the recess attendance of absent members, in such manof the Legislature of any State, the Executive ner and under such penalties as each House thereof may make temporary appointments may provide.

until the next meeting of the Legislature, (2) Each House may determine the rules which shall then fill such vacancies. of its proceedings, punish its members for (3) No person shall be a Senator, who disorderly behavior, and, with the concurshall not have attained the age of thirty years, rence of two-thirds of the whole number, ex-

and be a citizen of the Confederate States: pel a member. and who shall not, when elected, be an in- (3) Each House shall keep a journal of its habitant of the State for which he shall be proceedings, and from time to time publish

chosen. the same, excepting such part as may in its

(4) The Vice-President of the Confederate judgment require secrecy, and the ayes and States shall be President of the Senate, but nays of the members of either House, on any shall have no vote, unless they be equally di- question, shall, at the desire of one-fifth of

vided. those present, be entered on the journal.

(5) The Senate shall choose their other (4) Neither House, during the session of

officers, and a'so a President pro tempore, in Congress, shall, without the consent of the the absence of the Vice-President, or when other, adjourn for more than three days, nor

he shall exercise the office of President of to any other p!ace than that in which the

the Confederate States. two Houses shall be sitting.

(6) The Senate shall have so'e power to SEc. 6. (1) The Senators and Representatry all impeachments. When sitting for that tives shall receive a compensation for their purpose they shall be on oath or affirmation. services, to be ascertained by law, and paid When the President of the Confederate States out of the Treasury of the Confederate is tried, the Chief-Justice shall preside; and States. They shall, in all cases except treason no person shall be convicted without the con- and breach of the peace, be privi.eged from currence of two-thirds of the members pres- arrest during their attendance at the session

ent. of their respective Houses, and in going to (7) Judgment in cases of impeachment and returning from the same; and for any

378 DocUMENTS OF AMERICAN HISTORY speech or debate in either House, they shall in case of other bills disapproved by the

not be questioned in any other place. President. :

(2) No Senator or Representative shall, (3) Every order, resolution, or vote, to

during the time for which he was elected, be which the concurrence of both Houses may appointed to any civil office under the author- be necessary (except on questions of adity of the Confederate States, which shall journment) shall be presented to the Presi-

have been created, or the emoluments dent of the Confederate States; and before whereof shall have been increased during the same shall take effect shall be approved such time; and no person holding any office by him; or being disapproved by him, may under the Confederate States shall be a mem- be repassed by two-thirds of both Houses, ber of either House during his continuance in according to the rules and limitations preoffice. But Congress may, by law, grant to — scribed in case of a bill. the principal officer in each of the Executive SEc. 8.—The Congress shall have power—

Departments a seat upon the floor of either (1) To lay and collect taxes, duties, imHouse, with the privilege of discussing any posts, and excises, for revenue necessary to

measure appertaining to his department. pay the debts, provide for the common deSec. 7. (1) All bills for raising revenue shall fence, and carry on the Government of the originate in the House of Representatives; Confedcrate States; but no bounties shall be but the Senate may propose or concur with granted from the treasury; nor shall any

amendments as on other bills. duties or taxes on importations from foreign

(2) Every bill which shall have passed both nations be laid to promote or foster any Houses shall, before it becomes a law, be pre- branch of industry; and all duties, .imposts, sented to the President of the Confederate and excises shall be uniform throughout the States; if he approve he shall sign it; but if Confederate States.

not, he shall return it with his objections to (2) To borrow money on the credit of the that House in which it shall have originated, Confederate States. who shall enter the objections at large on (3) To regulate commerce with foreign their journal, and proceed to reconsider it. If, mations, and among the several States, and after such reconsideration, two-thirds of that with the Indian tribes; but neither this, nor House shall agree to pass the bill, it shall be any other clause contained in the Constitusent, together with the objections, to the tion shall be construed to delegate the power other House, by which it shall likewise be to Congress to appropriate money for any reconsidered, and if approved by two-thirds internal improvement intended to facilitate of that House, it shall become a law. But in commerce; except for the purpose of furall such cases, the votes of both Houses shall _nishing lights, beacons, and buoys, and other

be determined by yeas and nays, and the aids to navigation upon the coasts, and the names of the persons voting for and against improvement of harbors, and the removing the bill shall be entered on the journal of each of obstructions in river navigation, in all House respectively. If any bill shall not be which cases, such duties shall be laid on the returned by the President within ten days navigation facilitated thereby, as may be nec(Sundays excepted) after it shall have been essary to pay the costs and expenses thereof. presented to him, the same shall be a law, (4) To establish uniform laws of naturallin like manner as if he had signed it, unless zation, and uniform laws on the subject of the Congress, by their adjournment, prevent bankruptcies throughout the Confederate its return; in which case it shall not be a law. States, but no law of Congress shall discharge The President may approve any appropria- any debt contracted before the passage of the tion and disapprove any other appropriation same.

in the same bill. In such case he shall, in (5) To coin money, regulate the value signing the bill, designate the appropriations thereof, and of foreign coin, and fix the

disapproved; and shall return a copy of such standard of weights and measures.

appropriations, with his objections, to the (6) To provide for the punishment of coun-

House in which the bill shall have originated; _terfeiting the securities and current coin of and the same proceedings shall then be had as__ the Confederate States,

CONSTITUTION OF THE CONFEDERATE STATES 379 (7) To establish post-offices and post- Sec. 9. (1) The importation of negroes vt routes; but the expenses of the Post-office De- the African race, from any foreign country,

partment, after the first day of March, in other than the slaveholding States or Territhe year of our Lord eighteen hundred and _ tories of the United States of America, is sixty-three, shall be paid out of its own reve- hereby forbidden; and Congress is required

nues. to pass such laws as shall effectually prevent (8) To promote the progress of science the same.

and useful arts, by securing for limited times (2) Congress shall also have power to proto authors and inventors the exclusive right hibit the introduction of slaves from any

to their respective writings and discoveries. State not a member of, or Territory not (9) To constitute tribunals inferior to the belonging to, this Confederacy.

Supreme Court. (3) The privilege of the writ of habeas (10) To define and punish piracies and corpus shall not be suspended, unless when felonies committed on the high seas, and in cases of rebellion or invasion the public

offences against the law of nations. safety may require it.

(11) To declare war, grant letters of mar- (4) No bill of attainder, or ex post facto que and reprisal, and make rules concerning law, or law denying or impairing the right of

captures on land and water. property in negro slaves shall be passed.

(12) To raise and support armies; but no (5) No capitation or other direct tax shall appropriation of money to that use shall be _ be laid unless in proportion to the census or

for a longer term than two years. enumeration hereinbefore directed to be (13) To provide and maintain a navy. taken.

(14) To make rules for government and (6) No tax or duty shall be laid on articles regulation of the land and naval forces. exported from any State, except by a vote of (15) To provide for calling forth the mili- two-thirds of both Houses. tia to execute the laws of the Confederate (7) No preference shall be given by any States; suppress insurrections, and repel in- regulation of commerce or revenue to the

vasions. ports of one State over those of another.

(16) To provide for organizing, arming, (8) No money shall be drawn from the

and disciplining the militia, and for governing treasury but in consequence of appropriations

such part of them as may be employed in the made by law; and a regular statement and service of the Confederate States; reserving account of the receipts and expenditures of to the States, respectively, the appointment all public money shall be published from time of the officers, and the authority of training to time.

the militia according to the discipline pre- (9) Congress shall appropriate no money

scribed by Congress. from the treasury except by a vote of two-

(17) To exercise exclusive legislation, in thirds of both Houses, taken by yeas and all cases whatsoever, over such district (not nays, unless it be asked and estimated for exceeding ten miles square) as may, by ces- by some one of the heads of departments, and sion of one or more States, and the accept- submitted to Congress by the President; or ance of Congress, become the seat of the for the purpose of paying its own expenses Government of the Confederate States; and and contingencies; or for the payment of to exercise a like authority over all places claims against the Confederate States, the purchased by the consent of the Legislature justice of which shall have been judicially of the State in which the same shall be, for declared by a tribunal for the investigation the erection of forts, magazines, arsenals, of claims against the Government, which it is dock-yards, and other needful buildings, and hereby made the duty of Congress to estab(18) To make all laws which shall be nec- __ lish.

essary and proper for carrying into execution (10) All bills appropriating money shall the foregoing powers, and all other powers specify in federal currency the exact amount vested by this Constitution in the Govern- of each appropriation and the purposes for ment of the Confederate States, or in any which it is made; and Congress shall grant

department or officer thereof. no extra compensation to any public con-

380 DOCUMENTS OF AMERICAN IIIstory tractor, officer, agent, or servant, after such be informed of the nature and cause of the contract shall have been made or such service accusation; to be confronted with the wit-

rendered. nesses against him; to have compulsory (11) No title of nobility shall be granted process for obtaining witnesses in his favor;

by the Confederate States; and no person and to have the assistance of counsel for holding any office of profit or trust under his defence. them shall, without the consent of the Con- (18) In suits at common law, where the gress, accept of any present, emoluments, of- value in controversy shall exceed twenty dol-

fice, or title of any kind whatever, from any lars, the right of trial by jury shall be pre-

king, prince, or foreign state. served; and no fact so tried by a jury shall (12) Congress shall make no law respect- be otherwise reéxamined in any court of the ing an establishment of religion, or prohibit- Confederacy, than according to the rules of ing the free exercise thereof; or abridging the the common law.

freedom of speech or of the press; or the (19) Excessive bail shall not be required, right of the peop'e peaceably to assemble and nor excessive fines imposed, nor cruel or un-

petition the Government for a redress of usual punishment inflicted.

grievances. (20) Every law, or resolution having the

(13) A well-regulated militia being neces- force of law, shall relate to but one subject, sary to the security of a free State, the right and that shall be expressed in the title. of the people to keep and bear arms shall not SEC. 10. (1) No State shall enter into any

be infringed. treaty, alliance, or confederation; grant let(14) No so'dier shall, in time of peace, be ters of marque and reprisals; coin money; quartered in any house without the consent make any thing but go:d and silver coin a of the owner; nor in time of war, but in a tender in payment of debts: pass any bill of

manner prescribed by law. attainder, or ex post facto law, or law impair-

(15) The right of the people to be secure ing the obligation of contracts; or grant any in their persons, houses, papers, and against title of nobility. unreasonable searches and seizures, shall not (2) No State shall, without the consent of be violated; and no warrant shall issue but Congress, lay any imposts or duties on imupon probable cause, supported by oath or ports or exports, except what may be absoaffirmation, and particularly describing the lutely necessary for executing its inspection place to be searched, and the person or things laws; and the net produce of all duties and

to be seized. imposts, laid by any State on imports or ex-

(16) No person shall be held to answer for ports, shall be for the use of the Treasury of a capital or otherwise infamous crime, unless the Confederate States: and all such laws on a presentment or indictment of a grand _ shall be subject to the revision and control of jury, except In cases arising in the land or Congress. naval forces, or in the militia, when in actual (3) No State shall, without the consent of service, in time of war, or public danger; nor Congress, lay any duty of tonnage, except on shall any person be subject for the same of- _sea-going vessels, for the improvement of its fence to be twice put in Jeopardy of life or rivers and harbors navigated by the said veslimb; nor be compelled in any criminal case sels: but such duties shall not conflict with to be a witness against himself; nor be de- any treaties of the Confederate States with prived of life, liberty, or property, without foreign nations; and any surplus of revenue, due process of law; nor shall any private’ thus derived, shall, after making such improperty be taken for public use without just provement, be paid into the common treas-

compensation. ury; nor shall any State keep troops or ships

(17) In all criminal prosecutions the ac- of war in time of peace, enter into any agreecused shall enjoy the right to a speedy and ment or compact with another State, or with public trial, by an impartial jury of the State a foreign power, or engage in war, unless and district wherein the crime shall have actually invaded, or in such imminent danger been committed, which district shall have as will not admit of delay. But when any been previously ascertained by law, and to river divides or flows through two or more

CONSTITUTION OF THE CONFEDERATE STATES 381 States, they may enter into compacts with toa choice. And if the House of Representaeach other to improve the navigation thereof. tives shall not choose a President, whenever the right of choice shall devolve upon them,

ART. II. before the fourth day of March next follow-

SEC. 1. (1) The Executive power shaJ] be ing, then the Vice-President shall act as vested in a President of the Confederate President, as in case of the death, or other States of America. He and the Vice-President constitutional disability of the President.

shall hold their offices for the term of six (4) The person having the greatest number years; but the President shall not be reéligi- of votes as Vice-President shall be the Viceble. The President and Vice-President shall President, if such number be a majority of

be elected as follows: the whole number of electors appointed; and

(2) Each State shall appoint, in such man- if no person have a majority, then from the ner as the Legislature thereof may direct, a two highest numbers on the list, the Senate number of electors equal to the whole num- _ shall choose the Vice-President; a quorum ber of Senators and Representatives to which for the purpose shall consist of two-thirds of the State may be entitled in Congress; but the whole number of Senators, and a majority no Senator or Representative, or person hold- of the whole number shall be necessary for

ing an office of trust or profit under the a choice. Confederate States, shall be appointed an (5) But no person constitutionally ineligi-

elector. ble to the office of President shall be eligible

(3) The electors shall meet in their respec- to that of Vice-President of the Confederate tive States and vote by ballot for President States. and Vice-President, one of whom, at least. (6) The Congress may determine the time shall not be an inhabitant of the same State of choosing the electors. and the day on with themselves; they shall name in their which they shall give their votes; which day ballots the person voted for as President, and shall be the same throughout the Confederin distinct ballots the person voted for as ate States. Vice-President, and they shall make distinct (7) No person except a natural born citizen lists of all persons voted for as President,and of the Confederate States. or a citizen of all persons voted for as Vice-President, thereof, at the time of the adoption of this and of the number of votes for each; which Constitution, or a citizen thereof born in the list they shall sign, and certify, and transmit, United States prior to the 20th December. sealed, to the Government of the Confederate 1860, shall be eligible to the office of PresiStates, directed to the President of the Sen- dent; neither shall any person be eligible to ate. The President of the Senate shall, in that office who shall not have attained the the presence of the Senate and House of age of thirty-five years, and been fourteen Representatives, open all the certificates, and years a resident within the limits of the Conthe votes shall then be counted; the person _ federate States, as they may exist at the time

having the greatest number of votes for of his election. President shall be the President, if such num- (8) In case of the removal of the Presiber be a majority of the whole number of dent from office, or of his death, resignation. electors appointed; and if no person shall or inability to discharge the powers and duties have such a majority, then, from the persons of the said office, the same shall devolve on having the highest numbers, not exceeding the Vice-President: and the Congress may, three, on the list of those voted for as Presi- by law, provide for the case of the removal,

dent, the House of Representatives shall death, resignation, or inability both of the

choose immediately, by ballot, the President. President and the Vice-President, declaring But, in choosing the President, the votes shall what officer shall then act as President, and be taken by States, the Representative from such officer shall then act accordingly until each State having one vote; a quorum for the disability be removed or a President shall this purpose shall consist of a member or _ be elected.

members from two-thirds of the States, and (9) The President shall, at stated times, a majority of all the States shall be necessary _ receive for his services a compensation, which

382 DOCUMENTS OF AMERICAN History . shall neither be increased nor diminished dur- (4) The President shall have power to fill ing the period for which he shall have been all vacancies that may happen during the elected; and he shall not receive within that recess of the Senate, by granting commissions

period any other emolument from the Con- which shall expire at the end of the next

federate States, or any of them. session; but no person rejected by the Senate (10) Before he enters on the execution of _ shall be reappointed to the same office during the duties of his office, he shall take the fol- their ensuing recess.

lowing oath or affirmation: SEC. 3. (1) The President shall, from time “I do solemnly swear (or affirm) that I will to time, give to the Congress information of

faithfully execute the office of President of the state of the Confederacy, and recomthe Confederate States, and will, to the best mend to their consideration such measures as of my ability, preserve, protect, and defend he shall judge necessary and expedient; he

the Constitution thereof.” may, on extraordinary occasions, convene

SEC. 2. (1) The President shall be com- both Houses, or either of them; and, in case mander-in-chief of the army and navy of the of disagreement between them, with respect Confederate States, and of the militia of the to the time of adjournment he may adjourn

several States, when called into the actual them to such time as he shall think proper; service of the Confederate States; he may re- he shall receive ambassadors and other public

quire the opinion, in writing, of the principal ministers; he shall take care that the laws officer in each of the Executive Departments, be faithfully executed, and shall commission upon any subject relating to the duties of all the officers of the Confederate States.

their respective offices; and he shall have SEc. 4. (1) The President and Vice-Presipower to grant reprieves and pardons for of- dent, and all civil officers of the Confederate fences against the Confederate States, except States, shall be removed from office on im-

in cases of impeachment. peachment for, or conviction of, treason, (2) He shall have power, by and with the _ bribery, or other high crimes and misdemean-

advice and consent of the Senate, to make ors. treaties, provided two-thirds of the Senators’

present concur; and he shall nominate, and, ART. IIL. by and with the advice and consent of the SEC. 1. (1) The judicial power of the ConSenate, shall appoint ambassadors, other pub- federate States shall be vested in one Sulic ministers, and consuls, Judges of the Su- perior Court, and in such inferior courts as preme Court, and all other officers of the the Congress may from time to time ordain Confederate States, whose appointments are’ and establish. The judges, both of the Sunot herein otherwise provided for, and which preme and inferior courts, shall hold their shall be established by law; but the Congress offices during good behavior, and shall, at may by law vest the appointment of such stated times, receive for their services a cominferior officers, as they think proper, in the pensation, which shall not be diminished durPresident alone, in the courts of law, or in jing their continuance in office.

the heads of departments. Sec. 2. (1) The judicial power shall extend

(3) The principal officer in each of the to all cases arising under the Constitution, the Executive Departments, and all persons con- laws of the Confederate States, or treaties nected with the diplomatic service, may be made or which shall be made under their removed from office at the pleasure of the authority; to all cases affecting ambassadors, President. All other civil officers of the Ex- other public ministers, and consuls ; to all ecutive Department may be removed at any cases of admiralty or maritime jurisdiction; time by the President, or other appointing to controversies to which the Confederate power, when their services are unnecessary, States shall be a party; to controversies beor for dishonesty, incapacity, inefficiency, tween two or more States; between a State misconduct, or neglect of duty; and when so and citizens of another State, where the removed, the removal shall be reported to State is plaintiff; between citizens claiming the Senate, together with the reasons there- lands under grants of different States, and

for. between a State or the citizens thereof, and

CONSTITUTION OF THE CONFEDERATE STATES 383 foreign States, citizens, or subjects; but no State from which he fled, be delivered up to State shall be sued by a citizen or subject of | be removed to the State having jurisdiction

any foreign State. of the crime.

(2) In all cases affecting ambassadors, (3) No slave or other person held to servother public ministers, and consuls, and ice or labor in any State or Territory of the those in which a State shall be a party, the Confederate States, under the laws thereof. Supreme Court shall have original jurisdic- escaping or unlawfully carried into another. tion. In all the other cases before mentioned. shall, in consequence of any law or regulathe Supreme Court shall have appellate juris- tion therein, be discharged from such service diction, both as to law and fact, with such or labor; but shall be delivered up on claim exceptions, and under such regulations as the of the party to whom such slave belongs, or

Congress shall make. to whom such service or labor may be due.

(3) The trial of all crimes, except in cases Sec. 3. (1) Other States may be admitted of impeachment, shall be by jury, and such into this Confederacy by a vote of two-thirds

trial shall be held in the State where the of the whole House of Representatives, and said crimes shall have been committed; but two-thirds of the Senate, the Senate voting when not committed within any State, the by States; but no new State shall be formed trial shall be at such place or places as the or erected within the jurisdiction of any other

Congress may by law have directed. State; nor any State be formed by the juncSec. 3. (1) Treason against the Confeder- tion of two or more States, or parts of ate States shall consist only in levying war States, without the consent of the Legislaagainst them, or in adhering to their enemies, tures of the States concerned as well as of giving them aid and comfort. No person shall the Congress.

be convicted of treason unless on the testi- (2) The Congress shall have power to dismony of two witnesses to the same overt act, pose of and make all needful rules and regula-

or on confession in open court. tions concerning the property of the Con(2) The Congress shall have power to de- federate States, including the lands thereof.

clare the punishment of treason, but no at- (3) The Confederate States may acquire tainder of treason shall work corruption of new territory; and Congress shall have power blood, or forfeiture, except during the life of | to legislate and provide governments for the

the person attainted. inhabitants of all territory belonging to the Confederate States, lying without the limits

ART. IV. of the several States, and may permit them,

Sec. 1. (1) Full faith and credit shall be at such times, and in such manner as it may given in each State to the public acts, records, by law provide, to form States to be admitted

and judicial proceedings of every other into the Confederacy. In all such territory. State. And the Congress may, by general the institution of negro slavery, as il now laws, prescribe the manner in which such exists in the Confederate States, shall be acts, records, and proceedings shall be recognized and protected by Congress and

proved, and the effect thereof. by the territorial government; and the in-

Src. 2. (1) The citizens of each State shall habitants of the several Confederate States be entitled to all the privileges and immuni- and Territories shall have the right to take ties of citizens of the several States, and shall to such territory any slaves lawfully held have the right of transit and sojourn in any’ by them in any of the States or Territories of State of this Confederacy, with their slaves the Confederate States. and other property; and the right of prop- (4) The Confederate States shall guaranerty in said slaves shall not be thereby im- tee to every State that now is or hereafter

paired. may become a member of this Confederacy, (2) A person charged in any State with a Republican form of Government, and shail treason, felony, or other crime against the protect each of them against invasion; and laws of such State, who shall flee from on application of the Legislature, (or of the justice, and be found in another State, shall, Executive when the Legislature is not in seson demand of the executive authority of the sion,) against domestic violence.

384 DOCUMENTS OF AMERICAN [l1sTrory eral State Legislatures, and all executive and

ART. V. judicial offices, both of the Confederate States Sec. 1. (1) Upon the demand of any three and of the several States, shall be bound, States, legally assembled in their several by oath or affirmation, to support this ConConventions, the Congress shall summon a _ stitution; but no religious test shall ever be Convention of all the States, to take into required as a qualification to any office or consideration such amendments to the Con- public trust under the Confederate States. stitution as the said States shall concur in 5. The enumeration, in the Constitution, suggesting at the time when the said demand of _certain rights, shall not be construed to

is made; and should any of the proposed deny or disparage others retained by the amendments to the Constitution be agreed people of the several States.

on by the said Convention—voting by 6. The powers not delegatcd to the Con. States—and the same be ratified by the Leg- federate States by the Constitution, nor islatures of two-thirds of the several States, prohibited by it to the States, are reserved or by conventions in two-thirds thereof—as to the States, respectively, or to the people the one or the other mode of ratification may _ thereof. be proposed by the general convention—they

shall thenceforward form a part of this Con- ART. VII. :

stitution. But no State shall, without its con- 1.—The ratification of the conventions of sent, be deprived of its equal representation five States shall be sufficient for the establish-

In the Senate. ment of tnis Constitution between the States so ratifying the same. 2. When five States shall have ratified this

ART. VI. Constitution in the manner before specified,

1—The Government established by this the Congress, under the provisional ConstituConstitution is the successor of the Pro- tion, shall prescribe the time for holding the visional Government of the Confederate election of President and Vice-President, and States of America, and all the laws passed for the meeting of the electoral college, and by the latter shall continue in force until the for counting the votes and inaugurating the same shall be repealed or modified; and all President. They shall also prescribe the time the officers appointed by the same shall re- for holding the first election of members of main in office until their successors are ap- Congress under this Constitution, and the pointed and qualified, or the offices abolished. time for assemb:ing the same. Until the as2. All debts contracted and engagements sembling of such Congress, the Congress entered into before the adoption of this Con- under the provisional Constitution shall con-

stitution, shall be as valid against the Con- tinue to exercise the legislative powers federate States under this Constitution as granted them; not extending beyond the time

under the Provisional Government. limited hy the Constitution of the Provisional 3. This Constitution, and the laws of the Government. Confederate States, made in_ pursuance Adopted unanimously by the Congress of thereof, and all treaties made, or which shall the Confederate States of South Carolina, be made, under the authority of the Con- Georgia, Flor.da, Alabama, Mississippi, Loutfederate States, shall be the supreme law of siana, and Texas, sitting in convention at the the land: and the judges in every State shall capitol, in the city of Montgomery, Ala., on

be bound thereby, any thing in the Con- the eleventh day of March, in the year stitution or laws of any State to the con- eighteen hundred and sixty-one.

trary notwithstanding. Howell Cobb 4. The Senators and Representatives be- President of the Congress. fore mentioned, and the members of the sev- _ [Signatures]

LINCOLN’S First INAUGURAL ADDRESS 385 202. LINCOLN’S FIRST INAUGURAL ADDRESS March 4, 1861 (Richardson, ed. Aflessages and Papers, Vol. VI, p. 5 ff.) In his first inaugural address Lincoln reiterated hypercritical rules. And, while I do not his constitutional doctrine that the Union was choose now to specify particular acts of older than the States and that the contract be- Congress as proper to be enforced, I do tween the States was binding and irrevocable. suggest that it will be much safer for all,

ne Seward fae. as Nraugural en Pee both in official and private stations, to conAbraham Lincoln, Vol. III; W. E, Barton, Presi- form to and abide by all those acts which

dent Lincoln, Vol. I, ch. xiii. stand unrepealed, than to violate any of

them, trusting to find impunity in having

FELLOW-CITIZENS OF THE UNITED STATES: them held to be unconstitutional. .. .

—In compliance with a custom as old A disruption of the Federal Union, hereas the Government itself, I appear before tofore only menaced, is now formidably atyou to address you briefly, and to take in tempted. your presence the oath prescribed by the I hold that, in contemplation of universal Constitution of the United States to be taken law and of the Constitution, the Union of by the President “before he enters on the these States is perpetual. Perpetuity is im-

execution of his office.”. . . phed. if not expressed, in the fundamental

Apprehension seems to exist among the law of all national governments. It is safe to people of the Southern States that by the assert that no government proper ever had accession of a Republican administration a provision in its organic law for its own their property and their peace and personal termination. Continue to execute all the exsecurity are to be endangered. There has _ press provisions of our national Constitution, never been any reasonable cause for such and the Union will endure forever—it being

e apprehension. Indeed, the most ample evi- impossible to destroy it except by some dence to the contrary has all the whi'e ex- action not provided for in the instrument isted and been open to their inspection. It itself. is found in nearly all the published speeches Again, if the United States be not a govof him who now addresses you. I do but ernment proper, but an association of States quote from one of those speeches when I in the nature of contract merely, can it as declare that “I have no purpose, directly or a contract be peaceably unmade by less than

indirectly, to interfere with the institution all the parties who made it? One party to of slavery in the States where it exists. I a contract may violate it—break it, so to believe I have no lawful right to do so, and speak; but does it not require all to lawfully

I have no inclination to do so.” ... rescind it?

I now reiterate these sentiments; and, in Descend:ng from these general principles, doing so, I only press upon the public at- we find the proposition that in legal contention the most conclusive evidence of templation the Union is perpetual confirmed which the case is susceptible, that the prop- by the history of the Union itself. The erty, peace and securily of no section are Union is much older than the Constitution. to be in any wise endangered by the now’ It was formed, in fact, by the Articles of incoming administration. I add, too, that Association in 1774. It was matured and all the protection which, consistently with continued by the Declaration of Independthe Constitution and the laws, can be given, ence in 1776. It was further matured, and will be cheerfully given to all the States the faith of all the then thirteen States exwhen lawfully demanded, for whatever cause _ pressly plighted and engaged that it should ;

—as cheerfully to one section as to an- be perpetual, by the Articles of Confedera-

other... . : tion in 1778. And, finally, in 1787 one of the

I take the official oath to-day with no declared objects for ordaining and establishmental reservations, and with no purpose to ing the Constitution was “to form a more construe the Constitution or laws by any perfect Union.”

386 DOCUMENTS OF AMERICAN History But if the destruction of the Union by have that sense of perfect security which is one or by a part only of the States be law- most favorable to calm thought and reflecfully possible, the Union is less perfect than tion. The course here indicated will be folbefore the Constitution, having lost the vital lowed unless current events and experience

element of perpetuity. shall show a modification or change to be It follows from these views that no State proper, and in every case and exigency my upon its own mere motion can lawfully get best discretion will be exercised according out of the Union; that resolves and ordi- to circumstances actually existing, and with nances to that effect are legally void; and a view and a hope of a peaceful solution of that acts of violence, within any State or the national troubles and the restoration of States, against the authority of the United fraternal sympathies and affections. States, are insurrectionary or revolutionary, That there are persons in one section or

according to circumstances. another who seek to destroy the Union at I therefore consider that, in view of the all events, and are glad of any pretext to Constitution and the laws, the Union is un- do it, I will neither affirm nor deny; but if

broken; and to the extent of my ability I there be such, I need address no word to shall take care, as the Constitution itself them. To those, however, who really love expressly enjoins upon me, that the laws the Union may I not speak? of the Union be faithfully executed in all Before entering upon so grave a matter the States. Doing this I deem to be only as the destruction of our national fabric, a simple duty on my part; and I shall per- with all its benefits, its memories, and its

form it so far as practicable, unless my rightful hopes, would it not be wise to ascertain masters, the American people, shall with- precisely why we do it? Will you hazard so hold the requisite means, or in some au- desperate a step while there is any possibility thoritative manner direct the contrary. I trust that any portion of the ills you fly from this will not be regarded as a menace, but have no real existence? Will you, while the only as the declared purpose of the Union certain ills you fly to are greater than all the that it will constitutionally defend and main- real ones you fly from—will you risk the

tain itself. commission of so fearful a mistake?

In doing this there needs to be no blood- All profess to be content in the Union if shed or violence; and there shall be none, all constitutional rights can be maintained. unless it be forced upon the national au- Is it true, then, that any right, plainly written thority. The power confided to me will be in the Constitution, has been denied? I think used to hold, occupy, and possess the prop- not. Happily the human mind is so conerty and places belonging to the Govern- _ stituted that no party can reach to the audacment, and to collect the duties and imposts; ity of doing this. Think, if you can, of a but beyond what may be necessary for these single instance in which a plainly written objects, there will be no invasion, no using provision of the Constitution has ever been of force against or among the people any- denied. If by the mere force of numbers a where. Where hostility to the United States, majority should deprive a minority of any in any interior locality, shall be so great and clearly written constitutional right, it might, universal as to prevent competent resident in amoral point of view, justify revolution— citizens from holding the Federal offices, certainly would if such a right were a vital there will be no attempt to force obnoxious one. But such is not our case. All the vital strangers among the people for that object. rights of minorities and of individuals are While the strict legal right may exist in the so plainly assured to them by affirmations government to enforce the exercise of these and negations, guaranties and prohibitions, In

. offices, the attempt to do so would be so the Constitution, that controversies never irritating, and so nearly impracticable withal, arise concerning them. But no organic law that I deem it better to forego for the time can ever be framed with a provision specifi-

the uses of such offices. cally applicable to every question which may The mails, unless repelled, will continue to occur in practical administration. No forebe furnished in all parts of the Union. So © sight can anticipate, nor any document of far as possible, the people everywhere shall reasonable length contain, express provisions

LINCOLN’s First INAUGURAL ADDRESS 387 for all possible questions. Shall fugitives from obviously possible that such decision may be

labor be surrendered by national or by State erroneous in any given case, still the evil

authority? The Constitution does not ex- effect following it, being limited to that pressly say. May Congress prohibit slavery particular case, with the chance that it may in the Territories? The Constitution does be overruled and never become a precedent

not expressly say. Must Congress protect for other cases, can better be borne than slavery in the Territories? The Constitution could the evils of a different practice. At

does not expressly say. the same time, the candid citizen must conFrom questions of this class spring all our fess that if the policy of the government, constitutional controversies, and we divide upon vital questions affecting the whole

upon them into majorities and minorities. If people, is to be irrevocably fixed by decisions the minority will not acquiesce, the majority of the Supreme Court, the instant they are must, or the Government must cease. There made, in ordinary litigation between parties

is no other alternative; for continuing the in personal actions, the people will have Government is acquiescence on one side or ceased to be their own rulers, having to

the other. that extent practically resigned the govern-

If a minority in such case will secede ment into the hands of that eminent tribunal. rather than acquiesce, they make a precedent Nor is there in this view any assault upon which in turn will divide and ruin them; for the court or the judges. It is a duty from a minority of their own will secede from which they may not shrink to decide cases them whenever a majority refuses to be con- properly brought before them, and it is no trolled by such minority. For instance, why fault of theirs if others seek to turn their may not any portion of a new confederacy a decisions to political purposes. year or two hence arbitrarily secede again, One section of our country believes slavery

precisely as portions of the present Union is right, and ought to be extended, while

now claim to secede from it? All who cherish the other believes it is wrong, and ought not disunion sentiments are now being educated to be extended. This is the only substantial

to the exact temper of doing this. dispute. The fugitive slave clause of the Is there such perfect identity of interests Constitution and the law for the suppresamong the States to compose a new Union — sion of the foreign slave trade are each as as to produce harmony only, and prevent re- well enforced, perhaps, as any law can ever

newed secession? be in a community where the moral: sense Plainly, the central idea of secession is the of the people imperfectly supports the law essence of anarchy. A majority held in re- itself. The great body of the people abide straint by constitutional checks and limita- by the dry legal obligation in both cases, and

tions, and always changing easily with de- a few break over in each. This, I think, liberate changes of popular opinions and cannot be perfectly cured; and it would be sentiments, is the only true sovereign of a worse in both cases after the separation of free people. Whoever rejects it does, of the sections than before. The foreign slave necessity, fly to anarchy or to despotism. trade, now imperfectly suppressed, would be Unanimity is impossible; the rule of a minor- ultimately revived, without restriction, in one ity, aS a permanent arrangement, is wholly section, while fugitive slaves, now only parinadmissible; so that, rejecting the majority tially surrendered, would not be surrendered principle, anarchy or despotism in some form at all by the other.

is all that is left. Physically speaking, we cannot separate. I do not forget the position assumed by We cannot remove our respective sections

some, that constitutional questions are to be from each other, nor build an impassable wall decided by the Supreme Court; nor do I deny between them. A husband and wife may be

that such decisions must be binding, in any’ divorced and go out of the presence and case, upon the parties to a suit, as to the beyond the reach of each other; but the difobject of that suit, while they are also en- ferent parts of our country cannot do this. titled to a very high respect and considera- They cannot but remain face to face, and tion in all parallel cases by all other depart- intercourse, either amicable or hostile, must ments of the government. And, while it is continue between them. Is it possible, then,

388 DOCUMENTS OF AMERICAN IIISTORY to make that intercourse more advantageous eternal truth and justice, be on your side of

or more satisfactory after separation than the North, or on yours of the South, that before? Can alicns make treaties easier than truth and that justice will surely prevail by friends can make laws? Can treaties be more the judgment of this great tribunal of the faithfully enforced between aliens than laws American peopte.

can among friends? Suppose you go to war, By the frame of the government under you cannot fight always; and when, after which we live, this same peop!e have wisely much loss on both sides, and no gain on given their public servants but little power either, you cease fighting, the identical old for mischief; and have, with equal wisdom, questions as to terms of intercourse are again provided for the return of that little to their

upon you. own hands at very short intervals. While

This country, with its institutions, belongs the people retain their virtue and vigilance, to the people who inhabit it. Whenever they no administration, by any extreme of wicked-

shall grow weary of the existing govern- ness or folly, can very seriously injure the ment, they can exercise their constitutional government in the short space of four years. right of amending it, or their revolutionary My countrymen, one and all, think calmly right to dismember or overthrow it. I cannot and well upon this whole subject. Nothing be ignorant of the fact that many worthy valuable can be lost by taking time. If there and patriotic citizens are desirous of having be an object to hurry any of you in hot haste the national Constitution amended. While I to a step which you would never take demake no recommendation of amendments, 1 lberately, that object will be frustrated by fully recognize the rightful authority of the taking time; but no good object can be fruspeople over the whole subject, to be exercised trated by it. Such of you as are now disin either of the modes prescribed in the _ satisfied still have the oid Constitution uniminstrument itself, and I shoud, under exist- paired, and, on the sens.tive point, the laws ing circumstances, favor rather than oppose of your own framing under it; while the new a fair opportunity being afforded the people administration will have no immediate power,

to act upon it. I will venture to add that if it would, to change either. If it were adto me the convention mode seems preferable, mitted that you who are dissatisfied hold the

in that it allows amendments to originate right side in the dispute, there still is no with the people themselves, instead of only — single good reason for precipitate action. Inpermitting them to take or reject proposi- _ telligence, patriotism, Christianity, and a firm

tions originated by others not especially reliance on Him who has never yet forsaken chosen for the purpose, and which might not this favored land, are still competent to adbe precisely such as they would wish to just in the best way all our present difficulty. either accept or refuse. I understand a pro- In your hands, my dissatisfied fellowposed amendment to the Constitution—which countrymen, and not in mine, is the momenamendment, however, I have not seen—has _ tous issue of civil war. The government will

passed Congress, to the effect that the Fed- not assail you. You can have no conflict

eral Government shall never interfere with without being yourselves the aggressors. You the domestic instituions of the States, in- have no oath registered in h2aven to destroy cluding that of persons he!d to service. To the government, while I shall have the most

avoid misconstruction of what I have said, so:emn one to “preserve, protect. and deI depart from my purpose not to speak of fend” it. particular amendments so far as to say that, I am loath to close. We are not enemies, holding such a provision to now be implied but friends. We must not be enemies. Though constitutional law, I have no objection to its passion may have strained, it must not break, being made express and irrevocable. . . . our bonds of affection. The mystic chords of

Why should there not be a patient con- memory, stretching from every battle-field fidence in the ultimate justice of the people? and patriot grave to every living heart and Is there any better or equal hope in the _ hearthstone all over this broad land, will yet world? In our present differences is either swetl the chorus of the Union when again party without faith of being in the right? touched, as surely they will be, by the better If the Almighty Ruler of nations, with his angels of our nature.

Davis’s MESSAGE TO CONGRESS 389 203. DAVIS’S MESSAGE TO CONGRESS April 29, 1861 (Richardson, ed. Messages and Papers of the Confederacy, Vol. I, p. 63 ff.) Davis called the Confederate Congress together Under this contract of alliance, the war of in special session April 29, 1861. In his message the Revolution was successfully waged, and

he analyzed again the theory of the Union and yesuited in the treaty of peace with Great the logic of secession, In this message he also Britain in 1783, by the Lerms of which the asked for authority to prosecute the war: in re- a eral States were each by name recognized sponse to his requests Congress at this session to be independent. The Articles of Confedera-

authorized him to use all the land and naval ; ;

force of the Confederacy, to issue letters of ton contained a clause whereby all altera-

marque, raise volunteers, make loans, etc. See, tions were prohibited unless confirmed by the J. Davis, Rise and Fall of the Confederate Gov- _Legis'atures of every State after being agreed

ernment, Vol. I, Part IV, ch. iv. to by the Congress; and in obedience to this provision, under the resolution of Congress

Gentlemen of the Congress... . of the 21st of February, 1787, the several The declaration of war made against this States appointed delegates who attended a Confederacy by Abraham Linco!n, the Presi- convention “for the sole and express purpose dent of the United States, in his proclama- of revising the Articles ot Confederation and tion issued on the {5th day of the present reporting to Congress and the several Legislamonth, rendered it necessary, In my judg- _ tures such alterations and provisions therein

ment, that you should convene at the earliest as shall, when agreed to in Congress and practicable moment to devise the measures confirmed by the States, render the Federal necessary for the defense of the country. The Constitution adequate to the exigencies of occasion is indeed an extraordinary one. It Government and the preservation of the justifies me in a brief review of the relations Union.” It was by the delegates chosen by heretofore existing between us and the States the several States under the resolution Just which now unite in warfare against us and quoted that the Constitution of the United in a succinct statement of the events which States was framed in 1787 and submitted to have resulted in this warfare, to the end that the several States for ratification, as shown mankind may pass intelligent and impartial by the seventh article, which is in these judgment on its motives and objects. Dur- words: “The ratification of the conventions ing the war waged against Great Britain by of mime States shall be sufficient for the esher colonies on this continent a common _ tablishment of this Constitution between the danger impelled them to a close alliance and States so ratifying the same.” . . . The Conto the formation of a Confederation, by the stitution of 1787, having, however, omitted terms of which the colonies, styling them- the clause already recited from the Articles selves States, entered “severally into a firm of Confederation, which provided in explicit league of friendship with each other for their terms that each State retained its sovereignty

: common defense, the security of their liber- and independence, some alarm was felt in the ties, and their mutual and general welfare. States, when invited to ratify the Constituhinding themselves to assist each other tion, lest this omission should be construed against all force offered to or attacks made into an abandonment of their cherished prinupon them, or any of them, on account of ciple, and they refused to be satisfied until religion, sovereignty, trade, or any other amendments were added to the Constitution pretense whatever.” In order to guard against placing beyond any pretense of doubt the any misconstruction of their compact, the reservation by the States of all their soverseveral States made explicit declaration in a eign rights and powers not expressly deledistinct article—that “each State retains 1's gated to the United States by the Constitusovereignty, freedom, and independence, and _ tion.

every power, jurisdiction, and right which is Strange, indeed, must it appear to the imnot by this Confederation expressly delegated partial observer, but it is none the less true to the United States in Congress assembled.” that all these carefully worded clauses proved

390 DocUMENTS OF AMERICAN HISTORY unavailing to prevent the rise and growth in large portion of the laboring population con-

the Northern States of a political school sisted of African slaves imported into the which has persistently claimed that the gov- colonies by the mother country. In twelve ernment thus formed was not a compact be- out of the thirteen States negro slavery tween States, but was in effect a national existed, and the right of property in slaves government, set up above and over the States. was protected by law. This property was

An organization created by the States to recognized in the Constitution, and _ prosecure the blessings of liberty and inde- vision was made against its loss by the escape pendence against foreign aggression, has been of the slave. The increase in the number of gradually perverted into a machine for their slaves by further importation from Africa control in their domestic affairs. The crea- was also secured by a clause forbidding Conture has been exalted above its creators; the gress to prohibit the slave trade anterior to principals have been made subordinate to the a certain date, and in no clause can there

agent appointed by themselves. The people be found any delegation of power to the of the Southern States, whose almost ex- Congress authorizing it in any manner to clusive occupation was agriculture, early per- legislate to the prejudice, detriment, or disceived a tendency in the Northern States to couragement of the owners of that species render the common government subservient of property, or excluding it from the protecto their own purposes by imposing burdens _ tion of the Government. on commerce as a protection to their manu- The climate and soil of the Northern States facturing and shipping interests. .. . By de- soon proved unpropitious to the continuance

grees, as the Northern States gained pre- of slave labor, whilst the converse was the

ponderance in the National Congress, case at the South. Under the unrestricted self-interest taught their people to yield ready free intercourse between the two sections, assent to any plausible advocacy of their the Northern States consulted their own in-

right as a majority to govern the minority terests by selling their slaves to the South without control. They learned to listen with and prohibiting slavery within their limits. impatience to the suggestion of any constitu- The South were willing purchasers of prop-

tional impediment to the exercise of their erty suitable to their wants, and paid the will, and so utterly have the principles of price of the acquisition without harboring a the Constitution been corrupted in the North- suspicion that their quiet possession was to

ern mind that, in the inaugural address de- be disturbed by those who were inhibited livered by President Lincoln in March last, not only by want of constitutional authority, he asserts as an axiom, which he plainly but by good faith as vendors, from disquietdeems to be undeniable, that the theory of ing a title emanating from themselves. As the Constitution requires that in all cases the soon, however, as the Northern States that majority shall govern; .. . This is the lam- prohibited African slavery within their limits entable and fundamental error on which rests had reached a number sufficient to give their the policy that has culminated in his declara- representation a controlling voice in the tion of war against these Confederate States. Congress, a persistent and organized system In addition to the long-continued and deep- of hostile measures against the rights of the seated resentment felt by the Southern States owners of slaves in the Southern States was at the persistent abuse of the powers they inaugurated and gradually extended. A conhad delegated to the Congress, for the pur- tinuous series of measures was devised and pose of enriching the manufacturing and prosecuted for the purpose of rendering inshipping classes of the North at the expense secure the tenure of property in slaves... . of the South, there has existed for nearly half Emboldened by success, the theatre of agitaa century another subject of discord, involv- tion and aggression against the clearly exing interests of such transcendent magnitude pressed constitutional rights of the Southern as at all times to create the apprehension in States was transferred to the Congress; Sena-

the minds of many devoted lovers of the tors and Representatives were sent to the Union that its permanence was impossible. common councils of the nation, whose chief When the several States delegated certain title to this distinction consisted in the display powers to the United States Congress, a of a spirit of ultra-fanaticism, and whose busi-

Davis’s MESSAGE TO CONGRESS 391 ness was not “to promote the general welfare of the whole United States and had become or insure domestic tranquillity,” but toawaken absolutely necessary to the wants of civilized

the bitterest hatred against the citizens of man. With interests of such overwhelming sister States, by violent denunciation of their magnitude imperiled, the people of the Southinstitutions; the transaction of public affairs ern States were driven by the conduct of the

was impeded by repeated efforts to usurp North to the adoption of some course of powers not delegated by the Constitution, action to avert the danger with which they for the purpose of impairing the security of were openly menaced. With this view the property in slaves, and reducing those States Legislatures of the several States invited the which held slaves to a condition of inferior- people to select delegates to conventions to ity. Finally a great party was organized for be held for the purpose of determining for the purpose of obtaining the administration themselves what measures were best adapted of the Government, with the avowed object to meet so alarming a crisis in their history. of using its power for the total exclusion of | Here it may be proper to observe that from the slave States from all participation in the a period as early as 1798 there had existed

benefits of the public domain acquired by all in all of the States of the Union a party the States in common, whether by conquest almost uninterruptedly in the majority based or purchase; of surrounding them entirely by upon the creed that each State was, in the States in which slavery should be prohibited; last resort, the sole judge as well of its

of thus rendering the property in slaves so wrongs as of the mode and measure of insecure as to be comparatively worthless, redress... . and thereby annihilating in effect property .. . In the exercise of a right so ancient, worth thousands of millions of dollars. This so well-established, and so necessary for selfparty, thus organized, succeeded in the month preservation, the people of the Confederate of November last in the election of its candi- States, in their conventions, determined that date for the Presidency of the United States. the wrongs which they had suffered and the In the meantime, the African slaves had _ evils with which they were menaced required

augmented in number from about 600,000, that they should revoke the delegation of at the date of the adoption of the constitu- powers to the Federal Government which tional compact, to upward of 4,000,000. In _ they had ratified in their several conventions. moral and social condition they had been They consequently passed ordinances resumelevated from brutal savages into docile, in- ing all their rights as sovercign and indetelligent, and civilized agricultural laborers, pendent States and dissolved their connection and supplied not only with bodily comforts with the other States of the Union. but with careful religious instruction. Under Having done this, they proceeded to form the supervision of a superior race their labor a new compact amongst themselves by new had been so directed as not only to allow articles of confederation, which have been a gradual and marked amelioration of their also ratified by the conventions of the sevown condition, but to convert hundreds of eral States with an approach to unanimity thousands of square miles of the wilderness far exceeding that of the conventions which into cultivated lands covered with a prosper- adopted the Constitution of 1787. They have ous people; towns and cities had sprung into organized their new Government in all its existence, and had rapidly increased in wealth departments; the functions of the executive, and population under the social system of the legislative, and judicial magistrates are perSouth; the white population of the Southern formed in accordance with the will of the slave-holding States had augmented from people, as displayed not merely in a cheerful about 1,250,000 at the date of the adoption acquiescence, but in the enthusiastic support of the Constitution to more than 8,500,000, of*the Government thus established by them-

in 1860; and the productions in the South selves; and but for the interference of the of cotton, rice, sugar, and tobacco, for the Government of the United States in this full development and continuance of which legitimate exercise of the right of a people the labor of African slaves was and is indis- to self-government, peace, happiness, and pensable, had swollen to an amount which prosperity would now smile on our land... .

formed nearly three-fourths of the exports Jefferson Davis.

392 DocuMENTS OF AMERICAN IItstory 204. SEWARD’S PLAN TO AVERT CIVIL WAR April 1, 1861 | (Writings of Abraham Lincoln, Constitutional ed., Vol. V, p. 278 ff.) Seward was onc of the founders of the Republi- Sumter, although not in fact a slavery or a can Party and the most prominent of the can- party question, is so regarded. Witness the didates for the Republ-can nomination in 1860. temper manifested by the Republicans in He looked his appointment to the first the free States, and even by the Union men place in theupon Cabinet as nothing more than his.

due, and entertained the idea of dominating the in the South, , ;

Presidential policy. “Seward,” said Gideon Welles, I would therefore terminate it as a safe “liked to be called premier”. His “Thoughts for ™eans for changing the issue. I deem it the President’s Consideration” were intended to fortunate that the last administration created establish his dominance over the President: Lin- the necessity. coln’s reply was a masterly rebuke, which did For the rest, I would simultaneously denot alienate the Secretary of State. The best fend and reinforce all the ports in the gulf, biography of Seward is F. Bancroit, Life of Wil- and have the navy recalled from foreign iam H. Seward, 2 vols.; see especially Vol. Tl, stations to be prepared for a blockade. Put chs, xxviii, xxix. See also, C. E. Macartney, Lin- the island of Key West under martial law

coln and His G. Bradford, ; , . te .of Portraits, ch. Cabinet, vii. Th-s ch. willv.;raise distinctly Union the question union or disunion. I would maintain every Some Thoughts for the President’s Con- fort and possession in the South. sideration, April 1, 1861.

First. We are at the end of a month’s ad- Tor Forercn NATIONS ministration, and yet without a policy either I would demand explanations from Spain

domestic or foreign. and France, categorically, at once.

Second. This, however, is not culpable, and I would seek explanations from Great It has even been unavoidable. The presence Britain and Russia, and send agents into of the Senate, with the need to meet ap- Canada, Mexico, and Central America to plications for patronage, have prevented at- rouse a vigorous continental spirit of indetention to other and more grave matters. pendence on this continent against European

Third. But further delay to adopt and __ jntervention. ,

prosecute our pouicies for both domestic and And, if satisfactory explanations are not foreign affairs would not only bring scandal received from Spain and France, on the administration, but danger upon the Would convene Congress and declare war

country. against them.

Fourth. To do this we must dismiss the But whatever policy we adopt, there must applicants for office. But how? I suggest that be an energetic prosecution of it. we make the local appointments forthwith, For this purpose it must be somebody’s leaving foreign or general ones for utterior bus’ness to pursue and direct it incessantly.

and occasional action. Either the President must do it himself, Fifth. The policy at home. I am aware and be all the while active in it, or

that my views are singular, and perhaps not Devolve it on some member of his Cabinet. sufficiently explained. My system is built Once adopted, debates on it must end, and

upon this idea as a ruling one, namely, that Jl agree and abide.

we must It is not in my especial province; CHANGE THE QUESTION BEFORE THE PUB- But I neither seek to evade nor assume LIC FROM ONE UPON SLAVERY, OR ABOUT _ responsibility. SLAVERY, for a question upon UNION OR DIS- REPLy To SECRETARY SEWARD’S

UNION:

In other words, from what would be re- MEMORANDUM

garded as a party question, to one of patriot- Executive Mansion, April 1, 1861.

ism or union. Elon. W. H. SEwarp.

The occupation or evacuation of Fort My DEAR SIR:—Since parting with you I

LINCOLN’S MESSAGE TO CONGRESS 393 have been considering your paper dated this within the range of our foreign policy; but up day, and entitled “Some Thoughts for the to that time we have been preparing circulars President’s Consideration.” The first proposi- and instructions to ministers and the like, all

tion in it is, “First, We are at the end of a in perfect harmony, without even a sugmonth’s administration, and yet without a gestion that we had no foreign policy.

policy either domestic or foreign.” Upon your closing propositions—that

At the beginning of that month, in the ‘whatever policy we adopt, there must be

inaugural, I said: “The power confided to me an energetic prosecution of it. will be used to hold, occupy, and possess the “For this purpose it must be somebody’s property and places belonging to the Govern- _ business to pursue and direct it incessantly. ment, and to collect the duties and imposts.”’ “Either the President must do it himself, This had your distinct approval at the time; and be all the wh.le active in it, or

and, taken in connection with the order I “Devolve it on some member of his Cabiimmediately gave General Scott, directing met. Once adopted, debates on it must end, him to employ every means in his power to and all agree and abide’—I remark that if strengthen and hold the forts, comprises the this must be done, I must do it. When a exact domestic policy you now urge, with the general line of policy is adopted, I appresingle exception that it docs not propose to hend there is no danger of its being changed

abandon Fort Sumter. without good reason, or continuing to be a Again. I do not perceive how the reinforce- subject of unnecessary debate; still, upon

ment of Fort Sumter would be done on a_ points arising in its progress I wish, and slavery or a party issue; while that of Fort suppose I am entitled to have, the advice Pickens would be on a more national and of all the Cabinet.

patriotic one. Your obedient servant, The news received yesterday in regard to A. LINCOLN. St. Domingo certainly brings a new item

205. LINCOLN’S MESSAGE TO CONGRESS IN SPECIAL SESSION July 4, 1861 (Richardson, ed. Messages and Papers, Vol. VI, p. 20 ff.) By proclamation of April 15, 1861, Lincoln called Mississippi, Louisiana, and Florida, except-

Congress to meet in special session July 4, 1861. ing only those of the Post-office DepartIn the intervening period Lincoln had straincd ment... .

ie executive authority in his eltort to suppress _.. The purpose to sever the Federal ¢ rebellion. The special session message informed Uni I do Congress of the steps that the executive had non was openly avowed. n accordance

taken and made specific recommendations for with this purpose, an ordinance had been the grant of additional powers. It presented too, 4dopted in each of these States, declaring in a more elaborate form than the Inaugural the States respectively to be separated from Address, Lincoln’s conception of the sgnificance the national Union. A formula for institutof the struggle for the preservation of the Union. ing a combined government of these States had been promulgated; and this illegal orFELLOW-CITIZENS OF THE SENATE AND ganization, in the character of confederate House or REPRESENTATIVES :—Having been States, was a’ready invoking recognition, aid,

convened on an extraordinary occasion, as and intervention from foreign powers. .. . authorized by the Constitution, your atten- And this issue embraces more than the fate tion is not called to any ordinary subject of these United States. It presents to the

of legislation. whole family of man the question whether At the beginning of the present Presi- a constitutional republic or democracy—a

dential term, four months ago, the functions government of the people by the same people of the Federal Government were found to —can or cannot maintain its territorial integbe generally suspended within the several rity against its own domestic foes. It presents States‘of South Carolina, Georgia, Alabama, the question whether discontented individu-

394 DocUMENTS OF AMERICAN History als, too few in number to control administra- without the consent of the Union or of any

tion according to organic laws in any case, other State... . can always, upon the pretenses made in this This sophism derives much, perhaps the

case, or on any other pretenses, or arbitrarily whole, of its currency from the assumption without any pretense, break up their govern- that there is some omnipotent and sacred ment, and thus practically put an end to free supremacy pertaining to a State—to each government upon the earth. It forces us to State of our Federal Union. Our States have ask: Is there in all republics this inherent neither more nor less power than that reand fatal weakness? Must a government, of served to them in the Union by the Connecessity, be too strong for the liberties of stitution—no one of them ever having been its own people, or too weak to maintain its a State out of the Union. The Original ones

own existence? passed into the Union even before they cast

So viewing the issue, no choice was left off their British colonial dependence; and the but to call out the war power of the govern- new ones each came into the Union directly ment, and so to resist force employed for its from a condition of dependence, excepting destruction by force for its preservation. ... Texas. And even Texas in its temporary inThe forbearance of this government had dependence was never designated a State. been so extraordinary and so long continued The new ones only took the designation of as to lead some foreign nations to shape their States on coming into the Union, while that action as if they supposed the early destruc- name was first adopted for the old ones in

tion of our national Union was probable. and by the Declaration of Independence. While this, on discovery, gave the executive ... Having never been States either in some concern, he is now happy to say that substance or in name outside of the Union, the sovereignty and rights of the United whence this magical omnipotence of “State States are now everywhere practically re- rights,” asserting a claim of power to lawspected by foreign powers; and a general fully destroy the Union itself? Much is said sympathy with the country is manifested about the “sovereignty” of the States; but

throughout the world... . the word even is not in the national Constitu-

It might seem, at first thought, to be of _ tion, nor, as is believed, in any of the State little difference whether the present move- constitutions. What is “sovereignty” in the ment at the South be called “secession” or political sense of the term? Would it be “rebellion.” The movers, however, well un- far wrong to define it as ‘a political comderstand the difference. At the beginning munity without a political superior’? Tested they knew they could never raise their trea~ by this, no one of our States except Texas son to any respectable magnitude by any ever was a sovereignty. . . . The States have name which implies violation of law. They their status in the Union, and they have no knew their people possessed as much of moral _ other legal status. If they break from this, sense, as much of devotion to law and order, they can only do so against law and by revo-

and as much pride in and reverence for the lution. The Union, and not themselves

history and government of their common _ separately, procured their independence and country as any other civilized and patriotic their liberty. By conquest or purchase the people. They knew they could make no ad- Union gave each of them whatever of in-

vancement directly in the teeth of these dependence or liberty it has. The Union is strong and noble sentiments. Accordingly, older than any of the States, and, in fact, they commenced by an insidious debauch- it created them as States. Originally some ing of the public mind. They invented an dependent colonies made the Union, and, in ingenious sophism which, if conceded, was turn, the Union threw off their old defollowed by perfectly logical steps, through pendence for them, and made them States, all the incidents, to the complete destruction such as they are. Not one of them ever had

of the Union. The sophism itself is that any a State constitution independent of the State of the Union may consistently with Union. Of course, it is not forgotten that the national Constitution, and therefore law- all the new States framed their constitutions fully and peacefully, withdraw from the Union _ before they entered the Union—nevertheless,

Toe CRITTENDEN-JOHNSON RESOLUTIONS 395 dependent upon and preparatory to coming the side of the Union it is a struggle for

into the Union... . maintaining in the world that form and What is now combated is the position that substance of government whose leading object

secession is consistent with the Constitution is to elevate the condition of men—to lift —is lawful and peaceful. It is not contended artificial weights from all shoulders; to clear

that there is any express law for it; and the paths of laudable pursuit for all; to

nothing should ever be implied as law which afford all an unfettered start, and a fair leads to unjust or absurd consequences. ... chance in the race of life. Vielding to partial The seceders insist that our Constitution and temporary departures, from necessity, admits of secession. They have assumed to this is the leading object of the government make a national constitution of their own, for whose existence we contend... . in which of necessity they have either dis- Our popular government has often been carded or retained the right of secession as called an experiment. Two points in it our they insist it exists in ours. If they have dis- people have already settled—the successful carded it, they thereby admit that on prin- establishing and the successful administerciple it ought not to be in ours. If they have ing of it. One still remains—its successful retained it, by their. own construction of maintenance against a formidable internal atours, they show that to be consistent they tempt to overthrow it. It is now for them must secede from one another whenever they to demonstrate to the world that those who shall find it the easiest way of settling their can fairly carry an election can also suppress debts, or effecting any other selfish or unjust a rebellion; that ballots are the rightful and object. The principle itself is one of disin- peaceful successors of bullets; and that when tegration and upon which no government can ballots have fairly and constitutionally de-

possibly endure... . cided, there can be no successful appeal back It may well be questioned whether there is to bullets; that there can be no successful to-day a majority of the legally qualified appeal, except to ballots themselves, at sucvoters of any State except perhaps South ceeding elections. Such will be a great lesson Carolina in favor of disunion. There is much of peace: teaching men that what they canreason to believe that the Union men are not take by an election, neither can they take the majority in many, if not in every other it by war; teaching all the folly of being the

one, of the so-called seceded States... . beginners of a war.... This is essentially a people's contest. On

206. THE CRITTENDEN-JOHNSON RESOLUTIONS ON THE OBJECTS OF THE WAR July, 1861 (Richardson, ed. Messages and Addresses, Vol. VI, p. 430) These resolutions represented a conservative at- the constitutional Government and in arms

titude toward the South and the objects of the around the capital; that in this national war that shortly disappeared. The Crittenden emergency Congress, banishing all feelings of Resolutions passed the House, July 22, 1861, with ere passion or resentment, will recollect only two dissenting votes; the Johnson Resolu- ly its duty to the whole c th hi tions passed the Senate July 25 with five dissent- on yt Ss Gury to be whole country; that t is

ing votes. war 1s not wagedofupon our part in any spirit oppression, nor for any purpose of con-

; quest or subjugation, nor purpose of over-

THE CRITTENDEN RESOLUTIONS throwing or interfering with the rights or Resolved by the House of Representatives established institutions of those States, but of the Congress of the United States, That to defend and maintain the supremacy of the present deplorable civil war has been the Constitution and to preserve the Union, forced upon the country by the disunionists with all the dignity, equality, and rights of of the Southern States now in revolt against the several States unimpaired; and that as

396 DOCUMENTS OF AMERICAN History soon as these objects are accomplished the country; that this war is not prosecuted upon

War Ought to cease. our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor

THE JoHNSoN REsoLuTIONs purpose of overthrowing or interfering with

Resolved, That the present deplorable civil the rights or established institutions of those

war has been forced upon the country by States, but to defend and maintain the suthe disunionists of the Southern States now premacy of the Constitution and all laws in revolt against the constitutional Govern- made in pursuance thereof and to preserve ment and in arms around the capital; that the Union, with all the dignity, equality, and in this national emergency Congress, banish- rights of the several States unimpaiicd; that ing all feel:ng of mere passion or resentment, as soon as these objects are accomplished the

will recollect only its duty .to the whole war ought to cease.

207. GENERAL BUTLER’S “CONTRABANDS”

Report of General Butler to the Secretary of War July 30, 1861 (F. Moore, ed. The Rebellion Record, Vol. Il, p. 437) The problem of the refugee slaves was one of their homes at Hampton, fleeing across the the most perplexing which the Government had creek within my lines for protection and to face. General Butler, commanding at Fortress support. Indeed, it was a most distressing Monroe, took matters into his own hands, and sieht to see these poor creatures, who had treated lugitive or captured slay cs as “contra- trusted to the protection of the arms of the band of war’. For a somewhat different solution, see Frémont’s Proclamation, Doc. No. 208. The United States, and who aided the troops of fairest discussion of Butler is in C. R. Fish’s ar- the United States in their enterprise, to be ticle in the Dictionary of American Biography. thus obliged to flee from their homes, and

| Vol. III. the homes of their masters who had deserted them, and become fugitives from fear of the

Head-quarters Department of Virginia, return of the rebel soldiery, who had threatFortress Monroe, July 30, 1861. ened to shoot the men who had wrought for Hon. Simon Cameron, Secretary of War:— us, and to carry off the women who had sir: ... In the village of Hampton there — served us, to a worse than Egyptian bondage. were a large number of negroes, composed I have, therefore, now within the Peninsula, in a great measure of women and children this side of Hampton Creek, 900 negroes, of the men who had fled thither within my 300 of whom are able-bodied men, 30 of lines for protection, who had escaped from whom are men substantially past hard labor, maurauding parties of rebels who had been 175 women, 225 children under the age of gathering up able-bodied blacks to aid them 10 years, and 170 between 10 and 18 years, in constructing their batteries on the James and many more coming in. The questions and York Rivers. I have employed the men’ which this state of facts presents are very in Hampton in throwing up intrenchments, embarrassing. and they were working zea'ously and effici- First, What shall be done with them? and, ently at that duty, saving our soldiers from Second, What is their state and condition?

that labor under the gleam of the mid-day Upon these questions I desire the instrucsun. The women were earning substantially tions of the Department. their own subsistence in washing, marketing. The first question, however, may perhaps and taking care of the clothes of the soldiers, be answered by considering the last. Are and rations were being served out to the men these men, women, and children, slaves? Are who worked for the support of the children. they freer Is their condition that of men, But by the evacuation of Hampton, rendered women, and children, or of property, or is it necessary by the withdrawal of troops, leav- a mixed relation?» What their status was ing me scarcely 5,000 men outside the Fort, under the Constitution and laws, we all know. including the force at Newport News, all What has been the effect of rebellion and a

these black people were obliged to break up state of war upon that status? When I

Fr&imMont’s PROCLAMATION ON SLAVES 397 adopted the theory of treating the able-bodied ters’ acts, and the state of war, assumed the negro fit to work in the trenches as property condition, which we hold to be the normal] liable to be used in aid of rebellion, and so one, of those made in God’s image? Is not contraband of war, that condition of things every constitutional, legal, and moral requirewas in so far met, as I then and still believe, ment, as well to the runaway master as their on a legal and constitutional basis. But now _ relinquished slaves, thus answered? I confess a new series of questions arises. Passing by that my own mind is compelled by this reawomen, the children, certainly, cannot be soning to look upon them as men and women. treated on that basis; if property, they must If not free born, yet free, manumitted, sent

be considered the incumbrance rather than forth from the hand that held them never the auxiliary of an army, and, of course. in to be reclaimed... . no possible legal relation could be treated as In a loyal State I would put down a contraband. Are they property? If they were _ servile insurrection. In a state of rebellion | so, they have been left by their masters and would confiscate that which was used to opowners, deserted, thrown away, abandoned, pose my arms, and take all that property. like the wrecked vessel upon the ocean. Their which constituted the wealth of that State, former possessors and owners have cause- and furnished the means by which the war lessly, traitorously. rebelliously. and, to carry is prosecuted, beside being the cause of the out the figure, practically abandoned them to war; and if, in so doing, it should be objected

be swallowed up by the winter storm of that human beings were brought to the free starvation. If property, do they not become enjoyment of life. liberty, and the pursuit of the property of the salvors? but we, their happiness, such objection might not require salvors, do not need and will not hold such much consideration. property, and will assume no such ownership: Pardon me for addressing the Secretary oi

has not, therefore, all proprietary relation War directly upon this question, as it in-

ceased? Have they not become, thereupon, volves some political considerations as well men, women, and children? No longer under as propriety of military action. I am, sir, ownership of any kind, the fearful relicts of | your obedient servant,

fugitive masters, have they not by their mas- BENJAMIN F. BUTLER. 208. FREMONT’S PROCLAMATION ON SLAVES St. Louis, August 30, 1861 (F. Moore, ed. The Rebellion Record, Vol. III, p. 33)

John Charles Frémont, too popular a figure to security of life, and devastation of property ignore, was placed in charge of the Department by bands of murderers and marauders, who of the West. An ardent abolitionist, he declared infest nearly every county in the State, and martial law and issued the proclamation of avai] themselves of public misfortunes, in the

August 30 confiscating the property and eman- vicinity of a hostile ¢ t atif a

cipating the slaves of rebels. While this action y ue force, to gratify private

inspired applause from the abolitionists, it seri- and neighborhood vengeance, and who find ously embarrassed the administration, and Lin- 7 enemy wherever they find plunder, finally coln was forced largely to countermand it. On demand the severest measures to repress the Frémont, see, A. Nevins, Frémont, ch. xxx-xxxi; daily increasing crimes and outrages, which

C. Goodwin, J. C. Frémont, ch. xii. are driving off the inhabitants and ruining the State.

Hlead-quarters Western Department. In this condition, the public safety and St. Louis, Aug, 30, 1861. success of our arms require unity of purpose. CIRCUMSTANCES in my judgment are of without let or hindrance to the prompt adsufficient urgency to render it necessary that ministration of affairs. In order, therefore, the commanding General of this department to suppress disorders, maintain the public should assume the administrative powers of peace, and give security to the persons and the State. Its disorganized condition, help- property of loyal citizens, I do hereby extend lessness of civil authority and the total in- and declare established martial law through-

398 DocUMENTS OF AMERICAN HtsTORY out the State of Missouri. The lines of the are warned that they are exposing themarmy occupation in this State are for the _ selves. present declared to extend from Leaven- All persons who have been led away from worth, by way of posts of Jefferson City, allegiance, are required to return to their Rolla, and Ironton, to Cape Girardeau on homes forthwith. Any such absence without the Mississippi River. All persons who shall sufficient cause, will be held to be presump-

be taken with arms in their hands within tive evidence against them. The object of these lines shall be tried by court-martial, this declaration is to place in the hands of and if found guilty, will be shot. Real and military authorities power to give instantanepersonal property of those who shall take ous effect to the existing laws, and supply up arms against the United States, or who — such deficiencies as the conditions of the war

shall be directly proven to have taken an demand; but it is not intended to suspend the active part with their enemies in the field, ordinary tribunals of the country, where law is declared confiscated to public use, and will be administered by civil officers in the their slaves, if any they have, are hereby usual manner, and with their customary au-

declared free men. thority, while the same can be peaceably All persons who shall be proven to have administered. destroyed, after the publication of this order, The commanding General will labor vigi-

railroad tracks, bridges, or telegraph lines, lantly for the public welfare, and, by his shall suffer the extreme penalty of the law. efforts for their safety, hopes to obtain not All persons engaged in treasonable corre- only acquiescence, but the active support of spondence, in giving or procuring aid to the the people of the country.

enemy, in fermenting turmoil, and disturb- J. C. FREMONT,

ing public tranquillity, by creating or circulat- Major-General Commanding. ing false reports, or incendiary documents,

209. EX PARTE MERRYMAN 17 Federal Cases, 144. 1861

Circuit Court, District of Maryland. Petition for for a writ of habeas corpus is made to me a writ of habeas corpus. John Merryman a under the 14th section of the Judiciary Act citizen of Baltimore, Maryland, was arrested by of 1789, which renders effectual for the citiorder of General Keim, and imprisoned at Fort Zen the constitutional privilege of the writ of McHenry. No ground having been shown for his habeas corpus. That act gives to the Courts

arrest, Chief Justice Taney authorized a wrt of the United States, as well as to each of habeas corpus, commanding General Cad- |. walader in command of Fort McHenry to deliver Justice of the Supreme Court, and to every up the prisoner. General Cadwalader, stating that District Judge, power to grant writs of habeas

he was acting under the authority of the Presi- corpus for the purpose of an inquiry into dent, refused to respect the writ. The Chief the cause of commitment. The petition was Justice then cited him for contempt of court, presented to me at Washington, under the but the General refused to receive the writ of impression that I would order the prisoner contempt. It was under these circumstances that to be brought before me there, but as he the Chief Justice filed the following opinion. ... .onfned in Fort McHenry, at the City For a reply to the argument of the court, see the of Baltimore, which is in my circuit, I reF. Moore, ed. The Rebellion Record, Vol. II, solved to hear it in the latter city, as obedip. 185 ff. For a discussion of the case sce War- ence to the writ, under such circumstances, ren, Supreme Court, ch. xxviii; S. Klaus, ed. would not withdraw Gen. Cadwalader who The Milligan Case, Introduction; J. G. Randall, had him in charge from the limits of his Constitutional Problems Under Lincoln; B. C. military command... .

opinion of the Hon. Reverdy Johnson, in oe

Steiner, Life of Roger Brooke Taney; G. C. A copy of the warrant or order, under ‘Sellery, Lincoln’s Suspension of Habeas Corpus, which the prisoner was arrested, was de-

University of Wisconsin, Bull. No. 149. manded by his counsel, and refused. And it Taney, C. J. The application in this case is not alleged in the return that any specific

Ex Partt MERRYMAN 399 act, constituting an offence against the laws the writ of Aabeas corpus is in the ninth secof the United States, has been charged against tion of the first article.

him upon oath; but he appears to have been This article is devoted to the Legislative arrested upon general charges of treason and Department of the United States, and has rebellion, without proof, and without giving not the slightest reference to the Executive the names of the witnesses, or specifying Department. It begins by providing “that the acts, which in the judgement of the all legislative powers therein granted shall military officer, constituted the crime. And be vested in a Congress of the United having the prisoner thus in custody on these States... .” After prescribing the manner in vague and unsupported accusations, he re- which these two branches of the Legislative fuses to obey the writ of habeas corpus, department shall be chosen, it proceeds to upon the ground that he is duly authorized by enumerate specifically the legislative powers

the President to suspend it. which it thereby grants and legislative powers

The case, then, is simply this: A military which it expressly prohibits, and at the conofficer residing in Pennsylvania issues an clusion of this specification, a clause is inorder to arrest a citizen of Maryland, upon — serted giving Congress “the power to make vague and indefinite charges, without any all laws which may be necessary and proper proof, so far as appears. Under this order for carrying into execution the foregoing

his house is entered in the night; he is powers, and all other powers vested by this seized as a prisoner, and conveyed to Fort Constitution in the Government of the McHenry, and there kept in close confine- United States or in any department or ofment. And when a habeas corpus is served fice thereof.” on the commanding officer, requiring him to The power of legislation granted by this produce the prisoner before a justice of the latter clause is by its word carefully conSupreme Court, in order that he may ex- fined to the specific objects before enumeramine into the legality of the imprisonment, ated. But as this limitation was unavoidably the answer of the officer is that he is au- somewhat indefinite, it was deemed necessary thorized by the President to suspend the to guard more effectively certain great cardiwrit of habeas corpus at his discretion, and, nal principles essential to the liberty of the in the exercise of that discretion, suspends citizen and to the rights and equality of the it in this case, and on that ground refuses States by denying to Congress, in express

obedience to the writ. terms, any power of legislation over them. It As the case comes before me, therefore, was apprehended, it seems, that such legislaTY understand that the President not only tion might be attempted under the pretext claims the right to suspend the writ of habeas _ that it was necessary and proper to carry into corpus himself, at his discretion, but to dele- execution the powers granted; and it was de-

gate that discretionary power to a military termined that there should be no room to officer, and to leave it to him to determine doubt, where rights of such vital importance whether he will or will not obey judicial were concerned, and accordingly this clause process that may be served upon him. is immediately followed by an enumeration No official notice has been given to the’ of certain subjects to which the powers of Courts of Justice, or to the public, by procla- legislation shall not extend; and the great im-

mation or otherwise, that the President portance which the framers of the Constituclaimed this power and had exercised it in tion attached to the privilege of the writ of the matter stated in the return. And I cer- habeas corpus to protect the liberty of the tainly listened to it with some surprise, for citizen, is proved by the fact that its suspenI had supposed it to be one of those points sion, except in cases of invasion and rebellion,

of constitutional law upon which there was is first in the list of prohibited power; and no difference of opinion, and that it was ad- even in these cases the power is denied and mitted on all hands that the privilege of the its exercise prohibited unless the public safety

writ could not be suspended except by act shall require it. It is true that in the cases

of Congress. ... mentioned Congress is of necessity to judge

The clause in the Constitution which au- whether the public safety does or does not thorizes the suspension of the privilege of require it; and its judgement is conclusive.

400 DOCUMENTS OF AMERICAN History But the introduction of these words is a nature of sovereignty, or the necessities of standing admonition to the legislative body government for self-defence, in times of tu-

of the danger of suspending it and of the mult and danger. The Government of the

extreme caution they should exercise before United States is one of delegated and limited they give the Government of the United powers. It derives its existence and authority States such power over the liberty of a citi- altogether from the Constitution, and neither

zen. of its branches—executive, legislative, or juIt is the second Article of the Constitution dicial—can exercise any of the powers of

that provides for the organization of the government beyond those specified and Executive Department, and enumerates the granted... . powers conferred on it, and prescribes its To guide me to a right conclusion, I have duties. And if the high power over the liberty the Commentaries on the Constitution of the of the citizens now claimed was intended to United States of the late Mr. Justice Story

be conferred on the President, it would un- . . . and also the clear and authoritative dedoubtedly be found in plain words in this ar- cision of (the Supreme) Court, given more ticle. But there is not a word in it that can than a half century since, and conclusively

furnish the slightest ground to justify the establishing the princip'es I have above

exercise of the power. . . . stated. Mr. Story, speaking in his CommenAnd the only power, therefore, which the taries of the /Aabeas corpus clause in the Con-

President possesses, where the “life, liberty stitution, says: and property” of a private citizen is con- “It is obvious that cases of a peculiar emercerned, is the power and duties prescribed in gency may arise, which may justify, nay, even

(he third section of the Second Article which require, the temporary suspension of any requires, “that he shall take care that the laws right to the writ... . Hitherto no suspenbe faithfully executed.” He is not authorized sion of the writ has ever been authorized by to execute them himself, or through agents Congress since the establishment of the Conor officers, civil or military, appointed by _ stitution. It would seem, as the power is given himself, but he is to take care that they be to Congress to suspend the writ of habeas faithfully carried into execution as they are corpus in cases of rebellion or invasion, that expounded and adjudged by the co ordinate the right to judge whether the exigency had branch of the government, to which that duty arisen must exclusively belong to that body”. Is assigned by the Constitution. It is thus Commentaries, section 1,336. made his duty to come in aid of the judicial And Chief Justice Marshall, in delivering authority, if it shall be resisted by force too the opinion of the Supreme Court in the case strong to be overcome without the assistance ex parte Bollman and Swartwout, uses this of the Executive arm. But in exercising this decisive language, in 4 Cranch, 101:

power, he acts in subordination to judicial “If at any time the public safety should authority, assisting it to execute its process require the suspension of the powers vested

and enforce its judgements. by this act in the courts of the United States,

With such provisions in the Constitution, it is for the Legislature to say so. That quesexpressed in language too clear to be misun- tion depends on political considerations, on derstood by anyone, I can see no ground’ which the Legislature is to decide. Until the whatever for supposing that the President in legislative will be expressed, this court can any emergency or in any state of things can only see its duty, and must obey the laws.”

authorize the suspension of the privilege of I can add nothing to these clear and emthe writ of /abeas corpus, or arrest a citizen phatic words of my great predecessor. except in aid of the judicial power. He cer- But the documents before me show that tainly does not faithfully execute the laws if the military authority in this case has gone he takes upon himself Icgislative power by far beyond the mere suspension of the privsuspending the writ of habeas corpus—and _ ilege of the writ of habeas corpus. It has, by the judicial power, also, by arresting and im- force of arms, thrust aside the judicial auprisoning a person without due process of law. _ thorities and officers to whom the ConstituNor can any argument be drawn from the _ tion has confided the power and duty of inter-

SECESSION OF KENTUCKY 401 preting and administering the laws, and United States are no longer living under a substituted a military government in its Government of laws, but every citizen holds place, to be administered and executed by life, liberty, and property at the will and

military officers... . pleasure of the army officer in whose military The Constitution provides, as I have before district he may happen to b2 found.

said, that “no person shall be deprived of life, In such a case my duty was too plain to liberty, or property without due process of be mistaken. I have exercised all the power law”. It declares that “the right of the people which the Constitution and laws confer on to be secure in their persons, houses, papers, me, but that power has been resisted by a and effects against unreasonable searches and force too strong for me to overcome. It is seizures shall not be violated. and no warrant possible that the officer who had incurred this shall issue but upon probable cause, supported grave responsibility may have misunderstood

by oath or affirmation, and particularly de- his instructions, and exceeded the authority scribing the place to be searched and the per- intended to be given him. I shall therefore sons or things to be seized.” It provides that order all the proceedings in this case, with the party accused shall be entitled to a speedy my opinion, to be filed and recorded in the

trial in a court of justice. Circuit Court of the United States for the

And these great and fundamental laws, District of Maryland, and direct the clerk

which Congress itself could not suspend, have to transm:t a copy. . . to the President of been disregarded and suspended, like the writ the United States. It will then remain for of habeas corpus, by a military order, sup- that high officer, in fulfillment of his conported by force of arms. Such is the case now _ stitutional obligation to “take care that the

before me: and I can only say that if the laws be faithfully executed” to determine

authority which the Constitution has confided what measure he will take to cause the civil to the judiciary department and judicial of- process of the United States to be respected

ficers may thus upon any pretext or under and enforced.

any circumstances be usurped by the military R. B. Taney power at its discretion, the people of the

210. SECESSION OF KENTUCKY November 20, 1861 (F. Moore, ed. The Rebellion Record, Vol. XII, p. 164-5) The regularly elected legislature of Kentucky, to limit, and did expressly limit, the powers after first attempting to maintain neutrality, of said Government to certain general specieventually pledged the loyalty of the State to fied purposes, and did expressly reserve to a onfederate Union, and provided for the expulsion of the States people; all other powers whattroops from the State. TheandKentucky soldiers in the Confederate Army, how- ever, and the President and Congress have ever, called a convention to meet at Russell- treated this supreme law of the Union with ville, November 18, 1861. This convention drew contempt, and usurped to themselves the up the following declaration of independence, Power to interfere with the rights and liberties and took steps to bring Kentucky into the Con- of the States and the people, against the exfederacy. See, W. C. Goodloe, Kentucky Union- press provisions of the Constitution, and have

ists of 1861; E. C. Sm-th, The Borderland in thus substituted for the highest forms of

ihe Cen Unb Coes anaes eedespotism, rational liberty and constitutional governpi.Go *-The ment a central founded upon the

“NANCE OF SEPARATION ae , the Constitution, to the people of fifteen

DeeLARATON oP serENonxce ax ons torent preludcs ofthe mosses of Northen

Whereas, The Federal Constitution, which States of the Union, have turned loose upon created the Government of the United States, them the unrestrained and raging passions of was declared by the framers thereof to be mobs and fanatics; and because we now seek the supreme law of the land, and was intended _ to hold our liberties, our property, our homes.

A402 DOCUMENTS oF AMERICAN History and our families, under the protection of the have violated the express words of the Constireserved powers of the States, have blockaded tution, by borrowing five millions of money our ports, invaded our soil, and waged war for the Support of the war, without a vote of upon our people, for the purpose of subjugat- the people; have permitted the arrest and im-

Ing us to their will; prisonment of our citizens, and transferred And whereas, Our own honor and our duty _ the constitutional prerogatives of the execu-

to posterity demand that we shall not relin- tive to a military commission of partisans: quish our own liberty, and shall not abandon have seen the writ of habeas corpus susthe rights of our descendants and the world pended, without an effort for its preservation, to the inestimable blessings of constitutional and permitted our people to be driven in

government, therefore, exile from their homes; have subjected our Be wt ordained, That we do hereby forever proprty to confiscation, and our persons to sever our connection with the Government confinement in the penitentiary as felons, beof the United States, and in the name of the cause we may choose to take part in a contest people we do hereby declare Kentucky to be for civil liberty and constitutional governa free and independent State, clothed with all ment against a sectional majority, waging war the power to fix her own destiny, and to se- against the people and institutions of thirteen

cure her own rights and liberties. States of the old Federal Union, and have And whereas, The majority of the Legisla- done all these things deliberately, against the ture of Kentucky have violated their most warnings and voice of the Governor, and the solemn pledges made before the election, and solemn remonstrances of the minority in the deceived and betrayed the people; have aban- Senate and House of Representatives; theredoned the position of neutrality assumed by fore, themselves and the people, and invited into Be it further ordained, That the unconstithe State the organized armies of Lincoln; tutional edicts of a factious majority of a have abdicated the Government in favor of Legislature, thus false to their pledges, their

the military despotism which they have honor, and their interests, are not law, and placed around themselves, but cannot control, that such a Government is unworthy of the and have abandoned the duty of shielding the support of a brave and free people; and we

citizen with their protection; have thrown do hereby declare, that the people are ab-

upon our people and the State the horrors and solved from all allegiance to said Governravages of war, instead of attempting to pre- ment, and have the right to establish any

serve the peace; and have voted men and government which to them may seem best money for the war waged by the North for adapted to the preservation of their rights the destruction of our constitutional rights; and liberties. . . . 211. COMPENSATED EMANCIPATION Extracts from Lincoln’s Messages to Congress Recommending Compensated Emancipation 1862

(Richardson, ed. Messages and Papers, Vol. VI, p. 68 ff., 126 ff.) Until the very end of the War Lincoln urged on Message of December 1, 1862 contained a spe-

Congress, and on the South, his plan for com-_ cific plan for compensated emancipation to pensated emancipation. In his message of De- which Lincoln invited the attention of Congress, cember 1861 he had recommended this plan to See, E. C. Smith, The Borderland in the Civil the Border States, but without effect. Shortly War, p. 375 ff.; I. N. Arnold, Lincoln and the after the special message of March 6, Lincoln Overthrow of Slavery. summoned members of Congress from these

States, and appealed for support, but without 1. MessaGE TO CONGRESS

success. On July 12, 1862, he held a conference March 6, 1862

with the senators and representatives of these States, and read to them an appeal for this FELLOW-CITIZENS OF THE SENATE AND policy, but again without result. The Annual Housr or REPRESENTATIVES:—I recommend

CoMPENSATED EMANCIPATION 403 the adoption of a joint resolution by your terested. It is proposed as a matter of perhonorable bodies which shall be substantially fectly free choice with them... .

as follows: The proposition now made (though an of“Resolved, That the United States ought to fer only), I hope it may be esteemed no

co-operate with any State which may adopt offense to ask whether the pecuniary considergradual abolishment of slavery, giving to such ation tendered would not be of more value State pecuniary aid, to be used by such State, to the States and private persons concerned

in its discretion, to compensate for the in- than are the institution and property in it conveniences, public and private, produced by in the present aspect of affairs.

- such change of system.” While it is true that the adoption of the If the proposition contained in the resolu- proposed resolution would be merely initiation does not meet the approval of Congress tory, and not within itself a practical meas-

and the country, there is the end; but if it ure, it is recommended in the hope that it does command such approval, I deem it of would soon lead to important practical reimportance that the States and people imme- sults. In full view of my great responsibility diately interested should be at once distinctly to my God and to my country, I earnestly beg notified of the fact, so that they may begin the attention of Congress and the people to to consider whether to accept or reject it. The the subject.

Federal Government would find its highest ABRAHAM LINCOLN. interest in such a measure, as one of the most

efficient means of self-preservation. The 2. MESSAGE TO CONGRESS

leaders of the existing insurrection entertain December 1, 1862

the hope that this government will ultimately .. . Our strife pertains to ourselves—to be forced to acknowledge the independence the passing generations of men—and it can of some part of the disaffected region, and without convulsion be hushed forever with that all the slave States north of such part the passing of one generation. will then say, “The Union for which we have In this view I recommend the adoption ot struggled being already gone, we now choose _ the following resolution and articles amendato go with the Southern section.” To deprive tory to the Constitution of the United States: them of this hope substantially ends the re- Resolved by the Senate and House of Repbellion, and the initiation of emancipation resemtatives of the United States of America, completely deprives them of it as to all the in Congress assembled, (two thirds of both States initiating it. The point is not that all Houses concurring), That the following artithe States tolerating slavery would very soon, cles be proposed to the Legislatures (or conif at all, initiate emancipation; but that, while ventions) of the several States as amend-

the offer is equally made to all, the more ments to the Constitution of the United northern shall by such initiation make it States, all or any of which articles, when

certain to the more southern that in no event ratified by three fourths of the said Legiswill the former ever join the latter in their latures (or conventions), to be valid as part proposed confederacy. I say “initiation” be- or parts of the said Constitution, viz: cause, in my judgment, gradual and not sud- ArT.—. Every State wherein slavery now den emancipation is better for all. In the exists which shall abolish the same therein at mere financial or pecuniary view, any member any time or times before the Ist day of of Congress with the census tables and treas- January, A.p. 1900, shall receive compensa-

ury reports before him can readily see for tion from the United States as follows, to himself how very soon the current expendi- wit:

tures of this war would purchase, at fair The President of the United States shall valuation, all the slaves in any named State. deliver to every such State bonds of the Such a proposition on the part of the General United States bearing interest at the rate of Government sets up no claim of a right by —per cent. per annum to an amount equal to Federal authority to interfere with slavery the aggregate sum of ———— for each slave within State limits, referring, as 1t does, the shown to have been therein by the Eighth absolute control of the subject in each case Census of the United States, said bonds to be to the State and its peaple immediately in- delivered to such State by instalments or in

404 - DOCUMENTS OF AMERICAN HISTORY one parcel at the completion of the abolish- dissatisfaction. The time spares both races ment. accordingly as the same shall have been from the evils of sudden derangement—in gradual or at one time within such State; fact, from the necessity of any derangement and interest shall begin to run upon any such -—while most of those whose habitual course bond only from the proper time of its delivery of thought will be disturbed by the measure as aforesaid. Any State having received bonds will have passed away before its consumma-

as aforesaid and atterwards reintroducing or tion. They will never see it. Another class to.erating slavery therein shall refund to the will hail the prospect of emancipation, but United States the bonds so received, or the will deprecate the length of time. They will value thereof, and all interest paid thereon. feel that it gives too little to the now living ArtT.—. All staves who shall have enjoyed = slaves. But it really gives them much. It actual freedom by the chances of the war at saves them from the vagrant destitution any time before the end of the rebellion sha! which must largely attend immediate emancibe forever free; but all owners of such who _ pation in localities where their numbers are shall not have been disloyal shall be com- very great, and it gives the inspiring assurance pensated for them at the same rates as is that their posterity shall be free forever. The provided for States adopting abolishment of plan leaves to each State choosing to act slavery, but in such way that no s:ave shall under it to abolish s!avery now or at the

be twice accounted for. end of the century, or at any intermediate Art.—. Congress may appropriate money time, or by degrees extending over the whole

and otherwise provide for co'’onizing free or any part of the period, and it obliges no colored persons with their own consent at any two States to proceed alike. It also provides piace or places without the United States. for compensation, and generally the mode of I beg indu!gence to discuss these proposed making it. This, it would seem, must further articles at some length. Without slavery the mitigate the dissatisfaction of those who farebellion could never have existed; without vor perpetual slavery, and especially of those

slavery it could not continue. who are to receive the compensation. Doubt-

Among the friends of the Union there is less some of those who are to pay and not great diversity of sentiment and of policy in to receive will object. Yet the measure 1s

regard to slavery and the African race both just and economical. In a certain sense amongst us. Some woutd perpetuate s'avery; the liberation of slaves is the destruction of some would abolish it suddenly and without property—property acquired by descent or by compensation; some would abolish it grad- purchase, the same as any other property. It ually and with compensation; some would is no less true for having been often said that remove the freed peop!e from us, and some _ the people of the South are not more respon-

would retain them with us; and there are sible for the original introduction of this yet other minor diversities. Because of these property than are the peopte of the North, diversities we waste much strength in strug- and when it is remembered how unhesitatgles among ourselves. By mutual concession ingly we all use cotton and sugar and share we should harmonize and act together. This the profits of dealing in them, it may not be would be compromise, but it would be com- quite safe to say that the South has been promise among the friends and not with the more responsible than the North for its conencmies of the Union. These articles are tinuance. If, then, for a common object this intended to embody a plan of such mutual property is to be sacrificed, is it not just that concessions. If the p!an shall be adopted, it is it be done at a common charge?

assumed that emancipation will follow, at And if with less money, or money more

least in several of the States. easily paid, we can preserve the benefits of

As to the first article, the main points are, the Union by this means than we can by the first, the emancipation; secondly, the length war alone, Is it not also economical to do it? of time for consummating it (thirty-seven Let us consider it, then. Let us ascertain the

years); and, thirdly, the compensation. sum we have expended in the war since comThe emancipation will be unsatisfactory to pensated emancipation was proposed last the advocates of perpetual slavery, but the March, and consider whether if that measure length of time should greatly mitigate their had been promptly accepted by even some of

COMPENSATED EMANCIPATION 405 the slave States the same sum would not And notwithstandng this plan, the recomhave done more to close the war than has mendation that Congress provide by law for been otherwise done. If so, the measure would compensating any State which may adopt save money, and in that view would be a pru- emancipation before this plan shall have been dent and economical measure. . . . The ag- acted upon is hereby earnestly renewed. Such gregate sum necessary for compensated eman- would be only an advance part of the plan,

cipation of course would be large. But it and the same arguments apply to both. would require no ready cash, nor the bonds This plan is recommended as a means, not even any faster than the emancipation pro- in exclusion of, but additional to, all others gresses. This might not, and probably would for restoring and preserving the national aunot, close before the end of the thirty-seven thority throughout the Union. The subject is years. At that time we shall probably have a _ presented exclusively in its economical aspect. hundred millions of people to share the bur- The plan would, I am confident, secure peace

den, instead of thirty-one millions as more speedily and maintain it more perma-

now. ... nently than can be done by force alone, while The proposed emancipation would shorten ll it wou'd cost, considering amounts and the war, perpetuate peace, insure this increase manner of payment and times of payment, of population, and proportionately the wealth would be easier paid than will be the addiof the country. With these we should pay all tional cost of the war if we rely so'ely upon the emancipation would cost, together with force. It is much, very much, that it would our other debt, easier than we should pay our cost no biood at all.

other debt without it... . The plan is proposed as permanent constl-

This fact would be no excuse for delaying tutional law. It cannot become such without payment of what is justly due, but it shows the concurrence of, first, two thirds of Conthe great importance of time in this connec- gress, and afterwards three fourths of the

tion—the great advantage of a policy by States. The requisite three fourths of the which we shall not have to pay until we States will necessarily include seven of the

number 100,000,000 what by a different pol- slave States. Their concurrence, 1f obtained, icy we would have to pay now, when we _ will give assurance of their severally adopting number but 31,000,000. In a word, it shows emancipation at no very distant day upon the

that a dollar will be much harder to pay for new constitutional terms. This assurance the war than will be a dollar for emancipation would end the struggle now and save the on the proposed plan. And then the latter will Union forever. . . . cost no blood, no precious life. It will be a Fellow-citizens, we can not escape history.

saving of both... . We of this Congress and this administration The third article relates to the future of | will be remembered in spite of ourselves. No

the freed people. It does not oblige, but personal significance or insignificance can merely authorizes Congress to aid in coloniz- spare one or another of us. The fiery trial ing such as may consent. This ought not to through which we pass will light us down in be regarded as objectionable on the one hand honor or dishonor to the latest generation. or on the other, insomuch as it comes to We say we are for the Union. The wor!d will nothing unless by the mutual consent of the not forget that we say this. We know how to

people to be deported and the American save the Union. The world knows we do voters through their representatives in Con- know how to save it. We, even we /rere, hold

gress... . the power and bear the responsibility. In The pan consisting of these articles is gzving freedom to the s/ave we assure free-

recommended, not but that a restoration of dom to the free—honorable alike in what we

the national authority would be accepted give and what we preserve. We shall nobly

without its adoption. save or meanly lose the last, best hope of Nor will the war nor proceedings under the earth. Other means may succeed; this could proclamation of September 22, 1862, be not fail. The way is plain, peaceful, generous, stayed because of the recommendation of this just—a way which if followed the world will plan. Its timely adoption, I doubt not, would forever applaud and God must forever bless.

bring restoration, and thereby stay both. ABRAHAM LINCOLN.

406 DOCUMENTS OF AMERICAN History 212. SUMNER’S RESOLUTIONS ON THE THEORY OF SECESSION AND RECONSTRUCTION February 11, 1862 (E. McPherson, ed. Political History of the Great Rebellion, p. 322) These resolutions contain the famous state- order to put an end to its supremacy: Theresuicide theory. See, W. A. Dunning, Essays on fore— veo, Summa na Reconstruction, p. na i See 1. Resolved, That any vote of secession or Rebel States”, Atlantic Monthly, October 1863. other act by which any State may undertake to put an end to the supremacy of the ConResolutions declaratory of the relations be- stitution within its territory is inoperative tween the United States and the territory and void against the Constitution, and when once occupied by certain States, and now sustained by force it becomes a practical abusurped by pretended governments, without dication by the State of all rights under the

constitutional or legal right. Constitution, while the treason -which it in-

Whereas certain States, rightfully belong- volves still further works an instant forfeiture ing to the Union of the United States, have of all those functions and powers essential to through their respective governments wick- the continued existence of the State as a body edly undertaken to abjure all those duties by politic, so that from that time forward the which their connection with the Union was territory falls under the exclusive jurisdiction maintained; to renounce all allegiance to the of Congress as other territory, and the State Constitution; to levy war upon the national being, according to the language of the law, Government; and, for the consummation of felo-de-se, ceases to exist. this treason, have unconstitutionally and un- 2. That any combination of men assuming lawfully confederated together, with the de- to act in the place of such State, attempting clared purpose of putting an end by force to to ensnare or coerce the inhabitants thereof the supremacy of the Constitution within into a confederation hostile to the Union is their respective limits; and whereas this con- rebellious, treasonable, and destitute of all dition of insurrection, organized by pretended moral authority; and that such combination governments, openly exists in South Carolina, is a usurpation incapable of any constitutional Georgia, Florida, Alabama, Mississippi, Lou- existence and utterly lawless, so that every isiana, Texas, Arkansas, Tennessee, and Vir- thing dependent upon it is without constituginia, except in Eastern Tennessee and West- _ tional or legal support.

ern Virginia, and has been declared by the 3. That the termination of a State under President of the United States, in a procla- the Constitution necessarily causes the termimation duly made in conformity with an act nation of those peculiar local institutions of Congress, to exist throughout this terri- which, having no origin in the Constitution tory, with the exceptions already named; and or in those natural rights which exist indewhereas the extensive territory thus usurped pendent of the Constitution, are upheld by by these pretended governments and organ- the sole and exclusive authority of the State. ized into a hostile confederation, belongs to 4. That slavery, being a peculiar local inthe United States, as an inseparable part stitution, derived from local laws, without thereof, under the sanctions of the Consti- any origin in the Constitution or in natural tution, to be held in trust for the inhabitants rights, is upheld by the sole and exclusive in the present and future generations, and is authority of the State, and must therefore so completely interlinked with the Union that cease to exist legally or constitutionally when it is forever dependent thereon; and whereas the State on which it depends no longer exthe Constitution, which is the supreme law of _ ists; for the incident cannot survive the prin-

the land, cannot be displaced in its rightful cipal. . |

operation within this territory, but must ever 5. That in the exercise of its exclusive jucontinue the supreme law thereof, notwith- risdiction over the territory once occupied by standing of the doings of any pretended gov-___ the States, it is the duty of Congress to see

ernments acting singly or in confederation, in that the supremacy of the Constitution is

INAUGURAL ADDRESS OF JEFFERSON DAVIS 407 maintained in its essential principles, so that giance is due to the United States, may justly everywhere in this extensive territory slavery look to the national Government for protec-

shall cease to exist practically, as it has al- tion.

ready ceased to exist constitutionally or 9, That the duty directly cast upon Con-

legally. gress by the extinction of the States is re-

6. That any recognition of slavery in such inforced by the positive prohibition of the territory, or any surrender of slaves under Constitution that “no State shall enter into the pretended laws of the extinct States by any confederation,” or “‘without the consent any officer of the United States, civil or mil- of Congress keep troops or ships-of-war in itary, is a recognition of the pretended gov- time of peace, or enter into any agreement or ernments, to the exclusion of the jurisdiction compact with another State,” or “grant let-

of Congress under the Constitution, and is ters of marque and reprisal,” or “coin

in the nature of aid and comfort to the rebel- money,” or “emit bills of credit,” or ‘‘with-

lion that has been organized. out the consent of Congress lay any duties on 7. That any such recognition of slavery or imports or exports,” all of which have been surrender of pretended slaves, besides being a doné by these pretended governments, and recognition of the pretended governments, also by the positive injunction of the Consti-

giving them aid and comfort, is a denial of tution, addressed to the nation, that “the the rights of persons who, by the extinction United States shall guaranty to every State of the States, have become free, so that un- in this Union a republican form of governder the Constitution, they cannot again be ment;” and that in pursuance of this duty

enslaved. cast upon Congress, and further enjoined by 8. That allegiance from the inhabitant and the Constitution, Congress will assume com-

protection from the Government are corre- plete jurisdiction of such vacated territory sponding obligations, dependent upon each where such unconstitutional and illegal things other, so that while the allegiance of every have been attempted, and will proceed to esinhabitant of this territory, without distinc- tablish therein republican forms of govern-

tion of color or class, is due to the United ment under the Constitution; and in the States, and cannot in any way be defeated by execution of this trust will provide carefully

the action of any pretended Government, or for the protection of all the inhabitants by any pretence of property or claim to serv- thereof, for the security of families, the orice, the corresponding obligation of protection ganization of labor, the encouragement of is at the same time due by the United States industry, and the welfare of society, and will to every such inhabitant, without distinction in every way discharge the duties of a just, of color or class; and it follows that inhabit- merciful, and paternal Government. ants held as slaves, whose paramount alle-

213. INAUGURAL ADDRESS OF JEFFERSON DAVIS

February 22, 1862 |

(Richardson, ed. Messages and Papers of the Confederacy, Vol. I, p. 183 ff.) Davis had been chosen provisional President of Constitutionalist, His Letters, Papers and the Confederacy by the Montgomery Congress, Speeches, 10 vols. and was formally inaugurated February 18. A

Seats Canton 'eOacber Tsh see ge Eon Crmizens: On this the Dithdy o

erate » In the man most identified with the establish-

sulted in his election as President for a term of ment of Ameri Ind q d six years: his inaugural followed on the 22nd of erican ancependence, an beneath February. On Davis, see his own Rise and Fall the monument erected to commemorate his

of the Confederate Government, 2 Vols., Heroic virtues and those of his compatriots, W. E. Dodd, Jefferson Davis; A. Tate, Jefferson We have assembled to usher into existence the

Davis; E. Cutting, Jefferson Davis. His writings permanent government of the confederate can be found in D. Rowland, ed. Jefferson Davis, States. Through this instrumentality, under

408 DOCUMENTS OF AMERICAN Ht1storRy the favor of Divine Providence, we hope to citizen maintained as securely as if a war of perpetuate the principles of our Revolution- invasion had not disturbed the land. ary fathers. The day, the memory and the The people of the States now confederated

purpose scem filly associated. .. . became convinced that the Government of

When a long course of class legislation, di- the United States had fallen into the hands rected not to the general welfare, but to the of a sectional majority, who wou'd pervert aggrandizement of the Northern section of that most sacred of all trusts to the destructhe Union, culminated in a warfare on the tion of the rights which it was pledged to domestic institutions of the Southern States protect. They believed that to remain longer —when the dogmas of a sectional party, sub- in the Union would subject them to a continustituted for the provisions of the constitu- ance of a disparaging discrimination, submistional compact, threatened to destroy the sov- sion to which would be inconsistent with their ereign rights of the States, six of those States, welfare, and into'erable to a proud people. withdrawing from the Union, confederated They therefore determined to sever its bonds together to exercise the right and perform the and establish a new confederacy for themduty of instituting a government which would _ selves.

better secure the liberties for the preserva- The experiment instituted by our Revolution of which that Union was established. tionary fathers, of a voluntary union of sovWhatever of hope some may have enter- ereign States for purposes speciMed in a tained that a returning sense of justice would solemn compact, had been perverted by those remove the danger with which our rights were who, feeling power and forgetting right, were threatened, and render it possible to preserve determined to respect no law but their own

the Union of the Constitution, must have will. The Government had ceased to answer been dispelled by the malignity and barbarity _ the ends for which it was ordained and estab-

of the Northern States in the prosecution of lished. To save ourselves from a revolution the existing war. The confidence of the most which, in its silent but rapid progress, was hopeful among us must have been destroyed about to place us under the despotism of by the disregard they have recently exhibited numbers, and to preserve in spirit, as well as for all the time-honored bulwarks of civil in form. a system of government we believed and religious liberty. Bastiles filled with pris- to be peculiarly fitted to our condition, and oners, arrested without civil process or indict- full of promise for mankind, we determined ment duly found; the writ of habeas corpus to make a new association, composed of suspended by Executive mandate; a State States homogeneous in interest, in policy and Legis‘ature control!ed by the imprisonment of _ in feeling.

members whose avowed principles suggested True to our traditions of peace and our to the Federal Executive that there might be love of justice, we sent commissioners to the another added to the list of seceded States; United States to propose a fair and amicable elections held under threats of a military — settlement of all questions of public debt or power; civil officers, peaceful citizens and property which might be in dispute. But the gentle women incarcerated for opinion’s sake, Government at Washington, denying our proclaimed the incapacity of our late associ- right to self-government, refused even to lisates to administer a government as free, lib- ten to any proposals for a peaceful separation. eral and humane as that established for our Nothing was then left to us but to prepare for

common use. war.

For proof of the sincerity of our purpose to The first year in our history has been the ma‘ntain our ancient institutions, we may most eventful in the annals of this continent. point to the constitution of the Confederacy A new government has been established, and and the laws enacted under it, as well as to its machinery put in operation over an area the fact that through all the necessities of an exceeding seven hundred thousand square unequal struggle there has been no act on our miles. The great principles upon which we part to impair personal liberty or the freedom have been willing to hazard everything that of speech, of thought or of the press. The is dear to man have made conquests for us courts have been open, the judicial functions which could never have been achieved by the fully executed, and every right of the peaceful sword. Our Confederacy has grown from six

INAUGURAL ADDRESS OF JEFFERSON DAVIS 409 to thirteen States; and Maryland, already trade, the Southern States will offer to manuunited to us by hallowed memories and mate- facturing nations the most favorab:c markets rial interests, will, I believe, when able to which ever invited their commerce. Cotton, speak with unstifled voice, connect her des- sugar, rice, tobacco, provis.ons, timber and

tiny with the South... . naval stores, will furnish attractive exchanges.

The period is near at hand when our foes Nor would the constancy of these supplies be must sink under the immense load of debt likely to be disturbed by war. Our confederwhich they have incurred, a debt which in ate strength will be too great to tempt agtheir effort to subjugate us has already at- gression; and never was there a people whose tained such fearful dimensions as will sub- interests and principles committed them so ject them to burthens which must continue to fu'ly to a peaceful policy as those of the oppress them for generations to come. confederate States. By the character of their We, too, have had our trials and difficul- productions they are too deeply interested in ties. That we are to escape them in future is forcign commerce wantonly to disturb it. War not to be hoped. It was to be expected when of conquest they cannot wage, because the we entered upon this war that it would expose constitution of theif confederacy admits of our peopie to sacrifices and cost them much. no coérced association. Civil war there can both of money and blood. But we knew the not be between States he:d together by their value of the object for which we struggle, and votition only. The rule of voluntary associaunderstood the nature of the war in which we _ tion, which cannot fail to be conservative, by

were engaged. Nothing could be so bad as securing just and impartial government at failure, and any sacrifice would be cheap as_ home, does not d'minish the security of the the price of success in such a contest... . obligations by which the confederate States It was, perhaps, in the ordination of Provi- may be bound to foreign nations. In proof dence, that we were to be taught the value of | of this it is to be remembered that, at the our liberties by the price which we pay for first moment of asserting their right of seces-

them. sion, these States proposed a settlement on The recollections of this great contest, with the basis of a common liability for the obliall its common traditions of glory, of sacrifice gations of the General Government.

and of blood, will be the bond of harmony Fellow-citizens, after the struggles of ages and enduring affection amongst the people; had consecrated the right of the Englishman producing unity in policy, fraternity in senti- to constitutional representative government,

ment, and joint effort in war. our co:onial ancestors were forced to vindi-

Nor have the material sacrifices of the past cate that birthright by an appeal to arms. _ year been made without some corresponding Success crowned their efforts, and they probenefits. If the acquiescence of foreign na- vided for their posterity a peaceful remedy tions in a pretended blockade has deprived us against future aggression.

of our commerce with them, it is fast making The tyranny of an unbrid'ed majority, the us a self-supporting and an independent peo- most odious and least responsib‘e form of ple. The blockade, if effectual and permanent, despotism, has denied us both the right and could only serve to divert our industry from remedy. Therefore we are in arms to renew the production of articles for export, and em- such sacrifices as our fathers made to the ploy it in supplying commodities for domestic holy cause of constitutiona! liberty. At the

use, darkest hour of our struggle the provisional

It is a satisfaction that we have maintained gives piace to the permanent government. the war by our unaided exertions. We have After a series of successes and _ victories, neither asked nor received assistance from which covered our arms with g!ory, we have any quarter. Yet the interest involved is not recently met with serious disasters. But in wholly our own. The world at large is con- the heart of a people reso'ved to be free, these cerned in opening our markets to its com-_ disasters tend but to stimulate to increased

merce. When the independence of the confed- resistance.

erate States is recognized by the nations of To show ourselves worthy of the inherithe earth, and we are free to fol'ow our inter- tance bequeathed to us by the patriots of the ests and inclinations by cultivating foreign Revolution, we must emulate that heroic de-

410 DOCUMENTS OF AMERICAN Htstory votion which made reverse to them but the sume; and, fully realizing the inequality of crucible in which their patriotism was re- human power to guide and to sustain, my

fined. hope is reverently fixed on Him whose favor With confidence in the wisdom and virtue _ is ever vouchsafed to the cause which is just.

of those who will share with me the responsi- With humble gratitude and adoration, acbility, and aid me in the conduct of public knowledging the Providence which has so visaffairs; securely relying on the patriotism and ibly protected the Confederacy during its courage of the people, of which the present brief but eventful career, to Thee, O God! I war has furnished so many examples, I deeply _trustingly commit myself, and prayerfully in-

feel the weight of the responsibilities I now, voke thy blessing on my country and its with unaffected diffidence, am about to as- cause.

214. HOMESTEAD ACT May 20, 1862

(U.S. Statutes at Large, Vol. XII, p. 392 ff.) A Homestead Act had passed both houses of Provided, That any person owning or residing Congress in 1859 only to be vetoed by President on land may, under the provisions of this Buchanan. With the success of the Republican act, enter other land lying contiguous to his

party in 1860, Homestead legislation was as- or her said land, which shall not, with the sured. The Homestead Act brought to an end land so already owned and occupied, exceed rated a new policy which, with modifications, +2 the aggregate one hundred and sixty acres. has been followed since 1862. See, B. H. Hib- Sec. 2. That the person applying for the bard, History of Public Land Policies, chs. xvii- benefit of this act shall, upon application to xviii; G. M. Stephenson, A Political History of _ the register of the land office in which he or the Public Lands from 1840 to 1862; R. T. Hill, she is about to make such entry, make affidaThe Public Domain and Democracy; J.T. Du- vit before the said register or receiver that Bois and G. S. Mathews, Galusha Grow. he or she is the head of a family, or is twentyone or more years of age, or shall have perAN ACT to secure homesteads to actual formed service in the Army or Navy of the

one period of American land policy and inaugu- .

settlers on the public domain. United States, and that he has never borne

Be it enacted, That any person who is the arms against the Government of the United head of a family, or who has arrived at the States or given aid and comfort to its eneage of twenty-one years, and is a citizen of mies, and that such application is made for the United States, or who shall have filed _ his or her exclusive use and benefit, and that his declaration of intention to become such, said entry is made for the purpose of actual as required by the naturalization laws of the settlement and cultivation, and not, either United States, and who has never borne arms __ directly or indirectly, for the use or benefit against the United States Government or of any other person or persons whomsoever; given aid and comfort to its enemies, shall, and upon filing the said affidavit with the

, from and after the first of January, eighteen register or receiver, and on payment of ten hundred and sixty-three, be entitled to enter dollars, he or she shall thereupon be permitted one quarter-section or a less quantity of un- to enter the quantity of land specified: Proappropriated public lands, upon which said vided, however, That no certificate shall be person may have filed a pre-emption claim, given or patent issued therefor until the expior which may, at the time the application is ration of five years from the date of such made, be subject to pre-emption at one dollar entry; and if, at the expiration of such time, and twenty-five cents, or less, per acre; or or at any time within two years thereafter, eighty acres or less of such unappropriated the person making such entry—or if he be lands, at two dollars and fifty cents per acre, dead, his widow; or in case of her death, his to be located in a body, in conformity to the _ heirs or devisee; or in case of a widow maklegal subdivisions of the public lands, and ing such entry, her heirs or devisee, in case

after the same shall have been surveyed: of her death—shall prove by two credible

THE PactrFIc RAILWAY AcT 411 witnesses that he, she, or they have resided fee shall inure to the benefit of satd infant upon or cultivated the same for the term of _ child or children; and the executor, adminisfive years immediately succeeding the time of trator, or guardian may, at any time within filing the affidavit aforesaid, and shall make two years after the death of the surviving affidavit that no part of said land has been parent, and in accordance with the laws of alienated, and that he has borne true alle- the State in which such children for the time giance to the Government of the United being have their domicile, sell said land for States; then, in such case, he, she, or they, the benefit of said infants, but for no other if at that time a citizen of the United States, purpose; and the purchaser shall acquire the shall be entitled to a patent, as in other cases absolute title by the purchase, and’ be entitled

provided for by law: And provided, further, to a patent from the United States, on payThat in case of the death of both father and ment of the office fees and sum of money mother, leaving an infant child or children herein specified... . under twenty-one years of age, the right and

215. THE PACIFIC RAILWAY ACT July 1, 1862 (U. S. Statutes at Large, Vol. XII, p. 489 ff.) The idea of a transcontinental railroad had Am Act to aid in the Construction of a Railbeen broached in the eighteen-forties, and the road and Telegraph Line from the Misrapid growth of California after 1849 brought it souri River to the Pacific Ocean. .. . sharply to the attention of the country. Bo it enacted, That Walter S. Burgess [names

Throughout thethat fifties wasnecessary general acquiesof |;coBet er - togeth th & . cence in the idea the’there road was Corpora ors wit ve comms: and should be financed in part by the govern- S!oners to be appointed by the Secretary of

ment, but sectional rivalries prevented any the Interior... are hereby created and

agreement on the route which the road should erected into a body corporate ... by the take. In 1853 Congress authorized a survey of name... of “The Union Pacific Railroad various routes, and the surveys were undertaken Company”... ; and the said corporation under the direction of Secretary of War Davis, js hereby authorized and empowered to lay but Congress took no action on the reports of out, locate, construct, furnish, maintain and the surveys. The secession of the Southern States enjoy a continuous railroad and telegraph cleared the way for a northern route, and in f : 1862 the first Pacific Railway Bill, authorizing °° {TOM @ point on the one hundredth methe transcontinental railroad and granting gen- ridian of longitude west from Greenwich, beerous government aid, was passed. Two years [ween the south margin of the valley of the later a second Pacific Railway Act doubled the Republican River and the north margin of land grants and provided that the government _ the valley of the Platte River, to the western have a second instead of a first mortgage on the boundary of Nevada Territory, upon the

railroad oe are, Vol. a routeacres and terms hereinafter provided... . . 356.property. ogether(Stat. some 45,000,000 of lan

vere sranted, and some $60,000,000 lent to sec. 2. That the right of way th rough the the Union and Central Pacific Railroads. See public lands be an granted to said company L. H. Haney, A Congressional History of Rail- for the construction of said railroad and teleways in the United States, 1850-1887 ; J. B. San- graph line; and the right . . . is hereby given born, Congressional Grants of Land in Aid of to said company to take from the public Railways; R. E. Riegel, The Story of the West- lands adjacent to the line of said road, earth,

ern Railroads; N. Yrottman, History of the stone, timber, and other materials for the Union Pacific; K. White, History of the Union construction thereof: said right of way is Pacific Railway; E. L. Sabin, Building the Pa- ranted to said railroad to th tent of cific Railway; G. M. Dodge, How We Built the B a ° 0 tne exten 0 two Union Pacific; J. R. Perkins, Trails, Rails and hundred teet in width on each side of said War: The Life of General Grenville Dodge; ‘ailroad when it-may pass over the public F. A. Cleveland and F. W. Powell, Railroad Pro- lands, including all necessary grounds for

motion and Capitalization. stations, buildings, workshops, and depots,

412 DOCUMENTS oF AMERICAN II1story machine shops, switches, side tracks, turn hereby authorized to construct a railroad and tables, and water stations. The United States telegraph line . . . upon the same terms and shail extinguish as rapidly as may be the conditions in all respects as are provided [for Indian titles to all lands falling under the op- construction of the Union Pacific Railroad ].

eration of this act... . . .. The Central Pacific Railroad Company Sec. 3. That there be... granted to the of California are hereby authorized to con-

said company, for the purpose of aid:‘ng inthe struct a railroad and telegraph line from

construction of said railroad and teegraph the Pacific coast...to the eastern

line, and to secure the safe and speedy trans- boundaries of California, upon the same terms portation of mails, troops, munitions of war, and conditions in all respects [as are provided and public stores thereon, every alternate sec- for the Union Pacific Railroad].

tion of public land. designated by odd num- Sec. 10.... And the Central Pacific Railbers, to the amount of five alternate sections Road Company of California after complet-

per mile on each side of said railroad, on the ing its road across said State, is authorized to line thereof, and within the limits of ten continue the construction of said railroad and

miles on each side of said road... . Pro- telegraph through the Territories of the vided That all mineral lands shall be excepted United States to the Missouri River... from the operation of this act: but where the upon the terms and conditions provided in same shall contain timber, the timber thereon this act in relation to the Union Pacific Rail-

is hereby granted to said company... . road Company, until said roads shall meet Sec. 5. That for the purposes herein men- and connect... . tioned the Secretary of the Treasury shall Sec. 11. That for three hundred miles of said . . . In accordance with the provisions of this road most mountainous and dificult of conact, Issue to said company bonds of the struction, to wit: one hundred and fifty miles United States of one thousand dollars each, wester:y from the eastern base of the Rocky payable in thirty years after date, paying six Mountains, and one hundred and fifty miles

per centum per annum interest ...to the eastwardly from the western base of the

amount of sixtcen of said bonds per mile for Sierra Nevada mountains . . . the bonds to each section of forty miles; and to secure the be issued to aid in the construction thereof repayment to the United States ... of the shall be treble the number per mile hereinbe-

amount of said bonds . . . the issue of said fore provided ... ; and between the secbonds . . . shall ipso facto constitute a first tions last named of one hundred and fifty mortgage on the whole line of the rai!road miles each, the bonds to be issued to aid in

and telegraph... . the construction thereof shall be double the Sec. 9. That the Leavenworth, Pawnee and number per mile first mentioned. ..., Western Railroad Company of Kansas are

216. THE MORRILL ACT July 2, 1862

(U. S. Statutes at Large, Vol. XII, p. 503) This act, granting public land for the support J. B. Turner; W. B. Parker, Life and Publie of industrial and azricultura] education, is, with Services of Justin Smith Morrill; G. W. Atherthe exception of the Act of 1785, the most im- ton, Legislative Career of J. S. Morrill. 1. L. portant piece of legislation on behalf of educa- Kandel, “Federal Land Grants for Vocational tion ever passed. Under the te ms of this act Education” in Carneg.e Foundation for the Adsome 13,000,000 acres of the pubtic domain have vancement of Teaching, Bu-letin No. 10, is unbeen given to the States for the establishment sympathetic to the Turner claim. of mechanical and agricultural colleges: the act

ave a tremendous impetus to the movement for . .

establishing State Universities. The real “father” 4% Act donating P ublic Lands to the several

of the act was J. B. Turner of the University of States and Territories which may proIllinois. See, E. J. James, Origin of the Land vide Colleges for the Benefit of Agricul-

Grant Act of 1862; M. T. Carriel, Life of ture and the Mechanic Arts,

McCLeLLAN OUTLINES A POLicy FOR LINCOLN 413 Be it enacted by the Senate and House of purposes prescribed in this act, and for no

Representatives of the United States of other use or purpose whatsoever. ... America in Congress assembled, That there SEC. 4. And be it further enacted, That all be granted to the several States, for the pur- moneys derived from the sale of the lands poses hereinafter mentioned, an amount of aforesaid by the States to which the lands public land, to be apportioned to each State a are apportioned, and from the sale of land quantity equal to thirty thousand acres for scrip hereinbefore provided for, shall be ineach senator and representative in Congress vested in stocks of the United States, or of to which the States are respectively entitled the States, or some other safe stocks, yicldby the apportionment under the census of ing not less than five per centum upon the par eighteen hundred and sixty: Provided, That value of said stocks; and that the moneys no mineral lands shall be selected or pur- so invested shall constitute a perpetual fund, chased under the provisions of this act. the capital of which shall remain forever unSEC. 2. And be it further enacted, That diminished, (except so far as may be provided the land aforesaid, after being surveyed, shall in section fifth of this act,) and the interest be apportioned to the several States in sec- of which shall be inviolably appropriated, by tions or subdivisions of sections, not less than each State which may take and claim the ben-

one quarter of a section; and whenever there efit of this act, to the endowment, support, are public lands in a State subject to sale at and maintenance of at least one col:ege where private entry at one dollar and twenty-five the leading object shall be, without excluding cents per acre, the quantity to which said other scientific and classical studies, and in-

State shall be entitled shall be selected from cluding muitary tactics, to teach such

such lands within the limits of such State, and branches of learning as are related to agricul-

the Secretary of the Interior is hereby di- ture and mechanic arts, in such manner as rected to issue to each of the States in which _ the legislatures of the State may respectively there is not the quantity of public lands sub- prescribe, in order to promote the liberal and ject to sale at private entry at one dotlar and practical education of the industrial classes

twenty-five cents per acre, to which said in the several pursuits and professions in life.

State may be entitled under the provisions of SEC. 5.... this act, land scrip to the amount in acres Sixth. No State while in a condition of refor the deficiency of its distributive share: bellion or insurrection against the government said scrip to be sold by said States and the of the United States shall be entitled to the

proceeds thereof applied to the uses and benefit of ths Act....

217. McCLELLAN OUTLINES A POLICY FOR PRESIDENT LINCOLN Letter of General McClellan to President Lincoln July 7, 1862 (E. McPherson, ed. Political History of the Great Rebcliion, p. 385 ff.) Seward was not the only prominent man who General McClellan’s Letter to President Lin presumed to adv:.se P.esident Lincoln on matters coln.

of policy. McClellan's contempt for Lincoln, and Headquarters Army of the Potomac

iis political ambit:ons, are well known. McClel- July 7, 1862

lan has revealed himself in his autobiography, Mr. President: You h . aes

McClellan’s Own Story. The best brief interpre- u have been ful-y in-

tation is in G. Bradford, Union Portraits, ch. i; 40T™ed that the rebel army is in the front, a severe but just analysis of his generalship is with the purpose of overwhelming us by atJ. C. Ropes, “General McClellan” in Critical tacking our positions or reducing us by blockSketches of Some of the Federal and Confederate ing our river communications. I cannot but Commanders, Papers of the M litary Historical . regard our condition as critical, and I earnestly

Society of Massachusetts, Vol. X. desire, in view of possible contingencies, to lay

414 DOCUMENTS OF AMERICAN HIstToRY before your excellency, for your private con- should not be allowed to interfere with the sideration, my general views concerning the _ relations of servitude either by supporting or existing state of rebellion, although they do impairing the authority of the master, except

not strictly relate to the situation of this for repressing disorder, as in other cases. army, or strictly come within the scope of my __ Slaves, contraband under the act of Congress,

official duties... . seeking military protection, should receive it. The time has come when the government The right of the government to appropriate must determine upon a civil and military pol- permanently to its own service claims to slave icy, covering the whole ground of our national labor should be asserted and the right of the

trouble. Owner to compensation therefor should be The responsibility of determining, declar- recognized. This principle might be extended,

ing, and supporting such civil and military upon grounds of military necessity and sepolicy, and of directing the whole course of curity, to all the slaves of.a particular State, national affairs in regard to the rebellion, thus working manumission in such State: and must now be assumed and exercised by you, in Missouri, perhaps in Western Virginia also,

or our cause will be lost. The Constitution and possibly even in Maryland, the expedigives you power, even for the present terrible ency of such a measure is only a question of

exigency. time. A system of policy thus constitutional,

This rebellion has assumed the character of and pervaded by the influences of Christiana war; as such it should be regarded, and it ity and freedom, would receive the support of should be conducted upon the highest princi- almost all truly loyal men, would deeply imples known to Christian civilization. It should _ press the rebel masses and all foreign nations,

not be a war looking to the subjugation of the and it might humbly be hoped that it would people of any State, in any event. It should commend itself to the favor of the Almighty.

not be at all a war upon a population, but Unless the principles governing the future against armed forces and political organiza- conduct of our struggle shall be made known tions. Neither confiscation of property, politi- and approved, the effort to obtain requisite cal execution of persons, territorial organiza- forces will be almost hopeless. A declaration tion of States, or forcible abolition of slavery, of radical views, especially upon slavery, will

should be contemplated for a moment. rapidly disintegrate our present armies... . In prosecuting the war. all private property In carrying out any system of policy which and unarmed persons should be strictly pro- you may form, you will require a commandertected, subject only to the necessity of mili- in-chief of the army, one who possesses your tary operation; all private property taken for confidence, understands your views, and who military use should be paid or receipted for; is competent to execute your orders, by dipillage and waste should be treated as high _recting the military forces of the nation to

crimes; all unnecessary trespass sternly pro- the accomplishment of the objects by you hibited, and offensive demeanor by the mili- proposed. I do not seek that place for myself. tary towards citizens promptly rebuked. Mil- I am willing to serve you in such position as itary arrests should not be tolerated, except you may assign to me, and I will do so as in places where active hostilities exist; and faithfully as ever subordinate served superior.

oaths, not required by enactments, constitu- I may be on the brink of eternity; and as tionally made, should be neither demanded I hope forgiveness from my Maker, I have

nor received. written this letter with sincerity towards you Military government should be confined to and from love for my country.

the preservation of public order and the pro- George B. McClellan

tection of political right. Military power Major General Commanding 218. GENERAL POPE’S ADDRESS TO THE ARMY OF VIRGINIA July 14, 1862 (F. Moore, ed. The Rebellion Record, Vol. V, p. 551) In July 1862 Lincoln appointed General Halleck armies, and at the same time brought General to the post of General-in-Chief of all the Union John Pope from the west and placed him at the

LINCOLN AND GREELEY 415 head of the Army of Virginia, consisting of the sive attitude. I presume that I have been corps of McDowell, Banks and Frémont. Pope called here to pursue the same system, and signallized his accession to this position by issu- tg Jead you against the enemy. It is my puring the gasconade of July 14; six weeks later pose to do so, and that speedily.

he suffered a disastrous defeat at the Second | I am sure vou long for an opportunity to Battle of Bull Run. See, J. C. Ropes, The Army . ure yo 5 PP y Under Pope; G. H. Gordon, History of the Wi the distinction you are capable of achievcampaign of the Army of Virginia under John ing—that opportunity I shall endeavor to

Pope; Papers of the Military Historical Society give you.

of Massachusetts, Vol. II: The Virginia Cam- Meantime I desire you to dismiss from

paign of General Pope. your minds certain phrases which I am sorry to find much in vogue amongst you.

WASHINGTON, Monday, July 14. I hear constantly of taking strong positions To the Officers and Soldiers of the Army of and holding them—of lines of retreat, and

Virginia: of bases of supplies. Let us discard such

By special assignment of the President of ideas. the United States, I have assumed command The strongest position a soldier should deof this army. I have spent two weeks in learn- sire to occupy is one from which he can most ing your whereabouts, your condition, and easily advance against the enemy. your wants; in preparing you for active oper- Let us study the probable lines of retreat of ations, and in placing you in positions from our opponents, and leave our own to take which you can act promptly and to the pur- care of themselves. Let us look before us and

pose. not behind. Success and glory are in the adI have come to you from the West, where vance. Disaster and shame lurk in the rear. we have always seen the backs of our enemies Let us act on this understanding, and it is

—from an army whose business it has been — safe to predict that your banners shall be into seek the adversary, and to beat him when - scribed with many a glorious deed, and that found, whose policy has been attack and not your names will be dear to your countrymen

defence. forever. In but one instance has the enemy been JOHN Pope,

able to place our Western armies in a defen- Major-General Commanding.

219. LINCOLN AND GREELEY August 19, 22, 1862 (F. Moore, ed. The Rebellion Record, Vol. XII, p. 480 ff.) Greeley had, at the beginning of the secession movement, advocated letting the “erring sisters 1, THE PRAYER OF Twenty MILLIons

o in peace.” Though not formally allied with ; ,

the Garrison aboliti, nists, he ha d, through the fo abraham Lincoln, President of thé United

columns of the Tribune, persistently denounced bates. ;

slavery. In his Prayer of Twenty Millions he Dear Sir: I do not intrude to tell you— demanded that Lincoln should definitely commit for you must know already—that a great prohimself to emancipation: in this attitude Greeley portion of those who triumphed in your elecspoke for a large and powerful anti-slavery ele- tion, and of all who desire the unqualified

ment in the North, but he certainly did not suppression of the rebellion now desolating speak for “twenty millions.” Lincoln’s reply, jus- our country, are sorely disappointed and tifying the war as one for the preservation of the deeply pained by the policy you seem to be Union, is one of the most notable of his pro- ' nouncements. Greeley subsequently embarrassed Pursuing with regard to the slaves of rebels, the administration and himself by dallying with I write only to set succinctly and unmistakpeace overtures from the South. See, D. Seitz, ably before you what we require, what we Horace Greeley; D. S. Alexander, Political His- think we have a right to expect, and of what

tory of New York, Vol. III, p. 35 ff. we complain.

416 DOCUMENTS OF AMERICAN HISTORY I. We require of you, as the first servant IV. We think timid counsels in such a of the Republic, charged especially and pre- crisis calculated to prove perilous, and probaeminently with this duty, that you ExEcUTE bly disastrous. It is the duty of a Govern-

THE LAWS.... ment so wantonly, wickedly assailed by reII. We think you are strangely and disas- lellion as ours has been, to oppose force to trously remiss in the discharge of your official force in a defiant, dauntless spirit. It canand imperative duty with regard to the eman- not afford to temporize with traitors, nor with cipating provisions of the new Confiscation semi-traitors. It must not bribe them to beAct. Those provisions were designed to fight have themselves, nor make them fair promSlavery with Liberty. They prescribe that ises in the hope of disarming their causeless men loyal to the Union, and willing to shed hostility. Representing a brave and _ hightheir blood in her behalf, shall no longer be spirited people, it can afford to forfeit any held, with the nation’s consent, in bondage to _ thing else better than its own self-respect, or persistent, malignant trailors, who for twenty their admiring confidence. For our Govern-

years have been plotting and for sixteen ment even to seek, after war has been made months have been fighting to divide and de- on it, to dispel the affected apprehensions stroy our country. Why these traitors should of armed traitors that their cherished privibe treated with tenderness by you, to the leges may be assailed by it, is to invite insult | prejudice of the dearest rights of loyal men, and encourage hopes of its own downfall. The

we cannot conceive. rush to arms of Ohio, Indiana, Illinois, is

III. We think you are unduly influenced the true answer at once to the rebel raids by the councils, the representations, the men- of John Morgan and the traitorous sophisaces, of certain fossil politicians hailing from tries of Beriah Magoffin. the Border Slave States. Knowing well that V. We complain that the Union cause has the heartily, unconditionally loyal portion of | suffered, and is now suffering immensely, the white citizeng of those Statesdo not expect from mistaken deference to rebel Slavery. nor desire that Slavery shall be upheld to the Had you, sir, in your Inaugural Address, un-

prejudice of the Union—(for the truth of mistakably given notice that, in case the which we appeal not only to every Republican rebellion already commenced, were persisted

residing in those States, but to such eminent in, and your efforts to preserve the Union loyalists as H. Winter Davis, Parson Brown- and enforce the laws should be resisted by low, the Union Central Committee of Balti- armed force, you would recognize no loyal more, and to The Nashville Union)—we ask person as rightfully held im Slavery by a you to consider that Slavery is everywhere #raitor, we believe the rebellion would therein the inciting cause and sustaining base of trea~ have received a staggering if not fatal blow. son: the most slaveholding sections of Mary- At that moment, according to the returns of land and Delaware being this day, though un- the most recent elections, the Unionists were der the Union flag, in full sympathy with the a large majority of the voters of the slave rebellion, while the free labor portions of States. But they were composed in good part Tennessee and of Texas, though writhing un- of the aged, the feeble, the wealthy, the der the bloody heel of treason, are unconquer- timid—the young, the reckless, the aspiring,

ably loyal to the Union. ... It seems to us the adventurous, had already been largely the most obvious truth, that whatever lured by the gamblers and negro-traders, the strengthens or fortifies Slavery in the Border politicians by trade and the conspirators by

States strengthens also treason, and drives instinct, into the toils of treason. Had you home the wedge intended to divide the Union. then proclaimed that rebellion would strike Had you, from the first, refused to recognize _ the shackles from the slaves of every traitor,

in those States, as here, any other than un- the wealthy and the cautious would have conditional loyalty—that which stands for been supplied with a powerful inducement to the Union, whatever may become of Slavery remain loyal... . —those States would have been, and would VI. We complain that the Confiscation be, far more helpful and less troublesome to Act which you approved is habitually disrethe defenders of the Union than they have rarded by your Generals, and that no word

been, or now are. of rebuke for them from you has yet reached

LINCOLN AND GREELEY 417 the public ear. Frémont’s Proclamation and officers’ treatment of negroes in the South, Hunter’s Order favoring Emancipation were to convince the slaves that tuey have nothing promptly annulled by you; while Halleck’s to hove from a Union success—that we mean

Number Three, forbidding fugitives from in that case to sell them into a bitter bonds'avery to rebe’s to come within his lines— age to defray the cost of the war. Let them an order as unmilitary as inhuman, and which impress this as a truth on the great mass of received the hearty approbation of every their ignorant and credulous bondmen, and traitor in America—with scores of like tend- the Union will never be restored—never. We ency, have never provoked even your re- cannot conquer ten millions of people united monstrance. ... And finally, we complain in so’id phalanx against us, powerfully aided

that you, Mr. President, elected as a Re- by Northern sympath zers and European alpublican, knowing well what an abomination lies. We must have scouts, guides, spies, Slavery is, and how emphatically it is the cooks, teamsters, diggers, and choppers from core and essence of this atrocious rebellion, the blacks of the South, whether we allow seem never to interfere with these atrocities, them to fight for us or not, or we shall be and never give a direction to your m'litary _ baffled and repelled. As cne of the millions subordinates, which does not appear to have who would gladly have avoided this struggle

been conceived in the interest of Slavery at any sacrifice but that of principle and

rather than of Freedom. honor, but who now feel that the triumph VIII. On the face of this wide earth, Mr. of the Union is indispensable not only to the President, there is not one dis:nterested, de- existence of our country but to the welltermined, intelligent champion of the Union being of mankind, I entreat you to render a cause who does not feel that all attempts hearty and unequivocal obedience to the law

to put down the rebellion and at the same of the land.

time uphold its inciting cause are preposter- Yours, HORACE GREELEY. ous and futile—that the rebellion, if crushed >. Prestpent LINcoun’s LETTER

out to-morrow, would be renewed within a :

year if Slavery were left in full vigor—that Executive Mansion, army officers who remain to this day de- Washington, August 22, 1862. voted to Slavery can at best be but half-way Hon. Horace Grecley:

loyal to the Union—and that every hour of DEAR Sir: I have just read yours of the deference to Slavery is an hour of added nineteenth, addressed to myself through the and deepened peril to the Union. I appeal to New-York Tribune. If there be in it any the testimony of your ambassadors in Eu- statements or assumptions of fact which I rope. It is freely at your service, not at may know to be erroneous, I do not now and mine. Ask them to tell you candidly whether here controvert them. If there be in it any the seeming subserviency of your po.cy to inferences which I may believe to be falsely the slaveholding, s!avery-upholding interest, drawn, I do not now and here argue against is not the perplexity, the despair of statesmen them. If there be perceptibie in it an imof all parties, and be admonished by the _ patient and dictatorial tone, I waive it in

general answer! deference to an o:d friend, whose heart I IX. I close as I began with the statement have always supposed to be right. that what an immense majority of the loyal As to the policy I “seem to be pursuing,” millions of your countrymen require of you. as you say, I have not meant to leave any is a frank, declared, unqualified, ungrudging one in doubt.

execution of the laws of the land, more espe- I would save the Union. I wou!'d save it the cially of the Confiscation Act. That act gives shortest way under the Constitution. The freedom to the s'aves of rebels coming within sooner the National authority can be restored,

our lines, or whom those lines may at any the nearer the Union wil be “the Union as time inclose—we ask you to render it due it was.” If there be those who would not save obedience by publicly requiring all your sub- the Union unless they could at the same time ordinates to recognize and obey it. The rebels save Slavery, I do not agree with them. If are everywhere using the late anti-negro riots there be those who would not save the Union in the North, as they have long used your’ unless they could at the same time destro+'

418 DocUMENTS OF AMERICAN HisToRy Slavery, I do nat agree with them. My para- to save the Union. I shall do less whenever

mount object in this struggle is to save the I shall believe what I am doing hurts the Union, and is zo¢ either to save or destroy cause, and I shall do more whenever J shall Slavery. If I could save the Union without believe doing more will help the cause. I shall freeing any slave, I would do it: and if I try to correct errors when shown to be errors;

could save it by freeing all the slaves, I and 1 shall adopt new views so fast as they would do it; and if I could do it by freeing shall appear to be true views. I have here some and leaving others alone, I would also stated my purpose according to my: view of do that. What I do about Slavery and the official duty, and I intend no modification of colored race, I do because I believe it helps my oft-expressed personal wish that all men,

to save this Union; and what I forbear, I everywhere, could be free. Yours,

forbear because I do not believe it would help A. LINCOLN. 220. ADDRESS TO PRESIDENT LINCOLN BY THE WORKING-MEN OF MANCHESTER, ENGLAND December 31, 1862

(F. Moore, ed. The Rebellion Record, Vol. VI, p. 344) During the Civil War the English government we mean the ascendency of politicians who preserved a cautious neutrality: the opinion of not merely maintained negro slavery, but the governing classes was on the whole “ympa- desired to extend and root it more firmly. thetic toward the South, that of the working- Since we have discerned, however, that the men sympathetic toward the North. Lincoln's victory of the free North, in the war which

proclamation of emancipation was huslyasdi apreliminary determining influence in holding England to dS so sore y istresse welqasita f. neutrality and cementing the friendship of the licted you, will strike off the fetters of the liberals and the working classes. The address of Slave, you have attracted our warm and the working-men of Manchester was subscribed earnest sympathy. We joyfully honor you, on the eve of the formal proclamation of eman- as the President, and the Congress with you, cipation. For Lincoln’s reply see Doc. No. 221. for many decisive steps toward’ practically On the English attitude toward the War, see exemplifying your belief in the words of

D. Jordan, and E. J. Pratt, Hurope and the Jour preat founders: “All men are created American Civil War,and Part I;the EB. D. Adams, too. and equal.” You have Great Britain American Civil War, 2 . 7procured . oe the libVols; H. Adams, The Education of Henry &ation of the slaves in the district around

Adams; C. F. Adams, Trans-Atlantic Historical Washington, and thereby made the centre Solidarity; B. Villiers and W. H. Chesson, Anglo- of your Federation visibly free. You have American Relations, 1861-1865; F. L. Owsley, enforced the laws against the slave-trade, and

King Cotton Diplomacy. kept up your fleet against it, even while every ship was wanted for service in your terrible To Abraham Lincoln, President of the United war. You have nobly decided to receive am-

States: bassadors from the negro republics of Hayti

As citizens of Manchester, assembled at the and Liberia, thus forever renouncing that Free-Trade Hall, we beg to express our unworthy prejudice which refuses the rights fraternal sentiments toward you and your of humanity to men and women on account country. We rejoice in your greatness as an- of their color. In order more effectually to outgrowth of England, whose blood and Jan- stop the slave-trade, you have made with guage you share, whose orderly and legal our Queen a treaty, which your Senate has freedom you have applied to new circum-_ ratified, for the right of mutual search. Your stances, over a region immeasurably greater Congress has decreed freedom as the law than our own. We honor your [ree States, as forever in the vast unoccupied or half una singularly happy abode for the working _ settled Territories which are directly subject roillions where industry is honored. One thing to its legislative power. It has offered pealone has, in the past, lessened our sympathy cuniary aid to all States which will enact with your country and our confidence in it— emancipation locally, and has forbidden your

LINCOLN’S REPLY TO MANCHESTER WORKING-MEN 419 Generals to restore fugitive slaves who seek local laws and local executives. We implore

their protection. You have entreated the you, for your own honor and welfare, not slave-masters to accept these moderate of- to faint in your providential mission. While fers; and after long and patient waiting, you, your enthusiasm is aflame, and the tide of as Commander-in-Chief of the Army, have events runs high, let the work be finished appointed to-morrow, the first of January, effectually. Leave no root of bitterness to 1863, as the day of unconditional freedom spring up and work fresh misery to your

for the slaves of the rebel States. Heartily children. It is a mighty task, indeed, to do we congratulate you and your country reOrganize the industry not only of four on this humane and righteous course. We millions of the colored race, but of five assume that you cannot now stop short of millions of whites. Nevertheless, the vast a complete uprooting of slavery. It would progress you have made in the short space not become us to dictate any details, but of twenty months fills us with hope that there are broad principles of humanity which every stain on your freedom will shortly must guide you. If complete emancipation be removed, and that the erasure of that in some States be deferred, though only to a foul blot upon civilization and Christianity predetermined day, still in the interval, —chattel slavery—during your Presidency human beings should not be counted chattels. will cause the name of Abraham Lincoln to

Women must have the rights of chastity be honored and revered by posterity. We and maternity, men the rights of husbands, are certain that such a glorious consummamasters the liberty of manumission. Justice tion will cement Great Britain to the United demands for the black, no less than for the States in close and enduring regards. Our white, the protection of law—that his voice interests, moreover, are identified with yours.

be heard in your courts. Nor must any such We are truly one people, though locally abomination be tolerated as slave-breeding separate. And if you have any ill-wishers States, and a slave market—if you are to here, be assured they are chiefly those who earn the high reward of all your sacrifices, oppose liberty at home, and that they will in the approval of the universal brotherhood be powerless to stir up quarrels between and of the Divine Father. It is for your free us, from the very day in which your country country to decide whether any thing but becomes, undeniably and without exception,

immediate and total emancipation can se- the home of the free. Accept our high adcure the most indispensable rights of human- miration of your firmness in upholding the

ity against the inveterate wickedness of proclamation of freedom.

221. LINCOLN’S REPLY TO THE WORKING-MEN OF MANCHESTER, ENGLAND January 19, 1863 (The Writings of Abraham Lincoln, Constitutional ed., Vol. VI, p. 248)

To THE WorRKING-MEN OF MANCHESTER: to perform this duty is the key to all the

I have the honor to acknowledge the measures of administration which have been receipt of the address and resolutions which and to all which will hereafter be pursued.

you sent me on the eve of the new year. Under our frame of government and my When I came, on the 4th of March, 1861, official oath, I could not depart from this through a free and constitutional election purpose if I would. It is not always in the to preside in the Government of the United power of governments to enlarge or restrict States, the country was found at the verge the scope of moral results which follow the of civil war. Whatever might have been the policies that they may deem it necessary for

cause, or whosoever the fault, one duty, the public safety from time to time to paramount to all others, was before me, adopt. namely, to maintain and preserve at once I bave unaerstood well that the duty of

the Constitution and the integrity of the self-preservation rests solely with the AmeriFederal Republic. A conscientious purpose can people; but I have at the same time

420 DocUMENTS OF AMERICAN IlrsTory been aware that favor or disfavor of foreign for it one which should rest exclusively on nations might have a material influence in the basis of human s.avery, was likely to enlarging or prolonging the struggle with dis- obtain the favor of Europe. Through the loyal men in which the country is engaged. action of our disloyal citizens, the working-

A fair examination of history has served to men of Europe have been subjected to authorize a belief that the past actions and severe trials, for the purpose of forcing their influences of the United States were gen- sanction to that attempt. Under the circumerally regarded as having been beneficial stances, I cannot but regard your decisive toward mankind. I have, therefore, reckoned utterances upon the question as an instance upon the forbearance of nations. Circum- of sublime Christian heroism which has not stances—to some of which you kindly allude been surpassed in any age or in any coun—induce me especially to expect that if try. It is indeed an energetic and reinspirjustice and good faith should be practised by ing assurance of the inherent power of truth

the United States, they wou'd encounter no and of the ultimate and universal triumph hostile influence on the part of Great Britain. of justice, humanity, and freedom. I do not It is now a pleasant duty to acknowledge doubt that the sentiments you have expressed the demonstration you have given of your will be sustained by your great nation; and,

desire that a spirit of amity and peace on the other hand, I have no _ hesitation

toward this country may prevail in the coun- in assuring you that they will excite adcils of your Queen, who is respected and miration, esteem, and the most reciprocal esteemed in your own country only more feelings of friendship among the American than she is by the kindred nation which has people. I hail this interchange of sentiment,

iis home on this side of the Atlantic. therefore, as an augury that whatever else I know and deeply deplore the sufferings may happen, whatever m’sfortune may bewhich the working-men at Manchester, and fall your country or my own, the peace and in all Europe, are calied to endure in this friendship which now exist between the two crisis. It has been often and studiously repre- nations will be, as it shall be my desire to

sented that the attempt to overthrow this make them, perpetual.

government, which was built upon the ABRAHAM LINCOLN. foundation of human rights, and to substitute

222. THE EMANCIPATION PROCLAMATION January 1, 1863 (U.S. Statutes at Large, Vol. XII, p. 1268-9) As early as July 22, 1862, Lincoln had read to _ stitutionality of emanc’pation, see J. G. Randall, his Cabinet a preliminary draft of an emancipa- Constitutional Problems Under Lincoln, chs.

tion proclamation. At this time Secretary xv-xvi. Seward suggested that the proclamation should

not be issued until a military victory had been By THE PRESIDENT OF THE UNITED

won. The battle of Antietam gave Lincoln his STATES OF AMERICA:

desired opportunity; on the 22 of September he A Proclamation. read to his Cabinet a second draft of the procla-

mation. After some modifications this was issued Whereas on the 22d day of September, as a preliminary proclamation; the formal and A.D. 1862, a proclamation was issued by the definite proclamation came January 1, 1863. President of the United States, containing, The Diaries of Welles, Chase, and Bates give in- among other th:ngs, the following, to wit:

teresting records of the Cabinet meetings. This “That on the Ist day of January, AD. proclamation was particularly important in its 1863, -all persons held as s!aves within any

elect upon European, especially English, public ciate or designated part of a State the

opinion. Civil See War, E. D.2 Adams, Greatand Britain andWwhereo the ' f shall bell; American Vols.; D. Jordan PCOP-€ Sila enthdebe imjrepeilion E. J. Pratt, Europe and the American Civil against the United States shall be then, War; W. R. West, Contemporary French thenceforward, and forever free; and the

Opinion on the American Civil War. On the con- executive government of the United States,

OPPOSITION TO THE EMANCIPATION PROCLAMATION 421 including the military and naval authority ferson, St. John, St. Charles, St. James, thereof, will recognize and maintain the free- Ascension, Assumption, Terrebonne, Ladom of such persons and will do no act fourche, St. Mary, St. Martin, and Orleans, or acts to repress such persons, or any of including the city of New Orleans), Missisthem, in any efforts they may make for their —sippi, Alabama, Florida, Georgia, South Caro-

actual freedom. lina, North Carolina, and Virginia (except

“That the executive will on the Ist day of the forty-eight counties designated as West January aforesaid, by proclamation, desig- Virginia, and also the counties of Berkeley, nate the States and parts of States, if any, Accomac, Northhampton, Elizabeth City, in which the people thereof, respective.y, York, Princess Anne, and Norfotk, includshall then be in rebellion against the United ing the cilics of Norfolk and Portsmouth), States; and the fact that any State or the and which excepted parts are for the present people thereof shall on that day be in good left precisely as if this proclamation were

faith represented in the Congress of the not issued. United States by members chosen thereto at And by virtue of the power and tor the elections wherein a majority of the qualified purpose aforesaid, I do order and declare voters of such States shall have participated that all persons held as slaves within said shall, in the absence of strong countervail- designated States and parts of States are, ing testimony, be deemed conclusive evidence and henceforward shall be, free; and that

that such State and the people thereof are the Executive Government of the United not then in rebellion against the United States, including the military and naval au-

States.” thorities thereof, will recognize and main-

Now, therefore, I, Abraham Lincoln, tain the freedom of said persons. President of the United States, by virtue And I hereby enjoin upon the people so of the power in me vested as Commander- declared to be free to abstain from all in-Chief of the Army and Navy of the violence, unless in necessary self-defense; United States in time of actual armed re- and I recommend to them that, in all cases bellion against the authority and govern- when allowed, they labor faithfully for reament of the United States, and as a fit and sonable wages. necessary war measure for suppressing said And 1 further declare and make known rebellion, do, on this Ist day of January, that such persons of suitable condition will A.D. 1863, and in accordance with my pur-_ be received into the armed service of the pose so to do, publicly proclaimed for the United States to garrison forts, positions, full period of one hundred days from the _ stations, and other places, and to man vesfirst day above mentioned, order and desig- sels of all sorts in said service.

nate as the States and parts of States And upon this act, sincerely believed to

wherein the people thereof, respectively, are be an act of justice, warranted by the Con-

this day in rebellion against the United stitution upon military necessity, I invoke

States the following, to wit: the “considerate judgment of mankind and Arkansas, Texas, Louisiana (except the the gracious favor of Almighty God. parishes of St. Bernard, P.aquemines, Jef-

223. OPPOSITION TO THE EMANCIPATION PROCLAMATION Resolutions of Illinois State Legislature January 7, 1863 (Illinois State Register, January 7, 1863) Lincoln’s emancipation proclamation aroused’ the strongholds of Copperheadism and of the widespread cr.ticism from Northern democrats Knights of the Golden Circle. See, A. C. Cole, who were opposed to a war fought for the pur- The Era of the Civil War (Centennial History pose of freeing the slaves. The legislature of of Illinois); E. J. Benton, The Movement for Illinois was Democratic, and Illinois was one of Peace without a Victory During the Civil War.

422 DOCUMENTS OF AMERICAN HISTORY The constitutionality of Emancipation is dis- of the Federal Union but a revolution in the cussed in J. G. Randall, Constitutional Problems social organization of the Southern States.

Under Lincoln, chs. xvi-xvii. the immediate and remote, the present and

far-reaching consequences of which to both

Resolved: That the emancipation procla- races cannot be contemplated without the mation of the President of the United States most dismal foreboding of horror and disis as unwarrantable in military as in civil may. The proclamation invites servile insurlaw; a gigantic usurpation, at once convert- rection as an element in this emancipation ing the war, professedly commenced by the crusade—a means of warfare, the inhumanity administration for the vindication of the au- and diabolism of which are without example thority of the constitution, into the crusade _ in civilized warfare, and which we denounce, for the sudden, unconditional and violent and which the civilized world will denounce, liberation of 3,000,000 negro slaves; a result as an uneffaceable disgrace to the American which would not only be a total subversion people.

224. APPOINTMENT OF GENERAL HOOKER TO THE COMMAND OF THE ARMY OF THE POTOMAC Letter from President Lincoln to Hooker

January 26, 1863 |

(The Writings of Abraham Lincoin, Constitutional ed., Vol. VI, p. 254) After the shocking defeat of Burnside at Fred- ambitious, which within reasonable bounds ericksburg, Lincoln decided to appoint “Fight- does good rather than harm; but I think that ing Joe” Hooker to the command of the Army during General Burnside’s command of. the of the Potomac. At the same time the President army you have taken counsel of your ambidistrusted Hooker, andwas manynot of his closest ad- tion andthe. thwarted visers felt that he competent to fill ; ; him as much as you could,

position. Lincoln’s letter is curious in its revela~ /@ which you did a great Wrong to the countion of Lincoln’s character as well as in its criti- ty and to a most meritorious and honorable cism of Hooker himself. Hooker was badly — brother officer. I have heard, in such a way defeated at the Battle of Chanccllorsville, under as to believe it, of your recently saying that circumstances of an unfortunate character; just both the army and the government needed

before the Battle of Gettysburg he was sup- aq dictator. Of course it was not for this, planted by General Meade. See, T. A. Dodge, but in spite of it, that I have given you The Camp angn of Chancellorsville ; J. Bigelow, the command. Only those generals who gain The Campaign of Chancellorsville; A. Double- successes can set up dictators. What I now Rhodes, History, Vol. IV, p. 202 ff, 256 ff. ask of you is military success, and I will risk the dictatorship. The government will sup-

day, Chancellorsville and Gettysburg; J. F. ~ “a

: port you to the utmost of its ability, which

Executive Mansion, Washington, D. C., is neither more nor less than it has done and

January 26, 1863. will do for all commanders. I much fear Mayor-GENERAL Hooker. that the spirit that you have aided to infuse GENERAL:—I have placed you at the head into the army, of criticising their comof the Army of the Potomac. Of course I mander and withholding confidence from have done this upon what appear to me to him, will now turn upon you. I shall assist be sufficient reasons, and yet I think it best you as far as I can to put it down. Neither for you to know that there are some things you nor Napoleon, if he were alive again, in regard to which I am not quite satished could get any good out of an army while with you. I believe you to be a brave and _— such a spirit prevails in it. And now beware

skilful soldier, which of course I like. I also of rashness. Beware of rashness, but with believe you do not mix politics with your energy and sleepless vigilance go forward

profession, in which you are right. You and give us victories. ; have confidence in yourself, which is a valua- Yours very truly,

ble if not an indispensable quality. You are A. LINCOLN.

RESOLUTIONS AGAINST FOREIGN MEDIATION 423 225. RESOLUTIONS AGAINST FOREIGN MEDIATION March 3, 1863 (E. McPherson, Political History of the Great Rebellion, p. 346-7) These resolutions were reported from the Com- and of the real character of the war in which mittee on Foreign Affairs by Charles Sumner, the republic is engaged.

and passed both Houses by large majorities. 2. That the United States are now grapWuereas it appears from the diplomatic pling with an unprovoked and wicked rebelcorrespondence submitted to Congress that lion, which is seeking the destruction of the

a proposition, friendly in form, looking to republic that it may build a new power, pacification through foreign mediation, has whose cornerstone, according to the confes-

been made to the United States by the sion of its chief, shall be slavery; that for Emperor of the French and promptly de- the suppression of this rebellion, and thus to

clined by the President; and whereas the save the republic and to prevent the esidea of mediation or intervention in some tablishment of such a power, the national shape may be regarded by foreign govern- government is now employing armies and ments as practicable, and such governments, flects, in full faith that through these efforts

through this misunderstanding, may be led all the purposes of conspirators and rebels to proceedings tending to embarrass the will be crushed; that while engaged in this friendly relations which now exist between struggle, on which so much depends, any them and the United States; and whereas, proposition from a foreign power, whatever in order to remove for the future all chance form it may take, having for its object the of misunderstanding on this subject, and to arrest of these efforts, is, Just in proportion secure for the United States the full enjoy- to its influence, an encouragement to the ment of that freedom from foreign inter- rebellion, and to its declared pretensions, ference which is one of the highest rights of and, on this account, is calculated to proindependent states, it seems fit that Congress long and embitter the conflict, to cause inshould declare its convictions thereon: creased expenditure of blood and treasure,

Therefore— and to postpone the much-desired day of Resolved, (the House of Representatives peace; that, with these convictions, and not

concurring,) That while in times past the doubting that every such proposition, alUnited States have sought and accepted the though made with good intent, is injurious friendly mediation or arbitration of foreign to the national interests, Congress will be powers for the pacific adjustment of inter- obliged to look upon any further attempt national questions, where the United States in the same direction as an unfriendly act were the party of the one part and some which it earnestly deprecates, to the end that other sovereign power the party of the nothing may occur abroad to strengthen the other part; and while they are not disposed rebellion or to weaken those relations of to misconstrue the natural and humane de- good will with foreign powers which the sire of foreign powers to aid in arresting United States are happy to cultivate. domestic troubles, which, widening in their 3. That the rebellion from its beginning, influence, have afflicted other countries, es- and far back even in the conspiracy which pecially in view of the circumstance, deeply preceded its outbreak, was encouraged by regretted by the American people, that the the hope of support from foreign powers; blow aimed by the rebellion at the national that its chiefs frequently boasted that the

life has fallen heavily upon the laboring people of Europe were so far dependent population of Europe: yet, notwithstanding upon regular supplies of the great southern

these things, Congress cannot hesitate to staples that, sooner or later, their governregard every proposition of foreign inter- ments would be constrained to take side ference in the present contest as so far un- with the rebellion in some effective form, reasonable and inadmissible that its only even to the extent of forcible intervention, explanation will be found in a misunder- if the milder form did not prevail; that the standing of the true state of the question, rebellion is now sustained by this hope,

424 DOCUMENTS OF AMERICAN [1IsToORY which every proposition of foreign interfer- the justice of their cause, which is the cause,

ence quickens anew, and that, without this also, of good government and of human life-giving support, it must soon yield to rights everywhere among men; anxious for the Just and paternal authority of the na- the speedy restoration of peace, which shall tional government; that, considering these secure tranquillity at home and remove all things, which are aggravated by the motive occasion of complaint abroad; and awaiting of the resistance thus encouraged, the United with well-assured trust the final suppression

States regret that foreign powers have not of the rebellion, through which all these frankly told the chiefs of the rebellion that things, rescued from present danger, will be the work in which they are engaged is hate- secured forever, and the republic, one and ful, and that a new government, such as they indivisible, triumphant over its enemies, will

seek to found, with slavery as its acknowl- continue to stand an example to mankind, edged cornerstone, and with no other de- hereby announce, as their unalterable purclared object of separate existence, is so far pose, that the war will be vigorously proseshocking to civilization and the moral sense cuted, according to the humane principles of of mankind that it must not expect welcome Christian states, until the rebellion shall be or recognition in the commonwealth of overcome; and they reverently invoke upon

nations. their cause the blessings of Almighty 4. That the United States, confident in God... . 226. THE FRENCH IN MEXICO 1862-1866 The decision of the Mexican Congress, in July D. Perkins, The Monroe Doctrine, 1826-1867, 1861 to suspend for two years all payments on ch. vii, and biblography; E. C. Corti, Maxi-

foreign debts, brought to a head a situation milian and Charlotte of Mexico, Vol. Il; J. M. which had long been threatening. France, Spain Callahan, Evolution of Seward’s Mexican and Great Britain signed an agreement for joint Policy; J. F. Rippy, Zhe Uniled States and intervention, and in 1862 took possession of Mexico, ch. xiv; C. A. Duniway, “Reasons for Mexican custom houses. Spain and Great the Withdrawal of the French from Mexico”, Britain reaching a satisfactory agreement with American Hist. Assoc. Annual Report, 1902, Vol. Mexico thereupon withdrew from the coalition, I, p. 313. On Confederate diplomacy in Mexico,

leaving France in control of the situation. A see F. L. Owsley, King Cotton Diplomacy, French army defeated Juarez, captured the ch. xvii. Mexican capital, and organized a _ provisional

government which promptly voted to establish 1. Mr. Sewarp To Mr. Apams

an Empire and invited the Austrian Archduke March 3, 1862

Maximilian to the throne. Secretary Seward (U.S. 37th Congress, 2d Session, House Doc.

watched this violation of the Monroe Doctrine No. 100, p. 207-8) with profound dissatisfaction, but hesitated to Department of State, antagonize Emperor Napoleon III. The despatch Washington, March 3, 1862. of March 3, 1862 sets forth American Sir: We observe tion on intervention andthe assumes theposihonorable . aaa indications of a growintentions of the signatories of the convention of ‘78 OP!nlon In Europe that the demonstra-

1861. The success of the Union arms by 1864 [lions which are being made by Spanish, made Congress ready to assume a bolder posi- French, and British forces against Mexico tion, but the resolution of April 4, 1864 was not are likely to be attended with a revolution passed by the Senate. After the War Seward as- in that country which will bring in a mosumed a position of inflexible hostility to the parchical government there, in which the maintenance of the French regime in Mexico, cygwn will be assumed by some foreign prince.

and the despatch of April 16, 1866 sets forth Th's country is deeply concerned in the the American attitude toward the anes of peace of nations, and aims to be loyal at Austrian military support to Emperor sax the same time in all its relations, as well to (rom Mexico in 1867 and in June of that year the allies as to Mexico. The President has the hapless Maximilian was shot. See J. B. therefore instructed me to submit his views

milian. French troops were finally w.thdrawn :

Moore, A Digest of International Law, Vol. vi; on the new aspect of affairs to the parties

THE FRENCH IN MEXICO 425 concerned. He has relied upon the assurances ture in its history during the last century. given to this government by the allies that It is not probable that a revolution in the they were seeking no political objects and contrary direction would be successful in only a redress of grievances. He does not an immediately succeeding century, while doubt the sincerity of the allies, and his population in America is so rapidly increasconfidence in their good faith, if it could ing, resources so rapidly developing, and sobe shaken, would be,reinspired by expiana- ciety so steadily forming itself upon printions apparently made in their behait that cip'es of democratic American government. the governments of Spain, France, and Great Nor is it necessary to suggest to the allies

Britain are not intending to intervene and the improbability that European nations will not intervene to effect a change of the could steadily agree upon a policy favorable constitutional form of government now ex- to such a counter-revolution as one conisting in Mexico, or to produce any political ducive to their own interests, or to suggest change there in opposition to the will of that, however studiously the allies may act the Mexican people. Indeed, he understands to avoid lending the aid of their land and

the allies to be unanimous in declaring that naval forces to domestic revolutions in the proposed revolution in Mexico is moved Mexico, the resu!t would nevertheless be

only by Mexican citizens now in Europe. traceable to the presence of those forces The President, however, deems it his duty — there, although for a different purpose, since

to express to the allies, in all candor and it may be deemed certain that but for their frankness, the opinion that no monarchical presence there no such revolution could government which could be founded in probably have been attempted or even conMexico, in the presence of foreign navies ceived. and armies in the waters and upon the soil The Senate of the United States has not, of Mexico, would have any prospect 0: se- indeed, given its official sanction to the curity or permanency. Secondly, that the precise measures which the President has instability of such a monarchy there would proposed for lending our aid to the existing be enhanced if the throne should be assigned government in Mexico, with the approval of to any person not of Mexican nativity. That the allies, to relieve it from its present emunder such circumstances the new govern- barrassments. This, however, is only a quesment must speedily fall untess it could draw tion of domestic administration. It would into its support European ailiances, which, be very erroneous to regard such a disagreerelating back to the present invasion, would, ment as indicating any serious difference of in fact, make it the beginning of a permanent opinion in this governmem or among the policy of armed European monarchical in- American people in their cordiai good wishes

tervention injurious and practically hostile for the safety, welfare, and stability of the to the most general system of government republican system of government in thet on the continent of America, and this would country.

be the beginning rather than the ending of I am, sir, your obedient servant,

revolution in Mexico. William H. Seward. These views are grounded upon some knowledge of the political sentiments and 2. [lousE RESOLUTION ON FRENCH

habits of society in America. INTERVENTION IN Mexico

In such a case it is not to be doubted April 4, 1864

thet the permanent interests and sympathies (I. McPherson, Political History of the

of this country would be with the other Rebellion, p 349)

American republics. It is not intended on Resolved. Vhat the Congress of the United this occasion to predict the course of events States are unwilling, by silence, to leave the which might happen as a consequence of nations of the world under the impression the proceeding contemplated, either on this that they are indifferent spectators of the continent or in Europe. It is sufficient to deptorable events now transpiring in the Resay that, in the President’s opinion, the public of Mexico; and they therefore think

emancipation of this continent from Eu- fit to declare that it does not accord with ropean control has been the principal fea- the policy of the United States to acknowl-

426 DOCUMENTS OF AMERICAN HISTORY edge a monarchical government, erected on itself, and now distinctly wears the character

the ruins of any republican government in of an European intervention to overthrow America, under the auspices of any Eu- that domestic republican government, and to

ropean power. erect in its stead a European, imperial, military despotism by military force. The United

3. Mr. SEWARD TO Mr. MotLey States, in view of the character of their own

April 16, 1866 political institutions, their proximity and

(U. S. 39th Congress, Ist Session, House Doc. intimate relations towards Mexico, and their

No. 93, p. 46-7) just influence in the political affairs of the Department of State, American continent, cannot consent to the Washington, April 16, 1866. accomplishment of that purpose by the

SIR: I have had the honor to receive your. means described. The United States have

despatch of the 27th of March, No. 155, therefore addressed themselves, as they which brings the important announcement think, seasonably to the government of that a treaty, called a “military supplemen- France, and have asked that its military tary convention,” was ratified on the 15th forces, engaged in that objectionable politiof that month between the Emperor of cal invasion, may desist from further inAustria and the Prince Maximilian, who tervention and be withdrawn from Mexico.

claims to be an emperor in Mexico. A copy of the last communication upon You inform me that it is expected that this subject, which was addressed by us to about one thousand volunteers will be the government of France, is herewith transshipped (under this treaty) from Trieste to mitted for your special information. This Vera Cruz very soon, and that at least as paper will give you the true situation of the many more will be shipped in autumn. question. It will also enable you to satisfy I have heretofore given you the Presi- the government of Vienna that the United dent’s instructions to ask for explanations, States must be no less opposed to military and, conditionally, to inform the govern- intervention for political objects hereafter ment of Austria that the despatch of military in Mexico by the government of Austria, expeditions by Austria under such an ar- than they are opposed to any further interrangement as the one which seems now to- vention of the same character in that counhave been consummated would be regarded try by France. with serious concern by the United States. You will, theretore, at as early a day as The subject has now been further con- may be convenient, bring the whole case, ina sidered in connexion with the official in- becoming manner, to the attention of the formation thus recently received. The time imperial royal government. You are authorseems to have arrived when the attitude of ized to state that the United States sincerely this government in relation to Mexican af- desire that Austria may find it just and fairs should be once again frankly and dis- expedient to come upon the same ground of tinctly made known to the Emperor of non-intervention in Mexico which is mainAustria, and all other powers whom it may tained by the United States, and to which directly concern. The United States, for rea- they have invited France. sons which seem to them to be just, and You will communicate to us the answer to have their foundation in the laws of of the Austrian government to this proposinations, maintain that the domestic republi- _ tion. can government with which they are in rela- This government could not but regard as tions of friendly communication is the only a matter of serious concern the despatch of legitimate government existing in Mexico; any troops from Austria for Mexico while that a war has for a period of several years the subject which you are thus directed to been waged against that republic by the gov- present to the Austrian government remains ernment of France; which war began with a under consideration.

disclaim of all political or dynastic designs I am, sir, your obedient servant,

that that war has subsequently taken upon WiLLt1AmM H. SEWARD.

New JERSEY PEACE RESOLUTIONS 427 . 227. NEW JERSEY PEACE RESOLUTIONS March 18, 1863 (F. Moore, ed. The Rebellion Record, Vol. XII, p. 679 ff.) These resolutions of the legislature of New authority, and if permitted to continue with. Jersey did not meet with the approval of the out remonstrance, will finally encompass the New Jersey soldiers. Their protest is given IN destryction of the liberties of the people

me accompanying nae peo se ae and the death of the Republic; and therenapp, ‘Yew Jersey foulics Lurng ihe © fore, to the end that in any event the ma-

War; J. F. Rhodes, History, Vol. V, p. 317 i. tured and deliberate sense of the people of New-Jersey may be known and declared, we,

1. New-Jerszy Peace RESOLUTIONS their representatives in Senate and General 1. Be it Resolved by the Senate and Gen- Assembly convened, do, in their name and in eral Assembly of the State of New-Jersey, their behalf, make unto the Federal GovernThat this State, in promptly answering the ment this our solemn calls made by the President of the United

States, at and since the inauguration of the PROTEST

war, for troops and means to assist in main- Against a war waged with the insurgent taining the power and dignity of the Federal States for the accomplishment of unconstituGovernment, believed and confided in the tional or partisan purposes;

professions and declarations of the Presi- Against a war which has for its object the dent of the United States, in his inaugural subjugation of any of the States, with a address, and in the resolutions passed by view to their reduction to territorial con-

Congress on the twenty-fifth day of July, dition; ... 1861, in which, among other things, it was Against the domination of the military declared “that the war is not waged for over the civil laws in States, Territories, or conquest or subjugation, or interfering with districts not in a state of insurrection; the rights or established institutions of the Against all arrests without warrant; against States, but to maintain and defend the su- the suspension of the writ of habeas corpus premacy of the Constitution, with the rights in States and Territories sustaining the Fedand equality under it unimpaired, and that eral Government, “where the public safety as soon as these objects shall be accomplished does not require it,” and against the assump-

the war ought to cease;”.. . tion of power by any person to suspend such

2. And be it Resolved, That this State writ, except under the express authority of having waited for the redemption of the Congress; sacred pledges of the President and Congress Against the creation of new States by the

with a patience and forbearance only’ division of existing ones, or in any other

equalled in degree by the unfaltering and manner not clearly authorized by the Conunswerving bravery and fidelity of her sons, stitution, and against the right of secession conceives it to be her solemn duty, as it is as practically admitted by the action of Conher unquestioned right, to urge upon the — gress in admitting as a new State a portion President and Congress, in the most respect- of the State of Virginia; ful but decided manner, the redemption of Against the power assumed in the procla the pledges under which the troops of this mation of the President made January first, ' State entered upon, and to this moment have 1863, by which all the slaves in certain

continued in, the contest; .. . _ States and parts of States are for ever set 3. And be it Resolved, That it 1s the free; and against the expenditures of the

deliberate sense of the people of this State public moneys for the emancipation of slaves

that the war power within the limits of the or their support at any time, under any Constitution is ample for any and all emer- pretence whatever; gencies, and that all assumption of power, Against any and every exercise of power under whatever plea, beyond that conferred upon the part of the Federal Government by the Constitution, is without warrant or that is not clearly given and expressed in

428 DOCUMENTS OF AMERICAN History the Federal Constitution—reasserting that cause, be heard when weak and wicked men

“the powers not delegated to the United seek its dishonor: therefore States by the Constitution, nor proh‘bited Resolved, That the Union ef the States is

by it to the States, are reserved to the the only guarantee for the preservation of States respectively, or to the people.”. .. our liberty and independence, and that the 4. And be it Resolved, That... while war for the maintenance of that Union comabating naught in her devotion to the Union mands now, as il ever has done, our best of the States and the dignity and power of efforts and our heartfelt sympathy. the Federal Government, at no time since Resolved, That we consider the passage, or the commencement of the present war has even the introduction of the so-called Peace this State been other than willing to termi- Resolutions, as wicked, weak, and cowardly, nate peacefully and honorably to all a war tending to aid by their sympathy, the rebels unnecessary in ils origin, fraught with horror seeking to destroy the Republic.

and suffering in its prosecution, and neces- Resolved, That we regard as traitors alike sarily dangerous to the liberties of all in its the foe in arms and the secret enemies of

continuance. ... our Government, who, at home, foment dis-

" ° ‘ our legally chosen rulers. SOLDIERS Resolved, That the reports spread broad-

2. Protest or tHE New-JERsey affection and strive to destroy confidence in Camp of the Eleventh New-Jersey Volun- cast throughout the North, by secession sym-

teers, pathizers, prints, and voices, that the army

Below Falmouth, Va., March 10, 1863. of which we esteem it a high honor to form Whereas, The Legislature of our native a part, is demoralized and clamorous for States, .. . has sought to tarnish its high peace on any terms, are the lying utterances honor, and bring upon it disgrace, by the of traitorous tongues, and do base injustice passage of resolutions tending to a dishonor- to our noble comrades who have never able peace with armed rebe!s seeking to faltered in the great work, and are now not destroy our great and beneficent Govern- only willing but anxious to follow their galment, the best ever designed for the happi- lant and chivalric leader against the strong-

ness of the many; and holds of the enemy.

Whereas, We, her sons, members of the Resolved, That we put forth every effort. Eleventh regiment New-Jersey volunteers, endure every fatigue, and shrink from no citizens representing every section of the danger, until, under the gracious guidance

State, have left our homes to endure the of a kind Providence, every armed rebel fatigues, privalions, and dangers incident to — shall be conquered, and traitors at home shall

a soidier’s life, in order to maintain our Re- quake with fear, as the proud emblem of public in its integrity, willing to sacrifice our national independence shall assert its our lives to that object; fully recognizing power from North to South, and crush bethe impropriety of a soldier’s discussion of neath its powerful folds all who dared to

the legislative functions of the State, yet assail its honor, doubly hallowed by the deeming it due to ourselves, that the voice memory of the patriot dead... . of those who offer their all in their country’s

228. THE GETTYSBURG ADDRESS November 19, 1863 (The Writings of Abraham Lincoln, Constitutional ed., Vol. VII, p. 20) There is considerable variation in phrascology Four score and seven years ago our faamong the various versions of this famous ad- thers brought forth on this continent, a new dress. For a learned discuss-on of the address nation, conceived in Liberty, and dedicated and comparison, of, fecsimle manure So the proposition that all men are created

popular account is C. E. Carr, Lincoln at equal. . Gettysburg. Now we are engaged in a great civil war,

LINCOLN’S PLAN OF RECONSTRUCTION 429 testing whether that nation or any nation so never forget what they did here. It is for conceived and so dedicated, can long endure. us the living, rather, to be dedicated here We are met on a great battle-field of that to the unfinished work which they who war. We have come to dedicate a portion of fought here have thus far so nobly advanced.

that field, as a final resting place for those It is rather for us to be here dedicated to who here gave their lives that that nation the great task remaining before us—that might live. It is altogether fitting and proper from these honored dead we take increased

that we should do this. devotion to that cause for which they gave

But, in a larger sense, we can not dedicate the last full measure of devotion—that we —we can not consecrate—we can not hallow here highly resolve that these dead shall not

—this ground. The brave men, living and have died in vain—that this nation, under dead, who struggled here, have consecrated God, shall have a new birth of freedom— it, far above our poor power to add or de- and that government of the people, by the tract. The world will little note, nor lonz people, for the people, shall not perish trom

remember what we say here, but it can the earth. 229. RECONSTRUCTION OF TENNESSEE Lincoln’s Letter to Governor Johnson September 11, 1863 (Writings of Abraham Lincoln, Constitutional ed., Vol. VI, p. 407-8) This letter is significant for the development of nat!on if it so ends that Governor Johnson Lincoln’s policy of Reconstruction. See refer- jis put down and Governor Harris put up. ences in Doc. No. 230 and C. R. Hall, Andrew Jt must not be so. You must have it otherpounson, Military Governor of Tennessee; J.W. wise. Let the reconstruction be the work nessee; J. W. Patton, Unionism and Reconstruc- Or such men omy as can be trusted for the

ertig, Secession and Reconstruction of Ten- f h I .

tion in Tennessee. Union. Exclude all others, and trust that your government so organized will be recog-

Executive Mansion, Washington, nized here as being the one of republican

September 11, 1863. form to be guaranteed to the State, and to Hon. ANDREW JOHNSON. be protected against invasion and domestic My DEAR Sir:—All Tennessee is now clear violence. It is something on the question of

of armed insurrectionists. You need not to time to remember that 1‘ cannot be known be reminded that it is the nick of time for who is next to occupy the position I now

reinaugurating a loyal State government. hold, nor what he will do. I see that you Not a moment should be lost. You and the have declared in favor of emancipation in co-operating friends there can better judge Tennessee, for which may God bless you. of the ways and means than can be judged Get emancipation into your new State govby any here. I only offer a few suggestions. ernmment—constitution—and there will be no

The reinauguration must not be such as to such word as fail for your case. The raising give control of the State and its representa- of colored troops, I think, will greatly help

tion in Congress to the enemies of the every way.

Union, driving its friends there into political Yours very truly,

exile. The whote struggle for Tennessee will A. LINCOLN. have been profitless to both State and

230. LINCOLN’S PLAN OF RECONSTRUCTION Proclamation of Amnesty and Reconstruction December 8, 1863 (Richardson, ed. Afessages and Papers, Vol. VI, p. 213 ff.) Lincoln had already indicated his reconstruction struction of Tennessee and Louisiana. The policy by his action during 1862 in the recon- Presidential plan, as presented in the message of

430 DOCUMENTS OF AMERICAN History December 8, 1863, provided for the restoration sume their allegiance to the United States of loyal governments in the seceded states when and to reinaugurate loyal State governments

a number, equal to one tenth of the voting within and for their respective States: population 0 the State in 1860, should take an Therefore, I, Abraham Lincoln. President oath prescribed and organize a government. This f the Un; ? Presidential plan assumed that the States were ° the United States, do proclain, . . . to not out of the Union, and that reconstruction all persons who have, directly or by implicawas a Presidential function, to be carried out tion, participated in the existing rebellion, through the instrumentality of the pardoning except as hereinafter excepted, that a full power. The opposition to this theory was an- pardon is hereby granted to them and each nounced first by the refusal of Congress to ad- of them, with restoration of all rights of mit representatives from the reconstructed property, except as to slaves and in property States, and, decisively, by the passage of the cases where rights of third parties shall have

; ; ; ; pon the condition tha

Wade-Davis Bill, Doc. No. 234. On Lincoln’s intervened. and u th diti that

policy, see, C. H. McCarthy, Lincoln’s Plan of h h Reconstruction; C. E. Chadsey, Reconstruction every such person shall take and subscribe

Prior to the Close of the Civil War; J. W. Burgess, ° oath and thenceforward keep and main-

Civil War on the Constitution, 2 Vols. tain said oath inviolate, and which oath shall be registered for permanent preserva-

A Proclamation tion and shall be of the tenor and effect Whereas in and by the Constitution of the following, to wit:

United States it is provided that the Presi- I, —— —~, do solemnly swear, in presence dent “shall have power to Brant reprieves of Almighty God, that I will henceforth faithand pardons for offenses against the United fully support, protect, and defend the Constitu-

States, except in cases of impeachment;” tion of the United States and the Union of the

and States thereunder; and that 1 will in like manWhereas a rebellion now exists whereby er abide by and faithfully support all acts of

the loyal State governments of several States Congress passed during the existing rebellion have for a long time been subverted, and with reference to slaves, SO long and so far as

. not repealed, modified,and or held by Congress many persons committed arevoid now s that . . orhave by decision of the Supreme Court; and guilty of treason against the United States; 7 win in like manner abide by and. faithfully and support all proclamations of the President made

Whereas, with reference to said rebellion during the existing rebellion having reference to and treason, laws have been enacted by Con- _ slaves, so long and so far as not modified or gress declaring forfeitures and confiscation declared void by decision of the Supreme Court. of property and liberation of slaves, all upon 50 help me God.

terms and conditions therein stated, and also declaring that the President was thereby The persons excepted from the benefits of authorized at any time thereafter, by procla- the foregoing provisions are all who are or mation, to extend to persons who may have _ shall have been civil or diplomatic officers participated in the existing rebellion in any or agents of the so-called Confederate GovState or part thereof pardon and amnesty, ernment; all who have left judicial stations with such exceptions and at such times and under the United States to aid the rebellion; on such conditions as he may deem expedient all who are or shall have been military or

for the public welfare; and naval officers of said so-called Confederate

Whereas the Congressional declaration for Government above the rank of colonel in limited and conditional pardon accords with the army or of lieutenant in the navy; all — well-established judicial exposition of the who left seats in the United States Congress

pardoning power; and to aid the rebellion; all who resigned comWhereas, with reference to said rebellion, missions in the Army or Navy of the United the President of the United States has issued States and afterwards aided the rebellion; several proclamations with provisions in re- and all who have engaged in any way in

gard to the liberation of slaves; and treating colored persons, or white persons Whereas it is now desired by some persons in charge of such, otherwise than lawfully as heretofore engaged in said rebellion to re- prisoners of war, and which persons may have

THE NATIONAL BANK ACT 431 been found in the United States service as not be objected to by the National Execusoldiers, seamen, or in any other capacity. tive. And I do further proclaim, declare, and And it is suggested as not improper that make known that whenever, in any of the in constructing a loyal State government in States of Arkansas, Texas, Louisiana, Mis- any State the name of the State, the boundsissippi, Tennessee, Alabama, Georgia, Flor- ary, the subdivisions, the constitution, and

ida, South Carolina, and North Carolina, a the general code of laws as before the renumber of persons, not less than one-tenth bellion be maintained, subject only to the in number of the votes cast in such State modifications made necessary by the condiat the Presidential election of the year A. D. tions hereinbefore stated, and such others, if 1860, each having taken oath aforesaid, and any, not contravening said conditions and

not having since violated it, and being a which may be deemed expedient by those qualified voter by the election law of the framing the new State government. State existing immediately before the so- To avoid misunderstanding, it may be called act of secession, and excluding all proper to say that this proclamation, so far others, shall re-establish a State government as it relates to State governments, has no which shall be republican and in nowise con- reference to States wherein loyal State gov-

travening said oath, such shall be recognized ernments have all the while been mainas the true government of the State, and the tained. And for the same reason it may be State shall receive thereunder the benefits of proper to further say that whether memthe constitutional provision which declares bers sent to Congress from any State shall that “the United States shall guarantee to be admitted to seats constitutionally rests every State in this Union a republican form exclusively with the respective Houses, and of government and shall protect each of them not to any extent with the Executive. And, against invasion, and, on application of the still further, that this proclamation is inlegislature, or the executive (when the legis- tended to present the people of the States lature can not be convened), against domes- wherein the national authority has been sus-

tic violence.” pended and loyal State governments have And I do further proclaim, declare, and been subverted a mode in and by which the make known that any provision which may national authority and loyal State governbe adopted by such State government in re- ments may be re-established within said lation to the freed people of such State which States or in any of them; and while the

shall recognize and declare their permanent mode presented is the best the Executive can freedom, provide for their education, and suggest, with his present impressions, it must

which may yet be consistent as a temporary not be understood that no other possible arrangement with their present condition as mode would be acceptable.

a laboring, landless, and homeless class, will ABRAHAM LINCOLN. : 231. THE NATIONAL BANK ACT June 3, 1864 (U. S. Statutes at Large, Vol. XIII, p. 99 ff.)

This act amended the banking act of February cured by a Pledge of United States Bonds, 25, 1863, and created the national banking sys- and to provide for the Circulation and Retem that obtained until the passage of the Fed- demption thereof.

eral Reserve Act of 1913. For a history of the Sec. 5. That associati f . National Bank Act see, D. R. Dewey, Financial a . Oclatlons for carrying

History of the United States, p. 299ff.; J. J. on the business of banking may be formed by Knox, History of Banking, p. 220 ff.; A. B. Hep- any number of persons, not less in any case burn, History of Currency in the United States, than five, who shall enter into articles of ch. xvii; A. M. Davis, The Origin of the Na- association, which shall specify in general

tional Banking System. terms the object for which the association is formed, and may contain any other proviAn Act to provide a National Currency, se- sions, not inconsistent with the provisions of

432 DOCUMENTS OF AMERICAN History this act, which the association may see fit association to the extent of the amount of to adopt for the regulation of the business of _ their stock therein at the par value thereof, the association and the conduct of its affairs, in addition to the amount invested in such

which said articles shall be signed by the shares; except that shareholders of any persons uniting to form the association, and banking association now existing under state a copy of them forwarded to the comptroller — laws, having not less than five millions of of the currency, to be filed and preserved in dollars of capital actually paid in, and a sur-

his office... . plus of twenty per centum on hand, both to

SEC. 7. That no association sha!l be or- be determined by the comptroller of the curganized under this act, with a less capital rency, shall be liable only to the amount inthan one hundred thousand dollars, nor in a vested in their shares. . ; city whose population exceeds fifty thousand SEC. 16. That every association, after havpersons, with a less capital than two hun- ing complied with the provisions of this act, dred thousand dollars: Provided, That banks preliminary to the commencement of bankwith a capital of not less than fifty thousand ing business under its provisions, and before dollars may, with the approval of the Secre- it shall be authorized to commence business, tary of the Treasury, be organized in any — shall transfer and deliver to the treasurer of place the population of which does not ex- the United States any United States regis-

ceed six thousand inhabitants. tered bonds bearing interest to an amount

Sec. 8. That every association formed not less than thirty thousand dollars nor less pursuant to the provisions of this act shall than one third of the capital stock paid in, . . . lransact no business except such as may which bonds shall be deposited with the be incidental to its organization and neces- treasurer of the United States and by him sarily preliminary, until authorized by the — safety kept in his office until the same shall comptro.lcr of the currency to commence _ be otherwise disposed of, in pursuance of the

the business of banking. Such association provisions of this act; and the Secretary of shall have power to adopt a corporate seal, the Treasury is hereby authorized to receive and shall have succession by the name desig- and cancel any United States coupon bonds, nated in its organization certificate, for the and to issue in lieu thereof registered bonds period of twenty years from its organization, of like amount, bearing a like rate of interunless sooner dissolved according to the pro- est, and having the same time to run; and visions of its articles of association, or by the deposit of bonds shall be, by every assothe act of its shareholders owning two thirds ciation, increased as its capital may be paid of its stock, or un‘ess the franchise shall be up or increased, so that every association forfeited by a violation of this act; by such — shall at all times have on deposit with the

name it may make contracts... , and’ex- treasurer registered United States bonds to ercise under this act all such incidental the amount of at least one third of its capital powers as shall be necessary to carry on the — stock actually paid in... . business of banking by discounting and ne- Sec. 21. That upon the transfer and delivgotiating promissory notes, drafts, bills of ery of bonds to the treasurer, as provided in exchange, and other evidences of debt; by the foregoing section, the association making recelving depos:ts; by buying and selling ex- the same shall be entitled to receive from change, coin, and bullion; by loaning money the comptroller of the currency circulating on personal security; by obtaining, issuing, notes of different denominations, in blank, und circulating notes according to the provi- registered and countersigned as hereinafter

sions of this act... . provided, equal in amount to ninety per The shareholders of each association centum of the current market value of the

formed under the provisions of this act, and United States bonds so transferred and deof each existing bank or banking association _livered, bui not exceeding ninety per centum

that may accept the provisions of this act, of the amount of said bonds at the par value shall be held individually responsible, equally thereof, if bearing interest at a rate not and ratably, and not one for another, for all Jess than five per centum per annum; and contracts, debts, and engagements of such at no time shall the total amount of such

THe NATIONAL BANK ACT 433 notes, issued to any such association, exceed bills, to be deposited with the treasurer of the amount at such time actually paid in of _ the United States as long as such deprecia-

jtsSec.capital stock. tion continues. ... 22. That the entire amount of notes Sec. 30. That every association may take,

for circulation to be issued under this act receive, reserve, and charge on any loan or shall not exceed three hundred millions of discount made, or upon any note, bill of

dollars... . exchange, or other evidences of debt, interSrc. 23. That after any such association est at the rate allowed by the laws of the

shall have caused its promise to pay such _ state or territory where the bank is located, notes on demand to be signed by the presi- and no more. ... And when no rate is fixed

dent or vice-president and cashier thereof, by the laws of the state or territory, the in such manner as to make them obligatory bank may take, receive, reserve, or charge promissory notes, payable on demand, at its a rate not excecding seven per centum... . place of business, such association is hereby Sec. 31. That every association in the authorized to issue and circulate the same as cities hereinafter named shall, at all times, money; and the same shall be received at have on hand, in lawful money of the United par in all parts of the United States in pay- States, an amount equal to at least twentyment of taxes, excises, public lands, and all five per centum of the aggregate amount of other dues to the United States, except for its notes in circulation and its deposits; and duties on imports; and also for all salaries every other association shall, at all times, have and other debts and demands owing by the on hand, in lawful money of the United United States to individuals, corporations, States, an amount equal to at least fifteen and associations within the United States, per centum of the aggregate amount of its except interest on the public debt, and in notes in circulation, and of its deposits. . . . redemption of the national currency. And no Provided, That three fifths of said fifteen per such association shall issue post notes or any centum may consist of balances due to an other notes to circulate as money than such association available for the redemption of as are authorized by the foregoing provisions its circulating notes from associations ap-

of this act... . proved by the comptroller of the currency, Sec. 26. That the bonds transferred to organized under this act, in the cities of and deposited with the treasurer of the Saint Louis, Louisville, Chicago, Detroit, United States, as hereinbefore provided, by Milwaukee, New Orleans, Cincinnati, Cleveany banking association for the security of land, Pittsburg, Baltimore, Philadelphia, Bosits circulating notes, shall be held exclusively ton, New York, Albany, Leavenworth, San

for that purpose, until such notes shall be Francisco, and Washington City: Provided, redeemed, except as provided in this act; also, That clearing-house certificates, reprebut the comptroller of the currency shall senting specie or lawful money specially degive to any such banking association powers posited for the purpose of any clearing-house

of attorney to receive and appropriate to its association, shall be deemed to be lawful own use the interest on the bonds which it money in the possession of any association shall have so transferred to the treasurer; belonging to such clear:ng-house holding and but such powers shall become inoperative owning such certificate, and shall be considwhenever such banking association shall fail ered to be a part of the lawful money which to redeem its circulating notes as aforesaid. such association is required to have under

Whenever the market or cash value of any’ the foregoing provisions of this section: bonds deposited with the treasurer of the Provided, That the cities of Charteston and United States, as aforesaid, shall be reduced Richmond may be added to the list of cities below the amount of the circulation issued in the national associations of which other for the same, the comptroller of the currency associations may keep three fifths of their is hereby authorized to demand and receive lawful money, whenever, in the opinion of the amount of such depreciation in other the comptroller of the currency, the condiUnited States bonds at cash value, or in tion of the southern states will warrant it. money, from the association receiving said And it shall be competent for the comptroller

434 DOCUMENTS OF AMERICAN HISTORY of the currency to notify any association, erations, to an amount greater than its net whose lawful money reserve as aforesaid profits then on hand, deducting therefrom its shall be below the amount to be kept on hand losses and bad debts... . as aforesaid, to make good such reserve; and Sec. 41. And in lieu of all existing taxes, if such association shall fail for thirty days every association shall pay to the treasurer of thereafter so to make good its reserve of the United States, in the months of January lawful money of the United States, the comp- and July, a duty of one half of one per troller may, with the concurrence of the centum each half year from and after [JanSecretary of the Treasury, appoint a receiver uary 1, 1864] upon the average amount of to wind up the business of such association, its notes in circulation, and a duty of one

as provided in this act. quarter of one per centum each half year Sec. 32. That each association organized upon the average amount of its deposits, and

in any of the cities named in the foregoing a duty of one quarter of one per centum section shall select, subject to the approval each half year, as aforesaid, on the avof the comptroller of the currency, an asso- erage amount of its capital stock beyond ciation in the city of New York, at which it the amount invested in United States will redeem its circulating notes at par. And bonds; ... each of such associations may keep one half Sec. 44. That any bank incorporated by of its lawful money reserve in cash deposits special law, or any banking institution organ-

in the city of New York... . ized under a general law of any state, may, Sec. 36. That no association shall at any by authority of this act, become a national

time be indebted, or in any way liable, to an association under its provisions, by the name amount exceeding the amount of its capital prescribed in its organization certificate. .. .

stock at such time actually paid in and re- Sec. 45. That all associations under this maining undiminished by losses or otherwise, act, when designated for that purpose by the except on the following accounts, that is to Secretary of the Treasury, shall be deposi-

gay i:— taries of public money, except receipts from First. On account of its notes or circula- customs, under such regulations as may be

tion. prescribed by the Secretary; and they may Second. On account of inoneys deposited also be employed as financial agents of the with, or collected by, such association. government; and they shall perform all such Third. On account of bills of exchange or reasonable duties, as depositaries of public drafts drawn against money actually on de- moneys and financial agents of the governposit to the credit of such association, or ment, as may be required of them. And the

due thereto. Secretary of the Treasury shall require of the Fourth. On account of liabilities to its association thus designated satisfactory sestockholders for dividends and reserved curity, by the deposit of United States bonds

profits. ... and otherwise, for the safe-keeping and Sec. 38. That no association, or any mem- prompt payment of the public money deber thereof, shall, during the time it shall posited with them, and for the faithful per-

continue its banking operations, withdraw, or formance of their duties as financial agents

permit to be withdrawn, either in form of of the government: Provided, That every dividends or otherwise, any portion of its association which shall be selected and desigcapital. And if losses shall at any time have nated as receiver or depositary of the public been sustained by any such association equal money shall take and receive at par all of to or exceeding its undivided profits then on the national currency bills, by whatever ashand, no dividend shall be made; and no _ sociation issued, which have been paid in to dividend shall ever be made by any associa- the government for internal revenue, or for

tion, while it shall continue its banking op- loans or stocks. ...

PLATFORM OF NATIONAL UNION CONVENTION 435 232. PLATFORM OF NATIONAL UNION CONVENTION Baltimore, Maryland

June 7, 1864 (The Writings of Abraham Lincoln, Constitutional ed., Vol. VII, p. 148 ff.) The Republican Party took the name of Na- slavery within the limits or the jurisdiction tional Union Party during the war period. of the United States. 4. Resolved, That the thanks of the Amer1. Resolved, That it is the highest duty ican people are due to the soldiers and sailors

of every American citizen to maintain of the Army and Navy, who have periled against all their enemies the integrity of the their lives in defense of their country and Union and the paramount authority of the in vindication of the honor of its flag; that ‘Constitution and laws of the United States; the nation owes to them some permanent and that, laying aside all differences of polit- recognition of their patriotism and their ical opinion, we pledge ourselves, as Union valor, and ample and permanent provision men, animated by a common sentiment and for those of their survivors who have reaiming at a common object, to do everything ceived disabling and honorable wounds in in our power to aid the Government in quell- the service of the country; and that the ing by force of arms the rebellion now raging memories of those who have fallen in its against its authority, and in bringing to the defense shall be held in grateful and ever* punishment due to their crimes the rebels lasting remembrance.

and traitors arrayed against it. 5. Resolved, That we approve and ap-

2. Resolved, That we approve the de- plaud the practical wisdom, the unselfish

termination of the Government of the United patriotism, and the unswerving fidelity to States not to compromise with rebels, or to the Constitution and the principles of Ameroffer them any terms of peace, except such ican liberty, with which Abraham Lincoln as may be based upon an unconditional sur- has discharged under circumstances of unrender of their hostility anda return to their paralleled difficulty the great duties and rejust allegiance to the Constitution and laws sponsibilities of the Presidential office; that of the United States, and that we call upon we approve and indorse as demanded by the the Government to maintain this position, emergency and essential to the preservation

and to prosecute the war with the utmost of the nation, and as within the provisions possible vigor to the complete suppression of the Constitution, the measures and acts of the rebellion, in full reliance upon the which he has adopted to defend the nation self-sacrificing patriotism, the heroic valor, against its open and secret foes; that we and the undying devotion of the American approve, especially, the Proclamation of people to their country and its free institu- Emancipation, and the employment as

tions. Union soldiers of men heretofore held in 3. Resolved, That as slavery was the slavery; and that we have full confidence in cause, and now constitutes the strength, of his determination to carry these and all this rebellion, and as it must be, always and other constitutional measures essential to the everywhere, hostile to the principles of re- salvation of the country into full and com-

publican government, Justice and the na- plete effect. tional safety demand its utter and complete 6. Resolved, That we deem it essential to extirpation from the soil of the republic; and the general welfare that harmony should that while we uphold and maintain the acts prevail in the national councils, and we reand proclamations by which the Govern-_ gard as worthy of public confidence and ofhment, in its own defense, has aimed a death- cial trust those only who cordially indorse blow at this gigantic evil, we are in favor, the principles proclaimed in these resolutions, furthermore, of such an amendment to the and which should characterize the adminisConstitution, to be made by the people in_ tration of the Government. conformity with its provisions, as shall ter- 7. Resolved, That the Government owes minate and forever prohibit the existence of to all men employed in its armies, without

436 DocuMENTS oF AMERICAN HHu1storRy regard to distinction of color, the full pro- rigid responsibility in the public expendi-

tection of the laws of war, and that any tures, and a vigorous and just system of violation of these laws, or of the usages of taxation: and that it is the duty of every

civilized nations in time of war, by the rebels loyal State to sustain the credit and promote

now in arms, should be made the subject the use of the national currency.

of prompt and full redress. 11. Resolved, That we approve the posi-

8. Resolved, That foreign immigration, tion taken by the Government that the peowhich in the past has added so much to the ple of the United States can never regard wealth, development of resources, and in- with indifference the attempt of any Eurocrease of power to this nation, the asylum pean power to overthrow by force or to supof the oppressed of all nations, should be plant by fraud the institutions of any repubfostered and encouraged by a liberal and lican government on the Western Continent,

just policy. and that they will view with extreme jeal-

9. Resolved, That we are in favor of the ousy, aS menacing to the peace and independspeedy construction of the railroad to the ence of their own country, the efforts of any

Pacific coast. such power to obtain new footho'ds for 10. Resolved, That the national faith, monarchical governments, sustained by forpledged for the redemption of the public eign military force, in near proximity to the debt, must be kept inviolate, and that for United States. this purpose we recommend economy and

233. THE CONTRACT LABOR LAW July 4, 1864 (U.S. Statutes at Large, Vol. XIII, p. 386) This law, giving validity to lens upon the wages may be enforced in the Courts of the United

or property of laborers imported on contract, States, or of the several states and terri-

was repealed in 1868, but the practice itself was tories; and such advances, if so stipulated

not specifically outlawea until 1885. in the contract ... shall operate as a lien upon any land thereafter acquired by the Be it enacted .. . emigrant. ...

SEC. 2. That all contracts that shall be SEC, 5. That no person shall be qualified made by emigrants to the United States in to fill any office under this act who shall be foreign countries, in conformity to regula- directly or indirectly interested in any cortions that may be established .. . whereby poration having lands for sale to immigrants, emigrants shall pledge the wages of their or in the carrying or transportation of im-

labor for a term not exceeding twelve migrants... or who shall receive any fee months, to repay the expenses of their emi- or reward, or the promise thereof, for any gration, shall be held to be valid in law, and _ service performed. ...

234. THE WADE-DAVIS BILL

| July 8, 1864

(Richardson, ed. Alessages and Papers, Vol. VI, p. 223 ff.) Congressional hostility to the Presidential plan accept the Congressional plan. See, J. G. Nicolay

of reconstruction, outlined in the message of and J. Hay, Abraham Lincoln, Vol. IX, ch. v; December 8, 1863, grew increasingly emphatic CC. H. McCarthy, Linco!n’s Plan of Reconstrucduring the following year and culminated in the tion; B. C. Steiner, Life of Henry Winter Davis ; passage by a close vote of the Wade-Davis bill. A. G. Riddle, Life of Benjamin F. Wade.

This bill embodied the Congressional pan or after “the adjourmnent of Congress, issued "a An Act to guarantee to certain States whose proclamation giving his reasons for refusing to Governments have been usurped or over-

Tue Waveé-Davis BILL 437 thrown a Republican Form of Govern- tary service of the United States, and wha

ment. shall take and subscribe the oath of alleBe it enacted, That in the states declared giance to the United States in the form conin rebellion against the United States, the tained in the act of July 2, 1862; and all President shall, by and with the advice and such citizens of the United States who are consent of the Senate, appoint for each a_ in the military service of the United States

provisional governor,... who shall be shall vote at the headquarters of their recharged with the civil administration of such spective commands, under such regulations state until a state government therein shall as may be prescribed by the provisional gov-

be recognized as hereinafter provided. ernor for the taking and return of their

Sec. 2. That so soon as the military re- votes; but no person who has held or exersistance to the United States shall have cised any office, civil or military, state or been suppressed in any such state, and confederate, under the rebel usurpation, or the people thereof shall have sufficiently re- who has voluntarily borne arms against the turned to their obedience to the constitution United States, shall vote, or be eligib!e to be and the laws of the United States, the pro- elected as delegate, at such election. visional governor shall direct the marshal of SEc. 5. That the said commissioners, .. . the United States, as speedily as may be, to shall hold the election in conformity with name a sufficient number of deputies, and to’ this act and, ... shall proceed in the manenroll all white male citizens of the United ner used in the state prior to the rebellion. States, resident in the state in their respective The oath of allegiance shall be taken and counties, and to request each one to take the subscribed on the poll-book by every voter

oath to support the constitution of the in the form above prescribed, but every perUnited States, and in his enrolment to desig- son known by, or proved to, the commisnate those who take and those who refuse sioners to have held or exercised any office, to take that oath, which rolls shall be forth- civil or military, state or confederate, under with returned to the provisional governor; the rebel usurpation, or to have voluntarily and if the persons taking that oath shall borne arms against the United States, shall amount to a majority of the persons en- be excluded, though he offer to take the oath; rolled in the state, he shall, by proclamation, and in case any person who shall have borne invite the loyal peopte of the state to elect arms against the United States shall offer to delegates to a convention charged to declare vote he shall be deemed to have borne arms the will of the people of the state re'ative voluntarily unless he shail prove the con-

to the reéstablishment of a state government trary by the testimony of a qualified subject to, and in conformity with, the con- voter. ...

stitution of the United States. Sec. 6. That the provisional governor

Src. 3. That the convention shall consist shall, by proclamation, convene the deleof as many members as both houses of the gates elected as aforesaid, at the capital of

last constitutional state legislature, appor- the state, on a day not more than three tioned by the provisional governor among months after the election, giving at least the counties, parishes, or districts of the thirty days’ notice of such day. In ‘case the state, in proportion to the white population, said capital shall in his judgment be unfit, returned as e-ectors, by the marshal, in com- he shall in his proclamation appoint another pliance with the provisions of this act. The place. He shall preside over the deliberations

provisional governor shall, ... provide an of the convention, and administer to each adequate force to keep the peace during the delegate, before taking his seat in the con-

election. vention, the oath of allegiance to the United

Sec. 4. That the delegates shall be elected States in the form above prescribed. by the loyal white male citizens of the United SEC. 7. That the convention shall declare,

States of the age of twenty-one years, and on behalf of the people of the state, their resident at the time in the county, parish, or submission to the constitution and laws of district in which they shall offer to vote, and the United States, and shall adopt the folenrolled as aforesaid, or absent in the mili- lowing provisions, hereby prescribed by the

438 DOCUMENTS OF AMERICAN History United States in the execution of the con- ber of the people of the state entitled to stitutional duty to guarantee a republican vote under this act, in number not less than form of government to every state, and in- a majority of those enrolled, as aforesaid, corporate them in the constitution of the are willing to reéstablish a state government

state, that is to say: on the conditions aforesaid, to direct the proFirst. No person who has held or exercised __ visional governor to order another election

any office, civil or military, except offices of delegates to a convention for the pur-

merely ministerial, and military offices below pose. . . .

the grade of colonel, state or confederate, Sec. 10. That, until the United States under the usurping power, shall vote for or shall have recognized a republican form of be a member of the legislature, or governor. _ state government, the provisional governor Second. Involuntary servitude is forever in each of said states shall see that this act, prohibited, and the freedom of all persons is and the laws of the United States, and the

guaranteed in said state. laws of the state in force when the state Third. No debt, state or confederate, cre- government was overthrown by the rebellion, ated by or under the sanction of the usurping are faithfully executed within the state; but

power, shall be recognized or paid by the no law or usage whereby any person was

state. heretofore held in involuntary servitude shall

SEc. 8. That when the convention shall be recognized or enforced by any court or have adopted those provisions, it shall pro- officer in such state, and the laws for the ceed to reéstablish a republican form of gov- trial and punishment of white persons shall ernment, and ordain a constitution contain- extend to all persons, and jurors shall have ing those provisions, which, when adopted, the qualifications of voters under this law the convention shall by ordinance provide for delegates to the convention... .

for submitting to the people of the state, Sec. 11. That until the recognition of a entitled to vote under this law, at an election state government as aforesaid, the provito be held in the manner prescribed by the — sional governor shall, under such regulations

act for the election of delegates; but at a as he may prescribe, cause to be assessed, time and place named by the convention, at levied, and collected, for the year eighteen

which election the said electors, and none hundred and sixty-four, and every year others, shall vote directly for or against such _ thereafter, the taxes provided by the laws of

constitution and form of state government, such state to be levied during the fiscal and the returns of said election shall be made year preceding the overthrow of the state to the provisional governor, who shall can- government thereof, in the manner prevass the same in the presence of the electors, scribed by the laws of the state, as nearly as and if a majority of the votes cast shall be maybe; ... The proceeds of such taxes shall for the constitution and form of government, be accounted for to the provisional governor, he shall certify the same, with a copy thereof, and be by him applied to the expenses of the to the President of the United States, who, administration of the laws in such state, subafter obtaining the assent of congress, shall, ject to the direction of the President, and the by proclamation, recognize the government surpius shall be deposited in the treasury of so established, and none other, as the consti- the United States to the credit of such state, tutional government of the state, and from to be paid to the state upon an appropriation the date of such recognition, and not before, therefor, to be made when a republican form Senators and Representatives, and electors of government shall be recognized therein by

for President and Vice-President may be the United States. elected in such state, according to the laws Sec. 12. That all persons held to involun-

of the state and of the United States. tary servitude or labor in the states aforesaid Sec. 9, That if the convention shall refuse are hereby emancipated and discharged to reéstablish the state government on the therefrom, and they and their posterity shall conditions aforesaid, the provisional gover- be forever free. And if any such persons or nor shall declare it dissolved; but it shall be their posterity shall be restrained of liberty, the duty of the President, whenever he shall under pretence of any claim to such service have reason to believe that a sufficient num-_ or labor, the courts of the United States

THE WAvDE-DAvIS MANIFESTO 439 shall, on habeas corpus, discharge them. dollars, and be imprisoned not less than five Sec. 13. That if any person declared free nor more than twenty years. by this act, or any law of the United States, Sec. 14. That every person who. shall or any proclamation of the President, be re- hereafter hold or exercise any office, civil or strained of liberty, with intent to be held in military, except offices merely ministerial, or reduced to involuntary servitude or labor, and military offices below the grade of colthe person convicted before a court of com- onel, in the rebel service, state or confederpetent jurisdiction of such act shall be pun- ate, is hereby declared not to be a citizen of ished by fine of not less than fifteen hundred the United States.

235. LINCOLN’S PROCLAMATION ON THE WADE-DAVIS BILL July 8, 1864 (Richardson, ed. Messages and Papers, Vol. VI, p. 222) plan of restoration, and while I am also unBy THE PRESIDENT OF THE UNnitep STATES: prepared to declare that the free State con-

A Proclamation stitutions and governments already adopted and installed in Arkansas and Louisiana shall

Whereas at the late session Congress be set aside and held for naught, thereby passed a bill “to guarantee to certain States repelling and discouraging the loyal citizens whose governments have been usurped or who have set up the same as to further ef-

overthrown a republican form of govern- fort, or to declare a constitutional compement,” a copy of which is hereunto annexed; tency in Congress to abolish slavery in

and States, but am at the same time sincerely Whereas, the said bill was presented to hoping and expecting that a constitutional the President of the United States for his amendment abolishing slavery throughout approval less than one hour before the sme the nation may be adopted, nevertheless I die adjournment of said session, and was not am fully satisfied with the system for restor-

signed by him; and ation contained in the bill as one very proper Whereas the said bill contains, among plan for the loyal people of any State choosother things, a plan for restoring the States ing to adopt it, and that I am and at all

in rebellion to their proper practical relation times shall be prepared to give the Executive

in the Union, which plan expresses the sense aid and assistance to any such people so of Congress upon that subject, and which soon as the military resistance to the United plan it is now thought fit to lay before the States shall have been suppressed in any

people for their consideration: such State and the people thereof shall have

Now, therefore, I, Abraham Lincoln, Pres- sufficiently returned to their obedience to ident of the United States, do proclaim, de- the Constitution and the laws of the United clare, and make known that while I am (as _ States, in which cases military governors will I was in December last, when, by proclama- be appointed with directions to proceed action, I propounded a plan for restoration) cording to the bill. . . .

unprepared by a formal approval of this bill ABRAHAM LINCOLN. to be inflexibly committed to any single

236. THE WADE-DAVIS MANIFESTO August 5, 1864 (E. McPherson, ed. Political History of the Rebellion, p. 332 ff.) Lincoln’s pocket veto of the Wade-Davis Bill gust 5, and shortly thereafter in the other leadand his statement of opposition to the Congres- ing papers of the country. sional plan of reconstruction, provoked a vin-

dictive attack on Lincoln and the Presidential

policy by the sponsors of the bill, Benjamin We have read without surprise, but not ‘Wade and Henry Winter Davis. The Manifesto Without indignation, the Proclamation of

was published in the New York Tribune, Au- the President of the 8th of July... .

440 DocuMENTS OF AMERICAN IIIstory The President, by preventing this bill Congress passed a bill: the President refrom becoming a law. holds the electoral fused to approve it, and then by proclamavotes of the rebel States at the dictation of — tion puts as much of it in force as he sees fit,

his personal ambition. and proposes to execute those parts by offiIf those votes turn the balance in his favor, cers unknown to the laws of the United is It to be supposed that his competitor, de- States and not subject to the confirmation

feated by such means, will acquiesce? of the Senate!

If the rebel majority assert their suprem- The bill directed the appointment of Proacy in those States, and send votes which visional Governors by and with the advice elect an enemy of the Governinent, will we and consent of the Senate.

not repel his claims? The President, after defeating the law, And is not that civil war for the Presidency _ proposes to appoint without law. and without

inaugurated by the votes of rebel States? the advice and consent of the Senate, AMiliScriously impressed with these dangers, tary Governors for the rebel States! Congress, “the proper constituted author- He has already exercised this dictatorial ity,” formally declared that there are no usurpation in Louisiana. and he defeated the State governments in the rebel States, and bill to prevent its limitation. ... provided for their erection at a proper time; The President has greatly presumed on and both the Senate and the House of Rep- the forbearance which the supporters of his resentatives rejected the Senators and Rep- Administration have so long practiced, in resentatives chosen under the authority of view of the arduous conflict in which we are what the President cal!s the free constitution engaged, and the reckless ferocity of our

and government of Arkansas. political opponents.

The President's proclamation “holds for But he must understand that our support naught” this judgment, and discards the au- is of a cause and not of a man: that the thority of the Supreme Court, and strides authority of Congress is paramount and must headlong toward the anarchy his proclama- be respected: that the whole body of the tion of the 8th of December inaugurated. Union men of Congress will not submit to If electors for President be allowed to be be impeached by him of rash and unconstichosen in either of those States, a sinister tutional legis'ation: and if he wishes our suplight will be cast on the motives which in- port, he must confine himse'f to his execuduced the President to “hold for naught” tive duties—to obey and execute, not make the will of Congress rather than his govern- the laws—to suppress by arms armed rebel-

ment in Louisiana and Arkansas. l'on, and leave political reorganization to That judgment of Congress which the Congress. President defies was the exercise of an au- If the supporters of the Government fail

thority exclusively vested in Congress by the _ to insist on this. they become responsible for

Constitution to determine what is the estab- the usurpations which they fail to rebuke, lished government in a State, and in its own and are justly liable to the indignation of nature and by the highest judicial authority the people whose rights and security, combinding on all other departments of the Gov- mitted to their keeping, they sacrifice,

ernment. ... Let them consider the remedy for these

A more studied outrage on the legislative usurpations, and, having found it, fearlessly authority of the people has never been per- execute it. petrated.

237. THE HAMPTON ROADS CONFERENCE February 3, 1865 (The Works of Abraham Lincoln, Constitutional ed., Vol. VIT, p. 290, 319 ff.) In January 1865 Francis P. Blair, Sr. was per- acy: out of this mission came the Hampton mitted to go to Richmond to discuss terms of | Roads conference. Lincoln, as the instructions of peace with some of the leadcrs of the Confeder- January 31 indicate, first appointed Seward to

Tur ITAMPTON ROADS CONFERENCE A4\ conduct the unofficial negotiations with the nesses. Nothing was written or read. The representatives of the Confederacy; later he conversation. although earnest and free, was thought it necessary to attend the confe.ence in calm. and courteous, and kind on both sides.

person. No record was kept of this conference, The Richmond party approached the disbut the report of Sec. Seward Is apparently re- cussion rather indirectly, and at no time did liable, Sce also the discussion and report of the . ; Conference in, A. H. Stephens, War Between the they either make categorical demands, of States, Vol. II, ch. xxiii, and app. R. For Blair’s tender formal] stipu-ations or absolute refus-

part in the negotiations, see W. E. Smith, The als. Nevertheless, during the conference,

Francis Preston Blair Family in Politics, Vol. 11, | which lasted four hours, the several points at

ch. xxxvii. issue between the Government and the in1. InsTRUCTIONS TO SECRETARY SEwARD Surgents were distinctly raised, and discussed

fully, intelligently, and in an amicable spirit.

Executive Mansion, What the insurgent party seemed chiefly to Washington, January 31, 1865. favor Was a postponement of the question of Hon. Wiuuiam 1. Sewarp, Secretary of — separation, upon which the war is waged, and

State: a mutual direction of efforts of the Govern-

You will proceed to Fortress Monroe, Vit- ment, as well as those of the insurgents, to ginia, there to mect and informally confer some extrinsic policy or scheme for a season with Messrs. Stephens, Hunter, and Camp- during which passions might be expected to bell, on the basis of my letter to F. P. Blair, subside, and the armies be reduced, and trade Esq., of January 18, 1865, a copy of which and intercourse between the people of both you have. You will make known to them sections resumed, It was suggested by them that three things are indispensable—to w.l: that through such postponement we might 1. The restoration of the national author- now have immediate peace, with some not

ity throughout all the States. very certain prospect of an u!timate satis2. No receding by the Executive of the factory adjustment of political relations beUnited States on the s-avery question from tween this Government and the States, secthe position assumed thereon in the late an- tion, or people now engaged in conflict with nual message to Congress, and in preceding jt.

documents. _— This suggestion, though deliberately con3. No cessation of hostilit:es short of an s‘dered, was nevertheless regarded by the end of the war and the disband.ng of al President as one of armistice or truce, and

forces hostile to the Government. he announced that we can agree to no ces-

You will inform them that all propositions — sation or suspension of hostilities, except on

of theirs, not inconsistent with the above, the basis of the dishandment of the insurwill be considered and passed upon in a gent forces, and the restoration of the naspirit of sincere liberality. You will hear all tional authority throughout all the States in they may choose to say and report it tome. the Union. Collaterally, and in subordination You will not assume to definitely consummate to the proposition which was thus announced,

anything. .Yours, the antis'avery policy of the United States etc., was reviewed in all its bearings, and the ABRAHAM LINCOLN. President announced that he must not be

2 Mr. Srwarp To Mr. ApAMs expected to depart from the positions he had Department of State, heretovor® assumed in his proclamation of Washington, February 7, 1865. ancipation anc other documents, as these positions were reiterated in h's last annual

. " : : message. It was further declared by the Pres-

On the morning of the 3d, the President, ident that the complete restoration of the

attended by the Secretary, received Messrs. national author:ty was an indispensab!e conStephens, Hunter, and Campbell on board dition of any assent on our part to whatever

the United States steam transport River form of peace mght he proposed. The PresiQueen in Hampton Roads. The conference dent assured the other party that, while he was altogether informal. There was no at- must adhere to these positions, he would be tendance of secretaries, clerks, or other wit- prepared, so far as power is lodged with the

442 DocUMENTS OF AMERICAN HISTORY Executive, to exercise liberality. His power, the States, so as to become a part of the however, is limited by the Constitution; and national organic law. when peace should be made, Congress must The conference came to an end by mutual necessarily act in regard to appropriations of acquiescence, without producing an agreemoney and to the admission of representa- ment of views upon the several matters dis-

tives from the insurrectionary States. The cussed, or any of them. Nevertheless, it is Richmond party were then informed that perhaps of some importance that we have Congress had, on the 31st ultimo, adopted by been able to submit our opinions and views a constitutional majority a joint resolution directly to prominent insurgents, and to hear submitting to the several States the proposi- them in answer in a courteous and not untion to abolish slavery throughout the Union, friendly manner, and that there is every reason to expect that I am, sir, your obedient servant,

it will be soon accepted by three fourths of WiiLiiamM H. SEWARD. 238. LINCOLN’S SECOND INAUGURAL ADDRESS March 4, 1865 (Richardson, ed. Messages and Papers, Vol. VI, p. 276 ff.)

FELLOW-COUNTRYMEN:—At this second of it. These slaves constituted a peculiar and

appearing to take the oath of the presiden- powerful interest. All knew that this interest

tial office there is less occasion for an ex- was somchow the cause of the war. To tended address than there was at the first. strengthen, perpetuate, and extend this inThen a statement somewhat in detail of a terest was the object for which the insurcourse to be pursued seemed fitting and gents would rend the Union even by war, proper. Now, at the expiration of four years, while the Government claimed no right to during which public declarations have been do more than to restrict the territorial enconstantly called forth on every point and largement of it. Neither party expected for phase of the great contest which still ab- the war the magnitude or the duration which sorbs the attention and engrosses the ener- it has already attained. Neither anticipated gies of the nation, little that is new could be that the cause of the conflict might cease presented. The progress of our arms, upon with or even before the conflict itself should

which all else chiefly depends, is as well cease. Each looked for an easier triumph, known to the public as to myself, and it is, I and a result less fundamental and astoundtrust, reasonably satisfactory and encourag- ing. Both read the same Bible and pray to ing to all. With high hope for the future, no the same God, and each invokes His aid

prediction in regard to it is ventured. against the other. It may seem strange that

On the occasion corresponding to this four any men should dare to ask a just God’s years ago all thoughts were anxiously di- assistance in wringing their bread from the rected to an impending civil war. All dreaded sweat of other men’s faces, but let us judge it, all sought to avert it. While the inaugural not, that we be not judged. The prayers of address was being delivered from this place, both could not be answered. That of neither devoted altogether to saving the Union with- has been answered fully. The Almighty has out war, insurgent agents were in the city His own purposes. “Woe unto the world beseeking to destroy it without war—seeking to cause of offenses; for it must needs be that dissolve the Union and divide effects by ne- offenses come, but woe to that man by gotiation. Both parties deprecated war, but whom the offense cometh.” If we shall supone of them would make war rather than let pose that American slavery is one of those the nation survive, and the other would ac- offenses which, in the providence of God, cept war rather than let it perish, and the must needs come, but which, having con-

war came. tinued through His appointed time, He now One cighth of the whole population was wills to remove, and that He gives to both colored slaves, not distributed generally over North and South this terrible war as the he Union, but localized in the southern part woe due to those by whom the offense came,

LINCOLN’S TERMS OF PEACE 443 shall we discern therein any departure from be said, “The judgments of the Lord are those divine attributes which the believers true and righteous altogether.”

in a living God always ascribe to Hime With malice toward none, with charity Fondly do we hope, fervently do we pray, for all, with firmness in the right as God that this mighty scourge of war may speedily gives us to see the right, let us strive on to pass away. Yet, if God wills that it continue finish the work we are in, to bind up the until all the wealth piled by the bondsman’s nation’s wounds, to care for him who shall two hundred and fifty years of unrequited have borne the battle and for his widow and toil shall be sunk, and until every drop of his orphan, to do all which may achieve and blood drawn with the lash shall be paid by cherish a just and lasting peace among ouranother drawn with the sword, as was said selves and with all nations. three thousand years ago, so still it must

239. LINCOLN’S TERMS OF PEACE

Admiral Porter’s Report of the City Point Conference March 27, 1865 (W. T. Sherman, Memoirs, Vol. II, p. 328 ff.) When the collapse of the Confederacy seemed conduct toward Sherman) which tended to imminent, Lincoln went down to City Point, cast odium on General Sherman for allowing where he stayed with Grant from March 24 to — gych liberal terms to Jos. Johnston. April 9. Here, on the 27th, he held a conference Could the conversation that occurred on

with Grant and Sherman to consider the terms board th ib he Presid

which should be granted the Confederates for a e Queen, between the President and

cessation of hostilities. General Sherman, have been known, Sher-

man would not, and could not, have been The day of General Sherman’s arrival at censured. Mr. Lincoln, had he lived, would City Point (I think the 27th of March, have acquitted the general of any blame, for 1865), I accompanied him and General Grant he was only carrying out the President’s on board the President’s flag-ship, the Queen, wishes.

where the President received us in the upper My opinion is, that Mr. Lincoln came saloon, no one but ourselves being present. down to City Point with the most liberal The President was in an exceedingly pleas- views toward the rebels. He felt confident ant mood, and delighted to meet General that we would be successful, and was willing

Sherman, whom he cordially greeted. that the enemy should capitulate on the most It seems that this was the first time he favorable terms. had met Sherman, to remember him, since I don’t know what the President would the beginning of the war, and did not re- have done had he been left to himself, and member when he had seen him before, until had our army been unsuccessful, but he was

the general reminded him of the circum- then wrought up to a high state of excite-

stances of their first meeting... . ment. He wanted peace on almost any terms,

The conversation soon turned on the and there is no knowing what proposals he events of Sherman’s campaign through the might have been willing to listen to, His South, with every movement of which the heart was tenderness throughout, and, as

President seemed familiar. ... long as the rebels laid down their arms, he

The interview between the two generals did not care how it was done. I do not

and the President lasted about an hour and know how far he was influenced by General

a half, and, as it was a remarkable one, I Grant, but I presume, from their long conjotted down what I remembered of the con- ferences, that they must have understood versation, as I have made a practice of doing each other perfectly, and that the terms during the rebellion, when any thing inter- given to Lee after his surrender were author-

esting occurred. ized by Mr. Lincoln. I know that the latter was I don’t regret having done so, as circum- delighted when he heard that they had been stances afterward occurred (Stanton’s ill given, and exclaimed, a dozen times, ‘“‘Good!”

444 DocUMENTS OF AMERICAN IJIsTOoRY “All right!” “Exactly the thing!” and other but the President was very decided about the

similar expressions. Indeed, the President matter, and insisted that the surrender of more than once told me what he supposed Johnston’s army must be obtained on any

the terms would be: if Lee and Johnston terms. '

surrendered, he considered the war ended, General Grant was evidently of the same and that all the other rebel forces would lay way of thinking, for, although he did not

down their arms at once. join in the conversation to any extent, yet In this he proved to be right. Grant and he made no objections, and I presume had Sherman were both of the same opinion, made up his mind to allow the best terms and so was every one else who knew any himself.

thing about the matter... . He was also anxious that Johnston should After hearing General Sherman’s account not be driven into Richmond, to reenforce of his own position, and that of Johnston. at the rebels there, who, from beh:nd their that time, the President expressed fears that strong intrenchments, would have given us the rebel general wou'd escape south again incalculable trouble. by the railroads, and that General Sherman Sherman, as a subordinate officer, yielded would have to chase him anew, over the _ his views to those of the President, and the same ground; but the general pronounced terms of capitulation between himself and this to be impracticable. He remarked: “I Johnston were exactly in accordance with have him where he cannot move without Mr. Lincoln’s wishes. He could not have breaking up his army, which, once disbanded, done any thing which would have pleased can never again be got together; and I have’ the President better. destroyed the Southern railroads. so that Mr. Linco!n did, in fact, arrange the (so they cannot be used again for a long time.”’ considered) liberal terms offered General Jos.

General Grant remarked, ‘‘What is to pre- Johnston, and, whatever may have been vent their laying the rails again?” ‘‘Why,” Gencral Sherman's private views, I fecl sure said General Sherman, ‘my ‘bummers’ don’t that he yielded to the wishes of the Presido things by halves. Every rail, after having dent in every respect. It was Mr. Lincoln’s heen placed over a hot fire, has been twisted policy that was carried out, and, had he lived as crooked as a ram’s horn, and they never long enough, he would have been but too

can be used again.” glad to have acknowledged it. Had Mr. Lin-

This was the only remark made by Gen- coln lived, Secretary Stanton would have iseral Grant during the interview, as he sat sued no false telegraphic dispatches, in the smoking a short distance from the President, hope of killing off another general in the intent, no doubt, on his own plans, which regular army, one who by his success had

tion. sion. ...

were being brought to a successful termina- placed himself in the way of his own succes-

The conversation between the President D. D. Porter, Vice-Admiral.

and General Sherman, about the terms of (Written by the admiral in 1866, at the surrender to be allowed Jos. Johnston, con- United States Naval Academy at Annapolis, tinued. Sherman energetically insisted that Md., and mailed to General Sherman at ot. he could command his own terms, and that Louis, Mo.) Johnston would have to yield to his demands;

240. JEFFERSON DAVIS'S LAST MESSAGE TO THE PEOPLE OF THE CONFEDERACY April 4, 1865 (Richardson, ed. Afessages and Papers of the Confederacy, Vol. T, p. 568 ff.) On April 2, the Confederate Government aban- born determination to continue the war, but in doned Richmond and fled to Danville; the fol- this dec:s.on in which he was not supported lowing day Richmond fell. President Davis’s last by Lee, he was overruled by the course of ppeal to the Confederate people reveals a stub- _ events.

JEFFERSON Davis’s LAst MESSAGE 445 Danville. Va. April 4, 1865. abandoned if not speedily brought to a sucTo the People of the Confederate States of cessful close. It is for us, my countrymen, to

America. show by our bearing under reverses how The General in Chief of our Army has’ wretched has been the self-deception of those found it necessary to make such movements who have believed us less able to endure mis-

of the troops as to uncover the capital and fortune with fortitude than to encounter thus involve the withdrawal of the Govern- danger with courage. We have now entered

ment from the city of Richmond. upon a new phase of a struggle the memory It would be unwise, even were it possible, of which is to endure for all ages and to shed to conceal the great moral as well as material an increasing luster upon our country.

injury to our cause that must result from the Relieved from the necessity of guarding occupation of Richmond by the enemy. It is cities and particular points, important but not

equally unwise and unworthy of us, as pa- vital to our defense, with an army free to triots engazed in a most sacred cause, to al- move from point to point and strike in detail low our energics to falter, our spirits to grow the detachments and garrisons of the enemy, faint, or our cfforts to become relaxed under operating on the interior of our own country, reverses, however calamitous. While it has where supplies are more accessible, and where been to us a source of national pride that for the foe will be far removed from his own base

four years of unequaled warfare we have and cut off from all succor in case of rebeen able, in close proximity to the center of | verse, nothing is now needed to render our the enemy’s power, to maintain the seat of | triumph certain but the exhibition of our own our chosen Government free from the pollu- unquenchable resolve. Let us but will it, and

tion of his presence; while the memories of we are free; and who, in the light of the the heroic dead who have freely given their past, dare doubt your purpose in the future?

lives to its defense must ever remain en- Animated by the confidence in your spirit shrined in our hearts; while the preservation and fortitude, which never yet has failed me, of the capital, which 1s usually regarded as I announce to you, fellow-countrymen, that the evidence to mankind of separate national it is my purpose to maintain your cause with

existence, was an object very dear to us, it my whole heart and soul; that I will never is also true, and shou'd not be forgotten, consent to abandon to the enemy one foot that the loss which we have suffered is not of the soil of any one of the States of the without compensation. For many months the Confederacy. ...If by stress of numbers largest and finest army of the Confederacy, we should ever be compelled to a temporary’ under the command of a leader whose pres- withdrawal from her limits, or those of any ence inspires equal confidence in the troops other border State, again and again will we and the people, has been greatly trammeled return, until the baffled and exhausted enemy by the necessity of keeping constant watch — shall abandon in despair his endless and imover the approaches to the capital, and has possible task of making slaves of a people re-

thus been forced to forego more than one solved to be free. opportunity for promising enterprise. The Let us not, then, despond, my countryhopes and confidence of the enemy have been men; but, relying on the never-failing mer-

constantly excited by the bel'ef that their cies and protecting care of our God, let us possession of Richmond wowd be the signal meet the foe with fresh defiance, with unconfor our submission to their rule, and relieve quered and unconquerable hearts.

them from the burden of war, as their fail- Jeff’n Davis.

Ing resources admonish them it must be

446 DOCUMENTS OF AMERICAN HISTORY 241. THE BURNING OF COLUMBIA, S. C. Report of General Sherman on the Campaign of the Carolinas April 4, 1865 (F. Moore, ed. The Rebellion Record, Vol. XI, p. 377) On the night of February 17, 1865, Columbia, During the day the Fifteenth corps passed South Carolina, was largely destroyed by fire. It through Columbia and out on the Camden was charged at the time and is still iirmly be- road. The Seventeenth did not enter the oan dcliberst sections of the country that Sher- town at all: and, as I have before stated, the himself placed the responsibility for the burning ert wing and cavalry did not come within

eliberately destroyed the city. Sherman lef . . ye

of the city upon Wade Hampton and the two miles of the town. weather; subsequently he admitted that a good Before one single public building had been deal of the account given below was imaginative. fired by order, the smoldering fires, set by General Logan in his report blames the burning Hampton’s order, were rekindled by the upon unnamed parties who spread fire. The wind, and communicated to the buildings problem of responsibility is apparently an in- around. About dark they began to spread, and soluble one, but see J. D. Hill, “The Burning of got beyond the control of the brigade on ° Columbia Reconsidered,” South Atlantic Quar- duty within the city. The whole of Wood’

3?

terly, Vol. XXV, p. 269 ff., and J. F. Rhodes ay ye oene WwW one 9 goes

History, Vol. V, p. 90 ff. There is an interesting division was brought in, but it was found contemporary account, with some documents, in impossible to check the flames, which, by G. W. Nichols, The Story of the Great March. midnight, had become unmanageable, and raged until about four A. M., when the wind _, . In anticipation of the occupation of | subsiding, they were got under control. I was the city, I had made written orders to Gen- up nearly all night, and saw Generals How-

eral Howard touching the conduct of the ard, Logan, Woods, and others, laboring to troops. These were to destroy, absolutely, all save houses and protect families thus sudarsenals and public property not needed for denly deprived of shelter, and of bedding our own use, as well as all railroads, depots, and wearing apparel. I disclaim on the part and machinery useful in war to an enemy, of my army any agency in this fire, but on but to spare all dwellings, colleges, schools, the contrary, claim that we saved what of asylums, and harmless private property. I was Columbia remains unconsumed. And _ withthe first to cross the pontoon bridge, and in out hesitation, I charge General Wade Hampcompany with General Howard rode into the ton with having burned his own city of Cocity. The day was clear, but a perfect tem- lumbia, not with a malicious intent, or as the

pest of wind was raging. The brigade of manifestations of a silly “Roman stoicism,” Colonel Stone was already in the city, and but from folly and want of sense, in filling it was properly posted. Citizens and soldiers with lint, cotton, and tinder. Our officers and were on the streets, and general good order men on duty worked well to extinguish the prevailed. General Wade Hampton, who com- flames; but others not on duty, including the manded the Confederate rear-guard of cavalry, officers who had Jong been imprisoned there, had, in anticipation of our capture of Colum- rescued by us, may have assisted in spread-

bia, ordered that all cotton, public and pri- ing the fire after it had once begun, and may vate, should be moved into the streets and have indulged in unconcealed joy to see the fired, to prevent our making use of it. Bales ruin of the capital of South Carolina. During were piled everywhere, the rope and bagging _ the eighteenth and nineteenth, the arsenal, cut, and tufts of cotton were blown about in railroad depots, machine shops, foundries, the wind, lodged in the trees and against and other buildings were properly destroyed houses, so as to resemble a snow storm. by detailed working parties, and the railroad Some of these piles of cotton were burning, track torn up and destroyed down to Kingsespecially one in the very heart of the city, ville and the Wateree bridge, and up in the near the Court-house, but the fire was par- direction of Winnsboro. . . . tially subdued by the labor of our soldiers.

SURRENDER OF GENERAL JOHNSTON 447 242. LEE’S FAREWELL TO HIS ARMY April 10, 1865 (Recollections and Letters of General Lee, by R. E. Lee, p. 153-4) After the fall of Richmond, Lee pushed west have consented to this result from no distrust towards Danville, where large supplies had been of them; but, feeling that valour and devo-

concentrated. He hoped that he might be able tion could accomplish nothing that could to effect a juncture with Johnston’s army, then compensate for the loss that would have atin North Carolina. Sheridan cut off Lee’s re- t onded the continuation of the contest, I have treat to the west, however, and on April 9 Lee q ned ‘d th 1 f surrendered his army to Grant, at Appomattox etermined to avol c USELESS SACTINCE O Court House. On Lee after the War, see, Recol- those whose past services have endeared lections and Letters of General Lee, by his Son, them to their countrymen. By the terms of R. E. Lee, p. 162 ff.; R. Winston, Robert E. Lee; the agreement, officers and men can return

F. L, Riley, General Robert E. Lee After Ap- to their homes and remain there until ex-

pomaitox. changed. You will take with you the satisfaction that proceeds from the consciousness

Headquarters, Army of Northern Virginia, of duty faithfully performed; and I earnestly April 10, 1865S. pray that a merciful God will extend to you

After four years of arduous service, His blessing and protection. With an in-

marked by unsurpassed courage and forti- creasing admiration of your constancy and tude, the Army of Northern Virginia has been devotion to your country, and a grateful recompelled to yield to overwhelming num- membrance of your kind and generous conbers and resources. I need not tell the sur- sideration of myself, I bid you an affectionate vivors of so many hard-fought battles, who farewell.

have remained steadfast to the last, that I R. E. Lee, General. 243. SURRENDER OF GENERAL JOHNSTON

Memorandum made between General Joseph E. Johnston and Major-General William T. Sherman April 18, 1865

(Memoirs of General W. T. Sherman, Vol. II, p. 356-7) The failure of Lee to escape from Grant and (Gorham, G. C., Life and Public Services of Sheridan, and the surrender of the Army of E. M. Stanton, Vol. IJ, p. 195). Sherman’s acNorthern Virginia, April 9, left Johnston’s army count of the incident can be found in his Methe only large Confederate force still in the field. | moirs, Vol. II, ch. xxiii. His testimony before the

The terms of Johnston’s surrender to Sherman Committce on the War is given at length in the were on the same general lines as those given appendix to Nichols, The Story of the Great by Grant to Lee and were apparently outlined March. by Lincoln, Doc. No. 239. These terms, however, were disapproved by Secretary Stanton, Memorandum, or Basis of Agreement, made

and Sherman was ordered to advance upon this 18th day of April, a.v. 1865, near Johnston. Johnston agreed to new terms Durham’s Station, in-the State of North April 26. Stanton’s disapproval of Sherman’s Carolina, by and between General Jorourse led to a violent altercation between the seph E. Johnston, comman ding the

wo men, which the Secretary of Warwrote ap- Confederate A d Maior-G peared in ainvery unhappy light. Stanton mre erate army, an aor" eneral of Sherman’s terms, “I am distressed beyond Wilham T. Sherman, commanding the measure at the terms. ... They are inadmis- Army of the United States in North

sible. There should now be literally no terms Carolina, both present: granted. We should not only brand the leading

rebels with infamy, but the whole rebellion 1. The contending armies now in the field Should bear the badge of the penitentiary”. to maintain the status quo until notice is

448 DOCUMENTS OF AMERICAN II1IstTorRy given by the commanding general of any one 4. The reestablishment of all the Federal to its opponent, and reasonable time—say, Courts in the several States. with powers as

forty-eight hours—allowed. defined by the Constitution of the United

2. The Confederate armies now in exist- States and of the States respectively. ence to be disbanded and conducted to their 5. The people and inhabitants of all the several State capitals, there to deposit their States to be guaranteed, so far as the Execuarms and public property in the State Arse- tive can, their political rights and franchises, nal; and each officer and man to execute and as well as their rights of person and prophle an agreement to cease from acts of war, erty, as defined by the Constitution of the

and to abide the action of the State and United States and of the States respectively. Federal authority. The number of arms and 6. The Executive authority of the Govmunitions of war to be reported to the ernment of the United States not to disturb Chief of Ordnance at Washington City, sub- any of the people by reason of the late war, ject to the future action of the Congress of so long as they live in peace and quiet, abthe United States, and, in the meantime, to stain from acts of armed hostility, and obey be used solely to maintain peace and order the laws in existence at the place of their within the borders of the States respectively. residence.

3. The recognition, by the Executive of 7. In general terms—the war to cease; a the United States, of the several State gov- general amnesty, so far as the Executive of ernments, on their officers and Legislatures the United States can command, on conditaking the oaths prescribed by the Constitu- tion of the disbandment of the Confederate

tion of the United States, and, where con- armies, the distribution of the arms, and flicting State governments have resulted from the resumption of peaceful pursuits by the the war, the legitimacy of all shall be sub- officers and men hitherto composing said mitted to the Supreme Court of the United armies.

States. :

244. LINCOLN’S LAST PUBLIC ADDRESS April 11, 1865 (Writings of Abraham Lincoln, Constitutional ed., Vol. VII, p. 362 ff.) On the evening of April 11, a crowd celebrating evacuation of Petersburg and Richmond, and

the end of the war called at the Executive man- the surrender of the principal insurgent sion. Lincoln addressed them from the balcony army, give hope of a righteous and speedy on the question of reconciliation and recon- — beace, whose joyous expression cannot be

struction. At the Cab.net meeting of Friday, restrained. In the midst of this, however,

April 14, Lincoln again spoke of the problem of He from whom all blessines flow must not be

reconstruction in terms similar to those of the © speech of April 11. “If we were wise and dis- forgotten. te.

crect,” he said, according to Sec. Welles, “we A call for a national thanksgiving is being should re-animate the states and get their gov- prepared, and will be duly promulgated. .. . ernments in successful operation, with order pre- By these recent successes, the re‘nauguration

vailing and the Union re‘stablished, before of the national authority—reconstruction— Congvess came together in December...- which has had a large share of thought from There were men in Congress who, if their mo- the first, is pressed much more closely upon tives were good were nevertheless impracticable, our attention. It is fraught with great difand who possessed feelings of hate and vindic- ficulty. Unlike a case of war between indecould not participate. He hoped there would be pendent nations, there is no authorized organ no persecution, no bloody work, after the war for us to treat with—no one man has authorwas over. None need expect he would take any’ ity to give up the rebellion for any other part in hanging or killing those men, even the man. We simp:y must begin with and mould

tiveness in which he did not sympathize and

worst of them.” from disorganized and discordant elements. FELLOW-CITIZENS:—We meet this evening Nor is it a small additional embarrassment

not in sorrow, but in gladness of heart. The that we, the loyal people, differ among our-

LINCOLN’S LAST PUBLIC ADDRESS 449 selves as to the mode, manner, and measure’ in seeking a reconstruction of a State govof reconstruction. As a general rule, J ab- ernment for Louisiana. When the message of

stain from reading the reports of attacks 1§63, with the plan before mentioned, upon myself, wishing not to be provoked by reached New Orleans, General Banks wrote that to which I cannot properly offer an an- me that he was confident that the people, swer. In spite of this precaution, however, with his military co-operation. would reconit comes to my knowledge that I am much _ struct substantially on that p'an. I wrote to censured for some supposed agency in setting him and some of them to try it. They tried up and seeking to sustain the new State gov-_ it, and the result is known. Such has been ernment of Louisiana. In this I have done my only agency in setting up the Louisiana just so much and no more than the public government. As to sustaining it my promise knows. In the Annual Message of December, is out, as before stated. But, as bad promises . 1863, and the accompanying proclamation, are better broken than kept, I shall treat this

I presented a plan of reconstruction, as the as a bad promise and break it, whenever I phrase goes, which I promised, if adopted by _ shall be convinced that keep ng it is adverse

any State, would be acceptable to and sus- to the public interest; but I have not yet tained by the Executive Government of the been so convinced. I have been shown a letter nation. I distinctly stated that this was not on this subject, supposed to be an able one. the only plan which might poss-bly be ac- in which the writer expresses regret that my ceptable, and I also distinctly protested that mind has not seemed to be definitely fixed

the Executive claimed no right to say when upon the question whether the seceded or whether members should be admitted to States, so called, are in the Union or out of

seats in Congress from such States. This plan it. It would perhaps add astonishment to his

was in advance submitted to the then Cab- regret were he to learn that since I have inet, and approved by every member of it. found professed Union men endeavoring to One of them suggested that I should then answer that question, I have purposely forand in that connection apply the Emancipa- borne any public expression upon it. As aption Proclamation to the theretofore excepted pears to me, that question has not been nor

parts of Virginia and Louisiana; that I yet is a practically material one, and that

should drop the suggestion about appren- any discussion of it, while it thus remains

ticeship for freed peop‘e, and that I should _ practically immaterial, could have no effect omit the protest against my own power in other than the mischievous one of dividing regard to the admission of members of Con- our friends. As yet, whatever it may become, gress. But even he approved every part and that question is bad as the basis of a conparcel of the p'an which has since been em-_ troversy, and good for nothing at all—a ployed or touched by the action of Louisiana. merely pernicious abstraction. We all agree The new constitution of Louisiana, declaring that the seceded States, so called, are out emancipation for the whole State, practically of their proper practical relation with the

applies the proclamation to the part pre- Union, and that the so'e object of the Govviously excepted. It does not adopt appren- ernment, civil and military, in regard to ticeship for freed people, and is silent, as it those States, is to again get them into their could not well be otherwise, about the ad- proper practical relation. I believe that it is mission of members to Congress. So that, as not only possible, but in fact easier, to do it applied to Louisiana, every member of this without deciding or even considering the Cabinet fully approved the p!an. The whether those States have ever been out of message went to Congress, and I received’ the Union, than with it. Finding themselves many commendations of the pan, written safely at home, it would be utterly immaand verbal, and not a s-ngle objection to it terial whether they had been abroad. Let us from any professed emancipationist came to all join in doing the acts necessary to restore my knowledge until after the news reached the proper practical relations between these Washington that the people of Louisiana had States and the Union, and each forever after begun to move in accordance with it. From innocently indu'’ge his own opinion whether, about July, 1862, I had corresponded with in doing the acts he brought the States from different persons supposed to be interested without into the Union, or only gave them

450 DOCUMENTS OF AMERICAN HISTORY proper assistance, they never having been trary, we recognize and sustain the new govout of it. The amount of constituency, so to ernment of Louisiana, the converse of all speak, on which the Louisiana government this is made true. We encourage the hearts rests, would be more satisfactory to all if it and nerve the arms of twelve thousand to contained fifty thousand, or thirty thousand, adhere to their work, and argue for it, and or even twenty thousand, instead of twelve proselyte for it, and fight for it, and feed it, thousand, as it does. It is also unsatisfactory and grow it, and ripen it to a complete suc-

to some that the elective franchise is not cess. The colored man, too, in seeing all given to the colored man. I would myself united for him, is inspired with vigilance, prefer that it were now conferred on the and energy, and daring to the same end. very intelligent, and on those who serve our Grant that he desires the elective franchise, cause as soldiers. Still, the question is not will he not attain it sooner by saving the al-

whether the Louisiana government, as it ready advanced steps towards it, than by stands, is quite all that is desirable. The running backward over them? Concede that question is, Will it be wiser to take it as it the new government of Louisiana is only to is and help to improve it, or to reject and what it should be as the egg is to the fowl, disperse? Can Louisiana be brought into we shall sooner have the fowl by hatching

proper practical relation with the Union the egg than by smashing it. Again, if we sooner by sustaining or by discarding her reject Louisiana, we also reject one vote in new State government? Some twelve thou- favor of the proposed amendment to the Nasand voters in the heretofore Slave State of tional Constitution. To meet this proposiLouisiana have sworn allegiance to the Union, tion, it has been argued that no more than assumed to be the rightful political power three fourths of those States which have not of the State, held elections, organized a attempted secession are necessary to validly State government, adopted a Free State con- ratify the amendment. I do not commit mystitution, giving the benefit of public schou!s self against this, further than to say that equally to black and white, and empowering such a rrtification would be questionable, and the Legislature to confer the elective fran- sure to be persistently questioned, while a chise upon the colored man. This Legisla- ratification by three fourths of all the States ture has already voted to ratify the Constitu- would be unquestioned and unquestionable.

tional Amendment recently passed by I repeat the question, Can Louisiana be

Congress, abolishing slavery throughout the brought into proper practical relation with nation. These twelve thousand persons are thus _ the Union sooner by sustaining or by discard-

fully committed to the Union and to perpet- ing her new State government? What has uate freedom in the State—committed te been said of Louisiana will apply to other the very things, and nearly all things, the States. And yet so great peculiarities pertain nation wants—and they ask the nation’s rec- to each State, and such important and sudognition and its assistance to make good this den changes occur in the same State, and

committal. Now, if we reject and spurn withal so new and unprecedented is the

them, we do our utmost to disorganize and whole case, that no exclusive and inflexible disperse them. We, in fact, say to the white plan can safely be prescribed as to details and man: You are worthless or worse; we will collaterals. Such exclusive and_ inflexible neither help you nor be helped by you. To plan would surely become a new entanglethe blacks we say: This cup of liberty which ment. Important principles may and must be

these, your old masters, held to your lips, inflexible. In the present situation as the we will dash from you, and leave you to the phrase goes, it may be my duty to make chances of gathering the spilled and scattered some new announcement to the people of the contents in some vague and undefined when, South. I am considering, and shall not fail

where, and how. If this course, discouraging to act, when satisfied that action will be and paralyzing both white and black, has any proper.

tendency to bring Louisiana into proper practical relations with the Union, I have so END OF VOLUME ONE far been umable to perceive it. If, on the con-

AMERICAN HISTORY

SINCE 1865 :

245. THE FREEDMEN’S BUREAU March 3, 1865 (U. S. Statutes at Large, Vol. XIII, p. 507 ff.) The Freedmen’s Bureau was established to care and fuel, as he may deem needful for the for the freedmen and for the abandoned lands immediate and temporary shelter and supply in the South. It was to continue for one year of destitute and suffering refugees and freedafter the close of the war. An act of February men and their wives and children, under such ™ 1866, extending the life of the Freedmen’s rules and regulations as he may direct.

ureau was vetoed by President Johnson. (Doc. S 3 Th he Presid b d

No. 251.) July 16, 1866, a supplementary Freed- ; EC, 9. at the resident may, by an men’s Bureau Act, enlarging the scope of the with the advice and consent of the Senate,

Bureau, was passed over the President’s veto. @PpoOint an assistant commissioner for each General O. O. Howard was placed in charge of of the states declared to be in insurrection, the Bureau. See, P. S. Peirce, The Freedmen’s not exceeding ten in number, who shall, unBureau; L. Webster, The Freedmen’s Bureau in der the direction of the commissioner, aid South Carolina; and the documents in W. L_ in the execution of the provisions of this

reemng, ocumentary History of Reconstruc- act; _. And any military officer may be

, 7 detailed and assigned to duty under this act

An Act to establish a Bureau for the Relief without increase of pay or allowances...

of Freedmen and Refugees. Sec. 4. That the commissioner, under the

Be it enacted, That there is hereby estab- direction of the President, shall have aulished in the War Department, to continue thority to set apart, for the use of loyal during the present war of rebellion, and for refugees and freedmen, such tracts of land one year thereafter, a bureau of refugees, within the insurrectionary states as shall have freedmen, and abandoned lands, to which been abandoned, or to which the United shall be committed, as hereinafter provided, States shall have acquired title by confiscathe supervision and management of all aban- tion or sale, or otherwise, and to every male

doned lands, and the control of all subjects citizen, whether refugee or freedman, as relating to refugees and freedmen from rebel aforesaid, there shall be assigned not more states, or from any district of country within than forty acres of such land. and the person the territory embraced in the operations of to whom it was so assigned shall be protected

the army, under such rules and regulations in the use and enjoyment of the land for as may be prescribed by the head of the the term of three years at an annual rent bureau and approved by the President. The not exceeding six per centum upon the value said bureau shall be under the management of such land, as it was appraised by the state and control of a commissioner to be ap- authorities in the year eighteen hundred and pointed by the President, by and with the — sixty, for the purpose of taxation, and in

advice and consent of the Senate... . case no such appraisal can be found, then Sec. 2. That the Secretary of War may _ the rental shall be based upon the estimated direct such issues of provisions, clothing, value of the land in said year, to be ascer]

2 DOCUMENTS OF AMERICAN HISTORY tained in such manner as the commissioner thereto as the United States can convey, may by regulation prescribe. At the end of upon paying therefor the value of the land, said term, or at any time during said term, as ascertained and fixed for the purpose of the occupants of any parcels so assigned may actermining the annual rent aforesaid. ... purchase the land and receive such title

246. BLACK CODE OF MISSISSIPPI 1865

(Laws of Alississtppi, 1865, p. 82 ff.) The so-called Black Codes represented the sec. 3... . All freedmen, free negroes, or Southern effort to solve the problem of the yulattoes who do now and have herebefore freedmen. The codes varied in harshness: those lived and cohabited together as husband and of Georgia, for example, were notably lenient, wife shall be taken and he'd in law as legally those af Louisiana and Mississipp! severe The married, and the issue shall be taken and legislation,” says Fleming, “showed the held for that all ;it combined influence of Professor the old laws for free ne- OC AS egitimate for all leit; purposes; grocs, the vagrancy laws of the North and South shall not be lawful for any freedman, free for whites, the customs of slavery times, the Negro, OF mulatto to intermarry with any British West Indics lezislation for ex-slaves, and white person; nor for any white person to the regulations of the U. S. War and Treasury intermarry with any freedman, free negro,

Departments and of the Freedmen’s Bureau” or mulatto; and any person who shall so (Sequel of Appomattox, p. 94). The laws below intermarry, shall be deemed guilty of felony, regulate civil rights, apprenticeship, vagrancy, nq on conviction thereof shall be confined and penal crimes. Most of these black laws were in the State penitentiary for life: and those suspended by the military governors of the re- hall be d d freed f q constructed states, and the Civil Rights Act and shal be Geemed freemen, iree negroes, an the Fourteenth Amendment were designed to ulattoes who are of pure negro blood, and protect the nezro in his civil and legal rights. On (hose descended from a negro to the third the Black Codes, sec, W. L. Fleming, Sequel to generation, inclusive, though one ancestor in Appomattox, ch. iv; E. P. Oberholtzer, History each generation may have been a white perof the United States Since the Civil War, Vol. I; — son.

and the numcrous monographs on reconstruc- Sec. 4. an In addition to cases in which tion in the States, such as those of Mleming, freedmen, free negrocs, and mulattoes are eee Reynolds, Hamiie ae Black Codes now by law competent witnesses, freedmen, F. McPherson, Political History of Reconstruc- lree negroes, or mulattoes shall be compe-

i as ‘ * 1

tion, 29 ff. tenteither in civilplaintiff cases, when party or parties ° top. the suit, or aplaintiffs, de1. Civ Ricuts oF FREEDMEN fendant or defendants, and a white person

IN MissIsstpP1 or white persons, is or are the opposing party

Sec.1. Be it enacted, ... That all freed- or partics, plaintiff or plaintiffs, defendant or men, free negroes, and mulattoes may sue defendants. They shall also be competent and be sued, implead and be impieaded, in witnesses in all crim.nal 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 ccmmitted by a white person upon or against choses in action, by descent or purchase, and the person or property of a treedman, 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

BLracK Cope or 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 nol 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 wded, 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 emptoy 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 ex-

service 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-

son shall be entitled to receive for arresting 2, Mississipe] 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 emp!oye: 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 emptoyer 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 op‘nion 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 hé 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

licen... 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 freedpart 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 miulattoes, 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 oy 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. Mississippr 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 MississipPt

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-

Brack CopeE oF LOUISIANA 5 tary setvice 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 of freedman, 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.

1865 |

247. BLACK CODE OF LOUISIANA

(Acts of the General Assembly of Louisiana Regulating Labor. Extra Sesston, 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 im the presence of a Justice of the Peace and Louisiana; J. R. ‘Flicken, History of Recon- two disinterested witnesses, in whose presPe itiny in Louisiana; H. C. Warmoth, War, ence the contract shall be read to the laborer

olitics and Stormy Days in Louisiana. andReconstruction: when assented to and signed by the latter, shall be considered as binding for the time prescribed... . ‘A N Act TO PROVIDE FOR AND FOR REGULATE Sec. 2. Every laborer shall ABOR CONTRACTS AGRICULTURAL ; . 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 ILIstory 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 persec. 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 diffi-

the 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 ]aziwise 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- _freehotders, 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 ale Failing to 2. AN Act RELATIVE TO APPRENTICES obey reasonable orders, neglect 0 duty, and AND INDENTURED SERVANTS leaving home without permission will be

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 re» reling 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 ecighteen years, if fe fine of one dollar shall be imposed on and males, and twenty-one, if males, who are vaid 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. Tor all thefts of the laborer this Act. and, if so. to apprentice said minot 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,

JOoUNSON’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. Alessages 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, neverthetess, that every such person

1863; the most important difference is to be shall take and subscribe the following oath

found in section thirteen. (or affirmation) and thenceforward keep and

By tur PRESIDENT OF THE UNITED maintain said oath inviolate, and which oath

States OF AMERICA. shall be registered for permanent preserva-

tion 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 been 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 licutenant 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 rebcllion.

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. 7

8 DOCUMENTS OF AMERICAN HisToRyY 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 conviction.

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

the rebellion. inviolate. Eleventh. All persons who have been en- Provided, That special application may be

Confederate States for the purpose of aiding thenceforward kept and maintained the same

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.) ohnson followed, almost in toto the reconstruc-

lon 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 publican form of government and shall proCarolina see J. P. Hollis, Early Reconstruction ject each of them against invasion and do-

Period in South Carolina; J. S. Reynolds, Re- ‘¢ viol . and

construction in South Carolina; F. P. Simkins mestic violence; an . ws

and R. H. Woody, South Carolina during Re- Whereas the President of the United construction. For special studies of reconstruc- tates 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 proc-

waged 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 heen 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

to 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 DoOcUMENTS OF AMERICAN JIIIstTory lo 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 to have reliable information on conditions in decision arrived at as final, but, now that te South, sent several personal representatives the smoke of battle has cleared away and through that section for purposes of observa- time has been given for reflection, that this tion. Among these emissaries were Carl Schurz, decision has been a fortunate one for the Chief Justice Chase, and General Grant. whole country, they receiving like benefits

Harvey M. Watterson, Benjamin C. Truman, _

Schurz’s report was a severe arraignment of the from it with those who opposed them in the southern people and a plea for the radical policy held 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 concil.a- the people poss:bly in a condition not to tory, and sustained the Presidential policy of yield that ready obedience to civil authority reconstruction. General Grant leit Washington he A , leh lly b mn on his trip of observation November 29, 1865, the merican people ave generally been | 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

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,

Congress, 1 Sess. Sen, Executive Doc. No. 43. who think it practicable to withdraw the

rn cs trip, see C. G. Bowers, The Tragic military from the south at present. The

poe white and the black mutually require the

... Tam 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 peop‘e 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 cijent 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 abie head of the

long distances around. White troops gen- bureau, made fricnds 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 comp!aint 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 freedmen 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 employ-

the 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 m:nd 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 idieness and accumulation in sion that the citizens of the southern States camps, towns, and cities. In such cases | 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 I'reedmen’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 cou:d done if more time had been at my disposal. be corrected by regarding every offhcer 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 History 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 De. act of Congress, March 3, 1865. February 19, partment and the Commissioner of the Freed. 1866, 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 this Presenved President Johnson. Theopen veto trom the Armybeor from life: the counof bill toinaugurated the warfare . oocivil , Ll.

tween the Radicals and President Johnson. [Y 35 to be divided into districts and sub-

July 16, a supplementary Freedmen’s Bureau districts, 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 Freedmen’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 frecdmen 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 their 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

gecs and freedmen. It would by its very na- passion. . . 7 |

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 or FREEDMEN’S BUREAU BILL 13 the trial must procced 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, scems sively the judicial power of the country. to be as inconsistent with the actual condiWhile the territory and the classes of ac- ticn 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 s/all 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 sect 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, [ 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. thc 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 I*reedmen'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.

is 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. XIV, p. 27 ff.) This measure, designed to protect the frecdmen tion of slavery or involuntary servitude, exfrom 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 Terripassed over his veto April 9, The act conterred tory in the United States, to make and encitizenship the negroes, legislation f 5 . and ¢i tated by the Dredupon Scott decision. Doubt as to orce contracts,necesslto sue, be parties, and give the constitutionality of the measure induced evidence, to inherit, purchase, lease, sell, hold, Congress to enact most of its provisions into the and convey real and personal property, and Fourteenth Amendment. Sec, 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 Lymun 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 thew 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 RicurTs 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 imprisishment 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 atscveral 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 cult 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 a.torneys, 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 Un:ted 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.) WasuIncTon, 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 Unitcd States and not subject to tect all persons in the United States in their any foreign powcr, excluding Indians not

civil rights and furn’sh 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 peop'e and my obligations citizens of States, except that which may reto the Constitution of the United States. I suit 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- Bohts 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 discrimare 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 rnay 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 CiviLt 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 quasz 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 n:nth section authorizes the President, of the co‘ored and against the white race. cr 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 exnaval 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 lim’ted 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 contemnlated 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 ininitely beyond any that the General the bonds of union and peace... .

Government has ever provided for the white ANDREW JOHNSON. 254. REPORT OF TIE 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 representa-

tatives, 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 cond.tion of the states which heen 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 to. ; oe them, are entitled to be represented in either unconstitutional, at least unjustifiable and house of Congress.” The Report recommended OPPTEessive.

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 Coleen by various a civil war of the greatest magnitude. The

sub-comm.ttees. great importance is B. subject B. er . to , . people waging it were necessarily pean learner Joint Committee of 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 the so- of these consequences was that, within the called Confederate States his been urged, limits prescribed by humanity, the conquered

which seems to your committee not to be rebels were at the mercy of the conquer-

founded either in reason or in law, and 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 governnmient 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 qualliright 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. cuered rebels and traitors. . . . The authorII. That Congress cannot be expected to ity to restore rebe!s to political power in the recognize as valid the election 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 ... Enghth. ... 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 T ennessee, 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.) WasuHIncTON, 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 representatinction 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

- JouNSON 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 ‘“accomtials. 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 prose-

the right of representation. It would have cuted for the object of practically resloring 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 faifhful istence of the States was terminated by the Congress. Each House 1s 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- estabiishment of peace, harmony, and fraclared, with a unanimity as remarkable as it ternal feeling. It would tend greatly to rencw

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 recupcrative 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 with'n the boundaries prescribed by the government wh.ch 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 cf succeeding generations. ...

256. EX PARTE MILLIGAN ; 4 Wallace, 2 1866

Certificate from the Unitcd 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 authority President September 15,snared. terminated. that th bl; fety1s| 1863, suspended the writLincoln, in cases where officers Mow, N a© papie sarety

held persons for offenses against the military or assured, this question, as well as all others, naval service. Milligan, a civilian, was arrested, 4M be discussed and decided without passion tried by a military comm’ss:on, found guilty of or the admixture of any element not required fomenting insurrection, and sentenced to be to form a legal judzment. 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 = ful] and cautious deliberation. . . °

the most notable in our history, condemned The controlling question in the case is this: military section:and, where the Upon the facts stated in Milligan’s courtstribunals wereinopen, bycivil implication, raised es eyepetition,

serious doubts as to the legality of Congressional and the exhibits filed, had the military comreconstruction. A thorough discussion of the case ™1ssion 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 rebcllious 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 can be found in W. A. Dun- States, Imprisoned, and, on certain criminal tion, chs. i, i1. 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

ning, £ssays on the Civil War and Reconstruc-

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 peop!e; for it is mental principles of American liberty. the birthright of every American citizen when During the late wicked rebe‘lion, the tem- charged with crime, to be tried and punished per of the times did not alow 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 Parte 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 peopte. If there was military commission that tried him derive law to justify th's 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 nuliity 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 peop'e had wrested from power “no unwritten cr:minal code to which resort during a contest of ages. By that Constitu- can be had as a source of jurisdiction.” 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 piain English words, that it usage of war could sanction a mititary 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 mili-

than seventy years, sought to be avoided. tary service. Congress could grant no such ... The Constitution of the Un:ted States power; and to the honor of our national lezisis a law for rulers and peopze, 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 classes of men, at all times, its exercise. One of the plainest constitutional and under all circumstances. No doctrine in- provisicns 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 establ’shed by Conzress, and not comany of its provisions can be suspended during posed of judges appointed during good bhe-

any 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 ac-

which it is based is faise; 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 kis 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 1s 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 right 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 now 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- is not so. weighty reasons, they secured the inheritance It will be borne in mind that this 1s not a they had fought to maintain, by incorporating question of the power to proclaim martial ‘na written Constitution the safeguards law, when war exists in a 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 _ sities 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 opresist the measures deemed necessary by a erations; and, as in this case, Indiana had good government to sustain its just authority been 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 armies were public investigation according to law may not collected in Indiana, they were to be embe 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 Aer 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 be-

were 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 II1IstTory 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 necessity 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 reins:ated, 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 Bull 1866

(South Carolina Statutes at Large, Vol. XIII, p. 380) The demand for industrial labor, the cpening 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.

ence efforts to encourage immigration. Most 3. That it shall be the duty of said Com-

outhern States attempted to attract immigrants wissioner of Immigration to advertise in all to take the place of the nezro worker, but uni-

formly without success. In South Carolina a the gazettes of the State for lands for sale; state commissioner of agriculture was created [© 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. Sce, appraised by three dis:nterested 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 endorsed 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 pe-

contingent 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 pract.ce jt imposes a punishment for some of the acts before the Supreme Court in 1860. He subse- specified 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. Anfrom Act practice of Congress of the January 24, fore ‘bed. is thus b htwithin with; 1865, excluded before Su- prescribed, and itand 1s itthus brought preme Court any one who cculd not take an the further inhibition of the Constitution

oath that he had never fouvht 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 lor is not like an office created by an act of

of five to four. Congress, which depends for its continuance, ils powers, and its emoluments upon the will

Fretp, 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 unab‘e 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 Pres:dent. ... 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 ageinst them, operates as a legislative decree jurisdiction, prescribe qualifications for the of perpetual exclusion. And exclusion from pursu:t of any of the ordinary avocations of any of the professions or any of the ordinary _ life. The quest:on, 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 cnactments of tion of the effect of the pardon produced by this kind partake of the nature of bilis of — the petitioner, and the nature of the pardunpains and penalties, and are subject to the ing power of the President. constitutional inh-bition aga:nst 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 cisabilities 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 MILLER, J., with whom concurred WalrTE,

new credit and capacity.... The pardon C. J., and Justices Swayne and Davis, de-

1867 ,

produced by the petitioner is a full pardon livered a dissenting opinion.

259. MISSISSIPPI v. JOHNSON 4 Wallace, 475

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 the failure of Mississippi to secure a de- named. cision from the Court on this question, Georgia The acts referred to are those of March 2d filed a suit to restrain Secretary Stanton from enforcing the acts. Georgia v. Stanton, 6 Wal- and March 23d, (1867, commonly known as

lace, SO. 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. II, 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 Con-

edent; 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 TIIstory 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 1806 gave them a {ree hand in the devel:pmeat said districts an officer of the army, not be-

Ot a Ao teeq on policy. The famous Act of low the rank of brigadier-general, and to de-

2, 1867, contained the general principles +441 9 sufficient military force to enable such ofarchcongressional reconstruction. There was grave ; ; ; ,

doubt about the constitutionality of some of o-licer fo perfo:m his dutie s and enforce his the provisions of this act, but the efforts of @uthority within the district to which he is Southern States to bring the question be.ore the assigned.

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, sce Johnson’s veto message, Document No. persons in their rights of persons and prop261. On the history of the Act, sce J. F. Rhodes, erty, to suppress insurrection, disorder, and

story oF ihe Uniled States Me VI; J - W. violence, and to punish, or cause to be pun-

oe ang theThe Consiitulion; all disturbers of ;the public peace and W.eee L. Fleming, Sequel ofished. Appomattox, chs. 1. v-vil; C. E. Chadsey, The Struggle Between criminals ; and to this end be ma y allow local

President Johnson ani 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-xviii; 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 miltary government, sce W. A. exercise of military authority under this act,

Dunning, Essays on the Civil War and Re- shall be null and void.

construction, ili-iv; _and numerous Src. 4. That ‘lit monographs onchs. reconstruction in the the States; see SO persons putall unterund Mmltary

bibliographies in W. A. Dunning, Reconstruc. trest by virtue of this act shall be tried with-

tion, and in H. K. Beale, Critical Year. out unnecessary delay, and no cruel or un-

usual 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 sppi, Alabama, Louisiana, Florida, Texas, affected by th's 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 rebellion 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 qualiications 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 rati:ca- such person vote for members of such conven-

tion 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 legis!ature elected under said con- sall 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 e:ections 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 entit!ed 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. Afessages and Papcrs, Vol. VI, p. 498 ff.) Dunning states that this veto message was serts the necessity of enforcing peace and

drafled by J. S. Dlack. good order within their limits. Is this true as

matter of fact? WASHINGTON, ALarch 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 for the all the powers—executive, judicial, and legismore efficient government of the rebel States” Ictive—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. [am _ 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

Cecision must ultimately rest. matters with-n its Jurisdiction. To pronounce The bill places all the people of the ten the supreme law making power of an estab-

States therein named under the absolute dom- __I'shed 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 prov.sions which these governments measure is 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

Al) 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 to do. ... 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, in 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 carricd 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 feet 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, is 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 pws 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 hefore 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 outa 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 peop!e 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 possibie that idea what it means. This bill not only thrusts anyone should seriously believe this cons stent it into their hands, but compels them, as well with a Constitution which declares in simpie, 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 p:easure 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 wh:te 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 ac-

number—has not been constitutionally ob- cepted by the friends of the Union in the tained to the ratiacation 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 Jchnson and the Radicals construction and the Constitution; biographies over Reconstruction had been referred to the of Jchnson by Milton, Stryker, Winston. voters, and the elections of the fall of 1866 were

thirty-ninth Congress which tne Radicals, ane An Act regulating the Tenure of certain Civil

1866 was dominated by such Radical leaders as O flices.

Stevens, Sumner, Wilson, Boutwell, Wade, Be it enacted, That every person holding Chandler, and cthers. 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

a ent ae _tuestion ot the Ninted o ine Senate, and esiden Or Ove OlllclalSs appointe nc .every person who shall hereafter

with the advice of the Senate had long. been be appointed to any such office, and shall bea controversial one; it was not, indeed, settled come duly qualified to act therein, JS; and until 1926 (see Doc. No. 459). It was highly un- Sail be entitled to hold such office until a suc-

certain whether the Act was orizinally designed cessor shall have been in like manner apto afford permanence of tenure to the members po-nted 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 removal of Secretary the Navy, and of the Interior, the PostmasStanton, in alleged violation of the Tenure of ter-General. and the Attorney-General, shall Office Act, was the principal charge in the hold their offices respectively for and during The Struggle Between President Johnson and the term of the President by whom they may Congress over Reconstruction; W. A. Dunning, ave 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.

impeachment proceedings. See, C. E. Chadsey, ; ©

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 ses-

form 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 duties 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 dis-

they shall so certify to the President, who cretion of the court. nay 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, conale, 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 1t 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.

Sori the Ereiden’ of she command of the Sac. 2. And be it further enacted, That orders through the General of the army. John- the headquarters of the General of the army 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 sections depriving him of command relating 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 History moved, suspended, or relieved from command, _ scction shall be deemed guilty of a m‘sde-

or assigned to duty elsewhere than at said meanor in ofice: 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 ex-

struct 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 beilion 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 Iam 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- sald 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 Ihave ccnstituting 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 pro-

vote in each State... If a majority of the visions of this act at an election to be convotes given on that question sha:l 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 if a 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 dis- | istered 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 sha.l be ratified by a majority each district shall appo:nt as many boards of of the votes of the registered electors .. . registration as may be necessary, consisting at least one half of all the reg.s-ered 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 morcover 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 qualiaed 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 command:ng 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 de‘egates 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 notiacation, and said convention, when act to which this is supp.cmentary, and the organized, shall proceed to frame a constitu- other provis.ons 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 shail 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. Afessages 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, T 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 original act remains in force are brouzht 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 all, 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 Stale, 21 inhabitants of these States, for under the allyears old and upward, of whatever race, color, embracing exceptions of these laws, by a conor 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 gencral 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 voling 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 “loyal.” 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- is necessary to make the constitutiun 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. suffrage—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-

Tue TuHirp 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 sine 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 ficial 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. II, and refer- _P SING 10 DOIG OF CACTCISE, ANY IVE 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 commmander, 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 secSec, 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 disarmy 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 Src. 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 “Scward’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. I, ch. xhi; J. M. graphical limits herein set forth, to wit: The Canadian Relations, W. Va. Studies in History, eastern limit 1s the line of demarcation be-

Callahan, The Alusku Purchase and Americo- to . .

Series 1. On Walker, see W. E. Dodd, Robert J. tween the Russian and the British POSSESSIONS

Walker, Imperialist. in North America, as established by the convention 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 Jaid 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 agrces 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

THe IMPEACHMENT OF PRESIDENT JOHNSON 43 mountains which extend in a direction parallel such members of the Greek 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, il 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 uncivil-

and 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 Stales 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 MISDEMEAN-

24, 1868, to impeach President Johnson. On ORS IN OFFICE.

March 2 and 3 articles of impeachment were Articire 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. day of February. A. D. 1868. at Washingt

Boutwell, J. F. Wilson, B. F. Butler, T. Wile C2¥ Of “CDEUATY, Ah. Bie 2008) ae WN ASME OD,

liams, J. A. Logan, and T. Stevens were the 1 the district of Columbia, unmindful of the House managers of the impeachment. The Senate igh 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 vio-

i Nan ane sent che p. 253 ff. ; Y > lation of the Constitution and laws of the iiton, ne Age oj Afateé, CNS. XXI-XXv1, 4. t. United States issue an order in writing for the

eryker any wage beh C. G. removal of Edwin M. Stanton from the office

roe of Secretary for the Department of War, said Edwin M. Stanton having been theretofore

In THE HouSE oF REPRESENTATIVES, duly appointed and c ‘ssioned. b d Unirep STATES. uly appoint nd commissioned, by an March 2. 1868 with the advice and consent of the Senate of

, the United States, as such Secretary; and

ARTICLES EXHIBITED BY THE HOUSE oF Rrep- said Andrew Johnson, President of the United

RESENTATIVES OF THE UNITED STATES, IN States, on the 12th day of August, A. D. THE NAME OF 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 UniTEep 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 History 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 Tomas, 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

wnterim, 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

Ture 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 Arr. 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 De-

an 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 receive,

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 1mpartment, 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, Presi-

of 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. VIII. 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. LX. 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 HistToRyY openly and publicly, and before divers as- T 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- ™UCH Pains to poison the.r const.tuents against temperate, inflammatory, and scandalous ha- nan But what had Congress done® Have they

; anything to restore the Union of these

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 commenced, 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 domineertions hereinafter written in substance and ef- 18 had undertaken to poison the minds of the

fect; that is to say: American people.

te hention HetIn this tat at Weshs specication thind—In this, that at St committee of citizens who called upon the sth dn ne Se tate are 7 On ne President .of.the United States, speakingPresident of A y premier, 1’. United r+ + Sal , ndrew Johnson, of#4.the

and concerning the Congress of the United Stat kine of and ; he C States, said Andrew Johnson, President of the ates, speaking of and concerning the on-

’ ° ° ’ ba inoe: ; .

United States,...on the 18th day of gress of the United States, did in a loud voice

August, A. D 1866 did in a loud voice de- declare in substance and effect, among other clare in substance and effect, among other things; that is to say:

things; that is to say: .. . Goon... if you will go back and ascertain the cause of the riot at New Orleans, perhaps you We have witnessed in one department of the Will not be so prompt in calling out “New OrGovernment every endeavor to prevent the res- leans.” If you will take up the riot at New Orleans toration of peace, harmony, and union. We have nd trace it back to its source or its immediate secn hanging upon the verge of the Government, Catise, you will find out who was responsible for as it were, a body called, or which assumes to be, _ the blood that was shed there. If you will take up

the Congress of the United States, while in fact the riot at New Orleans and trace it back to the it is a Congress of only a part of the States. We Radical Congress, you will find that the riot at

have seen this Congress pretend to be for the New Or‘eans was substantially planned... . Union, when its every step and act tended to You will also find that that convention did asperpetuate disunion and make a disruption of the semble, in violation of law, and the intention o! States inevitable.... We have scen Congress that convention was to supersede the reorganized gradually encroach, step by step, upon constitu- authorities in the State government of Louisiana, tional rights, and violate, day after day and Which had been recognized by the Government month after month, fundamental principles of of the United States; and every man engaged in the Government. We have scen a Congress that that rebellion in that convention, with the inseemed to forget that there was a limit to the tention of superseding and upturning the civil sphere and scope of legislation. We have seen a government which had been recognized by the Congress in a minority assume to exercise power Government of the United States, I say that he which, allowed to be consummated, would re- Was a traitor to the Constitution of the United

sult in despotism or monarchy itself. States; and hence you find that another rebellion was commenced, having its origin in the Radical

Congress. ...

Specification second—In this, that at And I have been traduced, I have been slanCleveland, in the State of Ohio, ... onthe dered, I have been maligned, I have been called 3d day of September, A. D. 1866, before a Judas Iscariot and all that. Now, my countrypublic assemblage of citizens and others, said aan h ere to-night, it “let easy to indulge m Andrew Johnson, President of the United epit nets; it aiid to call a man a Judas and cry

, . out “traitor;” but when he is called upon to give

States, speaking of and concerning the Con- arguments and facts he is very often found wantgress of the United States, did in a loud voice ing. Judas Iscariot—Judas. There was a Judas, declare in substance and effect, among other and he was one of the twelve apostles. Oh, yes;

things; that is to say: the twelve apostles had a Christ. The twelve

TuE IMPEACHMENT OF PRESIDENT JOHNSON Al apostles had a Christ, and he never could have War, notwithstanding the refusal of the Senhad a Judas unless he had had twelve apostles. ate to concur in the suspension theretofore by If I have played the Judas, who has been my = said Andrew Johnson of said Edwin M. StanChrist that I have played the Judas with ¢ Was it ton from said office of Secretary for the DeThad. Stevens? Was it Wendell Puaillipse Was it partment of War, and also by further unlawCharles Sumner? These are the men that stop fully devis; q trivi q ti and compare themselves with the Savior, and UMY Gevising an contriving, an attempting everybody that differs with them in opinion, and to devise and contrive, means then and there

to try to stay and arrest their diabolical and 0 prevent the execution of an act entitled nefarious policy, is to be denounced as a “An act making appropriations for the sup-

Judas. ... port of the Army for the fiscal year ending June 30, 1868, and for other purposes,” ap-

proved March 2, 1867, and also to prevent the

which said utterances, declarations, threats, execution of an act entitled ‘‘An act to proand harangues, highly censurable in any, are vide for the more efficient government of the peculiarly indecent and unbecoming in the rebel States,” passed March 2, 1867, whereby Chief Magistrate of the United States, by the said Andrew Johnson, President of the means whereof said Andrew Johnson has United States, did then, to wit, on the 21st brought the high office of the President of the day of February, A. D. 1868, at the city of United States into contempt, ridicule, and Washington, commit and was guilty of a high disgrace, to the great scandal of all good citi- misdemeanor in office. zens; whereby said Andrew Johnson, Presi-

dent of the United States, did commit and SATURDAY, MAY 16, 1868. was then and there guilty of a high misdemeanor in office. Tur UNITED STATES vs. ANDREW

Art. XI. That said Andrew Johnson, Pres- JOHNSON, PRESIDENT. ident of the United States, ... did on the The Chief Justice stated that, in pursuance 18th day of August, A. D. 1866, at the city of | of the order of the Senate, he would first pro-

Washington, in the District of Columbia, by ceed to take the judgment of the Senate on public speech, declare and affirm in substance _ the eleventh article. The roll of the Senate that the Thirty-ninth Congress of the United was called, with the following result:

States was not a Congress of the United The Senators who voted “guilty” are

States authorized by the Constitution to ex- Messrs. Anthony, Cameron, Cattell, Chandler, ercise legislative power under the same, but, Cole, Conkling, Conness, Corbett, Cragin, on the contrary, was a Congress of only part Drake, Edmunds, Ferry, Frelinghuysen, Harof the States: thereby denying and intending lan, Howard, Howe, Morgan, Morrill of to deny that the legislation of said Congress Maine, Morrill of Vermont, Morton, Nye, was valid or obligatory upon him, the said Patterson of New Hampshire, Pomeroy, RamAndrew Johnson, except in so far as he saw’ sey, Sherman, Sprague, Stewart, Sumner, fit to approve the same, .. . in pursuance of Thayer, Tipton, Wade, Williams, Willey, said declaration the said Andrew Johnson, Wilson, and Yates—35.

President of the United States, . .. on the The Senators who voted “not guilty” are 21st day of February, A. D. 1868, at the city Messrs. Bayard, Buckalew, Davis, Dixon, of Washington, in the District of Columbia, Doolittle, Fessenden, Fowler, Grimes, Hendid unlawfully, and in disregard of the re- derson, Hendricks, Johnson, McCreery, Norquirement of the Constitution that he should ton, Patterson of Tennessee, Ross, Saulsbury, take care that the laws be faithfully executed, Trumbull, Van Winkle, and Vickers—19. attempt to prevent the execution of an act The Chief Justice announced that upon this entitled “An act regulating the tenure of cer- article thirty-five Senators had voted “guilty” tain civil offices,” passed March 2, 1867, by and nineteen Senators “not guilty,” and deunlawfully devising and contriving, and at- clared that two-thirds of the Senators present tempting to devise and contrive, means by not having pronounced him guilty, Andrew which he should prevent Edwin M. Stanton Johnson, President of the United States, stood from forthwith resuming the functions of the acquitted of the charges contained in the office of Secretary for the Department of eleventh article of impeachment.

48 DOCUMENTS OF AMERICAN History TUESDAY, MAY 26, 1868. athe ck Van Winkle, and Vickers—19. .

Tue Unirep STATES vs. ANDREW Che uief Justice announced that upon this JOHNSON, PRESIDENT article thirty-five Senators had voted “guilty and nineteen Senators had voted “not guilty,”

The Senate ordered that the vote be taken and declared that two-thirds of the Senators upon the second article of impeachment. The present not having pronounced him guilty, roll of the Senate was called, with the follow- Andrew Johnson, President of the United

ing result: States, stood acquitted of the charges conThe Senators who voted “guilty” are tained in the third article.

Messrs. Anthony, Cameron, Cattell, Chan- No objection being made, the secretary, by dler, Cole, Conkling, Conness, Corbett, Cragin, direction of the Chief Justice, entered the Drake, Edmunds, Ferry, Frelinghuysen, Har- judgment of the Senate upon the second, lan, Howard, Howe, Morgan, Morrill of third, and eleventh articles, as follows: Maine, Morrill of Vermont, Morton, Nye, The Senate having tried Andrew Johnson, Patterson of New Hampshire, Pomeroy, Ram- President of the United States, upon articles sey, Sherman, Sprague, Stewart, Sumner, of impeachment exhibited against him by the Thayer, Tipton, Wade, Willey, Williams, Wil- House of Representatives, and two-thirds of

son, and Yates—35. the Senators present not having found him The Senators who voted “not guilty” are guilty of the charges contained in the second, Messrs. Bayard, Buckalew, Davis, Dixon, third, and eleventh articles of impeachment, Doolittle, Fessenden, Fowler, Grimes, Hen- it is therefore derson, Hendricks, Johnson, McCreery, Nor- Ordered and adjudged, That the said Anton, Patterson of Tennessee, Ross, Saulsbury, drew Johnson, President of the United States,

Trumbull, Van Winkle, and Vickers—19. be, and he is, acquitted of the charges in said The Chief Justice announced that upon this articles made and set forth. article thirty-five Senators had voted “guilty” A motion “that the Senate sitting for the and nineteen Senators had voted “not guilty,” trial of the President upon articles of imand declared that two-thirds of the Senators peachment do now adjourn without day” was present not having pronounced him guilty, adopted by a vote of 34 yeas to 16 nays.

Andrew Johnson, President of the United Those who voted in the affirmative are

States, stood acquitted of the charges con- Messrs. Anthony, Cameron, Cattell, Chantained in the second article of impeachment. dler, Cole, Conkling, Corbett, Cragin, Drake,

The Senate ordered that the vote be taken Edmunds, Ferry, Frelinghuysen, Harlan, upon the third article of impeachment. The Howard, Morgan, Morrill of Maine, Morrill roll of the Senate was called, with the follow- of Vermont, Morton, Nye, Patterson of New

ing result: Hampshire, Pomeroy, Ramsey, Sherman, The Senators who voted “guilty” are Sprague, Stewart, Sumner, Thayer, Tipton,

Messrs. Anthony, Cameron, Cattell, Chandler, Van Winkle, Wade, Willey, Williams, Wilson,

Cole, Conkling, Conness, Corbett, Cragin, and Yates. Drake, Edmunds, Ferry, Frelinghuysen, Har- Those who voted in the negative are Messrs.

lan, Howard, Howe, Morgan, Morrill of Bayard, Buckalew, Davis, Dixon, Doolittle, Maine, Morrill of Vermont, Morton, Nye, Fowler, Henderson, Hendricks, Johnson, McPatterson of New Hampshire, Pomeroy, Creery, Norton, Patterson of Tennessee, Ross, Ramsey, Sherman, Sprague, Stewart, Sumner, Saulsbury, Trumbull, and Vickers. Thayer, Tipton, Wade, Willey, Williams, Wil- The Chief Justice declared the Senate sit-

son, and Yates—35. ting as a court of impeachment for the trial

The Senators who voted “not guilty” are of Andrew Johnson, President of the United Messrs. Bayard, Buckalew, Davis, Dixon, States, upon articles of impeachment exDoolittle, Fessenden, Fowler, Grimes, Hen- hibited against him by the House of Reprederson, Hendricks, Johnson, McCreery, Nor- sentatives, adjourned without day. ton, Patterson of Tennessee, Ross, Saulsbury,

THe ‘Ku KLtux KLan 49 270. FOURTH RECONSTRUCTION ACT March 11, 1868 (U. S. Statutes at Large, Vol. XV, p. 41) The Second Reconstruction Act, Doc. No. 265, has resided therein for ten days next “preprovided for the ratification of the new state ceding such election, upon presentation of his

constitutions ey were paniedThe certificate of registration, his affidavit, or a majority ofony thewhere registered voters. defea sfactor ‘denc der such reeuof the Alabama Constitution in February 1868 other salisiect in trict aan Nors na -_

by the absence from the polls of a majority of “hy C y~ the registered voters led Congress to pass the TIVE.

Act of March 11, 1868. Under the provisions of SEC. Z. And be tt further enacted, That the this Act a number of constitutions were ratified | constitutional convention of any of the States and in the summer of 1868 Congress admitted mentioned in the acts to which this is amendaseven of the southern States to the Union. For tory may provide that at the time of voting

references, see Doc. No. 260. upon the ratification of the constitution the

An Act to amend the Act [of March 23, 1867] registered voters may vote also for members Be it enacted, That hereafter any election of the House of Representatives of the United

authorized by the act [of March 23, 1867], States, and for all elective officers provided shall be decided by a majority of the votes for by the said constitution; and the same actually cast; and at the election in which the _ election officers who shall make the return of

question of the adoption or rejection of any the votes cast on the ratification or rejection

constitution is submitted, any person duly of the constitution, shall enumerate and registered in the State may vote in the elec- certify the voles cast for members of Contion district where he offers to vote when he _ gress.

271. THE KU KLUX KLAN Organization and Principles 1868

| p. 154 ff.)

(J. C. Lester and D. L. Wilson, The Ku Klux Klan ...ed. by W. L. Fleming, The Ku Klux Klan, one of the two largest of the Ku Klux Klan see also, W. L. Fleming, the secret organizations that flourished in the Sequel to Appomattox, ch. xi; W. G. Brown, South during Reconstruction, was founded in The Lower South in American History, ch. iv; 1865 at Pulaski, Tennessee. The order grew W.A. Sinclair, The Aftermath of Slavery. rapidly in 1867 and 1868; a general organiza-

tion was perfected in May 1867 at which a - att os

constitution was adopted. General Bedford For- Organization an opie of the

rest was the first Grand Wizard of the Order. U NtUx San The Order was cffective in frightening the negro Appellation out of his unnatural alliance with the Union . oo,

Leagues, but it was used as a cloak for lawless- This Organization shall be styled and de. ness and violence and formally disbanded in nominated, the Order of the * * *

1869, after Its activities continued, however, for some Cc reed time this date. Congress took cognizance of the Order and similar secret societies such as We, the Order of the * * * , reverentially the Knights of the White Camelia, by passing acknowledge the majesty and supremacy of

the Ku Klux Klan Acts of Maythe31, 1870 a . ; the goodness Divine Being,and and recognize April 20, 1871, Doc. No. 273. A Congressional and vid f th And Ku Klux Klan Committee sat during the sum- ng Prowneence © © same. “And we recogmer of 1871 and took thirteen volumes of M2 Our relation to the United States Govtestimony on conditions in the South. Sec, Re- ¢™mment, the supremacy of the Constitution,

port of the Joint Select Committee ...US. the Constitutional Laws thereof, and the 42d Cong. 2d Sess. Sen. Report, No. 41. On Union of States thereunder.

50 DOCUMENTS OF AMERICAN HISTORY Character and objects of the Order the Grand Titan. The third to be styled the This is an institution of Chivalry, Hu- Province, and to be coterminous with the manity, Mercy, and Patriotism: embodying several counties; provided the Grand Titan in its genius and its principles all that is chiv- "9: when he deems it necessary, assign two alric in conduct, noble in sentiment, generous Ct@2d Giants to one Province, prescribing, in manhood, and patriotic in purpose; its pe- 7! the same time, the jurisdiction of each. The

culiar objects being fourth department to be styled the Den, and

First: To protect the weak, the innocent, shall embrace such part of a Province as the and the defenseless, from the indignities, G*4%d Giant shall assign to the charge of a wrongs, and outrages of the lawless, the vio- Grand Cyclops. . . .

lent, and the brutal; to relieve the injured Interrogations to be asked

and oppressed; to succor the suffering and , unfortunate, and especially the widows and Ist. Have you ever been rejected, upon orphans of Confederate soldiers. application for membership in the * * * , or

Second: To protect and defend the Con- have you ever been expelled from the same? stitution of the United States, and all laws _ 2¢- Are you now, or have you ever been, passed in conformity thereto, and to protect * member of the Radical Republican party, the States and the people thereof from all © either of the organizations known as the

invasion from any source whatever. Loyal League” and the “Grand Army of the

Third: To aid and assist in the execution Republic? _

of all constitutional laws, and to protect the 3d. Are you opposed to the principles and people from unlawful seizure, and from trial policy of the Radical party, and to the Loyal except by their peers in conformity to the League, and the Grand Army of the Republic,

laws of the land. so far as you are informed of the character and purposes of those organizations? Titles 4th. Did you belong to the Federal army Sec. 1. The officers of this Order shall con- during the late war, and fight against the sist of a Grand Wizard of the Empire, and his South during the existence of the samer ten Genii; a Grand Dragon of the Realm, and Sth. Are you opposed to negro equality, his eight Hydras; a Grand Titan of the Do- both social and political? minion, and his six Furies; a Grand Giant of 6th. Are you in favor of a white man's govthe Province, and his four Goblins; a Grand ernment in this countrye Cyclops of the Den, and his two Night Hawks: 7th. Are you in favor of Constitutional] a Grand Magi, a Grand Monk, a Grand Scribe, liberty, and a Government of equitable laws

Grand Sentinel. pression?

a Grand Exchequer, a Grand Turk, and a instead of a Government of violence and op-

Sec. 2. The body politic of this Order shall 8th. Are you in favor of maintaining the be known and designated as ‘‘Ghouls.”’ Constitutional rights of the South?

, , Lo. Oth. Are you in favor of the re-

Territory and its Divisions enfranchisement and emancipation of the

Sec. 1. The territory embraced within the white men of the South, and the restitution jurisdiction of this Order shall be coterminous _ of the Southern people to all their rights, alike

with the States of Maryland, Virginia, North proprietary, civil, and politicale

Carolina, South Carolina, Georgia, Florida, 10th. Do you believe in the inalienable Alabama, Mississippi, Louisiana, Texas, Ar- right of self -preservation of the people against

kansas, Missouri, Kentucky, and Tennessee; the exercise of arbitrary and _ unlicensed

all combined constituting the Empire. powerr ...

Sec. 2. The Empire shall be divided into ... 9. The most profound and rigid se-

four departments, the first to be styled the crecy concerning any and everything that reRealm, and coterminous with the boundaries lates to the Order, shall at all times be mainof the several States; the second to be styled __ tained. the Dominion and to be coterminous with 10. Any member who shall reveal or betray such counties as the Grand Dragons of the the secrets of this Order, shall suffer the exseveral Realms may assign to the charge of — treme penalty of the law.

Tur FourRTEENTH AMENDMENT 51 272. THE FOURTEENTH AMENDMENT July 28, 1868 (F. N. Thorpe, ed. Federal and State Constitutions, Vol. I, p. 31) Widespread doubt as to the constitutionality of their respective numbers, counting the whole the Civil Rights Act, Doc. No. 252, led to the number of persons in each State, excluding formulation, by the Joint Committee of Fifteen, [ndtans not taxed. But when the right to vote of this amendment to the Constitution. It was 4} any election for the choice of electors for lirst submitted Lo the lezislatures of the States President and Vice-President of the United

in June, 1866. Rejected by most of the southern | . aC the ExStates, its ratification was made a cond.tion ol States, Representatives IN Longress, the Ox restoration to the Union. Ratification, thus be- ecutive and Judicial officers ofa State, or the ing obtained, was announced July 28, 1868. New members of the Legislature thereof, 1s denied Jersey, Ohio, and Oregon subsequently rescinded to any of the male inhabitants of such State, their ratification. The revolutionary character of being twenty-one years of age, and citizens of the Fourteenth Amendment justifies its insertion the United States, or in any way abridged, ex-

at this point. The Amendment for the first time cept for participation in rebellion, or other defined citizenship, and for the first time threw crime the basis of representation therein shall the protection of the Federal Government around be reduced in the proportion which the num-

rights that might be invaded by the State b f h le citi hall b h

governments—thus reversing the traditional re- er OF such mate ciizens Sial dear to the lationship. The first section of the Amendment whole number of male citizens twenty-one has given rise to more adjudication than any years of age in such State. other part of the Constitution. There appears to Sec. 3. No person shall be a Senator or be little support to the so-called conspiracy theory Representative in Congress, or elector of that the framers of the amendment del berately President and Vice-President, or hold any phrased the amendment so that it would protect office, civil or military, under the United the property and rights of corporations against States, or under any State, who, having previState legislation. See, B. B. Kendrick, The Jour- ly taken an oath. as a member of Cone nal of the Joint Committee of Fifteen on Recon- OUSIY LAeny Ath Oaths as & Te FOF ONRTESS,

struction; H. E. Flack, The Adoption of the or as an officer of the United States, or as a Fourteenth Amendment; C. Warren, Supreme member of any State legislature, or as an Court, Vol. Il, chs. xxx-xxxii; L. Boudin, Gov- executive or judicial officer of any State, to ernment by Judiciary, Vol. I, chs. xxii, xxxvi; | support the Constitution of the United States, Graham, “The Conspiracy Theory of the Four- — shall have engaged in insurrection or rebellion teenth Amendment,” 47 Yale L. J. 371; Boudin, against the same, or given aid or comfort to Truth and Fiction about the Fourteenth Amend- the enemies thereof. But Congress may by a

ment,” 16 N. Y. U. L. Qt. Rev. F. J. Swayze, f two-thirds “Jud:cial Construction of the19.Fourteenth Amendvote of oFeach ws Hous ° pe, FeMove

ment,” 26 Harv. Law R. 1. such disability. _

Sec. 4. The validity of the public debt of

ArT. XIV. the United States, authorized by law, includ-

Sec. 1. All persons born or naturalized in ing debts incurred for payment of pensions the United States, and subject to the juris- and bounties for services in suppressing indiction thereof, are citizens of the United surrection or rebellion, shall not be quesStates and of the State wherein they reside. tioned. But neither the United States nor any No State shall make or enforce any law which State shall assume or pay any debt or obligashall abridge the privileges or immunities of tion incurred in aid of insurrection or rebelcitizens of the United States; nor shall any lion against the’ United States, or any claim State deprive any person of life, liberty, or for the loss or emancipation of any slave; but property, without due process of law; nor all such debts, obligations and claims shall be deny to any person within its jurisdiction the held illegal and void.

equal protection of the laws. Sec. 5. The Congress shall have power to Sec. 2. Representatives shall be appor- enforce, by appropriate legislation, the protioned among the several States according to _ visions of this article.

52 DOCUMENTS OF AMERICAN HISTORY 273. ACT TO ENFORCE THE FOURTEENTH AMENDMENT April 20, 1871 (U. S. Statutes at Large, Vol. XVII, p. 13 ff.) This so-called Ku Klux Act was the most im- put down, or to destroy by force the govern portant of several Civil Rights Acts designed to ment of the United States, or to levy war

insure for the negro the full benefits of the against the United States, or to oppose by cen fourteenth and fifteenth amendments. to.66 the authority of the government of the imilar acts had been passed May 31, 1870 and United Stat by f ‘ntimidati February 28, 1871. An act designed to secure nite ates, or by force, intimidation, or

social equality for the negro was passed March threat to prevent, hinder, or delay the exe1, 1875 (see Doc. No. 291). In 1876 the Supreme CUtion of any law of the United States, or Court, in U.S. v. Reese, 92 U.S. 214and U.S.v. by force to seize, take, or possess any prop_ Cruikshank, 92 U. S. 542, declared certain sec- erty of the United States contrary to the tions of the Civil Rights Act of May 31, 1870 authority thereof, or by force, intimidation, unconstitutional, and thus anticipated its attitude oy threat to prevent any person from accepttoward the Ku Klux and Civil Rights Acts. In ing or holding any office or trust or place of 1883, in U. S. v. Harris, 106 U. S. 629, the Court = onfidence under the United States, or from held parts of the Act of April 20, 1871 uncon- discharging the duties thereof, or by force 3, it held the Civil Rights Act unconstitutional. intimidation, or threat to induce any officer Efforts to repeal these force acts were not suc- of the United States to leave any State, dis. cessful until the second Cleveland administra- trict, or place where his duties as such officer tion. See, W. W. Davis, “The Federal Enforce- might lawfully be performed, or to injure ment Acts,” in Studies in Southern History and him in his person or property on account of Politics; W. A. Dunning, Essays on the Civit his lawful discharge of the duties of his office, War and Reconstruction, p. 353 ff.; C. Warren, or to injure his person while engaged in the

stitutional; in The Civil Rights Cases,109 U.S. oy. La? ,

The Supreme Court (1928 ed.), Vol. HW, ch. xxxlv, a wy] discharge of the duties of his office,

An Act to enforce the Provisions of the Four- or to injure his property so as to molest, inteenth Amendment to the Constitution of terrupt, hinder, or impede him in the disthe United States, and for other Purposes, charge of his official duty, or by force, in-

Be it enacted ... ,That any person who, timidation, or threat to deter any party or under color of any law, statute, ordinance, witness in any court of the United States from

regulation, custom, or usage of any State, attending such court, or from testifying in shall subject, or cause to be subjected, any any matter pending in such court fully, freely, person within the jurisdiction of the United and truthfully, or to injure any such party or States to the deprivation of any rights, priv- witness in his person or property on account ileges, or immunities secured by the Constitu- of his having so attended or testified, or by tion of the United States, shall, any such law, force, intimidation, or threat to influence the

statute, ordinance, regulation, custom, or verdict, presentment, or indictment, of any usage of the State to the contrary notwith- Juror or grand juror in any court of the standing, be liable to the party injured in any United States, or to injure such juror in his action at law, suit in equity, or other proper person or property on account of any verdict, proceeding for redress; such proceeding to be presentment, or indictment lawfully assented prosecuted in the several district or circuit to by him, or on account of his being or hav-

courts of the United States, with and subject ing been such juror, or shall conspire to-

to the same rights of appeal, review upon _ gether, or go in disguise upon the public higherror, and other remedies provided in like way or upon the premises of another for the cases in such courts, under the provisions of | purpose, either directly or indirectly, of dethe [Civil Rights Act of 1866], and the other priving any person or any class of persons remedial laws of the United States which are of the equal protection of the laws, or of in their nature applicable in such cases. equal privileges or immunities under the laws, Sec. 2. That if two or more persons within or for the purpose of preventing or hindering any State or Territory of the United States the constituted authorities of any State from shal] conspire together to overthrow, or to giving or securing to all persons within such

Act To ENFORCE THE FOURTEENTH AMENDMENT 53 State the equal protection of the laws, or the United States, or of either, or by other shall conspire together for the purpose of in means, as he may deem necessary for the any manner impeding, hindering, obstructing, suppression of such insurrection, domestic or defeating the due course of justice in any violence, or combinations. .. . State or Territory, with intent to deny to any SEc. 4. That whenever in any State or part citizen of the United States the due and equal of a State the unlawful combinations named protection of the laws, or to injure any per- in the preceding section of this act shall be son in his person or his property for lawfully organized and armed, and so numerous and enforcing the right of any person or class of powerful as to be able, by violence, to either persons to the equal protection of the laws, overthrow or set at defiance the constituted or by force, intimidation, or threat to prevent authorities of such State, and of the United any citizen of the United States lawfully en- States within such State, or when the contitled to vote from giving his support or ad- stituted authorities are in complicity with, vocacy in a lawful manner towards or in or shall connive at the unlawful purposes of, favor of the election of any lawfully qualified such powerful and armed combinations; and

person as an elector of President or Vice- whenever, by reason of either or all of the President of the United States, or as a mem- causes aforesaid, the conviction of such ofber of the Congress of the United States, or fenders and the preservation of the public to injure any such citizen in his person or safety shall become in such district impracproperty on account of such support or ad- _ ticable, in every such case such combinations vocacy, each and every person so offending shall be deemed a rebellion against the goyshall be deemed guilty of a high crime, and, ernment of the United States, and during the

upon conviction thereof in any district or continuance of such rebellion, and within circuit court of the United States or district the limits of the district which shall be so or supreme court of any Territory of the under the sway thereof, such limits to be United States having jurisdiction of similar prescribed by proclamation, it shall be lawoffences, shall be punished by a fine not less ful for the President of the United States, than five hundred nor more than five thou- when in his judgment the public safety shall sand dollars, or by imprisonment, with or require it, to suspend the privileges of the without hard labor, as the court may deter- writ of habeas corpus, to the end that such mine, for a period of not less than six months — rebellion may be overthrown: Provided, That

nor more than six years, as the court may all the provisions of the second section of determine, or by both such fine and imprison- [the Habeas Corpus Act of March 3, 1863],

nient as the court shall determine. .. . which relate to the discharge of prisoners Sec. 3. That in all cases where insurrec- other than prisoners of war, and to the pention, domestic violence, unlawful combina- alty for refusing to obey the order of the tions, or conspiracies in any State shall so ob- court, shall be in full force so far as the same

struct or hinder the execution of the laws are applicable to the provisions of this secthereof, and of the United States, as to de- tion: Provided further, That the President prive any portion or class of the people of — shall first have made proclamation, as now such State of any of the rights, privileges, provided by law, commanding such insurgents or immunities, or protection, named in the te disperse: And provided also, That the proConstitution and secured by this act, and the visions of this section shall not be in force

constituted authorities of such State shall after the end of the next regular session of either be unable to protect, or shall, from any Congress.

cause, fail in or refuse protection of the peo- Sec. 5. That no person shall be a grand ple in such rights, such facts shall be deemed oor petit juror in any court of the United a denial by such State of the equal protec- States upon any inquiry, hearing, or trial of tion of the laws to which they are entitled any suit, proceeding, or prosecution based under the Constitution of the United States; upon or arising under the provisions of this and in all such cases . . . it shall be lawful act who shall, in the judgment of the court, for the President, and it shall be his duty to be in complicity with any such combination take such measures, by the employment of or conspiracy; and every such juror shall, the militia or the land and naval forces of before entering upon any such inquiry, hear-

54 DOCUMENTS OF AMERICAN History Ing, or trial, take and subscribe an oath in committed, and having power to prevent or open court that he has never, directly or aid in preventing the same, shall neglect or indirectly, counselled, advised, or voluntarily refuse to do so, and such wrongful act shall

aided any such combination or con- be committed. such person or persons shall

spiracy. ... be liable to the person injured ... for all . SEC. 6. That any person or persons, hav- damages caused by any such wrongful act ing knowledge that any of the wrongs con- which such first-named person or persons

spired to be done and mentioned in the by reasonable diligence could have presecond section of this act are about to be vented.... 274. THE DEMOCRATIC PLATFORM OF 1868 July 4, 1868 (K. Porter, ed. National Party Platforms, p. 64 ff.) Reconstruction and the money question were of the government and the preservation of De Principal cates OF the aba sn Oreo oe the Union under the Constitution, it has rein July 1868 and adopted a platform incorporat. peatedly “io.ated that most sacred pledge, ing Pendleton’s “Ohio idea” on money, but under which alone was rallied that noble volnominated for the Presidency Horatio Seymour unteer army which carried our flag to vicof New York, a hard money man. The second tory. place on the ticket went to Frank Blair of Mis- Instead of restoring the Union, it has, so souri. Seymour polled 2,709,000 votes, but se- far as in its power, dissolved it, and subcured only 80 votes in the electoral college. Only jected ten States, in time of profound peace,

the money and reconstruction planks of the to military despotism and negro supremacy. platform are given. Sec, C. H. Coleman, The It has nulliied there the right of trial by

meen whi ain Mh asin ie ‘ oe jury; it has abolished the habeas corpus, that

es , cor" most sacred writ of liberty; it has over-

xii.

thrown the freedom of speech and of the . . . 3. Payment of the public debt of the press; it has substituted arbitrary seizures United States as rapidiy as practicable. All and arrests, and military trials and secret moneys drawn from the people by taxa- star-chamber inquisitions, for the constitution, except so much as is requisite for the tional tribunals; it has disregarded in time necessities of the government, economically of peace the right of the people to be free administered, being honestly applied to such from searches and seizures; it has entered payment, and where the obligations of the the post and telegraph offices, and even the government do not expressly state upon their private rooms of individuals, and seized their face, or the law under which they were is- private papers and letters without any specific

sued does not provide, that they shall be charge or notice of affidavit, as required by paid in coin, they ought, in right and in _ the organic law; it has converted the Amerijustice, to be paid in the lawful money of can capitol into a Bastile; it has established

the United States. ... a system of spies and official espionage to 5. One currency for the government and which no constitutional monarchy of Europe the people, the laborer and the office-holder, would now dare to resort; it has abolished the pensioner and the soldier, the producer the right of appeal, on important constitu-

and the bond-holder.... tional questions, to the Supreme Judicial

8... . In demanding these measures and tribunal, and threatens to curtail, or destroy, reforms we arraign the Radical party for its its original jurisdiction, which is irrevocably disregard of right, and the unparalleled op- vested by the Constitution: while the learned pression and tyranny which have marked its Chief Justice has been subjected to the most

career. atrocious calumnies, merely because he would

After the most solemn and unanimous not prostitute his high office to the support pledge of both Houses of Congress to prose- of the false and partisan charges preferred cute the war exclusively for the maintenance against the President. Its corruption and ex-

RECOMMENDATION FOR REVALUATION OF DEBT 55 travagance have exceeded anything known in _ regulated, and controlled exclusively by the

history, and by its frauds and monopolies it political power of each State respectively, has nearly doubled the burden of the debt and that any attempt by congress, on any created by the war; it has stripped the Presi- pretext whatever, to deprive any State of dent of his constitutional power of appoint- this right, or interfere with its exercise, Is a ment, even of his own Cabinet. Under its flagrant usurpation of power, which can find repeated assaults the pillars of the govern- no warrant in the Constitution; and if sancment are rocking on their base. and should — tioned by the people will subvert our form of

it succeed in November next and inaugurate government, and can only end in a single its President, we will mect, as a subjected centralized and consolidated government, in

and conquered people, amid the ruins of which the separate existence of the States liberty and the scattered fragments of the will be entirely absorbed, and an unqualified

Constitution. despotism be established in place of a federal And we do declare and resolve, That ever union of co-equal States; and that we regard since the peop'e of the United States threw the reconstruction acts so-called, of Conoff all subjection’ to the British crown, the gress, as such an usurpation, and unconstituprivilege and trust of suffrage have belonged tional, revolutionary, and void... . to the several States, and have been granted,

275. PRESIDENT JOHNSON’S RECOMMENDATION FOR THE REVALUATION OF THE PUBLIC DEBT Extract from Iourth Annual Message to Congress. December 9, 1868 (Richardson, ed. Messages and Papers, Vol. VI, p. 677) President Johnson’s biographers have largely ig- contribute large sums for their support. The nored his financial ideas and policies. The.e is a idea that such a debt is to become permanent brief discussion in H. Beale, The Critical Year, should be at all times discarded as involving

ch. x. taxation too heavy to be borne, and payment

... In my message to Congress December once in every sixteen years, at the present 4 1865, it was suggested that a policy should rate of interest, of an amount equal to the be devised which, without being oppressive orig:nal sum. This vast debt, if permitted to to the people, would at once begin to effect become permanent and increasing, must evena reduction of the debt, and, if persisted in, tually be gathered into the hands of a few, discharge it fully within a definite number and enable them to exert a dangerous and of years. The Secretary of the Treasury forci- controlling power in the affairs of the Govbly recommends legislation of th:s character, ernment. The borrowers would become serv-

and justly urges that the longer it is de- ants to the lenders, the lenders the masters ferred the more difficult must become its of the people. We now pride ourselves upon accomplishment. We should follow the wise having given freedom to 4,000,000 of the precedents established in 1789 and 1816, and colored race; it will then be our shame that without further delay make provision for the 40,000,000 of people, by their own toleration payment of our obligations at as early a of usurpation and profligacy, have suffered period as may be practicable. The fruits of | themselves to become ensiaved, and merely their labors should be enjoyed hy our citi- exchanged s'ave owners for new taskmasters zens rather than used to build up and sustain in the shape of bondholders and taxgatherers. moneyecdl monopolies in our own and other Besides, permanent debts pertain to molands. Our foreign debt is already computed narchical governments, and, tending to moby the Secretary of the Treasury at $850,- nopolies, perpetuities, and class legislation, 000,000; citizens of foreign countries receive are totally irreconcilable with free instituinterest upon a large portion of our securi- tions. Introduced into our republican system,

ties, and American taxpayers are made to’ they would gradually but surely sap its

56 DOCUMENTS OF AMERICAN History foundations, eventually subvert our govern- they are exempt from taxation by the Govmental fabric, and erect upon its ruins a ernment and the States, and thereby enhanced moneyed aristocracy. It is our sacred duty 2 per cent in the hands of the holders. We to transmit unimpaired to our posterity the thus have an aggregate of 17 per cent which blessings of liberty which were bequeathed may be received upon each dollar by the to us by the founders of the Republic, and owners of Government securities. A system by our example teach those who are to follow that produces such results is justly regarded

us carefully to avoid the dangers which ag favoring a few at the expense of the threaten a free and independent people. many, and has led to the further inquiry

Various plans have been proposed for the whether our bondholders, in view of the payment of the public debt. However they large profits which they have enjoyed, would may have varied as to the time and mode in themselves be averse to a settlement of our which it should be redeemed, there seems to indebtedness upon a plan which would yield be a general concurrence as to the propriety them a fair remuneration and at the same

and justness of a reduction in the present time be just to the taxpayers of the nation. rate of interest. The Secretary of the Treas- Our national credit should be sacredly obury in his report recommends 5 per cent; served, but in making provision for our crediCongress, in a bill passed prior to adjourn- tors we should not forget what is due to the ment on the 27th of July last, agreed upon masses of the people. It may be assumed 4 and 4/2 per cent; while by many 3 per cent _ that the holders of our securities have already

has been held to be an amply sufficient re- received upon their bonds a larger amount turn for the investment. The general impres- than their original investment, measured by sion as to the exorbitancy of the existing a gold standard. Upon this statement of facts rate of interest has led to an inquiry in the it would seem but just and equitable that the public mind respecting the consideration 6 per cent interest now paid by the Govwhich the Government has actually received ernment should be applied to the reduction for its bonds, and the conclusion is becoming of the principal in semi-annual installments, prevalent that the amount which it obtained which in sixteen years and eight months would

was in real money three or four hundred per _ liquidate the entire national debt. Six per cent less than the obligations which it issued cent in gold would at present rates be equal in return. It can not be denied that we are to 9 per cent in currency, and equivalent to paying an extravagant percentage for the use the payment of the debt one and a half times of the money borrowed, which was paper in a fraction less than seventeen years. This, currency, greatly depreciated below the value in connection with all the other advantages of coin. This fact is made apparent when we derived from their investment, would afford

consider that bondholders receive from the to the public creditors. a fair and liberal Treasury upon each dollar they own in Gov- compensation for the use of their capital, and ernment securities 6 per cent in gold, which with this they should be satisfied. The lessons

is nearly or quite equal to 9 per cent in of the past admonish the lender that it is not currency; that the bonds are then converted well to be over-anxlous in exacting from the into capital for the national banks, upon _ borrower rigid compliance with the letter of

which those institutions issue their circula- the bond... . tion, bearing 6 per cent interest; and that

276. GRANT’S FIRST INAUGURAL ADDRESS March 4, 1869 (Richardson, ed. Messages and Addresses, Vol. VII, p. 6 ff.) On the election of 1868, see C. H. Coleman, Badeau, Grant in Peace; L. A. Coolidge, U. S.

The Election 1868; for theHistory, Grant asta Grant, xxx ff. . F.ofRhodes, Vol.ch.VII an

.

forthcoming studies by W. B. Hesseltine and ‘by Citizens of the U nited States:

A. Nevins; on Grant after Appomattox, see A. Your suffrages having elected me to the

GrRANT’S First INAUGURAL ADDRESS 57 office of President of the United States, I unless otherwise expressly stipulated in the have, in conformity to the Constitution of contract. Let it be understood that no reour country, taken the oath of office pre- pudiator of one farthing of our public debt scribed therein. I have taken this oath with- will be trusted in public place, and it will go out mental reservation and with the deter- far toward strengthening a credit which ought

mination to do to the best of my ability all to be the best in the world, and will ultithat is required of me. The responsibilities of mately enable us to replace the debt with the position I feel, but accept them without bonds bearing less interest than we now pay. fear. The office has come to me unsought; I To this should be added a faithful collection commence its duties untrammeled. I bring to of the revenue, a strict accountability to the it a conscious desire and determination to Treasury for every dollar collected, and the fill it to the best of my ability to the satis- greatest practicable retrenchment in expendi-

faction of the people. ture in every department of Government.

On all leading questions agitating the pub- When we compare the paying capacity of lic mind I will always express my views to the country now, with the ten States in pov-

Congress and urge them according to my erty from the effects of war, but soon to judgment, and when I think it advisable will emerge, I trust, into greater prosperity than exercise the constitutional privilege of in- ever before, with its paying capacity twenty. terposing a veto to defeat measures which five years ago, and calculate what it probably I oppose; but all laws will be faithfully exe- will be twenty-five years hence, who can cuted, whether they meet my .approval or doubt the feasibility of paying every dollar

not. then with more ease than we now pay for I shall on all subjects have a policy to useless luxuries? Why, it looks as though recommend, but none to enforce against the Providence had bestowed upon us a strong will of the people. Laws are to govern all box in the precious metals locked up in the alike—those opposed as well as those who _ sterile mountains of the far West, and which favor them. I know no method to secure the we are now forging the key to unlock, to repeal of bad or obnoxious laws so effective meet the very contingency that is now upon

as their stringent execution. us.

The country having just emerged from a Ultimately it may be necessary to insure great rebellion, many questions will come be- the facilities to reach these riches, and it fore it for settlement in the next four years may be necessary also that the General Govwhich preceding Administrations have never ernment should give its aid to secure this had to deal with. In meeting these it is de- access; but that should only be when a dollar

sirable that they should be approached of obligation to pay secures precisely the calmly, without prejudice, hate, or sectional same sort of dollar to use now, and not bepride, remembering that the greatest good to fore. Whilst the question of specie payments

the greatest number is the object to be’ is in abeyance the prudent business man is

attained. careful about contracting debts payable in This requires security of person, property, the distant future. The nation should follow and free religious and political opinion in the same rule. A prostrate commerce is to be every part of our common country, without rebuilt and all industries encouraged. regard to local prejudice. All laws to secure The young men of the country—those who these ends will receive my best efforts for from their age must be its rulers twenty-five

their enforcement. years hence—have a peculiar interest in } A great debt has been contracted in se- maintaining the national honor. A moment’s curing to us and our posterity the Union. _ reflection as to what will be our commanding The payment of this, principal and interest, influence among the nations of the earth in as well as the return to a specie basis as soon — their day, if they are only true to themselves,

as it can be accomplished without material should inspire them with national pride. All detriment to the debtor class or to the coun- divisions—geographical, political, and retry at large, must be provided for. To protect lgious—can join in this common sentiment. the national honor, every dollar of Govern- How the public debt is to be paid or specie ment indebtedness should be paid in gold, payments resumed is not so important as

58 DocUMENTS oF AMERICAN History that a plan should be adopted and acquiesced me very desirable that this question should im. A united determination to do is worth _ be settled now, and I entertain the hope and more than divided counsels upon the method express the desire that it may be by the of doing. Legislation upon this subject may ratification of the fifteenth article of amendnot be necessary now, nor even advisable, ment to the Constitution. but it will be when the civil law is more fully In conclusion I ask patient forbearance restored in all parts of the country and trade one toward another throughout the land, and

resumes its wonted channels... . a determined effort on the part of every citiThe question of suffrage is ene which is zen to do his share toward cementing a happy likely to agitate the public so long as a por- union: and I ask the prayers of the nation lion of the citizens of the nation are excluded to Almighty God in behalf of this consumfrom its privileges in any State. It seems to mation.

277. VEAZIE BANK v. FENNO 8 Wallace, 533 1869

Certificate from the US. circuit court for the experienced by courts when called upon to district of Maine. This case involved the con- determine their meaning... . 6g neaty of the act a Congress 0" J uy A Much diversity of opinion has always pre-

noe imPosi g a tax of ten per cent on state vailed upon the question, what are direct

" taxesy Attempts to answer it by reference

Cuase, C. J.... It will be seen that to the definitions of political economists have

when the policy of taxing bank circulation been frequently made, but without satisfacwas first adopted in 1863, Congress was in- tory results. The enumeration of the differclined to discriminate for, rather than against, ent kinds of taxes which Congress was authe circulation of the State banks; but that thorized to impose was probably made with when the country had been sufficiently fur- very little reference to this question. The nished with a national currency by the issues great work of Adam Smith, the first compreot United States notes and of National bank hensive treatise on political economy in the notes, the discrimination was turned, and very English language, had then been recently pub-

decidedly turned, in the opposite direction. lished; but in this work, though there are The general question now before us is, passages which refer to the characteristic difwhether or not the tax of ten per cent., im- ference between direct and indirect taxation, posed on State banks ...is repugnant to there is nothing which affords any valuable the Constitution of the United States. light on the use of the words “direct taxes” In support of the position that the act of in the Constitution. Congress, so far as it provides for the levy We are obliged, therefore, to resort to hisand collection of this tax, is repugnant to torical evidence, and to seek the meaning of the Constitution, two propositions have been words in the use and in the opinion of those argued with much force and earnestness. whose relations to the government, and means The first is that the tax in question is a of knowledge, warranted them in speaking

direct tax, and has not been apportioned with authority.

among the States agreeably to the Constitu- And, considered in this light, the meaning

tion, and application of the rule, as to direct taxes,

The second is that the act imposing the appears to us quite clear. tax impairs a franchise granted by the State, It is, as we think, distinctly shown in every and that Congress has no power to pass any’ act of Congress on the subject... .

Jaw with that intent or effect... . This review shows that personal property, The difficulty of de‘tining with accuracy the contracts, occupations, and the like, have terms used in the clause of the Constitution never been regarded by Congress as proper

which confers the powers of taxation upon subjects of direct tax... . Congress, was felt in the Convention which It may rightly be affirmed, therefore, that framed that instrument, and has always been _ in the practical construction of the Constitu-

TEXAS V. WHITE 59 tion by Congress, direct taxes have been stitution the power to provide a circulation limited to taxes on land and appurtenances, of coin is given to Congress. And it is setand taxes on polls or capitation taxes. tled by the uniform practice of the governAnd this construction is entitled to great ment and by repeated decisions, that Conconsideration especially in the absence of gress may constitutionally authorize the anything adverse to it in the discussions of emission of bills of credit. It is not important

the Convention which framed, and of the here, to decide whether the quality of legal conventions which ratified, the Constitu- tender, in payment of debts, can be constt-

tion... . . tutionally imparted to these bills; it is enough

It follows necessarily that the power to tax to say, that there can be no question of the without apportionment extends to all other power of the government to emit them, to objects. Taxes on other objects are included make them receivable in payment of debts under the heads of taxes not direct, duties, to itself; to fit them for use by those who imposts, and excises, and must be laid and _ see fit to use them in all the transactions of collected by the rule of uniformity. The tax commerce; to provide for their redemption ; under consideration is a tax on bank circu- tc make them a currency, uniform in value lation, and may very well be classed under and description, and convenient and useful the head of duties. Certainly it is not, in the for circulation. These powers, until recently, sense of the Constitution, a direct tax. It were only partially and occasionally exermay be said to come within the same cate- cised. Lately, however, Congress has under-

gory of taxation as the tax on incomes of taken to supply a currency for the entire

insurance companies, ... country. ...

It is insisted, however, that the tax in the Having thus, in the exercise of undisputed

case before us is excessive, and so excessive constitutional powers, undertaken to provide as to indicate a purpose on the part of Con- a currency for the whole country, it cannot

gress to destroy the franchise of the bank, be questioned that Congress may, constiand is, therefore, beyond the constitutional tutionally, secure the benefit of it to the

power of Congress. people by appropriate legislation. To this

The first answer to this is that the judicial end, Congress has denied the quality of legal cannot prescribe to the Icgislative depart- tender to foreign coins, and has provided by ments of the government limitations upon law against the imposition of counterfeit and the exercise of its acknowledged powers. The base coin on the community. To the same - power to tax may be exercised oppressively end, Congress may restrain, by suitable enupon persons, but the responsibility of the actments, the circulation as money of any legislature is not to the courts, but to the notes not issued under its own authority. people by whom its members are elected. Without this power, indeed, its attempts to So if a particular tax bears heavily upon a_ secure a sound and uniform currency for the corporation, or a class of corporations, it country must be futile. cannot, for that reason only, be pronounced Viewed in this light, as well as in the other

contrary to the Constitution. light of a duty on contracts or property, we But there is another answer which vindi- cannot doubt the constitutionality of the tax cates equally the wisdom and power of Con- under consideration... .

gress. Netson, J., delivered a dissenting opinion It cannot be doubted that under the Con- in which Davis, J., concurred.

| 278. TEXAS v. WHITE 7 Wallace, 700 1869

Suit by Texas in the Supreme Court of the ernment of Texas brought suit to enjoin the United States. During the Civil War the govern- de‘endants from receiving payment on_ these ment of Texas disposed of some United States bonds, on the ground that the State government bonds, in payment of supplies for the Con- of the Confederacy was not a legal government federate government. The Reconstruction gov- and therefore the clisposition of the bonds was

60 DOCUMENTS OF AMERICAN History illegal. This celebrated case is the leading case State was represented in the Congress of the

on the question of the theory of secession and United States by her senators and repreof reconstruction. See, Warren, The Supreme sentatives, and her relations as a member of rout (1928 ed.), Vol. I, p. 488 ff.; D unn’n& the Union remained unimpaired. In that year

ssays the Civil and Reconstruction, . iya ch. ih. on acting upon War the theory that the rights;of State under the Constitution might be re-

Cuase, C. J. ... The first inquiries to nounced, and her obligations thrown off at which our attention was directed by counsel pleasure, Texas undertook to sever the bond

arose upon the allegations... that the thus formed, and to break up her constituState, having severed her relations with a tional relations with the United States... . majority of the States of the Union, and The position thus assumed could only be having by her ordinance of secession at- maintained by arms, and Texas accordingly

tempted to throw off her allegiance to the took part, with the other Confederate States, Constitution, and the government of the in the war of rebellion, which these events United States, has so far changed her status made inevitable. During the whole of that as to be disabled from prosecuting suits in war there was no governor, or judge, or any

the National courts... . other state oflicer in Texas, who recognized

... It 1s not to be questioned that this the National authority. Nor was any officer court has original jurisdiction of suits by of the United States permitted to exercise

States against citizens of other States, or that any authority whatever under the National the States entitled to invoke this jurisdiction government within the limits of the State, must be States of the Union. But it is equally cxcept under the immediate protection of the clear that no such jurisdiction has been con- National military forces. ferred upon this court of suits by any other Did Texas, in consequence of these acts,

political communities than such States. cease to be a State? Or, if not, did the State If, therefore, it is true that the State of cease to be a member of the Union? Texas was not at the time of filing this bill, It is needless to discuss at length the quesor is not now, one of the United States, we tion whether the right of a State to withdraw have no jurisdiction of this suit, and it is our from the Union for any cause, regarded by

duty to dismiss it. ... ilself as sufficient, is consistent with the Con-

In the Constitution the term “State” most stitution of the United States. frequently expresses the combined idea just The Union of the States was never a purely noticed, of people, territory, and government. artificial and arbitrary relation. It began

A State, in the ardinary sense of the Consti- among the Colonies, and grew out of common tution, is a political community of free citi- origin, mutual sympathies, kindred principles, zens, occupying a territory of defined bound- similar interests, and geographical relations.

aries and organized under a government It was confirmed and strengthened by the sanctioned and limited by a written constitu- necessities of war, and received definite form, tion, and established by the consent of the and character, and sanction from the Articles

governed. It is the union of such States, un- of Confederation. By these the Union was der a common constitution, which forms the solemnly declared to be “perpetual.” And distinct and greater political unit, which the when these Articles were found to be inadeConstitution designates as the United States, quate to the exigencies of the country, the and makes of the people and States which Constitution was ordained “to form a more compose it one people and one country. ... perfect Union.” It is difficult to convey the The Republic of Texas was admitted into idea of indissoluble unity more clearly than the Union, as a State, on the 27th of Decem- by these words. What can be indissoluble if

ber, 1845. By this act the new State, and a perpetual Union made more perfect, is

the people of the new State, were invested not? . _ _

with all the rights, and became subject to all But the perpetuity and indissolubility of the responsibilities and duties of the original the Union by no means implies the loss of

States under the Constitution. distinct and individual existence, or of the From the date of admission until 1861 the right of self-government by the States. Un-

| Texas Vv. WHITE 61 der the Articles of Confederation each State remained perfect and unimpaired. It cerretained its sovereignty, freedom, and inde- tainly follows that the State did not cease pendence, and every power, jurisdiction, and te be a State, nor her citizens to be citizens right not expressly delegated to the United of the Union. If this were otherwise, the States. Under the Constitution, though the State must have become foreign, and her powers of the States were much restricted, citizens foreigners. The war must have bestill, all powers not delegated to the United come a war for conquest and subjugation.

States, nor prohibited to the States, are re- Our conclusion therefore is, that Texas served to the States, respectively, or to the continued to be a State, and a State of the people. And we have already had occasion Union, notwithstanding the transactions to to remark at this term, that “the people of | which we have referred. each State compose a State, having its own But in order to the exercise by a State, government, and endowed with all the func- of the right to sue in this court, there needs tions essential to separate and independent to be a state government, competent to repexistence,” and that “without the States in resent the State in its relations with the Naunion, there could be no such political body tional government, so far at least as the as the United States.” Not only, therefore, institution and prosecution of a suit is concan there be no loss of separate and inde- cerned. pendent autonomy to the States, through their And it is by no means a logical conclusion, union under the Constitution, but it may be from the premises which we have endeavored not unreasonably said that the preservation to establish, that the governmental relations

of the States, and the maintenance of their of Texas to the Union remained unaltered. governments, are as much within the design ... No one has been bold enough to contend and care of the Constitution as the preser- that, while Texas was controlled by a governvation of the Union and the maintenance of ment hostile to the United States, and in the National government. The Constitution, affiliation with a hostile confederation, wagin all its provisions, looks to an indestructible ing war upon the United States, senators Union, composed of indestructible States. chosen by her legislature, or representatives When, therefore, Texas became one of the _ elected by her citizens, were entitled to seats United States, she entered into an indissolu- in Congress, or that any suit, instituted in ble relation. All the obligations of perpetual her name, could be entertained in this court. union, and all the guaranties of republican All admit that, during this condition of civil government in the Union, attached at once war, the rights of the State as a member, and to the State. The act which consummated of her people as citizens of the Union, were her admission into the Union was something suspended. The government and the citizens more than a compact; it was the incorpora- of the State, refusing to recognize their contion of a new member into the political body. — stitutional obligations, assumed the character And it was final. The union between Texas of enemies, and incurred the consequences’ of and the other States was as complete, as per- rebellion.

petual, and as indissoluble as the union be- These new relations imposed new duties tween the original States. There was no place upon the United States. The first was that of

for reconsideration or revocation except suppressing the rebellion. The next was that through revolution, or through consent of the of re-establishing the broken relations of the

States. State with the Union. The first of these duties

Considered therefore as transactions under having been performed, the next necessarily the Constitution, the ordinance of secession, engaged the attention of the National govadopted by the convention and ratified by a ernment. majority of the citizens of Texas, and all the The authority for the performance of the acts of her legislature intended to give effect first had been found in the power to suppress to that ordinance, were absolutely void. They insurrection and carry on war; for the perwere utterly without operation in law. The formance of the second, authority was deobligations of the State, as a member of the _ rived from the obligation of the United States

Union, and of every citizen of the State, to guarantee to every State in the Union a

62 DOCUMENTS OF AMERICAN History republican form of government. The latter, The action of the President must, thereindeed, in the case of a rebellion which in- fore, be considered as provisional, and in volves the government of a State, and for that light it seems to have been regarded by the time excludes the National authority from Congress. It was taken after the term of the its limits, seems to be a necessary comple- 38th Congress had expired. The 39th Con-

ment to the former. gress, which assembled in December, 1865, Of this the case of Texas furnishes a strik- followed by the 40th Congress, which met in ing illustration. When the war closed there March, 1867. proceeded, after long deliberawas no government in the State except that tion, to adopt various measures for reorganiwhich had been organized for the purpose of zation and restoration. These measures were waging war against the United States. That embodied in proposed amendments to the

government immediately disappeared. ... Constitution, and in the acts known as the There being no government in Texas in Reconstruction Acts, which have been so far constitutional relations with the Union, it be- carried into effect, that a majority of the came the duty of the United States to pro- States which were engaged in the rebellion vide for the restoration of such a govern- have been restored to their constitutional re-

ment. ... lations, under forms of government, adjudged It is not important to review, at length, to be republican by Congress. through the

the measures which have been taken under admission of their “Senators and Representathis power, by the executive and legislative tives into the councils of the Union.” departments of the National government. It Nothing in the case before us requires the is proper, however, to observe the almost court to pronounce judgment upon the con-

immediately after the cessation of organized stitutionality of any particular provision of . hostilities, and while the war yet smou'dered these acts... . in Texas, the President of the United States What has thus been said generally deissued his proclamation appo:nting a provi- scribes, with sufficient accuracy, the situation sional governor for the State, and providing of Texas. A provisional governor of the State for the assembling of a convention, with a was appointed by the President in 1865; in view to the re-establishment of a republican 1866 a governor was elected by the people

government, under an amended constilution, under the constitution of that year; at a and to the restoration of the State to her subsequent date a governor was appointed by proper constitutional relations. A convention the commander of the district. Each of the was accordingly assembled, the constitution three exercised executive functions and acamended, elections held, and a state govern- tually represented the State in the executive ment, acknowledging its obligations to the department.

Union, established. In the case before us each has given his

Whether the action thus taken was, in all sanction to the prosecution of the suit, and respects, warranted by the Constitution, it is we find no difficulty, without investigating not now necessary to determine. The power the legal title of either to the executive ofexercised by the President was supposed, fice, in holding that the sanction thus given doubtless, to be derived from his constitu- sufficiently warranted the action of the sotional functions as commander-in-chief; and, licitor and counsel in behalf of the State. so long as the war continued, it cannot be ‘The necessary conclusion is that the suit was

denied that he might institute temporary instituted and is prosecuted by competent government within insurgent districts, occu- authority... . pied by the National forces, or take meas- [The court then considered the validity of ures, in any State, for the restoration of state the acts of the state government during the government faithful to the Union, employing, period of secession and held the transfer of however, in such efforts, only such means and _ the bonds by that government void. ]

agents as were authorized by constitutional It follows that the title of the State was

laws. not divested by the act of the insurgent govBut the power to carry into effect the ernment in entering into this contract... .

clause of the guaranty is primarily a legisla- On the whole case, therefore, our conclu-

tive power, and resides in Congress. ... sion is that the State of Texas is entitled to

THE ANNEXATION OF SANTO DOMINGO 63 the relief sought by her bill, and a decree which Justices Swayne and MILLER con-

must be made accordingly. curred. Grier, J., delivered a dissenting op:nion in

279. GRANT’S APPEAL FOR THE ANNEXATION OF SANTO DOMINGO

° May 31, 1870

(Richardson, ed. Messages and Papers, Vol. VII, p. 61 ff.) Grant, who was anxious to secure the annexa- settlement of their claims; and, finally, to tion of the Dominican Republic, sent his secre- jnsert such amendments as may suggest them-

tary Babcock to Santo Domingo to survey the selves to the minds of Senators to carry out situation; Babcock returned with a treaty of in pood faith the conditions of the treaty sub-

annexation. Grant submitted thisofirregular docu; ; in ; ; his a _ mitted toonly the Senate the United States ment to Cabinet to meet unanimous . , ere , opposition. A more formal treaty was then January last, according to the spirit and indrawn up and submitted to the Senate January tent of that treaty. From the most reliable 10, 1870; on the 15th of March the Committee information I can obtain, the sum specified in on Foreign Relations reported adversely on ratifi- the treaty will pay every just claim against

cation and Sumner delivered his famous “Na- the Republic of San Domingo and leave a both’s Vineyard” speech, which cost him the balance sufficient to carry on a Territorial Chairmanship of the Foreign Relations Com- government until such time as new laws for miltee. For h.s opposition to the Treaty, Altor- providing a Territorial revenue can be en-

ney General E. R. Hoar was forced to resign.

See, S. F. Bemis, ed. American Secretaries of acted and put in force. -

State, Vol. VII, p. 147 ff.; E. L. Pierce, Memoir I feel an unusual anxiety for the ratiticaand Letters of Charles Sumner, Vol. IV, 425 ff.; on of th-s treaty, because I believe it will A. Nevins, Hamilton Fish and the Grant Adminis- redound greatly to the glory of the two coun-

tration. tries interested, to civilization, and to the extirpation of the institution of slavery.

The doctrine promulgated by President EXECUTIVE Mansion, May 31, 1870. Monroe has been adhered to by all political

To the Senate of the United States: parties, and I now deem it proper to assert I transmit to the Senate, for consideration the equally important principle that hereafter

with a view to its ratification, an additional no territory on this continent shall be rearticle to the treaty of the 29th of November garded as subject of transfer to a European last, for the annexation of the Dominican power. Republic to the United States, stipulating The Government of San Domingo has volfor an extension of the time for exchanging untarily sought this annexation. It is a weak the ratifications thereof, signed in this city on power, numbering probably less than 120,000

the 14th instant by the plenipotentiaries of souls, and yet possessing one of the richest

the parties. territories under the sun, capable of supportIt was my intention to have also negotiated ing a population of 10,000,000 people in lux-

with the plenipolentiary of San Domingo ury. The people of San Dominzo are not caamendments to the treaty of annexation to pable of maintaining themselves in their obviate objections which may be urged present condition, and must look for outside npainst the treaty as it Is now worded; but on — support.

reflection I deem it better to submit to the They yearn for the protection of our free Senate the propriety of their amending the institutions and laws, our progress and civtreaty as follows: First, to specify that the ilization. Shall we refuse them? obligations of this Government shall not ex- I have information which I believe reliable ceed the $1,500,000 stipulated in the treaty; that a European power stands ready now to secondly, to determine the manner of ap- o‘fer $2,000,000 for the possession of Samana! pointing the agents to receive and disburse Bay alone. If refused by us, with what grace

the same; thirdly, to determine the class of can we prevent a foreign power from atcreditors who shall take precedence in the tempting to secure the prize?

64 DOCUMENTS OF AMERICAN History The acquisition of San Domingo is desira- machinery will make it necessary that the ble because of its geographical position. It contiguous islands should have the same adcommands the entrance to the Caribbean Sea vantages in order to compete in the producand the Isthmus transit of commerce. It pos- tion of sugar, coffee, tobacco, tropical fruits, sesses the richest soil, best and most capa- etc. This will open to us a still wider market cious harbors, most salubrious climate, and for our products.

the most valuable products of the forest, The production of our own supply of these mine, and soil of any of the West India Is- articles will cut off more than one hundred lands. Its possession by us will in a few years millions of our annual imports, besides build up a coastwise commerce of immense _ largely increasing our exports. With such a magnitude, which will go far toward restor- picture it is easy to see how our large debt ing to us our lost merchant marine. It will abroad is ultimately to be extinguished. With give to us those articles which we consume a balance of trade against us (including inso largely and do not produce, thus equalizing _ terest on bonds held by foreigners and money

our exports and imports. spent by our citizens traveling in foreign

- In case of foreign war it will give us com- lands) equal to the entire yield of the precious mand of all the islands referred to, and thus _ metals in this country, it is not so easy to see prevent an enemy from ever again possessing how this result is to be otherwise accom-

himself of rendezvous upon our very coast. plished. At present our coast trade between the The acquisition of San Domingo is an ad-

States bordering on the Atlantic and those erence to the “Monroe doctrine;” it is a bordering on the Gulf of Mexico is cut into measure of national protection; it is asserting by the Bahamas and the Antilles. Twice we our just claim to a controlling influence over must, as it were, pass through foreign coun- the great commercial traffic soon to flow from

tries to get by sea from Georgia to the west east to west by the way of the Isthmus of

coast of Florida. Darien; it is to build up our merchant ma-

San Domingo, witha stable government, un- rine; it is to furnish new markets for the der which her immense resources can be de- products of our farms, shops, and manufacveloped, will give remunerative wages to tens tories; it is to make slavery insupportable

of thousands of laborers not now on the is- in Cuba and Porto Rico at once and ulti-

land. mately so in Brazil; it is to settle the un-

This labor will take advantage of every happy condition of Cuba, and end an exteravailable means of transportation to abandon minating conflict; it is to provide honest the adjacent islands and seek the blessings of means of paying our honest debts, without freedom and its sequence—each inhabitant overtaxing the people; it is to furnish our receiving the reward of his own labor. Porto citizens with the necessaries of everyday life Rico and Cuba will have to abolish slavery, at cheaper rates than ever before; and it is, as a measure of self-preservation to retain in fine, a rapid stride toward that greatness

their laborers. which the intelligence, industry, and enter-

San Domingo will become a large con- prise of the citizens of the United States ensumer of the products of Northern farms and title this country to assume among nations.

manufactories. The cheap rate at which her U. S. GRANT. citizens can be furnished with food, tools, and

280. THE LEGAL TENDER CASES _. 12 Wallace, 457 1871

These were two cases involving the constitu- of Massachusetts. In the case of Hepburn v. Gristionality of the legal tender acts of 1862 and wold, 8 Wallace 603, the Court, which then con— 1863. The first case, Knox v. Lee, came on a __ sisted of only eight judges, held the legal tender

writ of error from the Western District of acts of 1862 and 1863 unconstitutional by a Texas; the second, Parker v. Davis, came on a vote of five to three. Shortly before this dewrit of error to the Supreme Judicial Court cision was announced Justice Grier resigned,

THe LEGAL TENDER CASES 65 There were therefore two vacancies on the Nor can it be questioned that, when inCourt, and President Grant promptly filled them _vestigating the nature and extent of the

by the appointment of J. P. Bradley and powers conferred by the Constitution upon W. Strong. Both of these justices maintained the Congress, it is indispensable to keep in view

constitutionality of the legal tender acts, Justice the objects for which those powers were the Legal Tender Cases. It was at the time freely granted. This 1S the universal rule of concharged that President Grant had packed the struction applied alike to statutes, wills, conCourt. On the Legal Tender Cases see C. War- tracts, and constitutions. If the general purren, Supreme Court, 1928 ed., Vol. II, ch. xxxi; pose of the instrument is ascertained, the H. L. Carson, The Supreme Court, p. 442 ff.; language of its provisions must be construed L. Boudin, Government by Judiciary, Vol. Il, with reference to that purpose and so as to ch. xxv; G. Bancroft, A Plea for the Constitu- subserve it. In no other way can the intent tion of the United States Wounded in the of the framers of the instrument be discovHouse of its Guardians; G. F. Hoar, The Charge d. And there are more urgent reasons for

Strong delivering the opinion of the Court in Loe ,

of Packing the Court Against President Grant oo pent _

and Attorney-General Hoar; E. J. James, The ooking to the ultimate purpose in examining

Legal Tender Decisions. the powers conferred by a constitution than

there are in construing a statute, a will, or a

Stronc, J., The controlling questions in contract. We do not expect to find in a conthese cases are the following: Are the acts of — stitution minute details. It is necessarily brief

Congress, known as the legal tender acts, and comprehensive. It prescribes outlines, constitutional when applied to contracts leaving the filling up to be deduced from the made before their passage; and, secondly, outlines... . Are they valid as applicable to debts con- If these are correct principles, if they are tracted since their enactment? ... It would proper views of the manner in which the be difficult to overestimate the consequences Constitution is to be understood, the powers which must follow our decision. They will conferred upon Congress must be regarded affect the entire business of the country, and as related to each other, and all means for a take hold of the possible continued existence common end. Each is but part of a system, of the government. If it be held by this court a constituent of one whole. No single power is

that Congress has no constitutional power, the ultimate end for which the Constitution under any circumstances, or in any emer- was adopted. It may, in a very proper sense, gency, to make treasury notes a legal tender be treated as a means ior the accomplishfor the payment of all debts (a power con- ment of a subordinate object, but that object fessedly possessed by every independent sov- is itself a means designed for an ulterior pur-

ereignty other than the United States), the pose. Thus the power to levy and collect government is without those means of self- taxes, to coin money and regulate its value, preservation which, all must admit, may, in _ to raise and support armies, or to provide for certain contingencies, become indispensable, and maintain a navy, are instruments for the even if they were not when the acts of Con- paramount object, which was to establish a gress now called in question were en- government, sovereign within its sphere, with

acted. ... capability of self-preservation, thereby formThe consequences of which we have _ ing a union more perfect than that which ex-

spoken, serious as they are, must be accepted, isted under the old Confederacy.

if there is a clear incompatibility between the The same may be asserted also of all the Constitution and the legal tender acts. But non-enumerated powers included in the auwe are unwilling to precipitate them upon the thority expressly given “to make all laws country unless such incompatibility plainly which shall be necessary and proper for carryappears. A decent respect for a co-ordinate ing into execution the specified powers vested branch of the government demands that the in Congress, and all other powers vested by judiciary should presume, until the contrary the Constitution in the government of the is clearly shown, that there has been no trans- United States, or in any department or officer gression of power by Congress—all the mem- thereof.” It is impossible to know what those bers of which act under the obligation of an non-enumerated powers are, and what is their

oath of fidelity to the Constitution... . nature and extent, without considering the

66 DOCUMENTS OF AMERICAN History purposes they were intended to subserve. butlding a capitol or a presidential mansion, Those purposes, it must be noted, reach be- and so also is the penal code... . yond the mere execution of all powers defi- Indeed, the whole history of the governnitely intrusted to Congress and mentioned ment and of congressional legislation has exin detail. They embrace the execution of all hibited the use of a very wide discretion, other powers vested by the Constitution in even in times of peace and in the absence of the government of the United States, or in any trying emergency, in the selection of the any department or officer thereof. It cer- mecessary and proper means to carry into tainly was intended to confer upon the gov- effect the great objects for which the govern-

ernment the power of self-preservation. ... ment was framed, and this discretion has That would appear, then, to be a most un- generally been unquestioned, or, if quesreasonable construction of the Constitution tioned, sanctioned by this court. ... which denies to the government created by Before we can hold the Legal Tender Acts it, the right to employ freely every means, unconstitutional, we must be convinced they

not prohibited, necessary for its preservation, were not appropriate means, or means conand for the fulfillment of its acknowledged ducive to the execution of any or all of the duties. Such a right, we hold, was given by powers of Congress, or of the government, the last clause of the eighth section of its not appropriate in any p.ain degree (for we first article. The means or instrumentalities are not judges of the degree of appropriatereferred to in that clause, and authorized, are ness), or we must hold that they were pronot enumerated or de‘ined. In the nature of hibited. This brings us to the inquiry whether things enumeration and specification were im- they were. when enacted. appropriate instrupossible. But they were left to the discretion mentalities for carrying into effect, or executof Congress, subject only to the restrictions ing any of the known powers of Congress, that they be not prohibited, and be necessary or of any department of the government.

and proper for carrying into execution the Plainly, to this inquiry, a consideration of enumerated powers given to Congress, and all the time when they were enacted, and of the other powers vested in the government of circumstances in which the government then the United States, or in any department or stood, is important. It is not to be denied that

officer thereof. acts may be adapted to the exercise of lawful

And here it is to be observed it is not in- power, and appropriate to it, in seasons of dispensable to the existence, of any power exigency, which would be inappropriate at claimed for the federal government that it other times. can be found specified in the words of the We do not propose to dilate at length upon Constitution, or clearly and directly trace- the circumstances in which the country was able to some one of the specified powers. Its placed, when Congress attempted to make existence may be deduced fairly from more treasury notes a legal tender. They are of too than one of the substantive powers expressly recent occurrence to justify enlarged dedefined, or from them all combined. It is al- scription. Suffice it to say that a civil war lowable to group together any number of was then raging which seriously threatened them and infer from them all that the power the overthrow of the government and the de-

claimed has been conferred... . And it is struction of the Constitution itself. It de-

of importance to observe that Congress has manded the equipment and support of large often exercised, without question, powers armies and navies, and the employment of that are not expressly given nor ancillary to money to an extent beyond the capacity of any single enumerated power. Powers thus all ordinary sources of supply. Meanwhile the exercised are what are called by Judge Story, public treasury was nearly empty, and the in his Commentaries on the Constitution, re- credit of the government, if not stretched to sulting powers, arising from the aggregate its utmost tension, had become nearly ex-

powers of the government. He instances the hausted.... . . .

right to sue and make contracts. Many others It was at such a time and in such circummight be given. The oath required by law _ stances that Congress was called upon to defrom officers of the government is one. So 1s vise means for maintaining the army and

THe TREATY OF WASHINGTON 67 navy, for securing the large supplies of money argument... . At best this is mere conjecneeded, and, indeed, for the preservation of ture. But admitting it to be true, what does it the government created by the Constitution. prove? Nothing more than that Congress had It was at such a time and in such an emer- the choice of means for a legitimate end, each gency that the Legal Tender Acts were appropriate and adapted to that end, though, passed. Now, if it were certain that nothing perhaps, in different degrees. What then? Can else would have supplied the absolute neces- this court say that it ought to have adopted sities of the treasury, that nothing else would one rather than the other? .. . have enabled the government to maintain its We hold the acts of Congress constitutional armies and navy, that nothing else would as applied to contracts made either before or have saved the government and the Constitu- after their passage. In so holding we overrule tion from destruction, while the Legal Tender so much of what was decided in H epburn v. Acts would, could any one be bold enough to Griswold, 8 Wallace, 603, as ruled the acts assert that Congress transgressed its pow- unwarranted by the Constitution so far as

ers? . applied to contracts made before their enactBut if it be conceded that some other ment....

means might have been chosen for the accom- Judgment in each case affirmed.

plishment of these legitimate and necessary Cuase, C. J. and Ciirrorp, J., NELSON,

ends, the concession does not weaken the J. and Frexp, J. dissenting. : 281. THE TREATY OF WASHINGTON May 8, 1871 (Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 700 ff.) The failure of the Johnson-Clarendon Conven- spirit, the regret felt by Her Majesty’s Govtion of 1869 Icft Anglo-American relations in an ernment for the escape, under whatever unsatisfactory state. The ‘Treaty of Washington circumstances, of the Alabama and other vesprovided for the arbitration of the most Press- sels from British ports, and for the depredaing problem of our relations with Great Britain tions committed by those vessels:

—the Alabama Claims. The Treaty repvesented . ; ; a triumph of the ideas of Secretary of State Now, in order to remove and adjust all

Fish over those of Charles Sumner. On the Complaints and claims on the part of the Treaty of Washington, see C. Cushing, The United States, and to provide for the speedy Treaty of Washington; J. C. Bancroft Davis, settlement of such claims which are not adMr. Fish and the Treaty of Washington; D. H. mitted by Her Britannic Majesty’s GovernChamberlain, Churles Sumner and the Treaty of — ment, the high contracting parties agree that Washington; S. F. Bemis, ed. American Secreta- all the said claims, growing out of acts comries of State, Vol. VIL, p. 165 if. ; Papers Relating mitted by the aforesaid vessels and generi-

to the Treaty of Washington, in Foreign Relations lly k the “Alab Claj 7 hall

of the United States, 1872, Part II. cauy Known as tne avame * ams; sna be referred to a tribunal of arbitration to be

TREATY RELATIVE TO CLAIMS, FISHERIES. composed of five Arbitrators, to be appointed NAVIGATION OF THE ST. LAWRENCE, ETC., in the following manner, that is to say: One AMERICAN LUMBER ON THE RIVER St. _ shall be named by the President of the United

JoHN; BOUNDARY. States; one shall be named by Her Britannic

Art. I. Whereas differences have arisen Majesty; His Majesty the King of Italy shall between the Government of the United be requested to name one; the President of States and the Government of Her Britannic the Swiss Confederation shall be requested Majesty. and still exist, growing out of the to name one; and His Majesty the Emperor acts committed by the several vessels which of Brazil shall be requested to name one... .

have given rise to the claims generically Art. II. The Arbitrators shall meet at known as the “Alabama Claims:” Geneva, in Switzerland, at the earliest con-

And whereas Her Britannic Majesty has venient day... and shall proceed impar-

authorized her High Commissioners and _ tially and carefully to examine and decide all Plenipotentiaries to express, in a friendly questions that shall be laid before them on the

68 DOCUMENTS OF AMERICAN History part of the Governments of the United States Her Britannic Majesty has commanded her and Her Britannic Majesty respectively. All High Commissioners and Plenipotentiaries to questions considered by the tribunal, includ- declare that Her Majesty’s Government caning the final award, shall be decided by a not assent to the foregoing rules as a state-

majority of all the Arbitrators. .. . ment of principles of international law which ArT. VI. In deciding the matters sub- were in force at the time when the claims

mitted to the Arbitrators, they shall be gov- mentioned in Article I. arose, but that Her erned by the following three rules, ... and Majesty’s Government, in order to evince its by such principles of international law not desire of strengthening the friendly relations inconsistent therewith as the Arbitrators shall between the two countries, and of making determine to have been applicable to the case. satisfactory provision for the future, agrees

RULES that in deciding the questions between the two countries arising out of those claims, the

A neutral Government is bound— Arbitrators should assume that Her Majesty’s First, to use due diligence to prevent the Government had undertaken to act upon the

fitting out, arming, or equipping, within its principles set forth in these rules. jurisdiction, of any vessel which it has reason- And the high contracting parties agree to able ground to believe is intended to cruise observe these rules as between themselves in or to carry on war against any Power with future, and to bring them to the knowledge of which it is at peace; and also to use like dili- other maritime Powers, and to invite them to gence to prevent the departure from its juris- accede to them.

diction of any vessel intended to cruise or Art. VII. . . . The said tribunal shall first carry on war as above, such vessel having determine as to each vessel separately whether

been specially adapted, in whole or in part, Great Britain has, by any act or omission, within such jurisdiction, to warlike use. failed to fulfil any of the duties set forth in Secondly, not to permit or suffer either the foregoing three rules, or recognized by belligerent to make use of its ports or waters the principles of international law not incon-

as the base of naval operations against the sistent with such rules. . . . In case the triother, or for the purpose of renewal or aug- bunal find that Great Britain has failed to mentation of military supplies or arms, or fulfil any duty or duties as aforesaid, it may,

the recruitment of men. if it think proper, proceed to award a sum

Thirdly, to exercise due diligence in its in gross to be paid by Great Britain to the own ports and waters, and, as to all persons United States for all the claims referred to

within its jurisdiction, to prevent any viola- it. ... tion of the foregoing obligations and duties.

282. THE COLLECTOR v. DAY 11 Wallace, 113 1871

Error to the US. circuit court for the district State to levy a tax upon the salary or emoluof Massachusetts. This case involved the con- ments of an officer of the United States. The stitutionality of a federal income tax on the decision was placed mainly upon the ground salary of a State official. The dissenting opinion that the officer was a means or instrumentalexpresses a view more widely held today than ity employed for carrying into effect some of

at the time of its announcement. the legitimate powers of the government, NeExson, J. The case presents the question which could not be interfered with by taxa_ whether or not it is competent for Congress, tion or otherwise by the States, and that the under the Constitution of the United States, salary or compensation for the service of to impose a tax upon a salary of a judicial the officer was inseparably connected with the

officer of a Stater office; that if the officer, as such, was exempt,

In Dobbins v. The Commissioners of Erie the salary assigned for his support or mainCounty, 16 Peters, 435, it was decided that tenance while holding the office was also, for it was not competent for the legislature of a like reasons, equally exempt... .

THe CoLtvtecTor v. Day 69 We shall now proceed to show that, upon seem to follow, as a reasonable, if not a nec-

the same construction of that instrument, essary consequence, that the means and inand for like reasons, that government is pro- strumentalities employed for carrying on the hibited from taxing the salary of the judicial operations of their governments, for preserv-

officer of a State... . ing their existence, and fulfilling the high and

The general government, and the States, responsible duties assigned to them in the although both exist within the same territorial Constitution, should be left free and unimlimits, are separate and distinct sovereignties, paired, should not be liable to be crippled, acting separately and independently of each much less defeated, by the taxing power of other, within their respective spheres. The another government, which power acknowlformer in its appropriate sphere is supreme edges no limits but the will of the legislative but the States within the limits of their pow- body imposing the tax. And, more especially, ers not granted, or, in the language of the those means and instrumentalities which are Tenth Amendment, “reserved,” are as inde- the creation of their sovereign and reserved pendent of the general government as that rights, one of which is the establishment of government within its sphere is independent the judicial department, and the appointment

of the States. of officers to administer their laws. Without

The relations existing between the two gov- this power, and the exercise of it, we risk ernments are well stated by the present Chief nothing in saying that no one of the States Justice [CHASE] in the case of Lane County under the form of government guaranteed by v. Oregon, 7 Wallace, 76. “Both the States the Constitution could long preserve its exand the United States,” he observed, “existed istence... . before the Constitution. The people, through The supremacy of the general government, that instrument, established a more perfect therefore, so much relied on in the argument

union, by substituting a National govern- ot the counsel for the plaintiff in error, in ment, acting with ample powers directly upon __ respect to the question before us, cannot be the citizens, instead of the Confederate gov- maintained. The two governments are upon ernment, which acted with powers greatly re- an equality, and the question is whether the

stricted, only upon the States. But, in many power “to lay and collect taxes” enables the of the articles of the Constitution, the neces- general government to tax the salary of a sary existence of the States, and within their judicial officer of the State, which officer is proper spheres, the independent authority of a means or instrumentality employed to the States, are distinctly recognized. To them carry into execution one of its most impornearly the whole charge of interior regulation tant functions, the administration of the laws,

is committed or left; to them, and to the and which concerns the exercise of a right people, all powers, not expressly delegated to reserved to the States? the National government, are reserved.” Upon . .. In respect to the reserved powers, the looking into the Constitution, it will be found State is as sovereign and independent as the that but few of the articles in that instrument general government. And if the means and could be carried into practical effect without instrumentalities employed by that govern-

the existence of the States. ment to carry into operation the powers

Two of the great departments of the gov- granted to it are, necessarily, and, for the ernment, the execulive and legislative, de- sake of self-preservation, exempt from taxapend upon the exercise of the powers, or upon -_ tion by the States, why are not those of the

the people of the States. The Constitution States depending upon their reserved powers, guarantees to the States a republican form of for like reasons, equally exempt from federal government, and protects each against inva- taxation? Their unimpaired existence in the

sion or domestic violence. Such being the one case is as essential as in the other. It is separate and independent condition of the admitted that there is no express provision States in our complex system, as recognized in the Constitution that prohibits the genby the Constitution, and the existence of eral government from taxing the means and which is so indispensable, that, without them, instrumentalities of the States, nor is there the general government itself would disap- any prohibiting the States from taxing the pear from the family of nations, it would means and instrumentalities of that gov-

70 DOCUMENTS oF AMERICAN History ernment. In hoth cases the exemption rests ployed by the general government in the exupon necessary implication, and is upheld — ercise of its powers, is a very different thing. by the great law of self-preservation: as Such taxation involves an interference with any government, whose means employed in the powers of a government in which other conducting its operations, if subject to the states and their citizens are equally interested control of another and distinct government, with the state which imposes the taxation. can exist only at the mercy of that govern- In my judgment, the limitation of the power ment. Of what avail are these means if an- of taxation in the general government, which other power may tax them at discretion? ... the present decision establishes, will be found

Judgment affirmed. . very difficult of control. Where are we to stop

Mr. Justice BRADLEY dissenting, in enumerating the functions of the state govI dissent from the opinion of the court in ernments which will be interfered with by this case, because it seems to me that the federal taxation? If a state incorporates a general government has the same power of _ railroad to carry out its purposes of internal taxing the income of officers of the state gov- improvement, or a bank to aid its financial ernments as it has of taxing that of its own arrangements, reserving, perhaps, a percentofficers. It is the common government of all age on the stock or profits, for the supply of alike; and every citizen is presumed to trust its own treasury, will the bonds or stock of his own government in the matter of taxation. such an institution be free from federal taxNo man ceases to be a citizen of the United ation? How can we now tell what the effect States by being an officer under the state gov- of this decision will be? I cannot but regard ernment. I cannot accede to the doctrine that it as founded on a fallacy, and that it will the general government is to be regarded as_ lead to mischievous consequences. I am as in any sense foreign or antagonistic to the much opposed as any one can be to any instate governments, their officers, or people; tcrference by the general government with

nor can I agree that a presumption can be the just powers of the state governments. admitted that the general government will But no concession of any of the just powers act in a manner hostile to the existence or of the general government can easily be refunctions of the state governments, which called. I, therefore, consider it my duty to at are constituent parts of the system or body _ least record my dissent when such concession politic forming the basis on which the gen- appears to be made. An extended discussion eral government is founded. The taxation by of the subject would answer no useful purthe state governments of the instruments em- pose.

283. LIBERAL REPUBLICAN PARTY PLATFORM Cincinnati, Ohio

May 1, 1872 (IX. Porter, ed. National Party Platforms, p. 77 ff.) The Liberal Republican movement represented Cincinnati, Ohio, May 1, 1872 ward the South and rom the option oh NW; the Litera Republicans of the Unite the Grant administration. The movement had States, in National Convention assembled at its genesis in Sumner’s break with Grant over Cincinnati, proclaim the following principles the Santo Domingo affair and in a party divi- as essential to Just government:

sion in Missouri. The Cincinnati convention 1. We recognize the equality of all men nominated Horace Greeley for the Presidency, before the law, and hold that it is the duty and the Democrats in their Baltimore Conven- of Government, in its dealings with the peo-

tion accep Sees oan moss p-e to mete equalaand exact justice to berala candicate. Republican Movement; T. S.outBar-

“lay, The Libera Republican Movement in Mis- all, of whatever nativity } t ace, color, or per

souri; E. P. Oberholtzer, History of the United suasion, religious or political. a States Since the Civil War, Vol. III, ch. i. 2. We p.edge ourselves to maintain the

THE SLAUGHTER-HOUSE CASES 71 union of these States, emancipation and en- shall provide the means necessary to pay the franchisement, and to oppose any reopening expenses of the Government economically adof the questions settled by the Thirteenth, ministered, the pensions, the interest on the

Fourteenth, and Fifteenth Amendments to public debt, and a moderate reduction an-

the Constitution. nually of the principal thereof; and, recog-

3. We demand the immediate and absolute nizing that there arc in our midst honest but removal of all disabilities imposed on account irreconcilable differences ot opinion with reof the Rebellion, which was finally subdued gard to the respective systems of Protection seven years ago, believing that universal am- and Free Trade, we remit the discussion of

nesty will result in complete pacification in the subject to the people in their Congres-

all sections of the country. sional Districts, and to the decision of Con4. Local self-government, with impartial gress thereon, wholly free of Executive intersuffrage, will guard the rights of all citizens ference or dictation.

more securely than any centralized power. 7. The public credit must be sacredly

The public welfare requires the supremacy maintained, and we denounce repudiation in of the civil over the military authority, and every form and guise. freedom of person under the protection of the 8. A speedy return to specie payment is habeas corpus. We demand for the individual demanded alike by the highest considerations the largest liberty consistent with public or- of commercial morality and honest governder; for the State self-government, and for ment. the nation a return to the methods of peace 9, We remember with gratitude the heroand the constitutional limitations of power. ism and sacrifices of the soldiers and sailors 5. The Civil Service of the Government of the republic, and no act of ours shall ever has become a mere instrument of partisan detract from their justly-earned fame, or the tyranny and personal ambition, and an ob- full reward of their patriotism.

ject of selfish greed. It is a scandal and re- 10. We are opposed to all further grants proach upon free institutions, and breeds a of land to railroads or other corporations. demoralization dangerous to the perpetuity The public domain should be held sacred to of republican government. We therefore re- actual settlers. gard such thorough reforms of the Civil Serv- 11. We hold that it is the duty of the ice as one of the most pressing necessities of Government, in its intercourse with foreign the hour; that honesty, capacity, and fidelity, nations, to cultivate the friendship of peace, constitute the only valid claims to public em- by treating with all on fair and equal terms, ployment; that the offices of the Government regarding it alike dishonorable either to decease to be a matter of arbitrary favoritism mand what is not right, or to submit to what

and patronage, and that public station be- is wrong. come again a post of honor. To this end it is 12. For the promotion and success of these imperatively required that no President shall vital principles, and the support of the can-

be a candidate for re-election. didates nominated by this convention we in6. We demand a system of Federal taxa- vite and cordially welcome the cooperation tion which shall not unnecessarily interfere of all patriotic citizens, without regard to with the industry of the people, and which previous affiliations.

284. THE SLAUGHTER-HOUSE CASES 16 Wallace, 36 1873

Error to the supreme court of Louisiana. In of New Orleans. The validity of the act was 1869 the legislature of Louisiana, in order to challenged on the ground that it violated the protect the health of the people of New Orleans, Fourteenth Amendment. The opinion of the

granted to a slaughter-house company for court is memorable as one of the earliest intwenty-five years the exclusive privilege of con- terpretations of the Fourteenth Amendment. ducting a slaughter-house within the city limits Note especially the scant consideration given by

72 DOCUMENTS OF AMERICAN History the Court to the due process clause of the curity and firm establishment of that freeAmendment. See Warren, Supreme Court, Vol. Il, dom, and the protection of the newly-made

ch. xxxii. freeman and citizen from the oppressions of those who had formerly exercised unlimited

Minter, J.... The plaintiffs in error dominion over him. It is true that only the . . . allege that the statute is a violation of Fifteenth Amendment, in terms, mentions the the Constitution of the United States in these negro by speaking of his color and his slav-

several particulars: ery. But it is just as true that each of the That it creates an involuntary servitude other articles was addressed to the grievances

forbidden by the Thirteenth Article of of that race, and designed to remedy them

Amendment; as the Fifteenth.

That it abridges the privileges and immuni- We do not say that no one else bul the

ties of citizens of the United States; negro can share in this protection. Both the That it denies to the plaintiffs the equal language and spirit of these articles are to

protection of the laws; and, have their fair and just weight in any quesThat it deprives them of their property tion of construction. Undoubtedly while

without due process of law; contrary to the negro slavery alone was in the mind of the provisions of the first section of the Four- Congress which proposed the thirteenth arti-

teenth Article of Amendment. cle, it forbids any other kind of slavery, now This court is thus called upon for the first or hereafter. If Mexican peonage or the Chitime to give construction of these arti- nese coolie labor system shall develop slavery

cles... . of the Mexican or Chinese race within our Twelve articles of amendment were added territory, this amendment may safely be to the federal Constitution soon after the trusted to make it void. And so if other rights original organization of the government under are assailed by the States which properly and

it in 1789. . . . Within the last eight years necessarily fall within the protection of these three other articles of amendment of vast articles, that protection will apply, though importance have been added by the voice of _ the party interested may not be of African the people to that now venerable instrument. descent. But what we do say, and what we The most cursory glance at these articles wish to be understood is, that in any fair and discloses a unity of purpose, when taken in just construction of any section or phrase of connection with the history of the times, these amendments, it is necessary to look to which cannot fail to have an important bear- the purpose which we have said was the pering on any question of doubt concerning their __ vading spirit of them all, the evil which they true meaning. Nor can such doubts, when any _ were designed to remedy, and the process of

reasonably exist, be safely and rationally continued addition to the Constitution, until solved without a reference to that history; that purpose was supposed to be accomfor in it is found the occasion and the neces- _ plished, as far as constitutional law can ac-

sity for recurring again to the great source of | complish it. |

power in this country, the people of the The first section of the fourteenth article, States, for additional guarantees of human _ to which our attention is more specially inrights; additional powers to the federal gov- _vited, opens with a definition of citizenship— ernment; additional restraints upon those of not only citizenship of the United States,

the States. ... but citizenship of the States. No such defiWe repeat, then, in the light of this recapit- nition was previously found in the Constitu-

ulation of events, almost too recent to be tion, nor had any attempt been made to decalled history, but which are familiar to us fine it by act of Congress. .. . It had been all; and on the most casual examination of — said by eminent judges that no man was a the language of these amendments, no one citizen of the United States, except as he was can fail to be impressed with the one per- a citizen of one of the States composing the vading purpose found in them all, lying at the Union. Those, therefore, who had been born foundation of each, and without which none and resided always in the District of Columof them would have been even suggested; we bia or in the Territories, though within the

mean the freedom of the slave race, the se- United States, were not citizens. Whether

THE SLAUGHTER-HOUSE CASES 73 this proposition was sound or not had never United States, in the very sentence which been judicially decided. But it had been held precedes it. It is too clear for argument that by this court, in the celebrated Dred Scott the change in phraseology was adopted underCase, only a few years before the outbreak standingly and with a purpose.

of the civil war, that a man of African de- Of the privileges and immunities of the scent, whether a slave or not, could not be citizen of the United States, and of the priva citizen of a State or of the United States. ileges and immunities of the citizen of the This decision, while it met the condemnation State, and what they respectively are, we will of some of the ablest statesmen and constitu- presently consider; but we wish to state here tional lawyers of the country, had never been that it is only the former which are placed overruled; and if it was to be accepted as aby this clause under the protection of the

constitutional limitation of the right of citi- federal Constitution, and that the latter, zenship, then all the negro race who had re- whatever they may be, are not intended to cently been made freemen, were still, not have any additional protection by this paraonly not citizens, but were incapable of be- graph of the amendment. coming so by anything short of an amend- If, then, there is a difference between the

ment to the Constitution. privileges and immunities belonging to a citi-

To remove this difficulty primarily, and to zen of the United States as such, and those establish a clear and comprehensive definition belonging to the citizen of the State as such,

of citizenship which should declare what the latter must rest for their security and should constitute citizenship of the United protection where they have heretofore rested; States, and also citizenship of a State, the for they are not embraced by this paragraph first clause of the first section was framed. of the amendment.

“All persons born or naturalized in the The first occurrence of the words “privUnited States, and subject to the jurisdiction ileges and immunities” in our constitutional thereof, are citizens of the United States and history, is to be found in the fourth of the

of the State wherein they reside.” .. . Articles of the old Confederation. .. . It is quite clear, then, that there is a citi- In the Constitution of the United States, zenship of the United States, anda citizenship which superseded the Articles of Confedera-

of a State, which are distinct from each tion, the corresponding provision is found in other, and which depend upon different char- section two of the fourth article, in the folacteristics or circumstances in the individual. lowing words: “The citizens of each State We think this distinction and its explicit shall be entitled to all the privileges and imrecognition in this amendment of great weight munities of citizens of the several States.”

in this argument, because the next paragraph There can be but little question that the of this same section, which is the one mainly purpose of both these provisions is the same,

relied on by the plaintiffs in error, speaks and that the privileges and immunities inonly of privileges and immunities of citizens tended are the same in each. In the Articles of the United States, and does not speak of of the Confederation we have some of these those of citizens of the several States. The specifically mentioned, and enough perhaps argument, however, in favor of the plaintiffs to give some general idea of the class of civil rests wholly on the assumption that the. citi- rights meant by the phrase.

same. tion. ...

zenship is the same, and the privileges and Fortunately we are not without judicial immunities guaranteed by the clause are the construction of this clause of the Constitu-

The language is, ‘““No State shall make or The constitutional provision there alluded

enforce any law which shall abridge the priv- _{o did not create those rights, which it called ileges or immunities of citizens of the United privileges and immunities of citizens of the

States.” It is a little remarkable, if this clause States. It threw around them in that clause was intended as a protection to the citizen of no security for the citizens of the State in a State against the legislative power of his which they were claimed or exercised. Nor own State, that the word citizen of the State did it profess to control the power of the should be left out when it is so carefully used, state governments over the rights of its own and used in contradistinction to citizens of the citizens.

74 DocUMENTS OF AMERICAN History Its sole purpose was to declare to the sev- our institutions; when the effect is to fetter eral States, that whatever those rights, as you. and degrade the state governments by subgrant or establish them to your own citizens, jecting them to the control of Congress, in or as you limit or qualify, or impose restric- the exercise of powers heretofore universally tions on their exercise, the same, neither more conceded to them of the most ordinary and nor less, shall be the measure of the rights fundamental character; when in fact it radiof citizens of other States within your juris- cally changes the whole theory of the rela-

diction... . But with the exception of ... tions of the state and federal governments to afew... restrictions, the entire domain of each other and of both these governments to the privileges and immunities of citizens of | the people; the argument has a force that is the States, as above defined, lay within the irresistible, in the absence of language which constitutional and legis‘ative power of the expresses such a purpose too clearly to admit States, and without that of the federal gov- of doubt. ernment. Was it the purpose of the Four- We are convinced that no such results were teenth Amendment, by the simple declara- intended by the Congress which proposed tion that no State shou:d make or enforce these amendments, nor by the legislatures of any law which shall abridge the privileges the States which ratified them. and immunities of citizens of the United Having shown that the privileges and imStates, to transfer the secur.ty and pro-, munities relied on in the argument are those teclion of all the civil rights which we have which belong to citizens of the States as such,

mentioned, from the States to the federal and that they are left to the state governgovernment? And where it is declared that ments for security and protection, and not by Congress shall have the power to enforce this article placed under the special care of that article, was it Intended to bring within the federal government, we may hold ourthe power of Congress the entire domain of — selves excused from defining the privileges civil rights heretofore belonging exclusively and immunities of citizens of the United

tc the States? States which no Slate can abridge, until some All this and more must follow, if the propo- case involving those privileges may make it

sition of the plaintiffs in error be sound. For necessary to do so... . not only are these rights subject to the con- But it is useless to pursue this branch of the (rol of Congress whenever in its discretion inquiry, snce we are of o>inion that the rights any of them are supposed to be abridged by claimed by these plaintiffs in error, if they state legislation, but that body may also pass have any existence, are not privileges and laws in advance, limiting and restricting the immunities of citizens of the United States exercise of legis!alive power by the States, in within the meaning of the clause of the their most ord.nary and usual functions, as Fourteenth Amendment under considera-

in its judgment it may think preper on all tion. ... such subjects. And still further, such a con- The argument has not been much pressed struction followed by the reversal of the in these cases that the defendant’s charter judgments of the Supreme Court of Lou‘si- deprives the plaintiffs of their property withana in these cases, would constitute this out due process of law, or that it denies to court a perpetual censor upon ail legislation them the equal protection of the law. The

of the States, on the civil rights of their own _ first of these paragraphs has been in the Con-

citizens, with authority to nullify such as it stitution since the adoption of the Fifth did not approve as cons.stent with those Amendment, as a restraint upon the federal rights, as they existed at the time of the power. It is also to be found in some form of adoption of th:s amendment. The argument, expression in the constitutions of nearly all we admit, is not always the most conclusive the States, as a restraint upon the power of which is drawn from the consequences urged the States. This law, then, has practically against the adoption of a particular construc- been the same as it now is durinz the ext:on of an instrument. But when, as in the is'ence of the government, except so far as case before us, these consequences are so seril- the present amendment may place the reous, so far-reaching and pervading, so great straining power over the States in this matter a departure from the structure and spirit of in the hands of the federal government.

‘(THE CRIME OF °73”? 75 We are not without judicial interpretation, fifth section of the article of amendment

therefore, both state and national, of the Congress was authorized to enforce it by meaning of this clause. And it is sufficient suitable legislation. We doubt very much to say that under no construction of that whether any action of a State not directed by provision that we have ever seen, or any that way of discrimination against the negroes as we deem admissible, can the restraint im- a class, or on account of their race, will ever posed by the State of Louisiana upon the ex- be held to come within the purview of this ercise of their trade by the butchers of New provision. It is so c!early a provision for that Orleans be held to be a deprivation of prop- race and that emergency, that a strong case erty within the meaning of that provision. would be necessarv for its application te any “Nor shall any State deny to any person other. But as it is a State that is to be dealt within its jurisdiction the equal protection of | with, and not alone the validity of its laws,

the laws.” we may safely leave that matter until Con-

In the light of the history of these amend- gress shall have exercised its power, or some ments, and the pervading purpose of them, case of state oppression, by denial of equal which we have already discussed, it is not justice in its courts, shall have claimed a dedifficult to give a meaning to this clause. The cision at our hands. We find no such case in ex.stence of laws in the States where the the one before us, and do not deem it necesnewly emancipated negroes resided, which sary to go over the argument again, as it may discriminated with gross injustice and hard- have relation to this particular clause of the

ship against them as a class, was the evil to amendment... . be remedied by this clause, and by it such Judgment affirmed.

laws are forbidden. Justice Freip delivered a dissenting opinIf, however, the States did not conform ion in which Chief Justice CurAse and Jus-

their laws to ils requirements, then by the tices BRADLEY and SWAYNE concurred.

285. “THE CRIME OF ’73” Coinage Act of February 12, 1873 (U. S. Statutes at Large, Vol. XVII, p. 424 ff.) This act revising the coinage system of the the standard weight of twenty-five and eightcountry omitted from the coinage the standard tenths grains, shall be the unit of value: a silver dollar of 412% grains. This demonetiza- quarter-eagle, or two-and-a-half dollar piece:

tion of silver came later to be known as the . three-dollar piece: a half-eagle, or fivecrime of ’73”. What sitnificance the doll al doll ee demonetization of silver was thegave enormous in- ouar piece; to an eagie, or ten-dollar piece; crease in the American production of silver @md a double eagle, or twenty-dollar due to new discoveries of s:lver ore in the west. Plece ... ; which coins shall be a legal The charge that the omission of si!ver dollars tender in all payments at their nominal value from the coinage was part of a gold conspiracy when not below the standard weight and limit __ is rejected by most students of our financial of tolerance provided in this act for the sinhistory, but it was an article of faith with a gle piece, and, when reduced in weight, below large part of the American people for twenty said standard and tolerance, shall be a legal

years. See, L. Laughlin, History of Bimetaltender at j t3tot their hei lism; A. D. J. Noyes, Forty Years of American . aiuatlon imvaluation proportion

Finance; Report of the Monetary Commission actual weight. . . . of 1876; A. B. Hepburn, History of Currency Sec. 15. That the silver coins of the

in the United States, ch. xv; W. H. Harvey, United States shall be a trade-dollar, a half-

Coin’s Financial School. dollar, or fifty-cent piece, a quarter-dollar, or

twenty-five-cent piece, a dime, or ten-cent An Act revising and amending the Laws rela- piece; . .. and said coins shall be a legal tive to the M.nts, Assay-offices, and tender at their nominal value for any amount

Coinage of the United States. not exceeding five doliars in any one pay-

SEc. 14. That the gold coins of the United ment.

States shall be a one-dollar piece, which, at SEC. 16. That the minor coins of the

76 DOCUMENTS OF AMERICAN History United States shall be a five-cent piece, a Sec. 17. That no coins, either of gold, silthree-cent piece, and a one-cent piece .. . ; ver, or minor coinage, shall hereafter be iswhich coins shall be a legal tender, at their sued from the mint other than those of the nominal value, for any amount not exceeding denominations, standards, and weights herein

twenty-five cents in any one payment. set forth.

286. CITIZENS’ SAVINGS & LOAN ASSOCIATION vy. TOPEKA 20 Wallace, 655 1874

Error to the United States circuit court for the authorizing them to make contracts in referdistrict of Kansas. This case involved the validity ence to this property, and incur debts payof an act of the legislature of Kansas authoriz- able from that source.

ing the sale of bonds for the benefit of a bridge But such instances are few and excepmanulacturing company. The city of Topeka, tional, and the proposition is a very broad claimed that the law was void and the issue 0P¢, that debts contracted by municipal corunconstitutional. This is the leading case for Porations must be paid, if paid at all, out of

which had issued the bonds in the first instance, ~

the doctrine that taxes may not be imposed for taxes which they may lawfully levy, and that

other than public purposes. For a discussion of all contracts creating debts to be paid in the question of what constitutes public pur- future, not limited to payment from some poses, see Green v. Frazier, Doc. No. 441. other source, imply an obligation to pay by

MiLuer, J... . We find ample reason to taxation. sustain the demurrer on the second ground It follows that in this class of cases the on which it is argued by counsel and sus- right to contract must be limited by the right

tained by the circuit court. to tax, and if in the given case no tax can That proposition is that the act authorizes lawfully be levied to pay the débt, the conthe towns and other municipalities to which tract itself is void for want of authority to

it applies, by issuing bonds or loaning their make it.... The validity of a contract credit, to take the property of the citizen which can only be fulfilled by a resort to under the guise of taxation to pay these taxation depends on the power to lay the tax

bonds, and use it in aid of the enterprises for that purpose... .

of others which are not of a public character, . . . We assume that unless the legislature thus perverting the right of taxation, which of Kansas had the right to authorize the

can only be exercised for a public use, to the counties and towns in that State to lay taxes aid of individual interests and personal pur- to be used as an aid of manufacturing enter-

poses of profit and gain. prises, conducted by individuals, or private

The proposition as thus broadly stated is corporations, for purposes of gain, the law is not new, nor is the question which it raises void, and the bonds issued under it are also

difficult of solution. void. a

If these municipal corporations, which are We proceed to the inquiry whether such in fact subdivisions of the State, and which a power exists in the legislature of the State

for many reasons are vested with quasi legis- of Kansas. | a

lative powers, have a fund or other property We have already said the question is not out of which they can pay the debts which new. The subject of the aid voted to the they contract, without resort to taxation, it railways by counties and towns has been may be within the power of the legislature brought to the attention of the courts of alof the State to authorize them to use it in most every State in the Union. It has been aid of projects strictly private or personal, thoroughly discussed and is still the subject but which would in a secondary manner con- of discussion in those courts. It is quite true tribute to the public good; or where there is that a decided preponderance of authority iS property or money vested in a corporation of tc be found in favor of the proposition that

the kind for a particular use, as public wor- the legislatures of the States, unless re-

ship or charity, the legislature may pass laws _ stricted by some special provisions of their

Citizens’ SAVINGS & LOAN ASSOCIATION V. TOPEKA 77 constitutions, may confer upon those mu- Cuilloch v. State of M aryland, that the power nicipal bodies the right to take stock in cor- tc tax is the power to destroy. A striking

porations created to build railroads, and to instance of the truth of the proposition is lend their credit to such corporations. Also seen in the fact that the existing tax of ten to levy the necessary taxes on the inhabi- per cent, imposed by the United States on tants, and on property within their limits to the circulation of all other banks than the general taxation, to enable them to pay the national banks, drove out of existence every

debts thus incurred... . state bank of circulation within a year or

In all these cases, however, the decision two after its passage. This power can as has turned upon the question whether the readily be employed against one class of intaxation by which this aid was afforded to the dividuals and in favor of another, so as to building of railroads was for a public pur- ruin the one class and give unlimited wealth pose. Those who came to the conclusion that and prosperity to the other, if there is no it was, held the laws for that purpose valid. implied limitation of the uses for which the Yhose who could not reach that conclusion power may be exercised.

held them void. In all the controversy this To lay with one hand the power of the has been the turning point of the judgements government on the property of the citizen, of the courts. And it is safe to say that no and with the other to bestow it upon favored court has held debts created in aid of railroad individuals to aid private enterprises and companies by counties or towns, valid on any build up private fortunes, is none the less a other ground than that the purpose for which robbery because it is done under the forms the taxes were levied was a public use.... of law and is called taxation. This is not legWe have referred to this history of the islation. It is a decree under legislative forms. contest over aid to railroads by taxation, to Nor is it taxation. A “tax,” says Webster’s show that the strongest advocates for the Dictionary, “is a rate or sum of money asvalidity of these laws never placed it on the sessed on the person or property of a citizen ground of the unlimited power in the state by government for the use of the nation or legislature to tax the people, but conceded state.” “Taxes are burdens or charges imthat where the purpose for which the tax was __ posed by the legislature upon persons or prop-

to be issued, could no longer be justly claimed erty to raise money for public purposes.”’

to have this public character, but was purely Cooley on Constitutional Limitations, in aid of private or personal objects, the law 479.... authorizing it was beyond the legislative We have established, we think, beyond power, and was an unauthorized invasion of cavil that there can be no lawful tax which

private right... . is not laid for a public purpose. It may not be Of all the powers conferred upon govern- easy to draw the line in all cases so as to

ment that of taxation is most liable to abuse. decide what is a public purpose in this sense Given a purpose or object for which taxation and what is not.

may be lawfully used, and the extent of its It is undoubtedly the duty of the legisexercise is in its very nature unlimited. It is lature which imposes or authorizes municitrue that express limitation on the amount palities to impose a tax to see that it is not of tax to be levied or the things to be taxed to be used for purposes of private interest may be imposed by constitution or statute, instead of a public use, and the courts can but in most instances for which taxes are only be justified in interposing when a violalevied, as the support of government, the tion of this principle is clear and the reason prosecution of war, the national defence, any for interference cogent. And in deciding limitation is unsafe. The entire resources of whether, in the given case, the object for the people should in some instances be at which the taxes are assessed falls upon the

the disposal of the government. one side or the other of this line, they must The power to tax is, therefore, the strong- be governed mainly by the course and usage

est, the most pervading of all the powers of of the government, the objects for which government, reaching directly or indirectly taxes have been customarily and by long to all classes of the people. It was said by course of legislation levied, what objects or Chief Justice Marshall, in the case of Mc- purposes have been considered necessary to

78 DOCUMENTS OF AMERICAN [IIrIstory the support and for the proper use of the tablishing manufactures, the same may be government, whether state or municipal. said of any other business or pursuit which Whatever lawfully pertains to this and is employs cap‘tal or labor. The merchant, the sanctioned by time and the acquiescence of mechanic, the inn-keeper, the banker, the the people may weil be held to belong to the builder, the steamboat owner are equally pro-

public use, and proper for the maintenance moters of the public good, and equally deof good government, though this may not be _ serving the aid of the citizens by forced con-

the only criterion of rightful taxation. tributions. No line can be drawn in favor of But in the case before us, in which the the manufacturer which wou'd not open the towns are authorized to contribute aid by coffers of the public treasury to the imporway of taxation to any class of manufac- tunities of two thirds of the business men of

turers, there is no difficuty in holding that the city or town... , this is not such a public purpose as we have Judgment affirmed. been considering. If it be said that a benefit CLIFFORD, J. dissenting. results to the local public of a town by es-

287. THE GRANGER MOVEMENT The two documents below illustrate the local be subdued and made to subserve the public and the general character of the Granger move- interest at whatever cost... . ment. The first indicates the anti-railroad char- 5. Resolved, that in view of the present acter of the movement in the middle western extortions, we look with alarm upon the fustates; the second emphasizes the social rather 10, of an interest which can combine in the than the economic character of the movement. The first is taken from J. Periam, The Ground- hands of a few men a capital of nearly $250,swell, p. 286 ff.; the second from Proceedings of 900,000, and we believe it essential to the the Seventh Session of the National Grange of prosperity of all classes that this contest conthe Patrons of Husbandry, Feb. 4, 1874. Both timue until these corporations acknowledge are reprinted in J. R. Commons, ed. Docu- the supremacy of law. mentary History of American Industrial Society, 6. Resolved, that we regard it as the unVol. X. For background, see S. J. Buck, The Goubted power, and the imperative duty of Granger Movement; The Agrarian Crusade; the legislature, to pass laws fixing reasonable A. E. Paine, Granger Movement in Illinois. maximum rates for freight and passengers, 1. ResoLurions oF SPRINGFIELD, ILLT- without classification of roads, and that we

: , urge upon our General Assembly the passage April 2, 1873 of such9. Reso.ved, laws...that . we urge the passage of

NOIS, FARMERS’ CONVENTION ¢ bh]

1. Resolved, by the farmers of Illinois, in q bill enforcing the princ’p’e that railroads mass mecting assembled, that all chartered are public highways, and requiring railroads monopolies, not regulated and controlled by to make connections with al! roads whose law, have proved detrimental to the public tracks meet or cross their own, and to reprosperity, corrupting in their management, ceive and transmit cars and trains offered

and dangerous to republican institutions, over their roads at reasonable maximum 2. Resolved, that the railways of the rates, whether offered at such crossings, or world, except in those countries where they at stations along their roads, and empowering have been held under the strict regulation the making of connections by municipal cor-

and supervision of the government, have porations for that purpose, and for public proved themselves arbitrary, extortionate and use... . as opposed to free institutions and free com- 12. Resolved, that we indorse most fully merce between states as were the feudal bar- the acton of those who tender legal rates

ons of the middle ages. of fare upon the railroads, and refuse to pay

3. Resolved, that we hold, declare and re- more; and that it is the duty of the legislasolve, that this despotism, which defies our ture to provide by law for the defense by laws, plunders our shippers, impoverishes our the State of Illinois of suits commenced, or

people, and corrupts our government, shall that hereafter may be commenced by rail-

Tue GRANGER MOVEMENT 79 road companies against individuals who have United States should definitely proclaim to

in good faith insisted, or hereafter may in- the world its general objects, we hereby sist, upon the right to ride in railroads at unanimously make this Declaration of Pur-

legal rates. poses of the Patrons of Husbandry:

13. Resolved, that the presentation of GENERAL Opsjects. 1. United by the

railroad passes to our legislators, whatever strong and faithful tie of agriculture, we may be the spirit and intent with which they mutually resolve to labor for the good of our are accepted, are demoralizing in their influ- Order, our country, and mankind. ence; and we look to our legislature, now in 2. We heartily indorse the motto: “In essession, to rise above personal considerations sentials, unity; in non-essentials, liberty; in of pecuniary interest or convenience, and to all things, charity.” pass a law making it a misdemeanor for any Specific Opjyects. 3. We shall endeavor Senator, or other state or county officers, to to advance our cause by laboring to accom-

accept any railroad pass... . plish the following objects:

14. Whereas, the constitution of 1848, To develop a better and higher manhood Article X, prohibits the legis!ature from and womanhood among ourselves. To engranting special railroad charters ... there- hance the comforts and attractions of our fore, Resolved, that it is extremely doubtful homes, and strengthen our attachments to whether any railroad charter granted since our pursu‘ts. To foster mutual understanding April 1, 1848, by the legislature of Illino’s, and coédperation. To maintain inviolate our is of any validity, and that the vested rights laws, and to emulate each other in labor to of railroad monopolies in this state exist only hasten the good time coming. To reduce our by assumption of the monopolies and the expenses, both individual and corporate. To

sufferance of the people... . buy less and produce more, in order to make 15. Whereas, the constitution of 1870, our farms self-sustaining. To diversify our

Article XI, Section 13, prohibits any railroad crops, and crop no more than we can culti-

company from issuing watered stock... vate. To condense the weight of our exports, and whereas, this article of the constitution selling less in the bushel and more on hoof has probably been violated by nearly all the and in fleece; less in lint, and more in warp railroad companies in the state; therefore, and woof. To systematize our work, and calResolved, that it is the duty of the railroad culate intelligently on probabilities. To discommissioners to look carefully into this mat- countenance the credit system, the mortgage ter, and to commence proceedings in all clear system, the fashion system, and every other

cases by guo warranto, or otherwise, against system tending to prodigality and bankall railroad companies which have disre- ruptcy. garded this important provision of the or- We propose meeting together, talking to-

ganic law of the state... . gether, working togethcr, buying together,

18. Resolved, that we are in favor of the selling together, and in general acting toimmediate repeal of the protective duties on gether for our mutual protection and adiron, steel, lumber, and all materials which vancement, as occas.on may require. We enter into the construction of railroal cars, shall avoid litigation as much as possible by steamships, sailing vessels, agricultural im- arbitration in the Grange. We shall conplements, etc. and that we urge upon Con- _ stantly strive to secure entire harmony, goodgress immediate action for this purpose, that will, v.tal brotherhood among ourselves, and cheap railroads and cheap ships are necessary to make our order perpetual. We shall ear-

to cheap freights, and that we invite the nestly endeavor to suppress personal, local, railroad companies to co-operate with us to sectional, and national prejudices, all un-

that end... . healthy rivalry, all selfish ambition. Faithful >. DECLARATION oF PurPosE oF Na- aciherence lo tess principles will insure our

1374 ment.

TIONAL CIRANCE mental, moral. social, and material advanceBusINESS RELATIONS. 4. For our business

1, PREAMBLE. Profoundly impressed with interests, we desire to bring producers and

the truth that the National Grange of the consumers, farmers and manufacturers into

80 DocUMENTS OF AMERICAN History the most direct and friendly relations pos- education among ourselves and for our chilsible. Hence we must dispense with a surplus dren, by all just means within our power. We of middlemen, not that we are unfriendly to especially advocate for our agricultural and them, but we do not need them. Their surplus _ industrial colleges that practical agriculture,

and their exactions diminish our profits. domestic science, and all the arts which adorn We wage no aggressive warfare against the home, be taught in their courses of study. any other interest whatever. On the con- THE GRANGE Not PartTIsAN. 5. We em-

trary, all our acts and all our efforts, so far phatically and sincerely assert the oftas business is concerned, are not only for repeated truth taught in our organic law, that the benefit of the producer and consumer, the Grange, National, State, or Subordinate, but also for all other interests that tend to is not a political or party organization. No bring these two parties into speedy and eco- Grange, if true to its obligations, can discuss nomical contact. Hence we hold that trans- political or religious questions, nor call politiportation companies of every kind are nec- cal conventions, nor nominate candidates, nor essary to our success, that their interests are even discuss their merits in its meetings. intimately connected with our interests, and Yet the principles we teach underlie all harmonious action is mutually advantageous, true politics, all true statesmanship, and, if keeping in view the first sentence in our properly carried out, will tend to purify the declaration of principles of action that “In- whole political atmosphere of our country. dividual happiness depends upon general For we seek the greatest good to the greatest

prosperity.” number. We shall, therefore, advocate for every We must always bear in mind that no one, state the increase in every practicable way, by becoming a Patron of Husbandry, gives of all facililies for transporting cheaply to up that inalienable right and duty which bethe seaboard, or between home producers longs to every American citizen, to take a and consumers, all the productions of our proper interest in the politics of his country, country. We adopt it as our fixed purpose to On the contrary, it is right for every mem‘‘open out the channels in nature’s great ar- ber to do all in his power legitimately to interies that the life-blood of commerce may fluence for good the action of any political

flow freely.” party to which he belongs. It is his duty to

We are not enemies of railroads, navigable do all he can in his own party to put down and irrigating canals, nor of any corporation bribery, corruption, and trickery; to see that

that will advance our industrial interests, none but competent, faithful, and honest

nor of any laboring classes. men, who will unflinchingly stand by our inIn our noble Order there is no communism, dustrial interests, are nominated for all posi-

no agrarianism. tions of trust; and to have carried out the

We are opposed to such spirit and man- principle which should always characterize agement of any corporation or enterprise as every Patron, that the office should seek the tends to oppress the people and rob them of man, and not the man the office. their just profits. We are not enemies to capi- We acknowledge the broad principle that tal, but we oppose the tyranny of monopolies. difference of opinion is no crime, and hold We long to see the antagonism between capi- that “progress toward truth is made by diftal and labor removed by common consent, ferences of opinion,” while “the fault lies in and by an enlightened statesmanship worthy _ bitterness of controversy.”

of the ninetecnth century. We are opposed We desire a proper equality, equity, and to excessive salaries, high rates of interest, fairness; protection'for the weak, restraint and exorbitant per cent profits in trade. They upon the strong; in short, justly distributed greatly increase our burdens, and do not bear burdens and justly distributed power. These a proper proportion to the profits of produc- are American ideas, the very essence of ers. We desire only self-protection and the American independence, and to advocate the protection of every true interest of our land contrary is unworthy of the sons and daugh-

by legitimate transactions, legitimate trade, ters of an American republic. oo

and legitimate profits. We cherish the belief that sectionalism is, EDUCATION. We shall advance the cause of - and of right should be, dead and buried with

THE RESUMPTION OF SPECIE PAYMENTS 81 the past. Our work is for the present and tyranny and corruption. We hail the general the future. In our agricultural brotherhood desire for fraternal harmony, equitable comand its purposes we shall recognize no north, promises, and earnest cooperation, as an

no south, no east, no west. omen of our future success.

It is reserved by every Patron, as the right 7. It shall be an abiding principle with us of a freeman, to affiliate with any party that to relieve any of our oppressed and suffering

will best carry out his principles. brotherhood by any means at our command. OUTSIDE COOPERATION. 6. Ours being pe- Last, but not least, we proclaim it among

culiarly a farmers’ institution, we cannot our purposes to inculcate a proper appreciadmit all to our ranks. Many are excluded by ation of the abilities and sphere of woman,

the nature of our organization, not because as is indicated by admitting her to memthey are professional men, or artisans, or bership and position in our order. , laborers, but because they have not a suff- Imploring the continued assistance of our cient direct interest in tilling the soil, or may Divine Master to guide us in our work, we have some interest in conflict with our pur- here pledge ourselves to faithful and harposes. But we appeal to all good citizens for monious labor for all future time, to return their cordial codperation to assist in our by our united efforts to the wisdom, justice, efforts toward reform, that we may eventually fraternity, and political purity of our fore-

remove from our midst the last vestige of fathers.

288. GRANT’S RECOMMENDATION OF RESUMPTION OF SPECIE PAYMENTS

Extracts from President Grant’s First Annual Message and Sixth Annual Message to Congress December 6, 1869 and December 7, 1874 (Richardson, ed. Messages and Papers, Vol. VII, p. 29-30, p. 285 ff.)

For references see Doc. No. 289. speculate as to what will be the value of the currency to be paid and received. I earnestly

1... . Among the evils growing out of recommend to you, then, such legislation as the rebellion, and not yet referred to, is that will insure a gradual return to specie payof an irredeemable currency. It is an evil ments and put an immediate stop to fluctuawhich I hope will receive your most earnest tions in the value of currency. attention. It is a duty, and one of the highest The methods to secure the former of these duties, of Government to secure to the citi- results are as numerous as are the speculazen a medium of exchange of fixed, unvary- tors on political economy. To secure the lating value. This implies a return to a specie ter I see but one way, and that is to authorize basis, and no substitute for it can be devised. the Treasury to redeem its own paper, at a It should be commenced now and reached fixed price, whenever presented, and to withat the earliest practicable moment consistent hold from circulation all currency so re-

with a fair regard to. the interests of the deemed until sold again for gold. debtor class. Immediate resumption, if prac- The vast resources of the nation, both ticable, would not be desirable. It would com- developed and undeveloped, ought to make

pel the debtor class to pay, beyond their our credit the best on earth. With a less burcontracts, the premium on gold at the date of den of taxation than the citizen has endured

their purchase, and would bring bankruptcy for six years past, the entire public debt and ruin to thousands. Fluctuation, however, could be paid in ten years. But it is not de-

in the paper value of the measure of all sirable that the people should be taxed to values (gold) is detrimental to the interests pay it in that time. Year by year the ability

of trade. It makes the man of business an to pay increases in a rapid ratio. But the involuntary gambler, for in all sales where burden of interest ought to be reduced as future payment is to be made both parties rapidly as can be done without the violation

82 DOCUMENTS OF AMERICAN History of contract. The public debt is represented sale. But admitting that these two classes of in great part by bonds having from five to citizens are to be benefited by expansion, twenty and from ten to forty years to run, wou'd it be honest to give it? Would not the bearing interest at the rate of 6 per cent and general loss be too great to justify such re5 per cent, respectively. It is optional with lief? Would it not be just as honest and the Government to pay thcse bonds at any prudent to authorize each debtor to issue his period after the expiration of the least time own lezal-tenders to the extent of h's Iiamentioned upon their face. The time has al- bilities? Than to do this, would it not be ready expired when a great part of them may _ safer, for fear of overissues by unscrupu!ous be taken up, and is rapid:y approaching when creditors, to say that all debt obligations are all may be. It is believed that all which are obliterated in the United States, and now we now dye may be repaced by bonds bearing commence anew, each possessing all he has at

a rate of interest not exceeding 4% per cent, the time free from incumbrance? These and as rapid:y as the remainder become due propositions are too absurd to be entertained that they may be repiaced in the same way. for a moment by thinking or honest people.

To accomplish this it may be necessary to Yet every delay in preparation for final reauthorize the interest to be paid at ether of | sumption partakes of thi: dishonesty, and is three or four of the money centers of Eu- only less in degree as the hope is held out rope, or by any assistant treasurer of the that a conven‘ent season will at last arrive United States, at the option of the holder of for the good work of redeeming our p!edges the bond. I suggest this subject for the con- to commerce. It will never come, in my opinsideration of Congress, and also, simultane- ion, except by positive action by Congress, ously with this, the propriety of redeem:ng or by national disasters which will destroy, our currency, as before suggested, at its mar- for a time at least, the credit of the indiket value at the time the law gocs inco effect, vidual and the State at large. A sound curincreasing the rate at which currency shall be _ rency might be reached by total bankruptcy bought and so.d from day to day or week to and discredit of the integrity of the nation week, at the same rate of interest as Govern- and of individuals. I believe it is in the

ment pays upon its bonds... . power of Congress at this session to devise

such legislation as will renew con4dence, re-

2... . In view of the piedges of the vive all the industries, start us on a career of American Congress when our present legal- prosperity to last for many years and to save

tender system was adopted, and debt con- the credit of the nation and of the people. tracted, there should be no delay—certainly Steps toward the return to a specie basis are no unnecessary de.ay—in fixing by legisla- the great requisiles to this devoutly to be

tion a methol by which we will return to sought for end. There are others which I] specie. To the accomp is:ment of this end may touch upon hereafter. I invite your special attention. I believe A nat.on dealing in a currency below that firmly that there can be no prosperous and of specie in value labors under two great permancnt revival of business an] industries disadvantages: First, having no use for the until a policy is adopted—with legisiation to world’s acknowledged medium of exchanze, carry it out—looxing to a return to a specie gold and silver, these are driven out of the bas’s. It is easy to conceive that the debtor coxntry because there is no need for their and speculative classes may think it of value use; second, the medium of exchange in use to them to make so-called money abundant being of a fluctuating value—for, after all, until they can throw a portion of their bur- it is only worth just what it will purchase of dens upon others. But even these, I believe, god and silver, matals having an intrinsic would be disappo-:nted in the resu:t if a course value just in proportion to the honest labor should be pursued which will keep in doubt it takes to produce them—a larger marg’n the value of the legal-tender med:um of ex- must be allowed for profit by the manufacchange. A revival of p.oluctive industry is turer and producer. It is months from the needed by all classes; by none more than the date of production to the date of realization. holders of property, of whatever sort, with Interest upon capital must be charged, and debts to liquidate from realization upon its _ risk of fluctuation in the value of that which

Tue RESUMPTION OF SPECIE PAYMENTS 83 is to be received in payment added. Hence by the National Government should be rehigh prices, acting as a protection to the pealed, to take effect as to all contracts enforeign producer, who receives nothing in tcred into after a day fixed in the repealing exchange for the products of his skill and act—not to app.y, however, to payments of labor except a currency good, at a stable salaries by Government, or for other exvalue, the world over. It seems to me that pcnditures now provided by law to be paid in nothing is clearer than that the greater part currency, in the interval pending between of the burden of existing prostration, for the repeal and final resumption. Provision should

want of a sound financial system, falls upon be made by which the Secretary of the the working man, who must after all produce Treasury can obtain gold as it may become the wealth, and the salaried man, who super- necessary from time to time from the date intends and conducts business. ‘Ihe burden when specie redemption commences. To this falls upon them in two ways—by the depriva- might and should be added a revenue suffi-

tion of employment and by the decreased ciently in excess of expenses to insure an purchasing power of their salaries. It is the accumulation of gold in the Treasury to duty of Congress to devise the method of sustain permanent redemption. correcting the evils which are acknowledged I commend this subject to your careful to exist, and not mine. But I will venture to consideration, believing that a favorable solusuggest two or three things which seem to me _ tion is attainable, and if reached by this Con-

as absolutely necessary to a return to specie gress that the present and future gencrations payments, the first great requisite in a re- will ever gratefully remember it as their de-

turn to prosperity. The legal-tender clause liverer from a thraldom of evil and disto the law authorizing the issue of currency grace....

289. THE RESUMPTION OF SPECIE PAYMENTS January 14, 1875 (U.S. Statutes at Large, Vol. XVIII, p. 296) The financial stringency brought about by the An act to provide for the resumption of

pan.c of 1873 resulted in an effort to incrcase the specie payments.

issuance of letal tender notes to $40,009,030 Be it enacted .. . ,That the Secretary of which was onlyinby veto. This the T ‘5 hereb horized teveto was thedefeated turning point theGrant’s grcenback é ireasury Is hereby authorized andd re

agitation; early in 1875 Cong-ess prov.ded for quired, as rapid'y as practicable, to cause to the resumption of specie payments, and the re- be coined at the mints of the United States, duction of greenback circulation to $300,000,000. s-lver coins of the denominations of ten, Hayes, elected in 1876, appointed John Sher- twenty-five, and fifty cents, of standard value, man Secretary of the Treasury, and Sherman and to issue them in redemption of an equal accumulated a gold reserve sufficient to insure yember and amotnt of fractional currency of successful resumption January 1, 1879. The re- s:nijar denom:nat’ons, or, at his discretion sult was that greenbacks reached par shortly he may issue such silver coins throush the tion of greenbacks provided for by the act of mints, the subtreasuries, public depos:taries, 1875 was stopped when $346,681,000 was out- and post-offices of the United States; and, standing. Sec, D. R. Dewey, Financial History, Upon such issue, he is hereby authorized and ch. xv; J. Sherman, Recollections, Vol. I, p. required to redeem an equal amount of such 507 ff., Vol. I, p. 636 ff.; A. D. Noyes, Forty fractional currency, until the whole amount Years of American Finance; A. S. Bolles, of such fractional currency outs‘anding shail

before resumption. The reduction in the circula- . oN

ceC-CLE uamcial aistory of ne Ome rane awan ms é be EJUNQALIN redeemed. CSUN PLION

O 1é : . ~

National Debt, Executive Doc. XVII, 46:h Con. _, SEC: 2, That so much of section 3524 of gress, 2nd Session; D. C. Barrett, Greenbacks the Revised Statutes of the Un‘ted States as and the Resumption of Specie Payments, 1862- provides for a charge of one-fifth of one per 1879; A. B. Hepburn, A History of Currency in centum for converting standard gold bullion

the United States, chs. xii, xiii. into coin is hereby repealed, and hereafter

84 DoCUMENTS OF AMERICAN Htstory no charge shall be made for that service. and to continue such redemption as such SEC. 3. That section 5177 of the Revised circulating-notes are issued until there shal]

Statutes of the United States, limiting the be outstanding the sum of three hundred aggregate amount of circulating-notes of na- million dollars of such legal-tender United tional banking-associations, be, and is hereby, States notes, and no more. And on and after repealed; and each existing banking-associ- January 1, 1879, the Secretary of the Treasation may increase its circulating-notes in ury shall redeem, in coin, the United States accordance with existing law without respect legal-tender notes then outstanding on their to said aggregate limit; and new banking- presentation for redemption, at the office of associations may be organized in accordance _ the assistant treasurer of the United States in with existing law without respect to said ag- the city of New York, in sums of not less gregate limit; and the provisions of law for than hifty dollars. And to enable the Secrethe withdrawal and redistribution of national- tary of the Treasury to prepare and provide bank currency among the several States and for the redemption in this act authorized or Territories are hereby repealed. And when- required, he is authorized to use any surplus ever, and so often, as circulating-notes shall revenues, from time to time, in the Treasury be issued to any such banking-association, so not otherwise appropriated, and to issue, sell, increasing its capital or circulating-notes, or and dispose of, at not less than par, in coin, so newly organized as aforesaid, it shall be either of the descriptions of bonds of the

the duty of the Secretary of the Treasury to United States described in the... Act of redeem the legal-tender United States notes July 14,1870... , with like qualities, privin excess only of three hundred million of lleges, and exemptions, to the extent necesdollars, to the amount of eighty per centum sary to carry this act into full effect, and to of the sum of national-bank notes so issued use the proceeds thereof for the purposes

to any such banking-association as aforesaid, aforesaid. .. .

290. MINOR v. HAPPERSETT Z1 Wallace, 162 1875

Error to the supreme court of Missouri. This of suffrage as one of the privileges and imcase involved the interpretation of the relation munities of her citizenship, which the State of the Fourteenth Amendment to the right to cannot by its laws or constitution abridge. vote, with particular reference to the privileges There is no doubt that women may be and immunities clause of that Amendment. citizens. They are persons, and by the Fourteenth Amendment “all persons born or natWaite, C. J. The question is presented in _uralized in the United States and subject to this case, whether, since the adoption of the the jurisdiction thereof” are expressly deFourteenth Amendment, 2 woman, who is a_ clared to be ‘“‘citizens of the United States citizen of the United States and of the State and of the State wherein they reside.” But, in of Missouri, is a voter in that State, notwith- our opinion, it did not need this amendment

standing the provision of the constitution to give them that position. Before its adopand laws of the State, which confine the right tion the Constitution of the United States

of suffrage to men alone. .. . did not in terms prescribe who should be

It is contended that the provisions of the citizens of the United States or of the several Constitution and laws of the State of Mis- States, yet there were necessarily such citisouri, which confine the right of suffrage and zens without such provision. ae registration therefor to men, are in violation For convenience it has been found necesof the Constitution of the United States, and sary to give a name to this membership. The therefore void. The argument is, that as a object is to designate by a title the person woman, born or naturalized in the United and the relation he bears to the nation. For States and subject to the jurisdiction thereof, this purpose the words “subject,” “inhabiis a citizen of the United States and of the tant,” and “citizen” have been used, and the State in which she resides, she has the right choice between them is sometimes made to

Mrnor v. HAprPERSETT 85 depend upon the form of the government. It is clear therefore, we think, that the

Citizen is now more commonly employed, Constitution has not added the right of sufhowever, and as it has been considered better _frage to the privileges and immunities of suited to the description of one living under citizenship as they existed at the time it was a republican government, it was adopted by adopted. This makes it proper to inquire nearly all of the States upon their separation whether suffrage was co-extensive with the

from Great Britain, and was afterwards citizenship of the States at the time of its adopted in the Articles of Confederation and adoption. If it was, then it may with force be

in the Constitution of the United States. argued that suffrage was one of the rights When used in this sense it is understood as which belonged to citizenship, and in the enconveying the idea of membership of a na- joyment of which every citizen must be pro-

tion, and nothing more... . tected. But if it was not, the contrary may _. . Sex has never been made one of the with propriety be assumed.

elements of citizenship in the United States. When the Federal Constitution was In this respect men have never had an advan- adopted, all the States, with the exception of

tage over women. The same laws precisely Rhode Island and Connecticut, had constiapply to both. The Fourteenth Amendment tutions of their own. . . . Upon an examinadid not affect the citizenship of women any _ tion of these constitutions we find that in no more than it did of men. In this particular, State were all citizens permitted to vote... . therefore, the rights of Mrs. Minor do not In this condition of the law in respect to depend upon the amendment. She has always suffrage in the several States it cannot for been a citizen from her birth, and entitled to a moment be doubted that if it had been inall the privileges and immunities of citizen- tended to make all citizens of the United

ship... . States voters, the framers of the Constitution ‘If the right of suffrage is one of the neces- would not have left it to implication. . . .

sary privileges of a citizen of the United It is true that the United States guarantees States, then the constitution and laws of tc every State a republican form of governMissouri confining it to men are in violation ment. ... The guaranty is of a republican of the Constitution of the United States, as form of government. No particular governamended, and consequently void. The direct ment is designated as republican, neither is question is, therefore, presented whether all the exact form to be guaranteed, in any man-

citizens are necessarily voters. ner especially designated. Here, as in other The Constitution does not define the priv- parts of the instrument, we are compelled to

ileges and immunities of citizens. For that resort elsewhere to ascertain what was indefinition we must look elsewhere. In this tended. case we need not determine what they are, The guaranty necessarily implies a duty but only whether suffrage is necessarily one on the part of the States themselves to pro-

of them. vide such a government. All the States had It certainly is nowhere made so in express governments when the Constitution was terms. The United States has no voters in adopted. In all the people participated to the States of its own creation. The elective some extent, through their representatives officers of the United States are all elected elected in the manner specially provided. directly or indirectly by state voters.... These governments the Constitution did not The Amendment did not add to the privi- change. They were accepted precisely as they leges and immunities of a citizen. It simply were, and it is, therefore, to be presumed that

furnished an additional guaranty for the pro- they were such as it was the duty of the tection of such as he already had. INo new’ States to provide. Thus we have unmistakvoters were necessarily made by it. Indirectly able evidence of what was republican in form, it may have had that effect, because it may within the meflning of that term as employed

have increased the number of citizens en- in the Constitution. titled to suffrage under the constitution and As we have seen, all the citizens of the laws of the States, but it operates for this States were not invested with the right of purpose, if at all, through the States and the — suffrage. In all, save perhaps New Jersey, this

state laws, and not directly upon the citizen. right was only bestowed upon men and not

86 DOCUMENTS OF AMERICAN History | upon all of them. Under these circumstances zensh’p, did not necessarily confer the right

it is certainly now too late to contend that ot suffrage. ...

a government is not republican, within the Being unanimously of the opinion that the meaning of this guaranty in the Constitution, Constitution of the United States does not because women are not made voters. . . . confer the right of suffrage upon any one, and Certainly if the courts can consider any that the constitutions and laws of the several quest:on settled, this is one. For nearly ninety States which commit that important trust to years the peop'e have acted upon the idea men alone are not necessarily void, we affirm that the Constitution, when it conferred citi- the Judgement.

291. THE CIVIL RIGHTS ACT March 1, 1875 (U.S. Statutes at Large, Vol. XVIII, p. 335 ff.) For history and references, see Doc. No. 273. such offense, forfeit and pay the sum of five

An act to protect all citizens in their civil hundzed dollars to the person aggrieved

and legal rights thereby, . . . and shall also, for every such

Whereas it is essential to just government offense, be deemed guilty of a misdemeanor, we recognize the equality of all men before and, upon conviction thereof, shail be fined

the law, and hold that it is the duty of not less than five hundred nor more than one government in its dealings with the people to thousand dollars, or shall be imprisoned not

mete out equal and exact justice to all, of less than thirty days nor more than one whatever nativity, race, color, or persuasion, year... religious or political; and it being the ap- Sec. 3. That the district and circuit courts

propriate object of legislation to enact great of the United States shall have, exclusively fundamental principles into law: Therefore, of the courts of the several States, cognizance Be it enacted, That all persons within the of all crimes and offenses against, and violajurisdiction of the United States shall be en- tions of, the provisions of this act... titled to the full and equal enjoyment of the Sec. 4. That no citizen possessing all other accommodations, advantages, facilities, and qualifications which are or may be prescribed privileges of inns, public conveyances on land by law shall be disqualified for service as

or water, theaters, and other p:aces of public grand or petit juror in any court of the amuscment; subject on'y to the conditions United States, or of any State, on account of and lmitations established by law, and ap-_ race,color, or previous cond’tion of servitude; plicable alike to citizens of every race and and any officer or other person charged with color, regard:ess of any previous condition of | any duty in the selection or summoning of

servitude. Jurors who shall exclude or fail to summon Sec. 2. That any person who sha:l violate any citizen for the cause aforesaid shall, on

the foregoing sect-on by deny.ng to any conviction thereof, be deemed guilty of a citizen, except for reasons by law applicabite m/ sdemeanor, and be fined not more tkan five

to citizens of every race and color, and re- thousand dollars. '

gardless of any pzevious condition of servi- SEc. 5. That all cases arising under the tude, the full enjoyment of any of the provisions of this act ... shall be renewable accommodations, advantages, facilities, or by the Supreme Court of the United States, privileges in said section enumerated, or by without regard to the sum in controaiding or inciting such denial, shall, for every versy....

22. CIVIL RIGHTS CASES 109 U. S. 3 1883

These were five cases, appealed from different 1875. (Doc. No. 291.) In each case a colored circuit courts, involving the validity and in- person had been denied some accommodation or terpretation of the Civil Rights Act of March 1, privilege on account of color. The opinion of

Cirvit RicuHutTs CASES 87 the Court that the rights which this law at- power to pass the law is not found in the tempted to protect were social rather than civil Thirteenth Amendment... .

rights, and that the Federal Government had But is there any similarity between such no jurisdiction over these matters, practically servitudes and a denial by the owner of an put an end to the effort of the Federal Govern- 5), public conveyance, or a theatre, of its ment to enforce the guaranties of the Fourteenth , ‘wileg ndiAmendment. See, Warren, Supreme Court accommodations and privl Cee to an 1n (1928 ed.), Vol. II, ch. xxxiv; W. A. Dunning, vidual, even thouzh the denial be founded on

Essays on Civil War and Reconstruction, p. the race or color of that individual? Where 363 ff.; W. W. Davis, “The Federal En-orce- does any slavery or servitude, or badge of ment Acts,” Studies in Southern History and either, arise from such an act of denial?

Politics. Whether it might not be a denial of a right which, if sanctioned by the state law, would Brapviey, J. [After holding that the statute be obnoxious to the prohibitions of the Four-

derived no support from the Fourteenth teenth Amendment, is another question. But

Amendment }. what has it to do with the question of slav... But the power of Congress to adopt eryr...

direct and primary, as distinguished from The long existence of African slavery in corrective legis'ation, on the subject in hand, this country gave us very distinct notions of is sought in the second place, from the Thir- what it was, and what were its necessary intcenth Amendment, which abolishes slav- cidents. Compulsory service of the slave for

ery. ... the benefit of the master, restraint of his It is true that slavery cannot exist without movements except by the master’s will, disalaw any more than property in lands and __ bility to hold property, to make contracts, to

goods can exist without law, and therefore have a standing in court, to be a witness the Thirteenth Amendment may be regarded against a white person, and such like burdens

as nullifying all state laws which establish and incapacities were the inseparable incior uphold slavery. But it has a reflex char- dents of the institution. . . . Can the act of acter also, establishing and decreeing univer- a mere individual, the owner of the inn, the sal civil and political freedom throughout the public conveyance, or place of amusement, United States; and it is assumed that the refusing the accommodation, be justly repower in Congress to enforce the articles by garded as imposing any badge of slavery or appropriate legislation, clothes Congress with scrvitude upon the appticant, or only as inpower to pass all laws necessary and proper _ flicting an ordinary civil injury, properly coz-

for abolishing all badges and incidents of nizable by the laws of the State, and preslavery in the United States; and upon this sumably subject to redress by those laws assumption it is claimed that this is sufficient until the contrary appears? authority for declaring by law that all persons After givinz to these questions all the conshall have equal accommodations and privi- — sideration which their importance demands, Ieges in all inns, public conveyances, and we are forced to the conciusion that such an places of public amusement; the argument act of refusal has nothing to do with slavery

be:nz that the den‘al of such equal accom-_ or invo!untary servitude, and that if it is modations and privileges is in itself a subjec- _vio‘ative of any right of the party, his redress tion to a species of servitude within the mean- is to be sought under the laws of the State; ing of the amendment. Conceding the major _ or, if those laws are adverse to his rights and propos:tion to be true, that Congress has a_ do not protect him, his remedy will be found

right to enact all necessary and proper laws in the corrective legislation which Congress for the obliteration and prevention of slavery has adopted, or may adopt, for counteracting with all its badzves and incidents, is the minor _ the effect of state laws, or state action, proproposition also true, that the denial to any hibited by the Fourteenth Amendment. It person of admiss:on to the accommodations would be running the slavery argument into and privileges of an inn, a public conveyance, the ground to make it apply to every act of or a theatre, does subject that person to any discrimination which a person may see fit to form of servitude, or tend to fasten upon him make as to the guests he will entertain, or as any badge of slavery? If it does not, then to the people he will take into his coach or

88 DOCUMENTS OF AMERICAN History cab or car, or admit to his concert or thea- subjected to discriminations in the enjoyment tre, or deal with in other matters of inter- of accommodations in inns, public convey-

course or business. .. . ances and places of amusement. Mere dis-

When a man has emerged from slavery, criminations on account of race or color were and by the aid of beneficent legislation has not regarded as badges of slavery. If, since shaken off the inseparable concomitants of that time, the enjoyment of equal rights in that state, there must be some stage in the ll these respects has become established by progress of his elevation when he takes the constitutional enactment, it is not by force of rank of a mere citizen, and ceases to be the the Thirteenth Amendment (which merely special favorite of the laws, and when his abolishes slavery), but by force of the Fourrights as a citizen, or a man, are to be pro- teenth and Fifteenth Amendments. tected in the ordinary modes by which other On the whole we are of the opinion that men’s rights are protected. There were thou- no countenance of authority for the passage sands of free colored people in this country of the law in question can be found in either before the abolition of slavery, enjoying all the Thirteenth or Fourteenth Amendment of the essential rights of life, liberty and prop- the Constitution; and no other ground of erty the same as white citizens; yet no one, at authority for its passage being suggested, it that time, thought that it was any invasion must necessarily be declared void, at least so of his personal status as a freeman because far as its operation in the several States is he was not admitted to all the privileges en- concerned... . joyed by white citizens, or because he was HARLAN, J., delivered a dissenting opinion.

293. EX PARTE YARBROUGH 110 U. S. 651 1884

Petition for a writ of habeas corpus for re- this election from the influence of violence, lease of persons convicted and imprisoned for of corruption, and of fraud, is a proposition conspiracy to prevent a negro from voting at go startling as to arrest attention and demand an election for a member of Congress, con- the gravest consideration. trary laws safeguarding the rightIttowas If thisalleged government votetoatFederal Congressional elections. . is anything more than by Yarbrough that these laws were unconstitu- . a mere aggregation of delegated agents of

Honal. other states and governments, each of which 1s superior to the general government, it must

MILLER, J... . Stripped of its technical have the power to protect the elections on verbiage, the offence charged in this indict- which its existence depends from violence and

ment is that the defendants conspired to in- corruption. timidate Berry Saunders, a citizen of African If it has not this power, it is left helpless descent, in the exercise of his right to vote before the two great natural and historical for a member of the Congress of the United enemies of all republics, open violence and States, and in the execution of that con- insidious corruption.

spiracy they beat, bruised, wounded and The proposition that it has no such power otherwise maltreated him; and in the second is supported by the old argument often heard,

count, that they did this on account of his often repeated, and in this court never asrace, color, and previous condition of servi- sented to, that when a question of the power tude, by going in disguise and assaulting him of Congress arises the advocate of the power on the public highway and on his own prem- must be able to place his finger on words

ises. . . . which expressly grant it. . . . Because there ... That a government whose essential is no express power to provide for preventing

character is republican, whose executive head violence exercised on the voter as a means of and legislative body are both elective, whose controlling his vote, no such law can be en-

most numerous and powerful branch of the acted. It destroys at one blow, in construing legislature is elected by the people directly, the Constitution of the United States, the has no power by appropriate laws to secure doctrine universally applied to all instruments

Ex ParTE YARBROUGH 89 of writing, that what is implied is as much a _ necessary, the officers who shall conduct them part of the instrument as what is expressed. and make return of the result? And especially This principle, in its application to the Con- to provide, in an election held under its own stitution of the United States, more than to authority, for security of life and limb to the almost any other writing, is a necessity, by voter while in the exercise of this function? reason of the inherent inability to put into Can it be doubted that Congress can, by law,

words all derivative powers,—a difficulty protect the act of voting, the place where it which the instrument itself recognizes by con- is done, and the man who votes from personal

ferring on Congress the authority to pass all violence or intimidation, and the election itlaws necessary and proper to carry into exe- self from corruption or fraud? cution the powers expressly granted, and all If this be so, and it is not doubted, are such other powers vested in the government or any powers annulled because an election for state

branch of it by the Constitution. Article 1, officers is held at the same time and placer

section 8, clause 18. Is it any less important that the election of We know of no express authority to pass members of Congress should be the free

laws to punish theft or burglary of the treas- choice of all the electors, because state ofhury of the United States. Is there therefore cers are to be elected at the same time?

no power in the Congress to protect the These questions answer themselves; and it treasury by punishing such theft and bur- is only because the Congress of the United

glary? States, through long habit and long years of Are the mails of the United States, and the forbearance, has, in deference and respect to

money carried in them, to be left at the the states, refrained from the exercise of mercy of robbers and of thieves who may _ these powers, that they are now doubted.

handle the mail, because the Constitution But when, in the pursuance of a new decontains no express words of power in Con- mand for action, that body, as it did in the gress to enact laws for the punishment of cases just enumerated, finds it necessary to those offences? The principle, if sound, would make additional laws for the free, the pure, abolish the entire criminal jurisdiction of the and the safe exercise of this right of voting, courts of the United States, and the laws they stand upon the same ground, and are to

which confer that jurisdiction. be upheld for the same reasons.

It is said that the states can pass the nec- It is said that the parties assaulted in these essary law on this subject, and no necessity cases are not officers of the United States, exists for such action by Congress. But the and their protection in exercising the right existence of state laws punishing the counter- to vote by Congress does not stand on the feiting of the coin of the United States has same ground.

never been held to supersede the acts of But the distinction is not well taken. The Congress passed for that purpose, or to justify power in either case arises out of the circumthe United States in failing to enforce its own stance that the function in which the party is

laws to protect the circulation of the coin engaged or the right which he is about to

which it issues... . exercise 1s dependent on the laws of the

So, also, has the Congress been slow to United States. exercise the powers expressly conferred upon In both cases it is the duty of that govit in relation to elections by the fourth sec- ernment to see that he may exercise this right tion of the first article of the Constitution. freely, and to protect him from violence while

This section déclares that: “The times, places, sc doing, or on account of so doing. This duty and manner of holding elections for Senators does not arise solely from the interest of the

and Representatives shall be prescribed in party concerned, but from the necessity of each State by the legislature thereof; but the the government itself that its service shall Congress may at any time make or alter such___be free from the adverse influence of force regulations, except as to the place of choosing and fraud practiced on its agents, and that

Senators.” ... the votes by which its members of Congress

Will it be denied that it is in the power of and its President are elected shall be the that body to provide laws for the proper free votes of the electors, and the officers thus conduct of those elections? To provide, if chosen the free and uncorrupted choice of

90 DOCUMENTS OF AMERICAN II1stTory those who have the right to take part in that to the state law, in any sense which makes

choice. the exercise of the right to depend exclusively This proposition answers, a!so, another ob- on the law of the state. jection to the constitutionality of the laws Counsel for petitioners, seizing upon the under consideration, namely, that the right expression found in the opinion of the court tc vote for a member of Congress is not de- of the case of M nor v. Happersett, 21 Walpendent upon the Constitution or laws of the lace 162, that “the Constitution of the United United States, but is governed by the law of States does not confer the right of suffrage

each state respectively. upon any one,” without reference to the If this were conceded, the importance to connection in which it is used, insists that the the general government of having the actual voters in this case do not owe their right to election—the voting for those members—free _ vote in any sense to that instrument.

from force and fraud is not d-min:shed by But the court was combating the argument the circumstance that the qualiication of the that this right was conferred on all citizens voter is determined by the law of the state and therefo-e upon women as we.l as men. | where he votes. It equally affects the govern- In opposition to that idea, it was said the

ment; it is as indispensable to the proper Constitution adopts as the qualification for discharge of the great f-mction of lezislating voters of members of Conzress that which for that government, that those who are to prevails in the state where the voting is to control this legislation sha‘l not owe their be done: therefore, said the opinion, the right election to bribery or violence, whether the is not definitely conferred on any person ‘or class of persons who shall vote is determ:ned class of persons by the Const: tution alone, beby the law of the state. or by the laws of the cavse you have to look to the law of the state

United States, or by their united result. for the description of the class. But the court But it is not correct to say that the rigut did not intend to say that when the class or to vote for a member of Congress does not the person is thus ascertained, his right to depend on the Constitution of the United vote fora member of Congress was not funda-

States. mentally based upon the Constitution, which The office, if it be properly called an office, created the office of member of Conzress, and

is created by that Constitut’on, and by that declared it s‘iould be e‘ective, and po nted to alone. It also declares how it shall be filied, the means of ascerta:ning who shou:d be e’ec-

namely, by election. Its lantuage is: “The tors... .

House of Representatives siall be composed It is as essential to the successful working of members chosen every second year by the of this government that the great organisms

people of the several Statcs; and the electors of its executive and legislative branches in each State shall have the same qualifica- shou'd be the free choice of the peop‘e, as tions requisite for electors of the most nu- that the original form of it should be so. In merous branch of the State Ieg’slature.” Arti- absolute governments, where the monarch is

cle 1, section 2. the source of all power, it is still held to be The states, in prescribing the qualifications important that the exercise of that power shall of voters for the most numerous branch of _ be free from the influence of extraneous viotheir own legis:atures, do not do this with lence and internal corruption.

reference to the e:ection for members of In a republican government, like ours, Congress. Nor can they prescribe the qualifi- | where political power is reposed in representcation for voters for those eo nomine. They atives of the entire body of the people, chosen define who are to vote for the popu'ar branch at short interva:s by popular elections, the of their own legislature, and the Constitution temptations to control these elections by vioof the United States says the same p2rsons_ lence and by corruption is a constant source

shall vote for members of Contress in that of danger. state. It adopts the qualification thus fur- Such has been the history of all republics, nished as the qualification of its own eiectors and, though ours has been comparatively free

for members of Congress. from both these evils in the past, no lover of

It is not true, therefore, that electors for his country can shut his eyes to the fear of members of Congress owe their right to vote future danger from both sources,

MuNnNN v. ILLINOIS 91 If the recurrence of such acts as these pris- ticn or control!ed by violence and outrage, oners stand convicted of are too common in’ without legal restraint.—then, indeed, is the one quarter of the country, and give omen of country in danger, and its best powers, its danger from lawless violence’ the free use of highest purposes, the hopes which it inspires,

money in elections, arising from the vast and the love which enshrines it, are at the growth of recent wealth in other quarters, mercy of the combinations of those who re-

presents equal cause for anxiety. spect no right but brute force on the one hand, If the government of the Un'ted States has and unprincipled corruptionists on the other.

with:n its constitutional domain no authority The rule is discharged, and the writ of tc provide against these evils —if the very habeas corpus is denied. sources of power may be poisoned by corrup-

294. MUNN v. ILLINOIS

94 U.S. 113 1876

Error to the supreme court of Illinois. This was 2. To that part of sect. 9 of the same artithe most important of the so-called “Granger cle, which provides that “no preference shall cases,” and involved the validity of an act of pe given by any regulation of commerce or the legislature of Illinois p oviding for the yeyenue to the ports of one State over those

, ; of another;”’ and

fixing of maximum charges for the storage of f ” grain in warehouses in Chicago. The law was 3 To that t of q t 14 which attacked as in violation of the Fourteenth » 40 tial part 0 amen men wale

Amendment. The doctrine which the court laid OFdains that no State shall “deprive any perdown in this case is one of the most important ‘S00 of life, liberty, or property, without due principles in American constitutional interpreta- process of law, nor deny to any person within tion, and has never been success‘ully challenged its jurisdiction the equal protection of the since that day. Yet note in this connection the laws.” remarks of Mr. Justice Brandeis in his dissent- We will consider the last of these objec-

ing opinion in the Oklahcma Ice Case, Doc. tions first... .

No. 472. For the historical background of the The Constitution contains no defin'tion of case see, S. J. Buck, The Granger Movement, 7 .g5 . A. E. Paine, The Granger Movement in Il- the word “deprive,” as used In the Fourteenth linois; Warren, Supreme Court, Vol. I, ch. Mmendment. To determine its signification,

XXX. therefore, it is necessary to ascertain the effect which usage has given it, when employed

Waite, C. J. The question to be determined in the same or a like connection. in this case is whether the general assembly While this provision of the amendment is of Illinois can, under the limitations upon new in the Constitution of the United States, the legislative powers of the States imposed as a lim’tation upon the powers of the States, by the Constitution of the United States, fix it is old as a principle of civilized government. by law the maximum of charges for the stor- It is found in Magna Charta, and, in sub-

age of grain in warehouses at Chicago and stance if not in form, in nearly or quite all other places in the State having not less than the constitutions that have been from time one hundred thousand inhabitants, “in which to time adopted by the several States of the grain is stored in bulk, and in which the grain Union. By the Fifth Amendment, it was inof different owners is mixed tozether, or in troduced into the Constitution of the Un‘ted which grain is stored in such a manner that States as a limitation upon the powers of the the identity of different lots or parcels can- national government, and by the Pourteenth,

not be accurately preserved.” as a guarantee against any encroachment upon It is claimed that such a law is repugnant— an acknowledged right of citizensh.p by the 1. To that part of sect. 8, art. I, of the Con- legislatures of the States... .

stitution of the Un'ted States which confers When one becomes a member of society, upon Congress the power “to regulate com- he necessarily parts with some rights or privmerce with foreign nations and among the _ ileges which, as an individual not affected by

several States;” his relations to others, he might retain. “A

92 DocCUMENTS OF ‘AMERICAN HISTORY body politic,” as aptly defined in the preamble time of the adoption of the Fourteenth of the constitution of Massachusetts, “is a Amendment, it was not supposed that statutes social compact by which the whole people regulating the use, or even the price of the covenants with each citizen, and each citizen use, of private broperty necessarily deprived with the whole people, that all shall be gov- an owner of his property without due process erned by certain laws for the common good.” of law. Under some circumstances they may, This does not confer power upon the whole but not under all. The amendment does not people to control rights which are purely and change the law in this particular: it simply exclusively private; but it does authorize the prevents the States from doing that which will establishment of laws requiring each citizen operate as such a deprivation. to so conduct himself, and so use his own This brings us to inquire as to the principles property, as not unnecessarily to injure an- upon which this power of regulation rests, in other. This is the very essence of government, order that we may determine what is within and has found expression in the maxim sic and what without its operative effect. Look-

utere tuo ut alienum non ledas. From this ing, then, to the common law, from whence source come the police powers, which, as was came the right which the Constitution prosaid by Mr. Chief Justice Taney in the tects, we find that when private property is License Cases, 5 How. 583, “are nothing more “affected with a public interest, it ceases to or less than the powers of government in- be juris privati only.” This was said by Lord

herent in every sovereignty, ... that is to Chief Justice Hale more than two hundred say, ... the power to govern men and_ years ago, in his treatise De Portibus Maris, things.” Under these powers the government 1 Harg. Law Tracts, 78, and has been ac-

regulates the conduct of its citizens one cepted without objection as an_ essential towards another, and the manner in which element in the law of property ever since. each shall use his own property, when such Property does become clothed with a public regulation becomes necessary for the public interest when used in a manner to make it of good. In their exercise it has been customary public consequence, and affect the community in England from time immemorial, andin this at large. When, therefore, one devotes his country from its tirst colonization, to regulate property to a use in which the public has an ferries, common carriers, hackmen, bakers, interest, he, in effect, grants to the public an millers, wharfingers, innkeepers, &c., and in interest in that use, and must submit to be so doing to fix a maximum of charge to be controlled by the public for the common good, made for services rendered, accommodations to the extent of the interest he has thus crefurnished, and articles sold. To this day, stat- ated. He may withdraw his grant by disconutes are to be found in many of the States tinuing the use; but, so long as he maintains upon some or all these subjects; and we think the use, he must submit to the control... . it has never yet been successfully contended From the same source comes the power to that such legislation came within any of the regulate the charges of common carriers, constitutional prohibitions against interfer- which was done in England as long ago as the ence with private property. With the Fifth third year of the reign of William and Mary, Amendment in force Congress, in 1820, con- and continued until within a comparatively ferred power upon the city of Washington “‘to recent period. And in the first statute we find regulate . . . the rates of wharfage at private the following suggestive preamble, to wit: wharves, .. . the sweeping of chimneys, and “And whereas divers waggoners and other to fix the rates of fees therefor, ... andthe carriers, by combination amongst themselves, weight and quality of bread,” 3 Stat. 587,§7; have raised the prices of carriage of goods in and, in 1848, “to make all necessary regula- many places to excessive rates, to the great tions respecting hackney carriages and the injury of the trade: Be it, therefore, enacted, rates of fare of the same, and the rates of etc. 3 W. & M. chap. 12, § 24; 3 Stat. at Large

hauling by cartmen, wagoners, carmen, and (Great Britain) 481. .

draymen, and the rates of commission of auc- Common carriers exercise a sort of public

tioneers,” 9 Id. 224, sect. 2. office, and have duties to perform in which

From this it is apparent that, down to the the public is interested. . . . Their business

MuNN Vv. ILLINOIS 93 is, therefore, “affected with a public interest.” if a state of facts could exist that would juswithin the meaning of the doctrine which _ tify such legislation, it actually did exist when

Lord Hale has so forcibly stated. the statute now under consideration was But we need not go further. Enough has al- passed. For us the question is one of power,

ready been said to show that, when private not of expediency. If no state of circumproperty is devoted to a public use, it is sub- stances could justify such a statute, then we ject to public regulation. It remains only to may declare this one void, because in excess ascertain whether the warehouses of these of the legislative power of the State. But if it plaintiffs in error,'and the business which is could we must presume it did. Of the propricarried on there, come within the operation of _ ety of legislative interference within the scope

this principle. of legislative power, the legislature is the ex-

For this purpose we accept as true the clusive judge. statements of fact contained in the elaborate Neither is it a matter of any moment that brief of one of the plaintiffs in error... . no precedent can be found for a statute preIn this connection it must also be borne in cisely like this. It is conceded that the busimind that, although in 1874 there were in ness is one of recent origin, that its growth Chicago fourteen warehouses adapted to this has been rapid, and that it is already of great

particular business, and owned by about importance. And it must also be conceded thirty persons, nine business firms controlled that it is a business in which the whole them, and that the prices charged and re- public has a direct and positive interest. It ceived for storage were such “as have been presents, therefore, a case for the applicafrom year to year agreed upon and established tion of a long-known and well-established by the different elevators or warehouses inthe principle in social science, and this statute city of Chicago, and which rates have been simply extends the law so as to meet this annually published in one or more newspapers new development of commercial progress. printed in said city, in the month of January There is no attempt to compel these owners in each year, as the established rates for the to grant the public an interest in their propyear then next ensuing such publication.” erty, but to decline their obligations, if they Thus it is apparent that all the elevating facil- use it in this particular manner.

ities through which these vast productions “of It matters not in this case that these seven or eight great States of the West” must plaintiffs in error had built their warehouses pass on the way “to four or five of the States and established their business before the

on the sea-shore” may be a “virtual” mo- regulations complained of were adopted.

nopoly, What they did was from the beginning Under such circumstances it is difficult to subject to the power of the body politic

see why, if the common carrier, or the miller, to require them to conform to such regula-

or the ferryman, or the innkeeper, or the tions as might be established by the proper wharfinger, or the baker, or the cartman, or authorities for the common good. They the hackney-coachman, pursues a public em- entered upon their business and provided ployment and exercises “a sort of public of- themselves with the means to carry it on fice,” these plaintiffs in error do not. They subject to this condition. If they did not stand, to use again the language of their coun- wish to submit themselves to such intersel, in the very “gateway of commerce,” and ference, they should not have clothed the take toll from all who pass. Their business public with an interest in their concerns. The most certainly “tends to a common charge, same principle applies to them that does to and is become a thing of public interest and the proprietor of a hackney-carriage, and as

use.” . . . Certainly, if any business can be to him it has never been supposed that he clothed “with a public interest and cease to be was exempt from regulating statutes or juris privat: only,” this has been. It may not ordinances because he had purchased his be made so by the operation of the constitu- horses and carriage and established his busition of Illinois or this statute, but it is by the ness before the statute or the ordinance was

facts... . adopted.

» « . For our purposes we must assume that It is insisted, however, that the owner of

94 DOCUMENTS OF AMERICAN IIIstTory property is entitled to a reasonable compensa- We know that this is a power which may tion for its use, even though it be clothed be abused; but that is no argument against

with a public interest, and that what is its existence. For protection against abuses reasonable is a judicial and not a legislative by legislatures the people must resor* to the

question. polls, not to the courts. ...

As has already been shown, the practice We come now to consider the effect upon

has been otherwise. In countries where the this statute of the power of Congress to regucommon law prevai's, it has be2n customary late commerce. from t:me immemorial for the legislature to - . . The warehouses of* these plaintiffs in declare what shall be a reasonable compensa- error are situated and their business carried tion under such circumstances, or perhaps on exclusively within the limits cf the State more properly speaking, to fix a maximum _ of Illinois. They are used as instruments by beyond which any charge made would be _ those engaged in State as well as those en-

unreasonab.e. Undoubtedly in mere private gaged in inter-state commerce... . Incicontracts, relating to matters in which the dentally they may become connected with public has no interest, what is reasonab'e inter-State commerce, but not necessarily so. must be ascerta:ned judicially. But this is Their reguiation is a th-ng of domestic conbecause the legislature has no control over cern and, certainly, until Congress acts in such a contract, So, too, in matters which reference to their inter-State relations, the do not affect the public intcrest, and as to State may exercise all the powers of governwhich legis‘ative control may be exercised ment over them, even though in so doing it

... the courts must determ'ne what is may indirectly operate upon commerce out-

reasonable. The controlling fact is the power side its immediate jurisdiction. .. . to regulate at all. If that exists, the riztht Judgement affirmed. to establish the maximum charge, as one of Fuexp, J. delivered a dissenting opinion. the means of regulation, is implied... .

295. COMMONWEALTII v. HAMILTON MANUFACTURING COMPANY 120 Mass. Reports, 383

1876 .

Massachuse‘ts was the pioneer state in labor tain cases, and that “in no case shall the legislation desizned to protect women and chil- hours of labor exceed sixty per week.”

dren from undue exp’oitation, This case in- The learned counsel for the defendant in volved the constitutionality of a statute l-miting his argument did not refer to any particular

the ne urs of por ents. t an’ t a weck. clause of the Constitution to which this proCompare ths Tecision nto. raat - * eople y._vis.on is repugnant. His general proposition Williams, Doc. No. 365. See, R. Fuller, Child Was, that the defendant’s act of incorporaLabor and the Constitution; G. G. Groat, Aiti- tion, St. 1324, c. 44, is a contract with the tude of American Courts in Labor Cases; M.C. Commonwealth, and that this act impairs Cahill, Shorter Hours: A History of the Move- that contract. The contract, it is claimed, is

ment Since the Civil War. an implied one; that is, an act of incorpora-

tion to manufacture cotton and woolen goods

Lorp, J. The defendant contends that the by necessary implication confers upon the St. of 1874, c. 221, under which the com- corporation the legal capacity t» contract

plaint in this case is made, is unconstitu- for all the labor needful for this work. If tional and void. The provision, which it is this is conceded to the fullest extent, it is alleged is without authority under the Consti- only a contract with the corporation that it

tution, is, that “no m:nor under the age of may contract for all lawful labor. There is eighteen years, and no woman over that age, no contract implied that such labor as was shall be employed in laboring by any person, then forbidden by law might be emp‘oyed firm or corporation in any manufacturing by the defendant; or that the General Court establishment in this Commonwealth more would not perform its constitutional duty than ten hours in any one day,” except in cer- of making such wholesome laws thereafter

PRESIDENT GRANT’S APOLOGY . 95 gs the public welfare should demand. The -ealth that reference to the decisions is unciw, therefore, violates no contract with the necessary.

Jefendant; and the only other question 1s, It is also said that the law violates the whether it is in violation of any right reserved right of Mary Shirley to labor in accordance

under the Constiiution to the individual with her own judgment as to the number of citizen. Upon this question, there seems to hours she shall work. The obvious and conbe no room for debate. It does not forbid clusive reply to this is, that the law does not any person, firm or corporation from employ- limit her right to labor as many hours per Ing aS many persons or as much labor as day or per week as she may desire; it does such person, firm or corporation may des:re; not in terms forbid her laboring in any parnor does it forbid any person to work as ticular business or occupation as many hours many hours a day or a week as he chooses. per day or per week, as she may desire; it It merely provides that in an employment, merely prohibits her being empioyed conwhich the Legisla:ure has evidently deemed tinuously in the same service more than a to some extent dangerous to health, no person certain number of hours per day or week, shall be engaged in labor more than ten hours’ which is so clearly w:thin the power of the a day or six‘'y hours a week. There can be no Legislature, that it becomes unnecessary to doubt that such legis'ation may be maintained inquire whether it is a matter of grievance either as a health or police regula.ion, if it of which this defendant has the right to comwere necessary to reso.t to either of those _ plain.

sources for power. This princ p‘e has been Judgment affirmed. so frequently recognized in this Common-

296. PRESIDENT GRANT’S APOLOGY Extract from Eighth Annual Message to Congress December 5, 1876 (Richardson, ed. Messages and Papers, Vol. VII, p. 399-400) EXECUTIVE Mansion, December 5, 1876. b'under on the part of the Executive because To the Sen-te and House of Representatives: there are these differences of views. Mistakes

In subm.tting my eighth and last annual have been made, as all can see and I admit, message to Congress it seems proper that I but it seems to me oftener in the selections should refer to and in some degzee recapi‘u- made of the assistants appointed to aid in late the events and official acts of the past carrying out the various duties of administer-

eight years. ing the Government—in nearly every case It was my fortune, or misfortune, to be — selected without a personal acquaintance with called to the office of Chief Executive with- the appointee, but upon recommendations of out any previous pouitical training. From the the representatives chosen directly by the age of 17 I had never even witnessed the peop'e. It is ‘mpossible, where so many trusts

excitement attending a President'al campaign are to be allotted, that the right parties but twice antecedent to my own candidacy, should be chosen in every instance. History and at but one of them was I eligible as a shows that no Administration from the time

voter. of Washington to the present has been free Under such circumstances it is but reason- from these mistakes. But I leave compavisons

able to suppose that errors of jud;ment must to history, claiming only that I have acted have occurred. Even had they not, differences in every instance from a conscientious desire of opinion between the Executive, bound by to do what was right, constitutional, within

an oath to the strict performance of his the law, and for the very best interests of the duties, and writers and debaters must have who‘e people. Failures have been errors of

arisen. It is not necessarily evidence of judgment, not of intent....

96 DOCUMENTS OF AMERICAN HISTORY 297. THE RESTORATION OF WHITE RULE IN SOUTH CAROLINA Letter of Governor Chamberlain to William Lloyd Garrison June 11, 1877 (W. Allen, Governor Chamberlain’s Administration in

South Carolina, appendix III, p. 504) In the famous ‘Red Shirt’ campaign of 1876, First, then, my deteat was inevitable under Wade Hampton was apparently successful over the circumstances of time and place which the carpet-bag Governor, Chamberlain. With gurrounded me. I mean here exactly that the the withdrawal of Federal support, the Cham- uneducated negro was too weak, no matter berlain government came to a prompt end. On what his numbers, to cope with the whites

Chamberlain’s administration see the volume by . Walter Allen, above, and Chamberlain’s article We had lost too, the sympathy of the

“Reconstruction in South Carolina,” Adlantic North, in some large measure, though we Monthly, April, 1901. See also, H. T. Thompson, never deserved it so certainly as in 1876 in Ouslting the Carpetbagger from South Carolina; South Carolina.

E. Wells, Hampton and Reconstruction; C. G. The Presidential contest also endangered Bowers, The Tragic Era, chs. xxiv-xxv; F. B. ys and doubtless defeated us. The hope of Simkins and R. H. Woody, South Carolina Dur- electing Tilden incited our opponents, and

ing Reconstruction, chs. xviii—xix. the greed of office led the defeated Re-

New York, June 11, 1877 publicans under Hayes to sell us out. There Dear Mr. Garrison. . . . Your prophecy is was just as distinct a bargain to do this at fulfilled, and I am not only overthrown, but Washington as ever existed which was not as a consequence I am now a citizen of New _ signed and sealed on paper. And the South York. It seems to me a remarkable experience is not to be blamed for it, if anybody is:

indeed, though I hope I do not egotistically but rather those leaders, like Evarts, who exaggerate it, for I am sure it will soon be could never see their Constitutional obligaforgotten by most men in the press and _ tions towards the South until the offices were hurry of new events. Why I write this line slipping away from their party.

now and send it to Boston when I know So the end came, but not as you exyou are in Europe, is because I feel like pected. ...

putting on record my main reflections on my Daniel H. Chamberlain. experiences of the last three years... .

298. PREAMBLE OF CONSTITUTION OF THE KNIGHTS OF LABOR January 1, 1878 (T. V. Powderly, Thirty Years of Labor, p. 243 ff.) The Noble Order of the Knights of Labor de- aggression of aggregated wealth, which, un-

veloped out of a society of garment cutters less checked, will invariably lead to the

organized in Philadelphia in 1869. The first pauperization and hopeless degradation of the General Assembly met in 1878 and drew up a toiling masses, render it imperative, if we constitution. Under Uriah Stephens and, later, qesire to enjoy the blessings of life, that a Terence Powderly, the organization grew in ‘check should be placed upon its power and some three-quarters of a million members. The UPOR Unjust accumulation, and a system Knights of Labor advocated the principle of adopted which will secure to the laborer the industrial democracy, and its membership in- fruits of his toil; and as this much-desired cluded men and women, white and negro, skilled object can only be accomplished by the and unskilled laborers. Membership declined thorough unification of labor, and the united rapidly after 1886. The best general discussion efforts of those who obey the divine in-

power and strength until by 1886 it numbered ; lati q t

of the Knights is in N. J. Ware, The Labor junction that “In the sweat of thy brow Movement in the United States, 1860-1895. shalt thou eat bread,” we have formed the The recent alarming development and * * * * * with a view of securing the organ-

THE BLAND-ALLISON ACT 97 ization and direction, by co-operative effort, gaged in mining, manufacturing, or building of the power of the industrial classes; and we _ pursuits.

submit to the world the object sought to be VII. The enactment of laws to compel

accomplished by our organization, calling chartered corporations to pay their employes upon all who believe in securing “the greatest weekly, in full, for labor performed during

good to the greatest number” to aid and the preceding week, in the lawful money of

assist us :— the country. I. To bring within the folds of organiza- VIII. The enactment of laws giving metion every department of productive in- chanics and laborers a first lien on their work dustry, making knowledge a standpoint for for their full wages. action, and industrial and moral worth, not IX. The abolishment of the contract syswealth, the true standard of individual and tem on national, State, and municipal work.

national greatness. X. The substitution of arbitration for II. To secure to the toilers a proper share strikes, whenever and wherever employers of the wealth that they create; more of the and employes are willing to meet on equitable

leisure that rightfully belongs to them; more — grounds.

societary advantages; more of the benefits, XI. The prohibition of the employment of privileges, and emoluments of the world; in children in workshops, mines, and factories a word, all those rights and privileges neces- before attaining their fourteenth year. sary to make them capable of enjoying, ap- XII. To abolish the system of letting out

preciating, defending, and perpetuating the by contract the labor of convicts in our

blessings of good government. prisons and reformatory institutions.

III. To arrive at the true condition of the XIII. To secure for both sexes equal pay

producing masses in their educational, moral, for equal work.

and financial condition, by demanding from XIV. The reduction of the hours of labor the various governments the establishment of to eight per day, so that the laborers may

bureaus of Labor Statistics. have more time for social enjoyment and IV. The establishment of co-operative in- intellectual improvement, and be enabled to

stitutions, productive and distributive. reap the advantages conferred by the laborV. The reserving of the public lands—the saving machinery which their brains have heritage of the people—for the actual settler; created.

—not another acre for railroads or specu- XV. To prevail upon governments to es-

lators. tablish a purely national circulating medium, VI. The abrogation of all laws that do not based upon the faith and resources of the bear equally upon capital and labor, the re- nation, and issued directly to the people, moval of unjust technicalities, delays, and without the intervention of any system of discriminations in the administration of banking corporations, which money shall be

justice, and the adopting of measures provid- a legal tender in payment of all debts, public

ing for the health and safety of those en- _ or private. 299. THE BLAND-—ALLISON ACT February 28, 1878

(U. S. Statutes at Large, Vol. XX, p. 25 ff.) The demonetization of silver in 1873 inaugurated W. V. Byars, An American Commoner, R. P. a quarter century of agitation for the free and Bland, ch. xii; A. B. Hepburn, History of Curunlimited coinage of silver. The Bland-Allison rency, ch. xv. act represented a compromise between the silver weg and the gol-standard Pasty unsatisfactory ay act to authorise the coinage of the stand

President Hayes, but passed over his veto. ard silver dollar, and to restore its legalFor Hayes’s veto message see Doc. No. 300. tender character. On the Bland-Allison Act see, D. R. Dewey, Be it enacted ..., That there shall be Financial History of the United States, ch. xvii; coined, at the several mints of the United J. L. Laughlin, History of Bimetallism, p. 209 ff.; | States, silver dollars of the weight of four

98 DOCUMENTS OF AMERICAN History hundred and twelve and a half grains Troy to join the United States in a conference to

of standard silver, as provided in the act aqopt a common ratio between gold and of January 18, 1837,... which coins silver, for the purpose of establishing, intertogether with all silver dollars heretofore nationally, the use of bi-metallic money, and co-ned by the United States, of like weight securing fixity of relative value between those and fineness, shall be a lezal tender, at their metals; such conference to be held at such nominal value, for all debts and dues public pace, in Europe or in the United States, at and private, except where otherwise expressly such time within. six months, as may be stipulated in the contract. And the Secretary mutually agreed upon by the executives of of the Treasury is authorized and directed the governments joining in the same, whznto purchase, from time to time, silver bullion, ever the governments so invited, or any three at the market pr-ce thereof, not less than two of them, shall have signified their willingmillion dollars worth per month, nor more ness to tnite in the same.

than four million dollars worth per month, The President shall, by and with the adand cause the same to be coined monthly, vice and consent of the Senate, appoint three as fast as so purchased, into such dollars... . commissioners, who shall attend such conAnd any gain or seigniorage arising from ference on behalf of the United States, and this coinage shall be accounted for and paid shall report the doings thereof to the Presiinto the Treasury, as provided under existing dent, who shall transmit the same to Conlaws relative to the subsidiary coinage: Pro- gress. . . .

vided, That the amount of money at any Sec. 3. That any holder of the coin one time invested in such silver bullion, ex- authorized by this act may deposit the same clusive of such resulting coin shall not exceed with the Treasurer or any assistant treasurer five million dotlars. And provided further, of the United States, in sums not less than That nothing in this act shall be construed ten collars, and receive therefor certificates - to authorize the payment in silver of certia- of not less than ten do/lars each, correspondcates of deposit issued under the provis:ons ing with the denominations of the United

of section 254 of the Revised Statutes. States notes. The coin deposited for or Sec. 2. That immediately after the passage representing the certiicates shall be retaincd

of this act, the President shall invite the in the Treasury for the payment of the governments of the countrics composing the same on demand. Said ce.tificates shall de Latin Union, so-called, and of such other receivable for customs, taxes, and all public European nations as he may deem advisable, dues. and, when so reccived. may be reissued.

300. PRESIDENT HAYES’S VETO OF BLAND-—ALLISON ACT Feb. 28, 1878. (Richardson, ed. Afessages and Papers, Vol. VII, p. 486 ff.) EXECUTIVE Mansion, Iebruary 28, 1878. maintain-nz the volume of intrinsic money to

To the House of Representatives: as full a mcasure of both metals as their

After a very careful consideration of the re:ative commercial va'ues will perm't wou'd

House bill No. 1093, entitled “An act to be neither unjust nor inexpedient,” it has authorize the coinage of the standard s:lver been my earnest desire to concur with Con-

do:lar and to restore its legal-tender char- gress in the adoption of such measures to acter,” I feel compelled to return it to the increase the silver coinage of the country as House of Representatives, in which it origi- would not impair the obligation of contracts, nated, with my objections to its passage. either public or private, nor injuriously affect Holding the opinion, which I expressed in the public credit. It is only upon the con-

my annual message, that “neither the in- viction that this bill does not meet these terests of the Government nor of the peop:e essential requirements that I feel it my duty

of the United States would be promoted by to withhold from it my approval... . disparaging silver as one of the two precious The bill provides for the coinage of silver metals which furnish the coinage of the dollars of the weight of 41214 grains each, world, and that legislation which looks to of standard silver, to be a legal tender at

PRESIDENT IIAYES’S VETO OF BLAND-ALLISON AcT_ 99 their nominal value for all debts and dues, pay these bonds, principal or interest, in public and private, except where otherwise silver coin worth in the market less than the

expressly stipulated in the contract. It is coin received for them.

well known that the market value of that It is said that the silver dollar made a number of grains of standard silver during legal tender by this bill will under its cperathe past year has been from 90 to 92 cents ton be equivalent in value to the gold dollar. as compared with the standard go'd dollar. Many supporters of the bill believe this, and Thus the silver dollar authorized by this would not justify an attempt to pay debts, bill is worth 8 to 10 per cent less than it either public or private, in coin of inferior purports to be worth, and is made a l2gal value to the money of the world. The capital tender for debts contracted when the law defect of the bill is that it contains no prodic not recognize such coins as lawful money. vision protecting from its operation preéxist-

The right to pay duties in silver or in ing debts in case the coinage which it creates certificates for silver deposits will, when shall continue to be of less value than that they are issued in sufficient amount to circu- which was the sole legal tender when they late, put an end to the receipt of revenue in were contracted. If it is now proposed, for gold, and thus compel the payment of silver the purpose of taking advantage of the defor both the principal and interest of the pub-_ preciation of s:lver in the payment of debts, lic debt. $1,143,493,400 of the bonded debt to coin and make a legal tender a silver dollar now outstanding was issued prior to Febru- of less commercial value than any do’lar, ary, 1873, when the silver dollar was un- whether of gold or paper, which is now lawknown in circulation in this country, and was’ ful money in this country, such measure, it only a convenient form of silver bullion for wil hardly be questioned, will, in the judgexportation; $583,440,350 of the funded debt ment of mankind, be an act of bad faith. As has been issued since February, 1873, when to all debts heretofore contracted, the silver gold alone was the coin for which the bonds dollar should be made a legal tender only

were sold, and gold alone was the coin in at its market value. The standard of value which both parties to the contract under- should not be changed without the consent of stood that the bonds would be paid. These both parties to the contract. National bonds entered into the markets of the world. promises should be kept with unflinching

They were paid for in go:d when silver had _ fidelity. There is no power to compel a nagreatly deprec ated, and when no one would _ tion to pay its just debts. Its credit depends have bought them if it had been understood on its honor. The nation owes what it has that they would be paid in silver. The sum led or allowed its creditors to expect. I can of $225,000,000 of these bonds has been so!d not approve a bill which in my judgment during my Administration for go'd co:n, and authorizes the violation of sacred obligations. the United States received the benefit uf The obligation of the public faith transcends

these sales by a reduction of the rate of all questions of profit or public advantage.

interest to 4 per cent. During the prozress Its unquestionable maintenance is the dictate of these sales a doubt was suggested as to as well of the highest expediency as of the

the coin in which payment of these bon’s most necessary duty, and should ever be

would be made. The public announcement carefully guarded by the Executive, by Con: was thereupon authorized that it was “not to gress, and by the peop'e. be anticipated that any future legislation of It is my firm conviction that if the coun. Congress or any action of any department try is to be benefited by a silver coinage it of the Government would sanction or tolerate can be done only by the issue of silver dollars

the redemption of the principal of these of fu!l value, which will defraud no man. bonds or the payment of the interest thereon A currency worth less than it purports to in co.n of less value than the coin authorized be worth will in the end defraud not only by law at the time of the issue of the bonds, creditors, but all who are engaged in legitibeing the coin exacted by the Government mate business, and none more surely than in exchange for the same.” In view of these those who are dependent on their daily labor

facts it will be justly regarded as a grave for their daily bread.

breach of the public faith to undertake to R. B. HAYES.

100 DOCUMENTS OF AMERICAN History 301. ENCYCLICAL LETTER, QUOD APOSTOLICI MUNERIS December 28, 1878

(The Great Encyclical Letters of Pope Leo XIII (Benziger Brothers), p. 22 ff.) This Encyclical Letter is recited as an illustration that evil-minded traitors, spurning all conof the attitude of the Catholic Church towards trol, have many a time within a recent period socialism. See, W. E. Garrison, The March of boldly raised impious hands against even the

Faith; W. E. Garrison, Catholicism and the very heads of States... -

American Mind. | For although the Socialists, turning to evil

... You understand as a matter of course, use the Gospel itself so as to deceive more Venerable Brothers, that We are alluding to readily the unwary, have been wont to twist that sect of men who, under the motley and it to their meaning, still so striking is the

all but barbarous terms and titles of So- disagreement between their criminal teachcialists, Communists, and Nihilists, are spread ings and the pure doctrine of Christ, that abroad throughout the world and, bound no greater can exist: For what participation

intimately together in baneful alliance, no uth justice with injustice, or what fellowlonger look for strong support in secret ship hath light with darkness. (2. Cor. vi. 14)

mectings held in darksome places, but stand- They in good sooth cease not from asserting forth openly and boldly in the light of ing—as we have already mentioned—that all

day, strive to carry out the purpose long men are by nature equal, and hence they resolved upon, of uprooting the foundations contend that neither honor nor respect is

of civilized society at large. owed to public authority, nor any obedience These are they in very truth who, as the to the laws, saving perhaps to those which sacred text bears witness, defile the flesh, have been sanctioned according to their good and despise dominion, and blaspheme maj- pleasure. Contrariwise, from the Gospel esty. (Jude 8) They leave nothing scathless records, equality among men consists in this, or uninjured of that which human and divine _ that one and all, possessing the same nature,

laws alike have wiscly ordained to ensure are called to the sublime dignity of being the preservation and honor of life. From the sons of God; and, moreover, that one and heads of States to whom, as the Apostle the same end being set before all, each and admonishes, all owe submission, and on whom _ every one has to be judged according to the

the rights of authority are bestowed by God same laws and to have punishments or reHimself, these sectaries withhold obedience wards meted out according to individual and preach up the perfect equality of all deserts. There is, however, an inequality of men in regard to rights alike and duties.... right and authority, which emanates from In short, spurred on by greedy hankering the Author of nature Himself, of whom all after things present, which is the root of all paternity in heaven and earth is named. (Eph. evils, which some coveting have erred from iii. 15) As regards rulers and subjects, all

the faith (1 Tim. vi. 10) they attack the without exception, according to Catholic

right of property, sanctioned by the law of teaching and precept, are mutually bound nature, and with signal depravity, while pre- by duties and rights, in such manner that, tending to feel solicilous about the needs, and on the one hand, moderation is enjoined on

anxious to satisfy the requirements of all, the appetite for power, and, on the other, they strain every effort to seize upon and hold obedience is shown to be easy, stable, and

in common all that has been individually wholly honorable. .. . acquired by title of Jawful inheritance, But to the end that the rulers of the peothrough intellectual or manual labor, or ple shall employ the power bestowed for the economy in living. These monstrous views advancement, and not detriment, of those

they proclaim in public meetings, uphold in under rule, the Church of Christ very fittingly booklets, and spread broadcast everywhere warns the rulers themselves that the Soverthrough the daily press. Hence the hallowed eign Judge will call them to a strict and dignity and authority of rulers has incurred speedy account, and evoking the words of such odium on the part of rebellious subjects divine wisdom, she addresses them one and

ENCYCLICAL LETTER, Quop ApostToricr: MuNERIs 101 all in God’s name. Give ear, you that rule of fortune; and she enjoins that the right the people, and that please yourselves in of property and of its disposal, derived from multitudes of nations; for power is given nature, should in the case of every individual you by the Lord, and strength by the Most remain intact and inviolate. She knows full High, who will examine your works, and well indeed that robbery and rapine have search out your thoughts; ... for a most been so forbidden by God, the Author and severe judgement shall be for them that bear Protector of every right, that it is unlawful rule... . For God will not accept any man’s even to covet the goods of others, and that person, neither will He stand in awe of any thieves and robbers no less than adulterers one’s greatness; for He hath made the little and idolaters are excluded from the kingand the great, and He hath equally care of dom of heaven. Nor does she, on this account, all. But a greater punishment is ready for loving mother as she is, omit solicitude for the more mighty. (Wisd. vi. 3 seqq.) Should the poor or fail to provide for their needs;

it, however, happen, at any time, that in nay, taking them to her arms with maternal the public exercise of authority rulers act affection, and knowing that they in a manner rashly and arbitrarily, the teaching of the represent the person of Christ Himself, who Catholic Church does not allow subjects to accounts as done unto Him any benefit conrise against them, without further warranty, ferred upon the lowliest among the poor, lest peace and order become more and more she holds them in great account, brings them disturbed, and society run the risk of greater aid to the utmost of her power, takes thought detriment. And when things have come to to have erected in every land in their behoof

such a pass as to hold out no further hope, homes and refuges where they can be reshe teaches that a remedy is to be sought ceived, nurtured, and tended; and takes these in the virtue of Christian patience and in charitable foundations under her protecting urgent prayer to God. But should it please care. Moreover, she lays the rich under legislators and rulers to enjoin or sanction strict command to give of their superfluity anything repugnant to the divine and natural to the poor, impressing them with fear of law, the dignity and duty of the name of the divine judgement which will exact the Christian and the Apostolic injunction pro- penalty of eternal punishment unless they claim that one ought to obey God rather succor the wants of the needy. In fine, she

than man. (Acts. v. 29)... . cheers and comforts exceedingly the hearts

As regards the maintenance of public and of the poor, either by setting before them the private tranquillity Catholic wisdom, sus- example of Christ, who, being rich became

tained by both divine and natural law, poor for our sakes, (2 Cor. vili. 9) or by

prudently provides through what it holds and reminding them of the words by which Jesus teaches touching the right of ownership and pronounced the poor to be blessed, and en-

the apportioning of personal property which joined them to hope for the reward of has been accumulated for the wants and re- eternal bliss. Who then does not perceive quirements of life. For the Socialists wrongly that herein lies the best means of appeasing assume the right of property to be of mere the undying conflict between the rich and human invention, repugnant to the natural the poor? For, as the evidence of things and equality between men, and, preaching up the facts clearly demonstrates, if such conclusion

community of goods, declare that no one be disallowed or made light of, it must come should endure poverty meekly, and that all about either that the vast majority of manmay with impunity seize upon the possessions kind will fall back into that most abject and usurp the rights of the wealthy. More condition of bondage which through a long wisely and profitably the Church recognizes lapse of time obtained among pagan nations, the existence of inequality amongst men, who or else that human society will be agitated

are by nature unlike in mental endowment by constant outbreaks and ravaged by and strength of body, and even in amount plunder and rapine....

102 DOCUMENTS OF AMERICAN IIrstory 302. POWELL’S REPORT ON THE ARID REGION OF THE WEST 1879

(J. W. Powell, Report on the Lands of the Arid Region of the United States, p. 37 ff.) Major Powell was director of the U.S. Geolovi- greatest number, would meet with local cal Survey. His report on the arid regions of the opposition. . . . west, with recommendaticns lor changes in the Under these circumstances it is believed

ive reuls,Was af epoch gait eaneeaa tha itis best to permit the people to divide He pointed out that the land system which had their lands for themselves—not in a way obtained from the beginning of our history by which each man may take what he pleases and for the region east of the 100th meridian, for himself, but by providing methods was unsuitable to the arid lands of the west, Dy which these settlers may organize and where access to water was the basic considera- mutually protect each other from the rapacity

tion. See also, J. W. Powell, “Institut:ons for of individuals. The lands, as lands, are of the Arid Lands,” Century Magazine, May, 1890. but slight value, as they cannot be used for

For an appreciation of the work of Major ordinary agricultural purposes, i.e. the

Powcll, and an elaboration cf the thesis wach cu'tivation of crops: but their value consists he presented, see W. P. Webb, The Great Plains, in the scant grasses which they spontaneous!y

esp. p. 353 Il. produce, and these values can be made available only by the use of the waters necessary

... If the whole of the Arid Region was for the subsistence of stock, and that necesyet unscttled, it might be wise for the Gov- sary for the small amount of irrigable land ernment to undertake the parce‘ing of the which should be attached to the several

lands and employ skilled engineers ‘o do the pasturage farms. Thus, practically, all values work, whose duties could be performed in inhere in the water, and an equitable division

advance of settlement.... Many of the of the waters can be made only by a wise lands surveyed along the minor streams have system of parcelling the lands; and the been entered, and the titles to these lands are people in organized bodies can well be in the hands of actual settlers. Many pastur- trusted with this right, while individuals age farms, or ranches, as they are called could not thus be trusted. These consideralucally, have been established throughout the tions have led to the plan suggested In the

country. These remarks are true cf every Dll submitted for the organization of

state and territory in the Arid Region. In pasturage districts. |

the main these ranches or pasturage farms In like manner, in the bill designed for the are on Government land, and the settlers purpose of suggesting a plan for the organizaare squatters, and some are not expecting to tion of Irrigation districts, the same princip.e make permanent homes. ... It is now too _ is involved, viz, that of permitting the settlers late for the Government to parcel the pastur- themselves to subdivide the lands into such age lands in advance of the wants of settlers tracts as they may desire. in the most availab'e way, so as to closely The lands along the streams are not valuagroup residences and give water privileges b’e for agricultural purposes in continuous to the several farms. Many of the farmers bod-es or squares, but only in irrigable tracts are actually on the ground, and are clamoring governed by the levels of the meandering for some means by which they can obtain canals which carry the water for irrigation, titles to pasturage farms of an exteat ade- and it would be greatly to the advantage of quate to their wants, and the tens of thou- every such district if the lands could be disands of individual interests would make the _ vided into parcels, governed solely by the conproblem a difficult one for the officers of the d:tions under which the water could: be disGovernment to solve. A system less arbitrary tributed over them; and such parcelting can-

than that of the rectangular surveys now’ not be done prior to the occupancy of the in vogue, and requiring unb-ased judgement, lands, but can only be made pari passu with overlooking the interests of single individua's the adoption of a system of canals; and the

and considering only the interests of the people settling on these lands should be

PowELL’s REPORT ON ARID LANDS 103 allowed the privilege of dividing the lands Every man who turns his attent:on to this into such tracts as may be most avai'ab'e department of industry is considered a public for such purposes, and they should not be benefactor. But if in the eagerness for present hampered with the present arbitrary sys- development a land and water system shall

tem of dividing tracts into rectangular grow up in which the practical control of

tracts... . agricu‘ture shall fall into the hands of water The title to no tract of land should be companies, evils will result therefrom that

conveyed from the Government to the indi- generations may not be able to correct, and vidual until the proper survey of the same is the very men who are now lauded as benemade and the plat prepared for record. With factors to the country will, in the ungovern-

this precaution, which the Government al- able reaction which is sure to come, be ready invariably takes in disposing of its denounced as oppressors of the people. lands, no fear of uncertainty of identification The right to use water should inhere in the

need be entertained... . land to be irrigated, and waer rights should .. . The general subject of water rights is go with land titles. cne of great importance. In many p‘aces in Those unacquainted with the industrial the Arid Region irrigation companies are inst.tutions of the far west, involving the organized who obtain vested rights in the — use of lands and waters, may without careful

waters they control, and consequently the thought suppoce that the long recognized rights to such waters do not inhere in any princip‘es of the common law are sufficient

particular tracts of land. to prevent the severance of land and water When the area to which it is possible to rivhts; but other practices are obtaining

take the water of any given stream is much which have, or eventua-ly will have, all the greater than the stream is competent to force of common law because the necessities serve, if the land tit'es and water rights are of the country require the change, and these severed, the owner of any tract of land is at practices are obtaining the color of right the mercy of the owner of the water right. from state and territorial legislation, and to

In general the lands greatly exceed the some extent by national legislation. In all capacities of the streams. Thus the lands that country the natural channels of the have no value without water. If the water streams cannot be made to govern water rights fall into the hands of irrigating com- rights withou: great injury to its agricu.tural panies and the lands into the hands of indi- and mining industrics. For the great purposes

vidual farmers, the farmers then will be of irrigation and hydraulic mining the water dependent upon the stock companies, and has no value in Its natural channel. In general eventually the monopoly of water rights will the water cannot be used for irr‘gation on

be an intolerable burden to the peop‘e. the lands immediately contiguous to the The magnitude of the interests involved streams—t.e., the flood plains or bottom must not be overlooked. All the present and valteys. . . . The waters must be taken to a future agriculture of more than four-tenths greater or less extent on the bench lands to of the area of the United States is dependent be used in irrigat.on. All the waters of all upon irrigation, and practically all values for the arid lands will eventually be taken from

agricultural industries inhere, not in the their natural channels, and they can be

lands, but in the water. Monopoly of land utilized only to the extent to which they are need not be feared. The question for legis- thus removed, and water rights must of lators to solve is to devise some practical necessity be severed from the natura! chanmeans by which water rights may be d's-_ ne's. There is another important factor to tributed among individual farmers and water be considered. The water when used in irriga-

monopolies prevented... . tion is absorbed by the soil and reévaporated The pioneer is fully engaged in the present to the heavens. It cannot be taken from its with its hopes of immediate remuneration for natural channel, used, and returned. Again,

labor. The present development of the coun- the water cannot in general be properly try fully occupies him. For this reason every utilized in irrigation by requiring it to be effort put forth to increase the area of the taken from its natural channel within the agricultural Jand by irrigation is welcomed. limits ordinarily included in a single owner-

104 DOCUMENTS OF AMERICAN History ship. In order to conduct the water on the Practically, in that country the right to higher bench lands where it is to be used in water is acquired by priority of utilization, irrigation, it is necessary to go up the stream and this is as it should be from the necessities until a level is reached from which the of the country. But two important qualificawaters will flow to the lands to be redeemed. tions are needed. The user right should atThe exceptions to this are so small that the tach to the Jand where used, not to the indiStatement scarcely needs qualification. Thus, vidual or company constructing the canals to use the water it must be diverted from its by which it is used; the priority of usage natural course often miles or scores of miles should secure the right. But this needs some

from where it is to be used. slight modification. A farmer settling on a

The ancient principles of common law small tract, to be redeemed by irrigation, applying to the use of natural streams, so should be given a reasonable length of time wise and equitable in a humid region, would, in which to secure his water right by utiliza-

if applied to the Arid Region, practically tion, that he may secure it by his own labor, prohibit the growth of its most important either directly by constructing the waterindustries. Thus it is that a custom is spring- ways himself, or indirectly by codperating ing up in the Arid Region which may or with his neighbours in constructing systems may not have color of authority in statutory of waterways. Without this provision there

or common law; on this I do not wish to is little inducement for poor men to comexpress an opinion; but certain it is that mence farming operations, and men of ready

water rights are practically being severed capital only will engage in such enterfrom the natural channels of the streams; prises... . and this must be done. In the change, it is If there be any doubt of the ultimate to be feared that water rights will in many legality of the practices of the people in the cases be separated from all land rights as the arid country relating to water and land system is now forming. If this fear is not rights, all such doubts should be speedily groundless, to the extent that such a separa- quieted through the enactment of appropriate tion is secured, water will become a property laws by the national legislature. Perhaps an independent of the land, and this property amplification by the courts of what has been

will be gradually absorbed by a few. designated as the natural right to the use of Monopolies of water will be secured, and the water may be made to cover the practices

whole agriculture of the country will be now obtaining; but it hardly seems wise to tributary thereto—a condition of affairs imperil interests so great by intrusting them which an American citizen having in view to the possibility of some future court made the interests of the largest number of the law. people cannot contemplate with favor.

303. THE PROBLEM OF “RIDERS” President Hayes’s veto of the Army Appropriation Act for 1880 April 29, 1879 (Richardson, ed. Messages and Papers, Vol. VII, p. 523 ff.) The Democratic House of Representatives at- the Army for the fiscal year ending June 30, tached to the Army Appropriation Act for the 1880, and for other purposes,” and I now year ending June 30, 1880 a “rider” practically return it to the House of Representatives, in repealing the acts of 1865 and 1874 which au- which it originated, with my objections to thorized the use of Federal troops in elections. ;,, approval. The problem of the “rider” was squarely met in The bill provides in the usual form for

Hayes’s veto message. the appropriations required for the support To the House of Representatives: of the Army during the next fiscal year. If

I have maturely considered the important it contained no other provisions, it would questions presented by the bill entitled “An receive my prompt approval. It includes, act making appropriations for the support of however, further legislation, which, attached,

Tue PROBLEM OF ‘‘RIDERS’’ 105 as it is, to appropriations which are requisite stand or fall according to its own merits. If

for the efficient performance of some of the it were understood that to attach to an most necessary duties of the Government, appropriation bill a measure irrelevant to involves questions of the gravest character. the general object of the bill would imperil The sixth section of the bill is amendatory and probably prevent its final passage and of the statute now in force in regard to the approval, a valuable reform in the parliaauthority of persons in the civil, military, mentary practice of Congress would be and naval service of the United States “‘at the accomplished. The best justification that has

place where any general or special election been offered for attaching irrelevant riders

is held in any State.” ... to appropriation bills is that it is done for The effect of the adoption of this amend- convenience’ sake, to facilitate the passage

ment may be considered— of measures which are deemed expedient by

First. Upon the right of the United States all the branches of Government which parGovernment to use military force to keep ticipate in legislation. It can not be claimed the peace at the elections for Members of that there is any such reason for attaching

Congress; and this amendment of the election laws to the Second. Upon the right of the Government, Army appropriation bill. The history of the

by civil authority, to protect these elections measure contradicts this assumption. ...

from violence and fraud... . ... Upon the assembling of this ConThis section is, however, not presented to gress, in pursuance of a call for an extra me as a separate and independent measure, session, which was made necessary by the but is, as has been stated, attached to the failure of the Forty-fifth Congress to make bill making the usual annual appropriations the needful appropriations for the support

for the support of the Army. It makes a of the Government, the question was prevital change in the election laws of the sented whether the attempt made in the last country, which is in no way connected with Congress to ingraft by construction a new

the use of the Army. It prohibits, under principle upon the Constitution should be

heavy penalties, any person engaged in the _ persisted in or not. This Congress has ample civil service of the United States from having opportunity and time to pass the appropria-

any force at the place of any election, pre- tion bills, and also to enact any political pared to preserve order, to make arrests, to measures which may be determined upon keep the peace, or in any manner to enforce in separate bills by the usual and orderly the laws. This is altogether foreign to the methods of proceeding. But the majority of purpose of an Army appropriation bill. The both Houses have deemed it wise to adhere practice of tacking to appropriation bills to the principles asserted and maintained in measures not pertinent to such bills did not the last Congress by the majority of the prevail until more than forty years after the House of Representatives. That principle 1s adoption of the Constitution. It has become that the House of Representatives has the a common practice. All parties when in power sole right to originate bills for raising revenue,

have adopted it. Many abuses and great and therefore has the right to withhold waste of public money have in this way appropriations upon which the existence of crept into appropriation bills. The public the Government may depend unless the

opinion of the country is against it. The Senate and the President shall give their States which have recently adopted constitu- assent to any legislation which the House may

tions have generally provided a remedy for see fit to attach to appropriation bills. To the evil by enacting that no law shall con- establish this principle is to make a radical, tain more than one subject, which shall be dangerous, and unconstitutional change in the

plainly expressed in its title. The constitu- character of our institutions. The various tions of more than half of the States contain departments of the Government and the substantially this provision. The public wel- Army and the Navy are established by the fare will be promoted in many ways by a _ Constitution or by laws passed in pursuance return to the early practice of the Govern- thereof. Their duties are clearly defined and

ment and to the true principle of legisla- their support is carefully provided for by tion, which requires that every measure shall law. The money required for this purpose has

106 DocUMENTS or AMERICAN History been collected from the people and is now Constitution the qualified negative of the in the Treasury, ready to be paid out as President. It is said that this should be done soon as the appropriation bills are passed. because it is the peculiar function of the Whether appropriations are made or not, the House of Representatives to represent the collection of the taxes will go on. The public will of the people. But no single branch or money will accumulate in the Treasury. It department of the Government has exclusive was not the intention of the framers of the authority to speak for the American people. Constitution that any single branch of the The most authentic and solemn expression of Government should have the power to dictate their will is contained in the Constitution of conditions upon which this treasure should the United States. By that Constitution they be applied to the purpose for which it was have ordained and established a Government collected. Any such intention, if it had been whose powers are distributed among coordientertained, would have been plainly ex- nate branches, which, as far as possible con-

pressed in the Constitution. .. . sistently with a harmonious codperation, are The new doctrine, if maintained, will result absolutely independent of each other. The in a consolidation of unchecked and despotic people of this country are unwilling to see power in the House of Representatives. A the supremacy of the Constitution replaced bare majority of the House will become the by the omnipotence of any one department Government. The Executive will no longer of the Government.

be what the framers of the Constitution The enactment of this bill into a law will intended—an equal and independent branch — establish a precedent which will tend to de-

of the Government. It is clearly the consti- stroy the equal independence of the several tutional duty of the President to exercise his branches of the Government. Its principle discretion and judgment upon.all bills pre- places not merely the Senate and the Execusented to him without constraint or duress _ tive, but the judiciary also, under the coercive from any other branch of the Government. dictation of the House. The House alone To say that a majority of either or both of — will be the judge of what constitutes a grievthe Houses of Congress may insist upon the ance, and also of the means and measures of

approval of a bill under the penalty of redress... .

stopping all of the operations of the Govern- Believing that this bill is a dangerous violament for want of the necessary supplies is tion of the spirit and meaning of the Consti-

to deny to the Executive that share of the tution, I am compelled to return it to the legislative power which is plainly conferred House in which it originated without my by the second section of the seventh article approval. : ..

of the Constitution. It strikes from the RUTHERFORD B. Haves. 304. THE INDIAN PROBLEM [ixtract from President Arthur’s First Annual Message December 6, 1881 (Richardson, ed. Messages and Papers, Vol. VIII, p. 54 ff.)

The recommendations of President Arthur fore- recently that any effort has been made for shadowed the provisions of the Dawes Act of its solution at once serious, determined, con1887, Doc. No. 315. In support of Arthur’s sistent, and promising success. characterization of our Indian policy, see H. H. It has been easier to resort to convenient Jackson, A Century of Dishonor, and the refer- akeshifts for tiding over temporary diffi-

ences listed in Doc. No. 315. | culties than to grapple with the great per... Prominent among the matters which manent problem, and accordingly the easier challenge the attention of Congress at its course has almost invariably been pursued, present session is the management of our It was natural, at a time when the national Indian affairs. While this question has been territory seemed almost illimitable and cona cause of trouble and embarrassment from — tained many millions of acres far outside the

the infancy of the Gevernmeni, it is but bounds of civilized settlements, that a policy

THE INDIAN PROBLEM 107 should have been initiated which more than the attention of Congress and have received aught else has been the fruitful source of our to some extent its consideration.

Indian complications. First. I recommend the passage of an act

I refer, of course, to the policy of dealing making the laws of the various States and with the various Indian tribes as separate Territories applicable to the Indian reservanationalities, of relegating them by treaty tions within their borders and extending the stipulations to the occupancy of immense laws of the State of Arkansas to the portion reservations in the West, and of encourag- of the Indian Territory not occupiec by the ing them to live a savage life, undisturbed Five Civilized Tribes. by any earnest and well-directed efforts to The Indian should receive the protection of bring them under the influences of civiliza- the law. He should be allowed to maintain

tion. in court his rights of person and property.

The unsatisfactory results which have He has repeatedly begged for this privilege. sprung from this policy are becoming ap- Its exercise would be very valuable to him

parent to all. in his progress toward civilization.

As the white settlements have crowded the Second. Of even greater importance is a borders of the reservations, the Indians, measure which has been frequently recom-

sometimes contentedly and sometimes against mended by my predecessors in office, and in

their will, have been transferred to other furtherance of which several bills have been hunting grounds, from which they have from time to time introduced in both Houses again been dislodged whenever their new- of Congress. The enactment of a general law found homes have been desired by the ad- permitting the allotment in severalty, to such

venturous settlers. Indians, at least, as desire it, of a reasonable These removals and the frontier collisions quantity of land secured to them by patent, by which they have often been preceded have and for their own protection made inalienable

led to frequent and disastrous conflicts for twenty or twenty-five years, is demanded

between the races. for their present welfare and their permanent It is profitless to discuss here which of advancement. them has been chiefly responsibie for the In return for such considerate action on disturbances whose recital occupies so large the part of the Government, there is reason

a space upon the pages of our history. to believe that the Indians in large numbers We have to deal with the appalling fact would be persuaded to sever their tribal rethat though thousands of lives have been lations and to engage at once in agricultural

sacrificed and hundreds of millions of dollars pursuits. Many of them realize the fact that

expended in the attempt to solve the Indian their hunting days are over and that it is problem, it has until within the past few years now for their best interests to conform their

seemed scarcely nearer a solution than it manner of life to the new order of things. was half a century ago. But the Govern- By no greater inducement than the assurance ment has of late been cautiously but steadily of permanent title to the soil can they be feeling its way to the adoption of a policy led to engage in the occupation of tilling it. which has already produced gratifying results, The well-attested reports of their increas-

and which, in my judgment, is likely, if ing interest in husbandry justify the hope Congress and the Executive accord in its and belief that the enactment of such a support, to relieve us ere long from the statute as I recommend would be at once difficulties which have hitherto beset us. attended with gratifying resulis. A resort For the success of the efforts now making to the allotment system would have a direct to introduce among the Indians the customs and powerful influence in dissulving the and pursuits of civilized life and gradually tribal bond, which is so prominent a feature to absorb them into the mass of our citizens, of savage life, and which tends so strongly

sharing their rights and holden to their to perpetuate it.

responsibilities, there is imperative need for Third. I advise a liberal appropriation for

legislative action. the support of Indian schools, because of My suggestions in that regar1 will be my confident belief that such a course is chiefly such as have been already called to consistent with the wisest economy. ...

108 DOCUMENTS OF AMERICAN HtisToRy 305. PAN-AMERICANISM

Secretary Blaine’s Invitation to Pan-American Congress November 29, 1881

(Papers Relating to the Foreign Relations of the United States, 1881, p. 13 ff.) James G. Blaine became Secretary of State for than to the sword. It has been on several such

the first time, May 7, 1881; he at once ad- ccasions a source of profound satisfaction dressed himself to the problem of our relations tg the Government of the United States to with the countries of Latin-America. The as- see that this country is in a large measure sassination of Garfield brought Arthur to the looked to by all the American powers as

Presidency, and by Blaine was succeeded thefriend their and friend d di The justanq State Department Frelinghuysen. Freling-in‘2°l mediator. je Just

huysen reversed Blaine’s Latin-American policy, impartial counsel of the President in such and withdrew the invitations toa Pan-American Cases has never been withheld, and his efforts Conference. In 1888 Congress authorized a Pan- have been rewarded by the prevention of American Conference which met in Washington sanguinary strife or angry contentions beOctober 1889, and established the Pan-American tween peoples whom we regard as brethren.

Union. See, A. F. Tyler, Foreign Policy of The existence of this growing tendency James G. Blaine; D. S. Muzzey, James G. convinces the President that the tim. is ripe Blaine; S. F. Bemis, ed. American Secretaries for a proposal that shall enlist the good-will of State, Vol. VII, p. 278 i; J. F. AUPBY » His- and active cooperation of all the states of the torical Evolution of Hispanic America, ch. xxiii. western hemisphere, both north and south,

Mr. BLAINE TO Mr. OsBorn. in the interest of humanity and for the comDepartment of State mon weal of nations. He conceives that none Washington, November 29, 1881. of the governments of America can be less

Sir: The attitude of the United States alive than our own to the dangers and with respect to the question of general peace horrors of a state of war, and especially of on the American continent is well known war between kinsmen. He is sure that none

through its persistent efforts for years to of the chiefs of governments on ‘he conavert the evils of warfare, or, these efforts tinent can be less sensitive than he is to failing, to bring positive conflicts to an end the sacred duty of making every endeavor to

through pacific counsels or the advocacy of do away with the chances of fratricidal impartial arbitration. This attitude has been — strife. And he looks with -hopeful confidence

consistently maintained, and always with to such active assistance from them as will such fairness as to leave no room for im- _ serve to show the broadness of our common puting to our government any motive except humanity and the strength of the ties which the humane and disinterested one of saving bind us all together as a great and harmonithe kindred states of the American continent ous system of American commonwealths. from the burdens of war. The position of the Impressed by these views, the President United States as the leading power of the extends to all the independent countries of New World might well give its government North and South America an earnest invita-

a claim to authoritative utterance for the tion to participate in a general congress purpose of quieting discord among its neigh- to be held in the city of Washington on the bors, with all of whom the most friendly 24th day of November, 1882, for the purpose relations exist. Nevertheless, the good offices of considering and discussing the methods of this government are not and have not at of preventing wat between the nations of any time been tendered with a show of dicta- America. He desires that the attention of tion or compulsion, but only as exhibiting the congress shall be strictly confined to this the solicitous good-will of a common friend. one great object; that its sole aim shall be For some years past a growing disposition to seek a way of permanently averting the has been manifested by certain states of Cen- horrors of cruel and bloody combat between tral and South America to refer disputes af- countries, oftenest of one blood and speech, fecting grave questions of international rela- or the even worse calamity of internal com-

tionship and boundaries to arbitration rather motion and civil strife; that it shall re-

TREATY REGULATING IMMIGRATION FROM CHINA _ 109 gard the burdensome and far-reaching conse- those engaged in the contest may take peacequences of such struggles, the legacies of ex- able part in the discussion and solution of the

hausted finances, of oppressive cebt, of general question affecting in an equal degree

onerous taxation, of ruined cities, of para- the well-being of all.

lyzed industries, of devastated fields, of It seems also desirable to disclaim in adruthless conscription, of the slaughter of vance any purpose on the part of the United men, of the grief of the widow and the or- States to prejudge the issues to be presented phan, of embittered resentment that long sur- to the congress. It is far from the intent of vive those who provoked them and heavily af- this government to appear before the conflict the innocent generations that come after. gress as in any sense the protector of its The President is especially desirous to neighbors or the predestined anc necessary

have it understood that, in putting forth this arbitrator of their disputes. The United invitation, the United States does not assume States will enter into the deliberations of the position of counseling or attempting the congress on the same footing as the through the voice of the congress, to counse] other powers represented, and with the loyal any determinate solution of existing ques- determination to approach any proposed solu-

tions which may now divide any of the tion, not merely in its own interest, or with countries of America. Such questions can a view to asserting its power, but as a single not properly come before the congress. Its member among many coordinate and coequal mission is higher. It is to provide for the states. So far as the influence of this govern-

interest of all in the future, not to settle ment may be potential, it will be exerted in the individual differences of the present. For the direction of conciliating whatever conthis reason especially the President has indi- flicting interests of blood, or government, or cated a day for the assembling of the con- historical tradition may necessarily come gress so far in the future as to leave good together in response to a call embracing such ground for hope that by the time named vast and diverse elements.

the present ‘situation on the South Pacific I am, &c., coast will be happily terminated, and that James G. BLAINE. 306. TREATY REGULATING IMMIGRATION FROM CHINA November 17, 1880 (Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 237 ff.)

By the Burlingame Treaty of 1868 Chinese were creasing immigration of Chinese laborers to

given the right to immigrate to the United the territory of the United States, and the States ; shortly | after the ratification of this embarrassments consequent upon such imTreaty anti-Chinese sentiment on the Pacific migration, now desires to negotiate a modificoast became so strong that there was a demand , we . . for its abrogation. A bill abrogating the provi- cation of the existing Treaties which shall sion insuring reciprocal immigration privileges "Ot be in direct contravention of their

passed Congress in 1879 but was vetoed by Spirit: ...

President Hayes. In order to deal with the Art. I. Whenever in the opinion of the situation the President appointed a committee Government of the United States, the comto negotiate a new Treaty: the Treaty of No- ing of Chinese laborers to the United States, vember 17, 1880 was the result. In 1882 a bill or their residence therein, affects or threatens ° prohibit the immigration of Chinese laborers to affect the interests of that country, or to or a period of ten years receiv ed the signature endanger the good order of the said country quently extended until it became permanent. On 9% of any locality within the territory

of President Arthur; the restriction was subse- . ae .

Oriental Immigration, see M. R. Coolidge, thereof, the Government of China agrees Chinese Immigration; R. L. Garis, Immigra- that the Government of the United States

' tion Restriction. may regulate, limit, or suspend such coming or residence, but may not absolutely pro-

... Whereas the Government of the hibit it. The limitation or suspension shall be United States, because of the constantly in- reasonable and shall apply only to Chinese

110 DocUMENTS OF AMERICAN History who may go to the United States as laborers, leges, immunities and exemptions which are other classes not being included in the limita- accorded to the citizens and subjects of the tions. Legislation taken in regard to Chinese most favored nation.

laborers will be of such a character only as ArT, III. If Chinese laborers, or Chinese is necessary to enforce the regulation, limita- of any other class, now either permanently tion or suspension of immigration, and immi- or temporarily residing in the territory of grants shall not be subject to personal mal- the United States, meet with ill treatment at

treatment or abuse. the hands of any other persons, the Govern-

ART. II. Chinese subjects, whether pro- ment of the United States will exert all its ceeding to the United States as teachers, power to devise measures for their protection students, merchants, or from curiosity, to- and to secure to them the same rights, privigether with their body and household serv- leges, immunities and exemptions as may be ants, and Chinese laborers who are now in enjoyed by the citizens or subjects of the the United States, shall be allowed to go most favored nation, and to which they are and come of their own free will and accord, — entitled by treaty... . and shall be accorded all the rights, privi-

307. CHINESE EXCLUSION ACT May 6, 1882 (U. S. Statutes at Large, Vol. XXII, p. 58 ff.)

For references, see Doc. No. 306. of November, eighteen hundred and eighty, An act to execute certain treaty stipula- or who shall have come into the same before

tions relating to Chinese. the expiration of ninety days next after the

WHEREAS, in the opinion of the Govern- passage of this act, .. . ment of the United States the coming of SEC. 6. That in order to the faithful exeChinese laborers to this country endangers cution of articles one and two of the treaty the good order of certain localities within the in this act before mentioned, every Chinese

territory thereof: Therefore, person other than a laborer who may be en-

Be it enacted, That from and after the ex- titled by said treaty and this act to come piration of ninety days next after the pas- within the United States, and who shall be sage of this act, and until the expiration of about to come to the United States, shall be ten years next after the passage of this act, identified as so entitled by the Chinese Govthe coming of Chinese laborers to the United ernment in each case, such identity to be evi-

States be, . . . suspended; and during such denced by a certificate Issued under the suspension it shall not be lawful for any Chi- | authority of said government. which certifi-

nese laborer to come, or, having so come cate shall be in the English language or (it after the expiration of said ninety days, to not in the English language) accompanied

remain within the United States. by a translation into English, stating such SEC. 2. That the master of any vessel right to come, and which certificate shall

who shall knowingly bring within the United state the name, title, or official rank, if any, States on such vessel, and land or permit to the age, height, and all physical peculiarities, be landed, any Chinese laborer, from any former and present occupation or profession, foreign port or place, shall be deemed guilty and place of residence In China of the peison of a misdemeanor, and on conviction thereof to whom the certificate is issued and that shall be punished by a fine of not more than such person Is entitled conformably to the five hundred dollars for each and every such treaty in this act mentioned to come within

Chinese laborer so brought, and may be also the United States... imprisoned for a term not exceeding one SEC. 12. That no Chinese person shall be ,

year. permitted to enter the United States by land SEC. 3. That the two foregoing sections without producing to the proper officer of

shall not apply to Chinese laborers who were customs the certificate in this act required of in the United States on the seventeenth day Chinese persons seeking to land from a ves-

PENDLETON ACT 111 sel. And any Chinese person found unlaw- taken as equivalent to the certificate in this fully within the United States shall be caused act mentioned, and shall exempt them and to be removed therefrom to the country their body and household servants from the from whence he came, by direction of the provisions of this act as to other Chinese perPresident of the United States, and at the — sons. cost of the United States, after being brought SEC. 14. That hereafter no State court or before some justice, judge, or commissioner court of the United States shall admit Chiof a court of the United States and found to nese to citizenship; and all laws in conflict be one not lawfully entitled to be or remain with this act are hereby repealed.

in the United States. SEC. 15. That the words ‘‘Chinese laborSEC. 13. That this act shall not apply to ers,” whenever used in this act, shall be condiplomatic and other officers of the Chinese strued to mean both skilled and unskilled laGovernment traveling upon the business of borers and Chinese employed in mining. that government, whose credentials shall be

308. PENDLETON ACT January 16, 1883 (U. S. Statutes at Large, Vol. XXII, p. 403 ff.) Agitation for civil service reform dates back other official place under the United States. to the Grant administration. From 1871 to 1872 Sec. 2. That it shall be the duty of said Congress appropriated money for a civil service ¢gmmissioners:

commission, but thereafter no action was taken - . . . until 1881. A New York Civil Service Reform First. To aid the President, as he may reAssociation was founded in 1877, and a National quest, jn preparing suitable rules for cany-

Civil Service Reform League in 1881, under ing this act into effect, and when said rules the leadership of G. W. Curtis of New York. Shall have been promulgated it shall be the The assassination of Garfield by a disappointed duty of all officers of the United States in the office-seeker dramatized the desirability of re- departments and offices to which any such form, and President Arthur in his message of rules may relate to aid, in all proper ways, in December 6 asked for legislation on the subject. carrying said rules, and any modifications The Pendleton Act established the merit sys- thereof, into effect.

on In ourlong national administration. Dorman B. Seconp. And, aton, active in the reform movement, ’ . among other things, said drafted the Pendleton Act, and was appointed rues shall Provide and declare, as nearly by Arthur to head the new Civil Service Com- 48 the conditions of good administration will

mission. See, C. R. Fish, The Civil Service warrant, as follows: and the Patronage; L. Mayer, Federal Service; First, for open, competitive examinations D. H. Smith, The United States Civil Service for testing the fitness of applicants for the Commission; F. M. Stewart, The National Civil public service now classified or to be clasService Reform League; J. Bryce, The American sified hereunder. Such examinations shall be

Commorenih 198 ed Vol TL Gio Qi practical in their character, and so fara Schurz, G. W. Curtis, D. B. Eaton, T. A. Jenckes, may be shall relate to those matters which

in the Dictionary of American Biography. will fairly test the relative capacity and fit- | ness of the persons examined to discharge An act to regulate and improve the civil the duties of the service into which they seek

service of the United States. to be appointed.

Be it enacted ... , That the President is Second, that all the offices, places, and authorized to appoint, by and with the advice employments so arranged or to be arranged and consent of the Senate, three persons, not in classes shall be filled by selections accordmore than two of whom shall be adherents of ing to grade from among those graded highthe same party, as Civil Service Commission- est as the results of such competitive exers, and said three commissioners shall con- aminations. stitute the United States Civil Service Com- Third, appointments to the public service mission. Said commissioners shall hold no aforesaid in the departments at Washington

112 DOCUMENTS OF AMERICAN History shall be apportioned among the several States them, or being in the public service, at their and Territories and the District of Columbia respective offices in each customs district upon the basis of population as ascertained where the whole number of said clerks and

at the last preceding census... . persons shall be all together as many as fifty. Fourth, that there shall be a period of And thereafter, from time to time, on the probation before any absolute appointment direction of the President, said Secretary

or employment aforesaid. shall make the like classification or arrangeFifth, that no person in the public service ment of clerks and persons so employed, in is for that reason under any obligations to connection with any said office or offices, in contribute to any political fund, or to render any other customs district. And, upon like

any political service, and that he will not request, and for the purposes of this act, be removed or otherwise prejudiced for re- said Secretary shall arrange in one or more

fusing to do so. of said classes, or of existing classes, any

Sixth, that no person in said service has other clerks, agents, or persons employed any right to use his official authority or in- under his department in any said district not fluence to coerce the political action of any now classified; and every such arrangement

person or body. and classification upon being made shall be Seventh, there shall be non-competitive reported to the President. examinations in all proper cases before the Second. Within said sixty days it shall be

commission, when competent persons do not the duty of the Postmaster-General, in gen-

compete, after notice has been given of the eral conformity to said ... [Section 163] existence of the vacancy, under such rules... , to separately arrange in classes the as may be prescribed by the commissioners several clerks and persons employed, or in

as to the manner of giving notice... . the public service, at each post-office, or

Tuirp. Said commission shall, subject to under any postmaster of the United States. the rules that may be made by the President, where the whole number of said clerks and make regulations for, and have control of, persons shall together amount to as many

such examinations, ... as fifty. And thereafter, from time to time,

Sec. 3... . The commission shall, at on the direction of the President, it shall be Washington, and in one or more places in’ the duty of the Postmaster-General to areach State and Territory where examina- range in like classes the clerks and persons tions are to take place, designate and select so employed in the postal service in conneca suitable number of persons, not less than tion with any other post-office; and every three, in the official service of the United such arrangement and classification upon States, residing in said State or Territory, being made shall be reported to the Presiafter consulting the head of the department dent. or office in which such persons serve, to be Third. That from time to time said Secremembers of boards of examiners... . Such tary, the Postmaster-General, and each of boards of examiners shall be so located as to the heads of departments mentioned in... make it reasonably convenient and inex- [Section 158]... of the Revised Statutes, pensive for applicants to attend before them; and each head of an office, shall, on the and where there are persons to be examined direction of the President, and for facilitatin any State or Territory, examinations shall ing the execution of this act, respectively be held therein at least twice in each _ revise any then existing classification or ar-

year... . rangement of those in their respective deSec. 6. That within sixty days after the partments and offices, and shall, for the

“passage of this act it shall be the duty of purposes of the examination herein provided the Secretary of the Treasury, in as near for, include in one or more of such classes, conformity as may be to the classification of so far as practicable, subordinate places, certain clerks now existing under... [Sec- clerks, and officers in the public service per-

tion 163]... of the Revised Statutes, to taining to their respective departments not arrange in classes the several clerks and per- _ before classified for examination.

sons employed by the collector, naval of- Sec. 7. That after the expiration of six ficer, surveyor, and appraisers, or either of months from the passage of this act no

JULLIARD V. GREENMAN 113 officer or clerk shall be appointed, and no act, no other member of such fainily shall

person shall be employed to enter or be be eligible to appointment to any of said promoted in either of the said classes now _ grades. existing, or that may be arranged hereunder Src. 10. That no recommendation of any

pursuant to said rules, until he has passed person who shall apply for office or place an examination, or is shown to be specially under the provisions of this act which may exempted from such examination in con- be given by any Senator or member of the formity herewith. But nothing herein con- House of Representatives, except as to the tained shall be construed to take from those character or residence of the applicant, shall honorably discharged from the military or be received or considered by any person con-

naval service any preference conferred by cerned in making any examination or ap-

... [Section 1754]... of the Revised pointment under this act.

Statutes, nor to take from the President any SEc. 11. That no Senator, or Representaauthority not inconsistent with this act con- tive, or Territorial Delegate of the Congress,

ferred by ... [Section 1753]... of said or Senator, Representative, or Delegate elect, statutes; nor shall any officer not in the exe- or any officer or employee of either of said cutive branch of the government, or any houses, and no executive, judicial, military, person merely employed as a laborer or work- or naval officer of the United States, and no man, be required to be classified hereunder; clerk or employee of any department, branch nor, unless by direction of the Senate, shall or bureau of the executive, judicial, or miltany person who has been nominated for con- tary or naval service of the United States, firmation by the Senate be required to be © shall, directly or indirectly, solicit or receive,

classified or to pass an examination. or be in any manner concerned in soliciting Sec. 8. That no person habitually using or receiving, any assessment, subscription, or intoxicating beverages to excess shall be ap- contribution for any political purpose whatpointed to, or retained in, any office, appoint- ever, from any officer, clerk, or employee ment, or employment to which the provisions of the United States, or any department,

of this act are applicable. branch, or bureau thereof, or from any per-

sec. 9. That whenever there are already son receiving any salary or compensation two or more members of a family in the from moneys derived from the Treasury of public service in the grades covered by this the United States. ...

309. JULLIARD v. GREENMAN 110 U. S. 421 1884

Error to the U.S. Circuit Court for the Southern see C, B. Swisher, Stephen J. Field, Craftsman

District of New York. This notable case in- of the Law.

volved the constitutionality of the Act of May 31, 1878, providing that legal tender notes is-

sued during the Civil War should not be can- Pee Je on ne ot May J Ist,

celled, but reissued and kept in circulation. The » CO. , under which the notes in

question was whether Congress could, except @uestion were reissued, is entitled “An act as an emergency war measure, make anything to forbid the further retirement of United but gold and. silver legal tender in the payment ‘States legal tender notes,” and enacts as of private debts. Mr. Warren calls the decision follows:

of _the court in this case “the most sweeping “From and after the passage of this act opinion as to the extent of Congressional power jt shall not be lawful for the Secretary of which had ever heretofore been rendered”. Im- the Treasury or other officer under him to mediately after the Court had rendered de- C tir {olthe Cision numerous measures were introduced into anceiits or retire any| more the Un; United Congress limiting the power of Congress as to States legal tender notes. And when any

the issue of legal tender notes. See, Warren, Of said notes may be redeemed or be reSupreme Court, 1928 ed. Vol. II, p. 652 ff. and ceived into the Treasury under any law from references, p. 657n. On the dissenting opinion any source whatever and shall belong to the

114 DOCUMENTS OF AMERICAN History United States, they shall not be retired, vested by this Constitution in the governcancelled or destroyed, but they shall be ment of the United States, or any departreissued and paid out again and kept in ment or officer thereof.”. . . circulation: Provided, That nothing herein The power “to borrow money on _ the shall prohibit the cancellation and destruc- credit of the United States” is the power to tion of mutilated notes and the issue of other raise money for the public use on a pledge notes of like denomination in their stead, of the public credit, and may be exercised as now provided by law. All acts and parts to meet either present or anticipated exof acts in conflict herewith are hereby re- penses and liabilities of the government. It

pealed.” 20 Stat. 87. includes the power to issue, in return for

The manifest intention of this act is that the money borrowed, the obligations of the the notes which it directs, after having been United States in any appropriate form, of redeemed, to be reissued and kept in circula- stock, bonds, bills or notes; and in whatever tion, shall retain their original quality of form they are issued, being instruments of being a legal tender. The single question, the national government, they are exempt therefore, to be considered, . . . is whether from taxation by the governments of the notes of the United States, issued in time several States. Congress has authority to of war, under acts of Congress declaring issue these obligations in a form adapted

them to be a legal tender in payment of to circulation from hand to hand in the

private debts, and afterwards in time of ordinary transactions of commerce and busipeace redeemed and paid in gold coin at the ness. In order to promote and facilitate treasury, and then reissued under the act of such circulation, to adapt them to use as 1878, can, under the Constitution of the currency, and to make them more current United States, be a legal tender in payment in the market, it may provide for their

of such debts... . redemption in coin or bonds, and may make

The breadth and comprehensiveness of them receivable in payment of debts to the the words of the Constitution are nowhere government. So much is settled beyond more strikingly exhibited than in regard to doubt, and was asserted or distinctly adthe powers, over the subjects of revenue, mitted by the judges who dissented from the finance, and currency, of which there is no decision in the Legal Tender Cases, as well

other express grant than may be found in’ as by those who concurred in that de-

these few brief clauses: cision. ...

‘The Congress shall have power— The constitutional authority of Congress “To lay and collect taxes, duties, im- to provide a currency for the whole counposts, and excises, to pay the debts and_ try is now firmly established. .. . provide for the common defense and general By the Constitution of the United States, welfare of the United States; but all duties, the several States are prohibited from coin-

imposts, and excises shall be uniform ing money, emitting bills of credit, or mak-

throughout the United States.” ing anything but gold and silver coin a

“To borrow money on the credit of the tender in payment of debts. But no inten-

United States.” tion can be inferred from this to deny to “To regulate commerce with foreign Congress either of these powers. ... The

nations, and among the several States, and States are forbidden, but Congress is ex-

with the Indian tribes.” pressly authorized, to coin money. The States

“To coin money, regulate the value are prohibited from emitting bills of credit; thereof, and of foreign coin, and fix the but Congress, which is neither expressly au-

standard of weights and measures.” thorized nor expressly forbidden to do so, The section which contains the grant of has, as we have already seen, been held to these and other principal ‘egislative powers have the power of em:tting bills of credit,

concludes by declaring that the Congress and of making every provision for their

shall have power— circulation as currency, short of giving them “To make all laws which shall be neces- the quality of legal tender for private debts, sary and proper for carrying into execution even by those who have denied its authority the foregoing powers, and all other powers to give them this quality.

JULLIARD V. GREENMAN 115 It appears to us to follow, as a logical private debts, being included in the power and necessary consequence, that Congress to borrow money and to provide a national has the power to issue the obligations of currency, is not defeated or restricted by the United States in such form, and to im- the fact that its exercise may affect the press upon them such qualities as currency value of private contracts. If, upon a Just for the purchase of merchandise and the and fair interpretation of the whole Conpayment of debts, as accord with the usage _ stitution, a particular power or authority apof sovereign governments. The power, as_ pears to be vested in Congress, it is no conincident to the power of borrowing money _ stitutional objection to its existence, or to and issuing bills or notes of the government its exercise, that the property or the confor money borrowed, of impressing upon tracts of individuals may be incidentally af-

those bills or notes the quality of being fected... . 2 legal tender for the payment of private So, under the power to coin money anda debts, was a power universally understood — to regulate its value, Congress may (as it did

to belong to sovereignty, in Europe and with regard to gold by the Act of June 28th, America, at the time of the framing and 1834, c. 95, and with regard to silver by the adoption of the Constitution of the United Act of February 28th, 1878, c. 20), issue

States. ... coins of the same denominations as those _.. The power of issuing bills of credit, already current by law, but of less intrinsic and making them, at the discretion of the value than those, by reason of containing a legislature, a tender in payment of private less weight of the precious metals, and debts, had long been exercised in this coun- thereby enable debtors to discharge their try by the several colonies and States; and debts by the payment of coins of the less during the Revolutionary War the States, real value. A contract to pay a certain sum upon the recommendation of the Congress in money, without any stipulation as to the

of the Confederation, had made the bills kind of money in which it shall be paid, issued by Congress a legal tender. The ex- may always be satisfied by payment of that ercise of this power not being prohibited sum in any currency which is lawful money to Congress by the Constitution, it is in- at the place and time at which payment 1s

cluded in the power expressly granted to to be made....

borrow money on the credit of the United Congress, as the legislature of a sovereign

States, nation, being expressly empowered by the This position is fortified by the fact that Constitution, “to lay and collect taxes, to

Congress is vested with the exclusive exercise pay the debts and provide for the common

of the analogous power of coining money defense and general welfare of the United and regulating the value of domestic and States,” and “to borrow money on the credit foreign coin, and also with the paramount of the United States,” and “to coin money power of regulating foreign and interstate and regulate the value thereof and of foreign commerce. Under the power to borrow money’ coin;” and being clearly authorized, as inon the credit of the United States, and to cidental to the exercise of those great powers,

issue circulating notes for the money bor- to emit bills of credit, to charter national rowed, its power to define the quality and banks, and to provide a national currency force of those notes as currency is as broad for the whole people, in the form of coin, as the like power over a metallic currency treasury notes, and national bank bills; and under the power to coin money and to the power to make the notes of the governregulate the value thereof. Under the two ment a legal tender in payment of private powers, taken together, Congress is au- debts being one of the powers belonging to thorized to establish a national currency, sovereignty in other civilized nations, and either in coin or in paper, and to make that not expressly withheld from Congress by currency lawful money for all purposes, as the Constitution; we are irresistibly imregards the national government or private pelled to the conclusion that the impressing

individuals. upon the treasury notes of the United States The power of making the notes of the the quality of being a legal tender in payUnited States a legal tender in payment of ment of private debts is an appropriate

116 DOCUMENTS OF AMERICAN HISTORY means, conducive and plainly adapted to the people, that it is, as matter of fact, wise execution of the undoubted powers of Con- and expedient to resort to this means, is a gress, consistent with the letter and spirit political question, to be determined by Conof the Constitution, and therefore, within gress when the question of exigency arises, the meaning of that instrument, “necessary and not a judicial question, to be afterand proper for carrying into execution the wards passed upon by the courts... .

powers vested by this Constitution in the It follows that the act of May 31, 1878, government of the United States.” ch. 146, is constitutional and valid, and that Such being our conclusion in matter of the circuit court rightly held that the tender law, the question whether at any particular in treasury notes, reissued and kept in circu-

time, in war or in peace, the exigency is lation under that act, was a tender of lawful such by reason of unusual and pressing de- money in payment of the defendant’s debt mands on the resources of the government, to the plaintiff. or of the inadequacy of the supply of gold Judgment affirmed. and silver coin to furnish the currency needed Fiexp, J., delivered a dissenting opinion.

for the uses of the government and of the

310. IN RE JACOBS 98 New York, 98 1885

Appeal from an order of the Gencral Term of and appropriate to accomplish these ends, the Supreme Court. The case involved an in- the exercise of its discretion is not subject terpretation of the New York Tenement House to review by the courts. But they must have Law of 1882. “This decision,” wrote Theodore come relation to these ends. Under the mere Roosevelt, (Autobiography, p. 81), “completely ice of police regulations, personal rights New York for a score of years, and hampers it and private property cannot arbitrarily be to this day. It was one of the most serious set- invaded, and the determination of the legislabacks which the cause of industrial and social ture is not final or conclusive. If it passes progress and reform ever received.” For back- an act ostensibly for the public health, and ground, see R. W. De Forest and L. Veiller, thereby destroys or takes away the prop-

blocked tenement-house reform legislation in ;

The Tenement House Problem, 2 vols.; Jacob erty of a citizen, or interferes with his

Riis, The Battle With the Slum. personal liberty, then it is for the courts Eart, J.... These facts showed a_ to scrutinize the act and see whether it really

violation of the provision of the act which relates to and is convenient and appropriate took effect immediately upon its passage and to promote the public health. It matters not

the material portions of which are as fol- that the legislature may in the title to the lows: “Section 1, The manufacture of cigars act, or in its body, declare that it is intended

or preparation of tobacco in any form on for the improvement of the public health. any floor, or in any part of any floor, in Such a declaration does not conclude the any tenement-house is hereby prohibited, if courts, and they must yet determine the such floor or any part of such floor is by fact declared and enforce the supreme law. any person occupied as a home or residence... The legislature may condemn or aufor the purpose of living, sleeping, cooking thorize the condemnation of private propor doing any household work therein.... erty for public use, and it may, In the exSection 6. This act shall apply only to cities ercise of its discretion, determine when and

having over five hundred thousand inhabit- upon what property the power of eminent

ants... . domain may be exercised; but its exercise Generally it is for the legislature to deter- is not beyond the reach of judicial inquiry. mine what laws and regulations are needed Whether or not a use is & public one, which

to protect the public health and secure the will justify the exercise of the power, is

public comfort and safety, and while its a judicial question....

measures are calculated, intended, convenient We will now once more recur to the law

In RE JACOBS 117 under consideration. It does not deal with in the too crowded cities, and in all other tenement-houses as such; it does not regulate parts of the State. What possible relation the number of persons who may live in any can cigarmaking in any building have on one of them, or be crowded into one room, the health of the general public? Nor was nor does it deal with the mode of their it intended to improve or protect the health construction for the purpose of securing the of the occupants of tenement-houses. If there health and safety of their occupants or of are but three families in the tenement-house, the public generally. It deals mainly with however numerous and gregarious their memthe preparation of tobacco and the manu- bers may be, manufacture is not forbidden; facture of cigars, and its purpose obviously and it matters not how large the number was to regulate them. We must take judicial of the occupants may be if they are not notice of the nature and qualities of tobacco. divided into more than three families living It has been in general use among civilized and cooking independently. If a store is kept men for more than two centuries. It is used for the sale of cigars on the first floor of in some form by a majority of the men in one of these houses, and thus more tobacco this State; by the good and bad, learned is kept there than otherwise would be, and and unlearned, the rich and the poor. Its the baneful influence of tobacco, if any, is manufacture into cigars is permitted with- thus increased, that floor, however numerous out any hindrance, except for revenue pur- its occupants, or the occupants of the house,

poses, in all civilized lands. It has never is exempt from the operation of the act. been said, so far as we can learn, and it was What possible relation to the health of the not affirmed even on the argument before us, occupants of a large tenement-house could that its preparation and manufacture into cigarmaking in one of its remote rooms haver cigars were dangerous to the public health. If the legislature had in mind the protecWe are not aware, and are not able to learn, tion of the occupants of the tenement-houses, that tobacco is even injurious to the health why was the act confined in its operation

of those who deal in it, or are engaged in to the two cities only? It is plain that this its production or manufacture. We certainly is not a health law, and that it has no relaknow enough about it to be sure that its tion whatever to the public health. .. . Such manipulation in one room can produce no legislation may invade one class of rights harm to the health of the occupants of other to-day and another to-morrow, and if it can rooms in the same house. It was proved be sanctioned under the Constitution, while in this case that the odor of the tobacco far removed in time we will not be far away did not extend to any of the other rooms of in practical statesmanship from those ages the tenement-house. ... To justify this law it when governmental prefects supervised the would not be sufficient that the use of tobacco building of houses, the rearing of cattle, the may be injurious to some persons, or that its sowing of seed and the reaping of grain, and manipulation may be injurious to those who governmental ordinances regulated the move-

are engaged in its preparation and manufac- ments and labor of artisans, the rate of ture; but it would have to be injurious to the wages, the price of food, the diet and clothpublic health. This law was not intended to ing of the people, and a large range of other protect the health of those engaged in cigar- affairs long since in all civilized lands regarded making, as they are allowed to manufacture as outside of governmental functions. Such

cigars everywhere except in the forbidden governmental interferences disturb the tenement-houses. It cannot be perceived how normal adjustments of the social fabric, and

the cigar maker is to be improved in his usually derange the delicate and complicated health or his morals by forcing him from machinery of industry and cause a score of his home and its hallowed associations and _ ills while attempting the removal of one.

beneficent influences, to ply his trade else- When a health law is challenged in the where. It was not intended to protect the courts as unconstitutional on the ground that health of that portion of the public not re- it arbitrarily interferes with personal liberty Siding in the forbidden tenement-houses, as and private property without due process of

cigars are allowed to be manufactured in law, the courts must be able to see that it private houses, in large factories and shops has at least in fact some relation to the

118 DOCUMENTS OF AMERICAN History public health, that the public health is the have not been able to se@ in this law, and end actually aimed at, and that it is ap- we must, therefore, pronounce it unconstitupropriate and adapted to that end. This we tional and void... .

| BLAND-ALLISON ACT .

311. CLEVELAND’S RECOMMENDATION OF THE REPEAL OF THE

Extract from the First Annual Message to Congress December 8, 1885 (Richardson, ed. Messages and Papers, Vol. VIII, p. 342 ff.) Cleveland’s plea for the repeal of the Silver goes on, for the reason that the nearer the Coinage Act of 1878 was not at this time suc- period approaches when it will be obliged cessful, but he did succeed in defeating projects to offer silver in payment of its obligations for free coinage of silver. On his re-election in the greater inducement there will be to

1893, Cleveland moved immediately for the hoard gold ‘ast d ation in th

repeal of the Sherman Silver Coinage Act, and Dare Bold against depreciation in the vate carried his policy through to success. See Docs. of silver or jor the purpose of speculating. No. 327, 328. On the first phase of Cleveland’s This hoarding of god has already begun. silver policy, see A. Nevins, Grover Cleve.and, When the time comes that gold has been

ch. xvi. withdrawn from circulation, then will be apparent the difference between the real value

... Nothing more important than the of the silver dollar and a dollar in gold, and present condition of our currency and coinage the two coins will part company. Gold, still

can claim your attention. the standard of value and necessary in our

since February, 1878, the Government dealings with other countries, will be at a

has, under the compulsory provisions of law, premium over silver; banks which have sub-

purchased silver bullion and coined the same _ stituted go!d for the deposits of their at the rate of more than $2,000,000 every customers may pay them with silver bought month, By this process up to the present with such gold, thus making a handsome date 215,759,431 silver dollars have been profit; rich specu'ators will sell their hoarded

coined. ... gold to their neighbors who need-it to liquiThe necessity for such an addition to the date their foreign debts, at a ruinous pre-

silver currency of the nation as is compelled mium over silver, and the laboring men and by the silver-coinage act is negatived by the women of the land, most de‘enseless of all,

fact that up to the present time only about will find that the dollar received for the 50,000,000 of the silver dollars so coined wage of their toil has sadly shrunk in its have actually found their way into circu'a- purchasing power. It may be said that the : tion, leaving more than 165,000,000 in the latter resu:t will be but temporary, and that possession of the Government, the custody ultimately the price of labor will be adof which has entailed a considerable ex- justed to the change; but even if this takes pense for the construction of vaults for its place the wage-worker can not possibly gain, deposit. Against this latter amount there are but must inevitably lose, since the price he outstanding silver certificates amounting to is compelled to pay for his living will not

about $93,000,000. only be measured in a coin heavily de-

Every month two millions of go!d in the’ preciated and fluctuating and uncertain in public Treasury are paid out for two millions its value, but this uncertainty in the value or more of silver dollars, to be added to the of the purchasing medium will be made the

idle mass already accumulated. pretext for an advance in prices beyond that If continued long enough, this operation justified by actual depreciation. .. . will result in the substitution of silver for all Those who do not fear any disastrous conthe gold the Government owns applicable sequences arising from the continued comto its general purposes. ... The proportion pulsory coinage of silver as now directed by of silver and its certificates received by the law, and who suppose that the addition to Government will probably increase as time’ the currency of the country intended as its

CLEVELAND’S MESSAGE ON BLAND-ALLISON AcT_ 119 result will be a public benefit, are reminded the money lender alone that must submit to that history demonstrates that the point is such a readjustment, enforced by the Goveasily reached in the attempt to float at the ernment and their debtors. The pittance of same time two sorts of money of different the widow and the orphan and the incomes

excellence when the better will cease to of helpless beneficiaries of all kinds would be in general circulation. The hoarding of be disastrously reduced. The depositors in gold which has already taken place indicates savings banks and in other institutions which that we shall not escape the usual experience hold in trust the savings of the poor, when in such cases. So if this silver coinage be their little accumulations are scaled down to continued we may reasonably expect that meet the new order of things, would in their gold and its equivalent will abandon the field distress painfully realize the delusion of the of circulation to silver alone. This of course promise made to them that plentiful money

must produce a severe contraction of our would improve their condition. circulating medium, instead of adding to it. We have now on hand all the silver dollars It will not be disputed that any attempt necessary to supply the present needs of the on the part of the Government to cause the peop'e and to satisfy those who from senticirculation of silver dollars worth 80 cents ment wish to see them in circulation, and if side by side with gold dollars worth 100 their coinage is suspended they can be readily cents, even within the limit that legislation obtained by all who desire them. If the need

does not run counter to the laws of trade, of more is at any time apparent, their

to be successful must be seconded by the coinage may be renewed. confidence of the people that both coins will That disaster has not already overtaken retain the same purchasing power and be us furnishes no proof that danger does not interchangeable at will. A special effort has wait upon a continuation of the present silver been made by the Secretary of the Treasury coinage. We have been saved by the most to increase the amount of our silver coin careful management and unusual expedients, in circulation; but the fact that a large share by a combination of fortunate conditions, of the limited amount thus put out has soon and by a confident expectation that the returned to the public Treasury in payment course of the Government in regard to silver of duties leads to the belief that the people coinage would be speedily changed by the do not now desire to keep it in hand, and action of Congress.

this, with the evident disposition to hoard Prosperity hesitates upon our threshold gold, gives rise to the suspicion that there because of the dangers and uncertainties already exists a lack of confidence among surrounding this question. Capital timidly the people touching our financial processes. shrinks from trade, and investors are unwill-

There is certainly not enough silver now in ing to take the chance of the questionable circulation to cause uneasiness, and the whole shape in which their money will be re amount coined and now on hand might after turned to them, while enterprise halts at a a time be absorbed by the people without risk against which care and sagacious man: apprehension; but it is the cease‘ess stream agement do not protect. that threatens to overflow the land which As a necessary consequence, labor lacks

causes fear and uncertainty. ... employment and suffering and distress are

The so-called debtor class, for whose bene- visited upon a portion of our fellow-citizens fit the continued compulsory coinage of silver especially entitled to the careful considera-

is insisted upon, are not dishonest because tion of those charged with the duties of they are in debt, and they should not be legislation. No interest appeals to us so suspected of a desire to jeopardize the finan- strongly for a safe and stable currency as the

cial safety of the country in order that they vast army of the unemployed. may cancel their present debts by paying I recommend the suspension of the comthe same in depreciated dollars. Nor should pulsory coinage of silver dollars, directed {t be forgotten that it is not the rich nor by the law passed in February, 1878. .. .

120 DocUMENTS OF AMERICAN HISTORY 312. PRESIDENT CLEVELAND ON PENSION LEGISLATION Extract from Veto Message June 21, 1886 (Richardson, ed. Messages and Papers, Vol. VIII, p. 437-8) The practice of granting pensions by special beneficiary. I have not, however, been able legislation grew during the decade of the eighties to entirely divest myself of the idea that to a positive menace. Cleveland did his best to the public money appropriated for pensions stant ums How ° seria neces that pt as is the soldiers’ fund, which snould be devoted unfriendly to the veterans of the Civil War. The to ae indemnification of those who Me the Harrison administration reversed the Cleveland de aia of the Union and in the nation's policy; Corporal Tanner, who was placed in Service have worthily suffered, and who in charge of the pension bureau, is said to have the day of their dependence resulting from remarked, “God help the surplus”. The pension such suffering are entitled to the benefacact of 1890 increased the annual pension ap- tions of their Government. This reflection propriations, within two years, by $68,000,000. lends to the bestowal of pensions a kind of See, W. H. Glasson, Federal Military Pensions; sacredness which invites the adoption of A. Nevins, Grover Cleveland, ch. xix; J. We such principles and regulations as will ex-

ceeded on n 1 . . : .

Oliver, History of Civil War Pensions. clude perversion as well as insure a liberal and generous application of grateful and Executive Mansion, benevolent designs. Heedlessness and a disJune 21, 1886. regard of the principle which underlies the

To the Senate: granting of pensions is unfair to the wounded, I am so thoroughly tired of disap- crippled soldier who is honored in the just

proving gifts of public money to individuals recognition of his Government. Such a man

who in my view have no right or claim to should never find himself side by side on the same, notwithstanding apparent Congres- the pension roll with those who have been sional sanction, that I interpose with a feel- tempted to attribute the natural ills to which

ing of relief a veto in a case where I find humanity 1s heir to service in the Army, it unnecessary to determine the merits of Every relaxation of principle in the grantthe application. In speaking of the promiscu- ing of pensions invites applications withous and ill-advised grants of pensions which out merit and encourages those who for have lately been presented to me for ap- gain urge honest men to become dishonest. proval, I have spoken ol their “apparent This is the demoralizing lesson taught the Congressional sanction” in recognition of the people that as against the public Treasury fact that a large proportion of these bills the most questionable expedients are allow-

have never been submitted to a majority able. .

of either branch of Congress, but are the During the present session of Congress 493 result of nominal sessions held for the ex- special pension bills have been submitted to press purpose of their consideration and me, and I am advised that 111 more have attended by a small minority of the members’ received the favorable action of both Houses

of the respective Houses of the legislative of Congress and will be presented within a

branch of Government... . day or two, making over 600 of these bills

I have not been insensible to the sugges- which have been passed up to this time

tions which should influence every citizen, during the present session, nearly three times either in private station or official place, to the number passed at any entire session since

exhibit not only a just but a generous ap- the year 1861. With the Pension Bureau, preciation of the services of our country’s — fully equipped and regulated by the most defenders. In reviewing the pension legisla- liberal rules, in active operation, supple:

tion presented to me many bills have been mented in its work by constant special approved upon the theory that every doubt legislation, it certainly is not unreasonable to

should be resolved in favor of the proposed suppose that in all the years that have

THE SINGLE-TAX 121 elapsed since the close of the war a majority bly become operative which should be reof the meritorious claims for pensions have jected.

been presented and determined. In the meantime I venture to suggest the

I have now more than 130 of these bills significance of the startling increase in this before me awaiting Executive action. It will kind of legislation and the consequences inbe impossible to bestow upon them the ex- volved in its continuance.

amination they deserve, and many will proba- GROVER CLEVELAND. 313. THE SINGLE-TAX

Platform of Henry George in the Mayoralty Contest, New York 1886

(L. F. Post and F. C. Leubuscher, An Account of the George-Hewitt Campaign of 1886) Henry George published his Progress and arising from social growth and improvement Poverty in 1879. Within the next six years the belong to society at large, we aim at the single-tax movement gained headway both in abolition of the system which makes such the United States and in the British Isles. In beneficent inventions as the railroad and 1886 George was tendered the nomination for j alesranh a means for the oppression of the mayor by various labor and liberal groups in . . | New York City. A fierce campaign, punctuated people, and the aggrandizement of an aristocby unmeasured denunciation from George’s op- Facey of wealth and power. We declare the ponents, resulted in the election of Abram §. [true purpose of government to be the main-

Hewitt, the Tammany candidate. Hewitt was tenance of that sacred right of property credited with 90,552 votes, George with 68,110, which gives to everyone opportunity to em-

and Theodore Roosevelt, the Republican candi- ploy his labor and security that he shall date, with 60,435: it was charged at the time enjoy its fruits; to prevent the strong from that Tammany Hall counted out George, but gnpressing the weak, and the unscrupulous these charges have not been substantiated. On fy bbine the h t- and to do for th the campaign, and Henry George, sce Post and rom robbing te Aonest, and to co tor me Leubuscher, above; the forthcoming biography equal benefit of all such things as can be of Abram Hewitt by A. Nevins; H. George, Jr better done by organized society than by The Life of Henry George, Vol. Il, ch. vii; individuals; and we aim at the abolition of G. R. Geiger, The Philosophy of Henry George; all laws which give to any class of citizens .L. F. Post, The Prophet of San Francisco; A.N. advantages, either judicial, financial, indusYoung, The Single Tax Movement in the United tyjal, or political, that are not equally shared

States ; R. A. Sawyer, Henry George and the by all others... . vnere Tax; J. Chamberlain, Farewell to Re- 4. We declare the crowding of so many

of our people into narrow tenements at The delegates of the trade and labor enormous rents, while half the area of the

organizations of New York in conference’ city is yet unbuilt upon to be a scandalous

assembled, make this declaration. evil, and that to remedy this state of things

1. Holding that the corruptions of govern- all taxes on buildings and improvements ment and the impoverishment of labor result should be abolished, so that no fine shall from neglect of the self-evident truths pro- be put upon the employment of labor in inclaimed by the founders of this Republic creasing living accommodations, and_ that that all men are created equal and endowed taxes should be levied on land irrespective with inalienable rights, we aim at the aboli- of improvements, so that those who are now tion of the system which compels men to holding land vacant shall be compelled either

pay their fellow-creatures for the use of to build on it themselves, or give up the God’s gifts to all, and permits monopolies land to those who will. to deprive labor of natural opportunities for 5. We declare, furthermore, that the enor-

employment, ... mous value which the presence of a million 2. Holding, moreover, that the advantages and a half people gives to the land of this

122 DOCUMENTS OF AMERICAN History city belongs properly to the whole com- metropolis. We also declare that existing munity; that it shouid not go to the enrich- means of traffic should not be left in the ment of individuals and corporations, but hands of corporations which, while gaining should be taken in taxation and applied to enormous profits from the growth of popula-

the improvement and beautifying of the tion, oppress their employés and provoke city, to the promotion of the health, com- — strikes that interrupt travel and imperil the fort, education, and recreation of its people, public peace, but should by lawful process

and to the providing of means of transit be assumed by the city and operated for commensurate with the needs of a great public benefit, 314. WABASH, ST. LOUIS AND PACIFIC RAILROAD COMPANY v. ILLINOIS 118 U. S. 557 1886

Error to the Supreme Court of llinois. This case transportation from the point of departure involved the legality of an Illinois law prohibit- jin the State of Illinois to the city of New ing the “long-and-short-haul” evil. The Wabash York, holds that, while the statute of Illinois Railroad had charged certain shippers fifteen is inoperative upon that part of the contract cents 4 hundred pounds carrying goods fromand Jaintwentyhas reference to thegs transportation Peoria, Illinois, to for New York City, ; wee five cents a hundred pounds for carrying goods outside of the State, it is binding and effecof the same class for other shippers from Gil- tual as to so much of the transportation as man, Illinois, to New York City, although Peoria was within the limits of the State of Illinois; was 86 miles farther from New York City than and undertaking for itself to apportion the was Gilman. The Supreme Court of the State rates charged over the whole route, decides

of Illinois upheld the constitutionality of the that the contract and the receipt of the State law. This case seriously modified the earl-er money for so much of it as was performed decision of the Court in Munn v. Illinois, and within the State of Illinois violate the statute helped to bring about the passage of the Inter- of the State on that subject.

state Commerce Act. If the Illinois statute could be construed MILter, J... . The matter thus presented, to apply exclusively to contracts for a caras to the controlling influence of the Con- riage which begins and ends within the State. stitution of the United States over this legis- disconnected from a continuous transporlation of the state of Illinois, raises the ques- _ tation through or into other States, there does. tion which confers jurisdiction on this court. not seem to be any difficulty in holding it

Although the precise point presented by this to be valid... . case may not have heen heretofore decided The supreme court of Illinois does not by this court, the general subject of the place its judgment in the present case on power of the State legislatures to regu:ate the ground that the transportation and the taxes, fares, and tolls for passengers and charge are exclusively state commerce, but,

transportation of freight over railroads conceding that it may be a case of com-

within their limits has heen very much con- merce among the States, or interstate comsidered recently ... and the question how’ merce, which Congress would have the right

far such regulations, made by the States to regulate if it had attempted to do so, .. . are valid or void. as they may affect argues that this statute of Illinois belongs the transportation of goods through more _ to that class of commercial regulations which

than one State, in one vovage. is not en- may be established by the laws of a State

tirely new here. until Congress shall have exercised its power The supreme court of Illinois, in the case on that subject. In support of its view of now before us, conceding that each of these the subject the supreme court of Illinois contracts was in itself a unit, and that the cites the cases of Munn v. Illinois; Chicago, pav received by the Illinois railroad com- Burlington & Quincy Railroad v. Towa ; and pany was the compensation for the entire Peik v. Chicago & Northwestern Railway,

THE WABASH CASE 123 _.. It cannot be denied that the general never has been, the deliberate opinion of a language of the court in these cases, upon the majority of this court that a statute of a power of Congress to regulate commerce, State which attempts to regulate the fares may be susceptible of the meaning which and charges by railroad companies within its the Illinois court places upon it... . What- limits, for a transportation which constitutes ever may be the instrumentalities by which a part of commerce among the States, is a the transportation from one point to the — valid law.

other is effected, it is but one voyage, as Let us see precisely what is the degree of much so as that of the steamboat on the interference with transportation of property

Mississippi River. . or persons from one State to another which

It is not the railroads themselves that are this statute proposes. A citizen of New York regulated by this act of the Illinois legisla- has goods which he desires to have transture so much as the charge for transporta- ported by the railroad companies from that

tion, and... if each one of the States city to the interior of the State of Illinois. through whose territories these goods are A continuous line of rail over which a car transported can fix its own rules for prices, loaded with these goods can be carried, and for modes of transit, for times and modes is carried habitually, connects the place of of delivery, and all the other incidents of shipment with the place of delivery. He untransportation to which the word “regula- dertakes to make a contract with a person tion” can be applied, it is readily seen that engaged in the carrying business at the end

the embarrassments upon interstate trans- of this route from whence the goods are portation, as an element of interstate com- to start, and he is told by the carrier: “I merce, might be too oppressive to be sub- am free to make a fair and reasonable conmitted to. “It was,” in the language of the tract for this carriage to the line of the court cited above, “to meet just such a case State of Illinois, but when the car which that the commerce [commercial] clause of carries these goods is to cross the line of

the Constitution was adopted.” that State, pursuing at the same time this

It cannot be too strongly insisted upon continuous track, I am met by a law of

that the right of continuous transportation, Illinois which forbids me to make a free from one end of the country to the other, contract concerning this transportation within is essential, in modern times, to that free- that State, and subjects me to certain rules dom of commerce from the restraints which by which I am to be governed as to the the States might choose to impose upon it, charges which the same railroad company in that the commerce clause was intended to Illinois may make, or has made, with refersecure. This clause, giving to Congress the ence to other persons and other places of power to regulate commerce among the delivery.” So that while that carrier might be States, and with foreign nations, as this court willing to carry these goods from the city has said before, was among the most im- of New York to the city of Peoria at the portant of the subjects which prompted the rate of fifteen cents per hundred pounds, he formation of the Constitution. And it would is not permitted to do so, because the Illinois be a very feeble and almost useless provision, railroad company has already charged at the but poorly adapted to secure the entire free- rate of twenty-five cents per hundred pounds dom of commerce among the States which for carriage to Gilman, in Illinois, which is was deemed essential to a more perfect union eighty-six miles shorter than the distance

by the framers of the Constitution, if, at to Peoria. every stage of the transportation of goods 50, also, in the present case, the owner and chattels through the country, the State of corn, the principal product of the counwithin whose limits a part of this transporta- try, desiring to transport it from Peoria, in tion must be done could impose regulations Illinois, to New York, finds a railroad comconcerning the price, compensation, or taxa- pany willing to do this at the rate of fifteen tion, or any other restrictive regulation inter- cents per hundred pounds for a car-load, fering with and seriously embarrassing this but is compelled to pay at the rate of twenty-

commerce. ... five cents per hundred pounds, because the We must therefore hold that it is not, and railroad company has received from a per-

124 DOCUMENTS OF AMERICAN History son residing at Gilman twenty-five cents per tion which begins and ends within the limits hundred pounds for the transportation of a of the State, it may be very just and equita-

car-load of the same class of freight over ble, and it certainly is the province of the the same line of road from Gilman to New _ state legislature to determine that question.

York. This is the result of the statute of | But when it is attempted to apply to transIJlinois, in its endeavor to prevent unjust portation through an entire series of States a discrimination, as construed by the supreme principle of this kind, and each one of the court of that State. The effect of it is that States shall attempt to establish its own whatever may be the rate of transportation rates of transportation, its own methods to per mile charged by the railroad company prevent discrimination in rates, or to permit from Gilman to Sheldon, a distance of twenty- it, the deleterious influence upon the free-

three miles, in which the loading and the dom of commerce among the States, and unloading of the freight is the largest ex- upon the transit of goods through those pense incurred by the railroad company, the States, cannot be overestimated. That this same rate per mile must be charged from species of regulation is one which must be,

Peoria to the city of New York. if established at all, of a general and national

The obvious injustice of such a rule as character, and cannot be safely and wisely this, which railroad companies are by heavy — remitted to local rules and local regulations,

penalties compelled to conform lo, in regard we think is clear from what has already (o commerce among the States, when ap- been said. And if it be a regulation of complied to transportation which includes Illinois merce, as we think we have demonstrated in a long line of carriage through several it is, and as the Illinois court concedes it States, shows the value of the constitutional to be, it must be of that national character: provision which confides the power of regu- and the regulation can only appropriately lating interstate commerce to the Congress exist by general rules and principles, which of the United States, whose enlarged view demand that it should be done by the Conof the interests of all the States, and of the gress of the United States under the comrailroads concerned, belter fits it to establish merce clause of the Constitution.

just and equitable rules. Judgment reversed.

Of the justice or propriety of the prin- BRADLEY, J., delivered a dissenting opin-

ciple which hes at the foundation of the ion, in which Waite, C. J., and Gray, J.,

Illinois statute il is not the province of this concurred. court to speak. As restricted to a transporta-

315. THE DAWES ACT February 8, 1887 (U.S. Statutes at Large, Vol. XXIV, p. 388 ff.) This act marked the end of a quarter of a Territories over the Indians, and for other century of agitation for reform in our treatment purposes.

of the Indian problem. It was, said one phi- Be it enacted, That in all cases where any lanthropist, “the end of a century of dishonor.” tribe or band of Indians has been, or shall See, for background, F. E. Leupp, The Indian 1 after be, located upon any reservation dian Wards; and for the subsequent history of created for their use, either by treaty stipulathe act, L. F. Schmeckebier, The Office of Indian tion or by virtue of an act of Congress or Affairs; L. Meriam, et al., The Problem of Indian executive order setting apart the same for

and His Problem; G. W. Manypenny, Our [n-

Administration. their use, the President of the United States be, and he hereby is, authorized, whenever

An act to provide for the allotment of in his opinion any reservation or any part lands in severalty to Indians on the various thereof of such Indians is advantageous for reservations, and to extend the protection agriculture and grazing purposes to cause of the laws of the United States and the — said reservation, or any part thereof, to be

Tur Hatcu Act 125 surveyed, or resurveyed if necessary, and charge or incumbrance whatsoever: .. . to allot the lands in said reservation in SEC. 6. That upon the completion of said severalty to any Indian located thereon in allotments and the patenting of the lands

quantities as follows: to said allottees, each and every member of To each head of a family, one-quarter of the respective bands or tribes of Indians to

a section; whom allotments have been made shall have To each single person over eighteen years the benefit of and be subject to the laws,

of age, one-eighth of a section; both civil and criminal, of the State or

To each orphan child under eightcen years Territory in which they may reside;... of age, one-eighth of a section; and, And every Indian born within the territorial To each other single person under eighteen limits of the United States to whom allotyears now living, or who may be born prior ments shall have been made under the pro-

to the date of the order of the President visions of this act, or under any law or

directing an allotment of the lands embraced treaty, and every Indian born within the in any reservation, one-sixteenth of a sec- territorial limits of the United States who

tion: ... has voluntarily taken up, within said limits,

SEC. 5. That upon the approval of the his residence separate and apart from any allotments provided for in this act by the tribe of Indians therein, and has adopted the

Secretary of the Interior, he shall... de- habits of civilized life, is hereby declared clare that the United States does and will to be a citizen of the United States, and Is hold the land thus allotted, for the period entitled to all the rights, privileges, and of twenty-five years, in trust for the sole immunities of such citizens, whether said use and benefit of the Indian to whom such Indian has been or not, by birth or other-

allotment shall have been made,...and wise, a member of any tribe of Indians that at the expiration of said period the within the territorial limits of the United United States will convey the same by patent States without in any manner impairing or

to said Indian, or his heirs as aforesaid, in otherwise affecting the right of any such fee, discharged of such trust and free of all Indian to tribal or other property. ...

316. THE HATCH ACT March 2, 1887 (U.S. Statutes at Large, Vol. XXIV, p. 400 ff.) This important act established Agricultural Ex- tablished, or which may hereafter be esperiment Stations. See, M. Conover, The Office tablished, in accordance with the provisions of Experiment Stations; B. H. Hibbard, History of an act approved July second, eighteen

of Public Land Policies, ch. xvi. hundred and sixty-two, entitled “An act An act to establish agricultural experi- donating public lands to the several States ment stations in connection with the col- and Territories which may provide colleges leges established in the several States under for the benefit of agriculture and the me-

the provisions of an act approved July chanic arts,” or any of the supplements of second, eighteen hundred and sixty-two, said act, a department to be known and and of the acts supplementary thereto. designated as an “agricultural experiment Be it enacted, That in order to aid in _ station:” Provided, That in any State or acquiring and diffusing among the people of Territory in which two such colleges have the United States useful and practical in- been or may be so established the appropriaformation on subjects connected with agri- tion hereinafter made to such State or Terculture, and to promote scientific investiga- _ritory shall be equally divided between such tion and experiment respecting the principles colleges, unless the legislature of such State and applications of agricultural science, there or Territory shall otherwise direct.

Shall be established, under direction of the SEC. 2. That it shall be the object and college or colleges or agricultural department duty of said experiment stations to conduct

of colleges in each State or Territory es- original researches or verify experiments on

126 DocUMENTS OF AMERICAN II1story the physiology of plants and animals: the of the respective States or Territories. .. . diseases to which they are severally subject, SEC. 5. That for the purpose of paying with the remedies for the same; the chemical the necessary expenses of conducting incomposition of useful plants at their dif- vestigations and experiments and printing ferent stages of growth; the comparative ad- and distributing the results as hereinbefore

vantages of rotative cropping as pursued prescribed, the sum of fifteen thousand under a varying series of crops; the capacity dollars per annum is hereby appropriated of new plants or trees for acclimation: the to each State, to be specially provided for analysis of soils and water; the chemical by Congress in the appropriations from year composition of manures, natural or artificial, to year, and to each Territory entitled under with experiments designed to test their com- the provisions of section e:ght of this act, parative effects on crops of different kinds; out of any money in the Treasury proceed-

the adaptation and value of grasses and ing from the sales of public lands, to be

forage plants; the composition and digesti- paid in equal quarterly payments, on the bility of the different kinds of food for do- first day of January, April, July, and Octomestic animals; the scientific and economic ber in each year, to the treasurer or other questions involved in the production of butter officer duly appointed by the governing boards and cheese; and such other researches or ex- of said colleges to receive the same, the first

periments bearing directly on the agricultural payment to be made on the first day of

industry of the United States as may in October, eighteen hundred and eighty-

each case be deemed advisable, having due seven... . regard to the varying conditions and needs

317. CLEVELAND’S TARIFF MESSAGE OF 1887 December 6, 1887 (Richardson, ed. Afessages and Papers, Vol. VIII, p. 579 ff.) President Cleveland focussed the attention of exaclion of more than this is indefensible the nation upon the problem of tariff reform extortion and a culpable betrayal of American by devoting his third annual message to Con- fairness and justice. This wrong inflicted gress exclusively to this subject. For background, upon those who bear the burden of national R McEloy. Gro ee Clesehant. Vor. I ch. xi taxation, like other wrongs, multiplies a brood and h‘stories of the tariff by Stanwood, Tarbell, of evil consequences. The public Treasury,

and Taussig. which should only exist as a conduit conveying the people’s tribute to its legitimate

WASHINGTON, December 6, 1887. objects of expenditure, becomes a hoarding

To the Congress of the United States: place for money needlessly withdrawn from You are confronted at the threshold of trade and the people’s use, thus crippling our your legislative duties with a condition of national energies, suspending our country’s the national finances which imperatively de- development, preventing investment in promands immediate and careful consideration. ductive enterprise, threatening financial dis-

The amount of money annually exacted, turbance, and inviting schemes of public through the operation of present laws, from plunder... . the industries and necessities of the people In the present state of legislation the only largely exceeds the sum necessary to meet pretense of any existing executive power to

the expenses of the Government. restore at th-s time any part of our surplus

When we consider that the theory of our revenues to the people by its expenditure institutions guarantees to every citizen the consists in the supposition that the Secrefull enjoyment of all the fruits of his in- tary of the Treasury may enter the market dustry and enterprise, with only such deduc- and purchase the bonds of the Government tion as may be his share toward the careful not yet due, at a rate of premium to be and economical maintenance of the Govern- agreed upon... . ment which protects him, it is plain that the In considering the question of purchasing

CLEVELAND’S TARIFF MESSAGE OF 1887 127 bonds as a means of restoring to circulation duty to the home manufacturer. This referthe surplus money accumulating in the Treas- ence to the operation of our tariff laws 1S ury, it should be borne in mind that pre- not made by way of instruction, but in order miums must of course be paid upon such that we may be constantly reminded of the purchase, that there may be a large part of manner in which they impose a burden upon these bonds held as investments which can those who consume domestic products as

not be purchased at any price, and that well as those who consume imported articombinations among holders who are willing cles, and thus create a tax upon all our pcoto sell may unreasonably enhance the cost of ple.

such bonds to the Government... . It is not proposed to entirely relieve the

I have deemed it my duty to thus bring to country of this taxation. It must be extenthe knowledge of my countrymen, as well as _ sively continued as the source of the Govern-

to the attention of their representatives ment’s income; and in a readjustment of our charged with the responsibility of legislative tariff the interests of American labor engaged

relief, the gravity of our financial situa- in manufacture should be carefully consid-

tion... . ered, as well as the preservation of our manu-

Our scheme of taxation, by means of which facturers. It may be called protection or by this needless surplus is taken from the people any other name, but relief from the hardand put into the public Treasury, consists ships and dangers of our present tariff laws of a tariff or duty levied upon importations should be devised with especial precaution from abroad and internal-revenue taxes levied against imperiling the existence of our manupon the consumption of tobacco and spiritu- ufacturing interests. But this existence should

ous and malt liquors... . not mean a condition which, without regard

.. . Our present tariff laws, the vicious, to the public welfare or a national exigency, inequitable, and illogical source of unneces- must always insure the realization of imsary taxation, ought to be at once revised mense profits instead of moderately profitaand amended. These laws, as their primary ble returns. As the volume and diversity of and piain effect, raise the price to consumers our national activities increase, new recruits of all articles imported and subject to duty are added to those who desire a continuation by precisely the sum paid for such duties. of the advantages which they conceive the Thus the amount of the duty measures the present system of tariff taxation directly aftax paid by those who purchase for use these fords them. So stubbornly have all efforts imported articles. Many of these things, how-to reform the present condition been resisted ever, are raised or manufactured in our own by those of our fellow-citizens thus engaged

country, and the duties now levied upon’ that they can hardly complain of the susforeign goods and products are called protec- picion, entertained to a certain extent, that tion to these home manufactures, because there exists an organized combination all

they render it possible for those of our along the line to maintain their advan-

people who are manufacturers to make these tage... .

taxed articles and sell them for a price equal It is also said that the increase in the to that demanded for the imported goods’ price of domestic manufactures resulting that have paid customs duty. So it happens from the present tariff is necessary in order that while comparatively a few use the im-- that higher wages may be paid to our workported articles, millions of our people, who ingmen employed in manufactories than are never used and never saw any of the foreign paid for what js called the pauper labor of

products, purchase and use things of the Europe... . same kind made in this country, and pay By the last census it is made to appear therefor nearly or quite the same enhanced that of the 17,392,099 of our population enprice which the duty adds to the imported gaged in all kinds of industries 7,670,493 are articles. Those who buy imports pay the duty employed in agriculture, 4,074,238 in profes-

charged thereon into the public Treasury, sional and personal service (2,934,876 of but the great majority of our citizens, who whom are domestic servants and laborers), buy domestic articles of the same class, pay while 1,810,256 are employed in trade and a sum at least approximately equal to this transportation and 2,623,089 employed in

128 DOCUMENTS OF AMERICAN HtstToRy such manufacturing industries as are claimed conditions exists a case would seem to be

to be benefited by a high tariff. presented for an easy reduction of taxation. Their compensation, as it may be affected The considerations which have been preby the operation of tariff laws, should at all sented touching our tariff laws are intended times be scrupuously kept in view; and yet only to enforce an earnest recommendation with slight reflection they will not overlook that the surplus revenues of the Government the fact that they are consumers with the be prevented by the reduction of our customs

rest; that they too have their own wants duties, and at the same time to emphasize a and those of their families to supply from Suggestion that in accomplishing this purpose

their earnings, and that the price of the we may discharge a double duty to our peonecessaries of life, as well as the amount of ple by granting to them a measure of relief their wages, will regulate the measure of from tariff taxation in quarters where it is

their welfare and comfort... . most needed and from sources where il can be Nor can the worker in manufactures fail most fairly and justly accorded... .

to understand that while a high tariff is The difficulty attending a wise and fair

claimed to be necessary to allow the payment revision of our tariff laws is not underestiof remunerative wages, it certainly results in mated. It will require on the part of the a very large increase in the price of nearly Congress great labor and care, and especially all sorts of manufactures, which, in almost a broad and national contemplation of the countless forms, he needs for the use of him- subject and a patriotic disregard of such local

self and his family... . and selfish claims as are unreasonable and In speaking of the increased cost to the reckless of the welfare of the entire country. consumer of our home manufactures result- Under our present laws more than 4,000 ing from a duty laid upon imported articles articles are subject to duty. Many of these

of the same description, the fact is not do not in any way compete with our own overlooked that competition among our do- manufactures, and many are hardly worth mestic producers sometimes has the effect of | attention as subjects of revenue. A considkeeping the price of their products below the erable reduction can be made in the agere-

highest limit allowed by such duty. But it gate by adding them to the free list. The is notorious that this competition is too often taxation of luxuries presents no features of strangled by combinations quite prevalent at hardship; but the necessaries of life used and this time, and frequently called trusts, which consumed by all the people, the duty upon

have for their object the regulation of the which adds to the cost of living in every supply and price of commodities made and home, should be greatly cheapened.

sold by members of the combination. The The radical reduction of the duties impeople can hardly hope for any consideration posed upon raw material used in manufac-

in the operation of these selfish schemes. turies, or its free importation, is of course If, however, in the absence of such combi- an important factor in any effort to reduce nation, a healthy and free competition re- the price of these necessaries. It would not duces the price of any particular dutiable only relieve them from the increased cost article of home production below the limit caused by the tariff on such material, but which it might otherwise reach under our the manufactured product being thus cheaptariff laws, and if with such reduced price its ened that part of the tariff now laid upon manufacture continues to thrive, it is en- such product, as a compensation to our mantirely evident thal one thing has been dis- ufacturers for the present price of raw matecovered which should be carefully scruti- rial, could be accordingly modified. Such re-

nized in an effort to reduce taxation. duction or free importation would serve

The necessity of combination to maintain besides to largely reduce the revenue. It is

the price of any commodity to the tariff not apparent how such a change can have point furnishes proof that someone is willing any injurious effect upon our manufacturers.

to accept lower prices for such commodity On the contrary, it would appear to give and that such prices are remunerative; and them a better chance in foreign markets lower prices produced by competition prove with the manufacturers of other countries, the same thing. Thus where either of these who cheapen their wares by free material.

THe INTERSTATE COMMERCE ACT 129 Thus our people might have the opportunity Relief from this condition may involve a of extending their sales beyond the limits of — slight reduction of the advantages which we

home consumption, saving them from the award our home productions, but the entire depression, interruption in business, and loss withdrawal of such advantages should not caused by a glutted domestic market and be contemplated. The question of free trade affording their employees more certain and_ is absolutely irrelevant, and the persistent steady labor, with its resulting quiet and claim made in certain quarters that all the

contentment. ... efforts to relieve the people from unjust and Our progress toward a wise conclusion will unnecessary taxation are schemes of so-

not be improved by dwelling upon the called free traders is mischievous and far theories of protection and free trade. This removed from any consideration for the savors too much of bandying epithets. It is a public good.... condition which confronts us, not a theory.

318. THE INTERSTATE COMMERCE ACT February 4, 1887 (U. S. Statutes at Large, Vol. XXIV, p. 379 ff.) The exclusive character of Federal regulation of in the United States, and also to the transinterstate commerce had been established as portation in like manner of property shipped early as 1824 in Gibbons v. Ogden, Doc. No. 129, from any place in the United States to a yet it was not until over half a century later that foreign country and carried from such place Congress passed any law looking to national 1, 4 port of transshipment, or shipped from railroads, such as the Granger laws, had proved a foreign country lo any place in the United unsatisfactory, and the Wabash Case, Doc. No. States and carried to such place from a port 314, indicated the urgent necessity of national of entry either in the United States or an regulation. On the Act, sce, D. R. Dewey, Na- adjacent foreign country: Provided, howtionul Problems, ch. vi; B. H. Meyer, Railway ever, That the provisions of this act shall Legislation in the United States; W. Z. Ripley, not apply to the transportation of passengers Railroads: Rates and Regulation; the Cullom = oy property, or to the receiving, delivering, Report, which largely influenced the character storage, or handling of property, wholly of the Act, is in the Report of the Senate Select ath; Stat d not shipped to or fro Committee on Interstate Commerce, 49 Cong. wit un one ore e, ane Now smppec 10 rom 1 Sess. Sen. Report No. 46. See also, C. A. Mil- 4 foreign country trom or to any State or ler, Legislative History of the Interstate Com- Territory as aforesaid. merce Act; 1. L. Sharfman, The Interstate Com- The term “railroad” as used in this act

regulation of commerce. State regulation of . ;

merce Commission, 5 vols. shall include all bridges and ferries used or

operated in connection with any railroad, and

An act to regulate commerce. also all the road in use by any corporation Be it enacted ..., That the provisions operating a railroad, whether owned or opof this act shall apply to any common car-_ erated under a contract, agreement, or lease; rier or carriers engaged in the transportation and the term “transportation” shall include of passengers or property wholly by railroad, all instrumentalities of shipment or carriage.

or partly by railroad and partly by water All charges made for any service rendered when both are used, under a common control, or to be rendered in the transportation of management, or arrangement, for a contin- passengers or property as aforesaid, or in uous catriage or shipment, from one State connection therewith, or for the receiving, or Territory of the United States, or the Dis- delivering, storage, or handling of such prop-

trict of Columbia, to any other State or erty, shall be reasonable and just; and every Territory of the United States, or the Dis- unjust and unreasonable charge for such trict of Columbia, or from any place in the _ service is prohibited and declared to be unUnited States to an adjacent foreign country, lawful.

or from any place in the United States Sec. 2. That if any common carrier subthrough a foreign country to any other place ject to the provisions of this act shall, di-

130 DOCUMENTS OF AMERICAN History rectly or indirectly, by any special rate, re- and receive as great compensation for a bate, drawback, or other device, charge, shorter as for a longer distance: Provided,

demand, collect, or receive from any person however, That upon application to the Comor persons a greater or less compensation for mission appointed under the provisions of any service rendered, or to be rendered, in this act, such common carrier may, in special the transportation of passengers or property, cases, after investigation by the Commissubject to the provisions of this act, than it sion, be authorized to charge less for longer charges, demands, collects, or receives from than for shorter distances for the transportauny other person or persons for doing for tion of passengers or property; and the Comhim or them a like and contemporaneous mission may from time to time prescribe the service in the transportation of a like kind extent to which such designated common carof traffic under substantially similar circum- rier may be relieved from the operation of stances and conditions, such common carrier this section of this act. shall be deemed guilty of unjust discrimina- SEc. 5. That it shall be unlawful for any tion, which is hereby prohibited and declared common carrier subject to the provisions of

to be unlawful. this act to enter into any contract, agree-

Sec. 3. That it shall be unlawful for any ment, or combination with any other comcommon carrier subject to the provisions of mon carrier or carriers for the pooling of this act to make or give any undue or un- freights of different and competing railroads, reasonable preference or advantage to any or to divide between them the ageregrate or particular person, company, firm, corpora- net proceeds of the earnings of such railtion, or locality, or any particular description roads, or any portion thereof ; and in any of traffic, in any respect whatsoever, or to case of an agreement for the pooling of subject any particular person, company, firm, freights as aforesaid, each day of its continucorporation, or locality, or any particular de- ance shall be deemed a separate offense.

scription of traffic, to any undue or unreason- SEC. 6. That every common carrier subable prejudice or disadvantage in any respect ject to the provisions of this act shall print

whatsoever. and keep for public inspection schedules

Every common carrier subject to the pro- showing the rates and fares and charges for visions of this act shall, according to their the transportation of passengers and proprespective powers, afford all reasonable, erty which any such common carrier has

proper, and equal facilities for the inter- established and which are in force at the change of traffic between their respective time upon its railroad, as defined by the lines, and for the receiving, forwarding, and first section of this act. . . . Copies for the delivering of passengers and property to and use of the public shall be kept in every from their several lines and those connecting depot or station upon any such railroad, in therewith, and shall not discriminate in their such paces and in such form that they can rates and charges between such connecting be conveniently inspected. . . .

lines; but this shall not be construed as re- No advance shall be made in the rates, quiring any such common carrier to give the ' fares, and charges which have been estab.

use of its tracks or terminal facilities to lished and published as aforesaid by any another carrier engaged in like business. common carrier in compliance with the reSec. 4. That it shall be unlawful for any quirements of this section, except after ten common carrier subject to the provisions of days’ public notice, which shall plainly state

this act to charge or receive any greater the changes proposed to be made in the compensation in the aggregate for the trans- schedule then in force, and the time when

portation of passengers or of like kind of the increased rates, fares, or charges will

property, under substantially similar circum-_ go into effect... . .

stances and conditions, for a shorter than And when any such common carrier shall for a longer distance over the same line, in have established and published its rates,

the same direction, the shorter being included fares, and charges in compliance with the within the longer distance; but this shall provisions of this section, it shall be unlawnot be construed as authorizing any common ful for such common carrier to charge, decarrier within the terms of this act to charge mand, collect, or receive from any person

Tur INTERSTATE COMMERCE ACT 131 or persons a greater or less compensation for der this act shall continue in office for the the transportation of passengers or property, term of two, three, four, five, and six years, or for any services in connection therewith, respectively, from January 1, 1887, the term than is specified in such published schedule of each to be designated by the President;

of rates, fares, and charges as may at the but their successors shall be appointed for

time be in force terms of six years... . Any Commissioner Every common carrier subject to the pro- may be removed by the President for ineffivisions of this act shall file with the Com- ciency, neglect of duty, or malfeasance in mission hereinafter provided for copies of office. Not more than three of the Commisits schedules of rates, fares, and charges sioners shall be appointed irom the same which have been established and published political party. No person in the employ of in compliance with the requirements of this or holding any official relation to any comsection, and shall promptly notify said Com- mon carrier subject to the provisions of this

mission of all changes made in the same. act, or owning stock or bonds thereof, or Every such common carrier shall also file who is in any manner pecuniarily interested with said Commission copies of all contracts, therein, shall enter upon the duties of or agreements, or arrangements with other hold such office. Said Commissioners shall common carriers in relation to any traffic af- not engage in any other business, vocation, or

fected by the provisions of this act to which employment. No vacancy in the Commis-

it may be a party. ... sion shall impair the right of the remaining Sec. 9. That any person or persons claim- Commissioners to exercise all the powers of ing to be damaged by any common carrier the Commission.

subject to the provisions of this act may sec. 12. That the Commission hereby creeither make complaint to the Commission as_ ated shall have authority to inquire into the hereinafter provided for, or may bring sult management of the business of all common in his or their own behalf for the recovery carriers subject to the provisions of this act, of the damages for which such common car- and shall keep itself informed as to the

rier may be liable under the provisions of manner and method in which the same is this act, in any district or circuit court of | conducted, and shall have the right to obtain the United States of competent jurisdic- from such common carriers full and complete

tion... information necessary to enable the ComSec. 10. That any common carrier sub- mission to perform the duties and carry out ject to the provisions of this act, or, when- the objects for which it was created: and ever such common carrier is a corporation, for the purposes of this act the Commission any director or officer thereof, or any re- shall have power to require the attendance

ceiver, trustee, lessee, agent, or person acting and testimony of witnesses and the producfor or employed by such corporation, who, tion of all books, papers, tariffs, contracts, alone or with any other corporation, com- agreements, and documents relating to any

pany, person, or party, ... shall be guilty matter under investigation, and to that end of any infraction of this act, or shall aid or may invoke the aid of any court of the abet therein, shall be deemed guilty of a mis- United States in requiring the attendance demeanor, and shall, upon conviction thereof and testimony of witnesses and the producin any district court of the United States tion of books, papers, and documents under within the jurisdiction of which such offense the provisions of this section. .. .

was committed, be subject to a fine of not SEc. 13. That any person, firm, corporato exceed five thousand do‘lars for each of- tion, or association, or any mercantile, agri-

fense. cultural, or manufacturing society, or any SEC. 11. That a Commission is hereby cre- body politic or municipal organization com-

ated and established to be known as the plaining of anything done or omitted to be Inter-State Commerce Commission, which done by any common carrier subject to the shall be composed of five Commissioners, provisions of this act in contravention of who shall be appointed by the President, by the provisions thereof, may apply to said and with the advice and consent of the Sen- Commission by petition, which shall briefly

ate. The Commissioners first appointed un- state the facts; whereupon a statement of

132 DOCUMENTS OF AMERICAN HISTORY the charges thus made shall be forwarded by or requirement shall happen, alleging such the Commission to such common carrier, violation or disobedience, as the case may who shall be called upon to satisfy the com- be; and the said court shall have power to plaint or to answer the same in writing hear and determine the matter, on such short within a reasonable time, to be specified by notice to the common carrier complained of

, the Commission. ...I1f there shall appear as the court shall deem reasonable... . to be any reasonable ground for investigating Sec. 20. That the Commission is hereby said complaint, it shall be the duty of the authorized to require annual reports from all Commission to investigate the matters com- common carriers subject to the provisions of plained of in such manner and by such means’ this act, fix the time and prescribe the

as it shall deem proper. manner in which such reports shall be made, Said Commission shall in like manner in- and to require from such carriers specific vestigate any complaint forwarded by the answers to all questions upon which the railroad commissioner or railroad commission Commission may need information. Such re-

of any State or Territory, at the request of ports shall also contain such information in such commissioner or commission, and may _ relation to rates or regulations concerning institute any inquiry on its own motion in fares or freights, or agreements, arrangethe same manner and to the same effect as ments, or contracts with other common car-

though complaint had been made... . riers, as the Commission may require; and Sec. 16. That whenever any common car- the said Commission may, within its discrerier, . . . shall violate or refuse or neglect tion, for the purpose of enabling it the better to obey any lawful order or requirement of to carry out the purposes of this act, prethe Commission in this act named, it shall scribe (if in the opinion of the Commission be the duty of the Commission, and lawful it is practicable to prescribe such uniformity for any company or person interested in such and methods of keeping accounts) a period order or requirement, to apply, ina summary of time within which all common carriers way, by petition, to the circuit court of the subject to the provisions of this act shall United States sitting in equity in the judicial have, as near as may be, a uniform system of district in which the common carrier com- accounts, and the manner in which such ac-

plained of has its principal office, or in which counts shall be kept.... the violation or disobedience of such order

319. THE JUDICIAL REVIEW OF RAILROAD RATES Beginning with the Granger laws of the late valuation of railroad property might be detersixties and carly seventies, many mid-western mined and a rate fixed that is fair both to the and southern States established railway com- roads and to the public. For a general treat-

missions with the power of fixing railway ment of the problem of rate regulation, see, charges; that the State had the power thus to W. Z. Ripley, Railroads: Rates and Regulation, regulate charges was established in the Granger A. T. Hadley, Railroad Transportation, its Cases of 1876. See Doc. No. 294. Obviously the History and its Law; F. A. Cleveland and F. W. charges fixed by the state, or its instruments, Powell, Railway Promotion and Capitalization in had to be reasonable, and not confiscatory. But the United States. who was to decide whether a rate was reasonable, and what was to be the basis upon which 1. CutcaGo, MILWAUKEE AND St. Paut these charges were to be predicated? These and R AILRO ap Co. v. MINNESOTA

related questions have plagued the Courts for 134 US. 418 the last half-century, and no satisfactory solu- Ne) tion has yet been discovered. The opinions be- 1889

low illustrate the process whereby the Court Error to the Supreme Court of Minnesota.

came to insist (1) that due process requires prarcHrorD, J... . This being the conprovision for judicial review, and (2) that the 1 ction of the statute by which we are rates must be high enough to yield a fair return bound in considering the present case, we are

on a fair valuation of the property. The in- a d. it con-

genuity of the Courts, however, has not yet of the opinion, that, so construed, it c

been sufficient to devise a means whereby a fair flicts with the Constitution of the United

THE JUDICIAL REVIEW OF RAILROAD RATES 133 States in the particulars complained of by and not a judicial one. This is a principle the railroad company. It deprives the com- which I regard as of great importance... . pany of its right to a judicial investigation, It is always a delicate thing for the courts by due process of law, under the forms and to make an issue with the legislative dewith the machinery provided by the wisdom partment of the government, and they should of successive ages for the investigation judi- never do so if it is possible to avoid it. By clally of the truth of a matter in controversy, the decision now made we declare, in effect, and substitutes therefor, as an absolute fi- that the judiciary, and not the legislature, is

nality, the action of a railroad commission the final arbiter in the regulation of fares which, In view of the powers conceded to it and freights of railroads and the charges of by the State court, cannot be regarded as_ other public accommodations. It is an asclothed with judicial functions or possessing sumption of authority on the part of the

the machinery of a court of justice... . judiciary which, it seems to me, ... it has Under the second section of the statute in no right to make. . .. It is complained that

question, it is provided that all charges made _ the decisions of the board are final and with-

by a common carrier for the transportation out appeal. So are the decisions of the courts of passengers or property shall be equal and in matters within their jurisdiction. There reasonable. Under this provision, the car- must be a final tribunal somewhere for derier has a right to make equal and reasonable _ciding every question in the world. Injustice charges for such transportation. In the pres- may take place in all tribunals. All human ent case, the return alleged that the rate of institutions are imperfect—courts as well as charge fixed by the commission was not commissions and legislatures. Whatever triequal or reasonable, and the Supreme Court bunal has jurisdiction, its decisions are final held that the statute deprived the company and conclusive unless an appeal is given

of the right to show that judicially. The therefrom. The important question always question of the reasonableness of a rate of is, what is the lawful tribunal for the particcharge for transportation by a railroad com- ular case? In my judgement, in the present pany, involving as it does the element of case, the proper tribunal was the legislature, reasonableness both as regards the company or board of commissioners which it created

and as regards the public, is eminently a for that purpose. ... question for judicial investigation, requiring

due process of law for its determination. If 2. SMYTH v. AMES

the company is deprived of the power of 169 U.S. 466

charging reasonable rates for the use of its 1897

Property, and such deprivation takes place Appeal from the Circuit Court of the United in the absence of an Investigation by judi- states for the district of Nebraska. The legiscial machinery, it is deprived of the lawful lature of Nebraska by act of April 12, 1893 esuse of its property, and thus, in substance tablished a schedule of rates for railroad transand effect, of the property itself, without due portation radically reducing the rates then in process of law and in violation of the Con- effect. Bondholders of the Union Pacific and stitution of the United States: and in so other railroads affected sought an injunction far as it is thus deprived, while other persons esttaining the railroads from putting the new are permitted to receive reasonable profits schedules into effect. The Circuit Court granted upon their invested capital, the company is

. , the injunction,

deprived of the equal protection of the Haran, J.... The power to enact the

laws... . statute whose validity is now assailed, .. . BraDLey, J., dissenting: I cannot agree to regulating railroads, classifying freights, the decision of the court in this case. It fixing reasonable maximum rates, etc., in

practically overrules Munn v. Illinois, and Nebraska, was referred by counsel to the genthe several railroad cases that were decided eral legislative power of the state as well as at the same time. The governing principle of | to the 4th section of article 11 of the State

those cases was that the regulation and set- Constitution, which provides: ‘Railways tlement of the fares of railroads and other heretofore constructed, or that may hereaccommodations is a legislative prerogative after be constructed in this state, are hereby

134 DOCUMENTS OF AMERICAN History declared public highways... . And the leg- vanced by counsel involves some misconislature may from lime to time pass laws ception of the relations between the public establishing reasonable maximum rates of and a railroad corporation. It is unsound in charges for the transportation of passengers that it practically excludes from consideraand freight on the different railroads in this tion the fair value of the property used,

state.’ 2. omits altogether any consideration of the

We are now to inquire whether the Ne- right of the public to be exempt from unreabraska statute is repugnant to the Constitu- sonable exactions, and makes the interests of

tion of the United States. the corporation maintaining a public high-

By the 14th Amendment it is provided way the sole test in determining whether the that no state shall deprive any person of rates established by or for it are such as may property without due process of law nor be rightfully prescribed as between it and

deny to any person within its jurisdiction the public... . the equal protection of the laws. That cor- What was said in Covington & L. Turn-

porations are persons within the meaning of pike v. Sandford is pertinent to the question

this Amendment is now settled. What under consideration. It was there observed: amounts to deprivation of property without “. .. It is alleged here that the rates predue process of law or what is a denial of scribed are unreasonable and unjust to the the equal protection of the laws is often company and its stockholders. But that in-

difficult to determine, especially where the volves an inquiry as to what is reasonable question relates to the property of a quasi- and just for the public. .. . The public canpublic corporation and the extent to which not properly be subjected to unreasonable it may be subjected to public control. But rates in order simply that stockholders may this court, speaking by Chief Justice Waite, earn dividends. The legislature has the auhas said that, while a state has power to fix thority, in every case where its power has the charges for railroad companies for the not been restrained by contract, to proceed

transportation of persons and property upon the ground that the public may not

within its own jurisdiction, unless restrained rightfully be required to submit to unrea-

by valid contract, or unless what is done sonable exactions for the use of a public

amounts to a regulation of foreign or inter- highway established and maintained under state commerce, such power is not without legislative authority. If a corporation cannot limit; and that ‘‘under pretense of regulating maintain such a highway and earn dividends fares, and freights, the state cannot require for stockholders it is a misfortune for it a railroad corporation to carry persons or and them which the Constitution does not property without reward; neither can it do require to be remedied by imposing unjust that which in law amounts to a taking of | burdens upon the public.” private property for public use without just We hold, however, that the basis of all compensation, or without due process of calculations as to the reasonableness of rates

law.” ... to be charged by a corporation maintaining a

The plaintiffs contended that a railroad highway under legislative sanction must be company is entitled to exact such charges for the fair value of the property being used transportation as will enable it, at all times, by it for the convenience of the public. And, not only to pay operating expenses, but also in order to ascertain that value, the original to meet the interest regularly accruing upon cost of construction, the amount expended in all its outstanding obligations, and justify a permanent improvements, the amount and dividend upon all its stock; and that to pro- market value of its bonds and stocks, the hibit it from maintaining rates or charges present as compared with the original cost for transportation adequate to all those ends of construction, the probable earning capacwill deprive it of its property without due ity of the property, under particular rates process of law, and deny to it the equal prescribed by statute, and the sum required

protection of the laws. This contention to meet operating expenses, are all matters should not be passed without examination. for consideration, and are to be given such In our opinion the broad proposition ad- weight as may be just and right in each case.

THE JUDICIAL REVIEW OF RAILROAD RATES 135 We do not say that there may not be other ministrative rather than a judicial function. matters to be regarded in estimating the Yet it has always been recognized that, if a value of the property. What the company is carrier attempted to charge a shipper an unentitled to ask is a fair return upon the reasonable sum, the courts had jurisdiction value of that which it employs for the public to inquire into that matter and to award to convenience. On the other hand, what the the shipper any amount exacted from him public is entitled to demand is that no more’ in excess of a reasonable rate; and also in a

be exacted from it for the use of a public reverse case to render judgment in favor of highway than the services rendered by it the carrier for the amount found to be a rea-

are reasonably worth. sonable charge. The province of the courts is

Decree of the Circuit Court affirmed. not changed, nor the limit of judicial inquiry altered, because the legislature instead of the 3. REGAN Vv. Farmers’ Loan AND TRUST carrier prescribes the rates. The courts are

, COMPANY not authorized to revise or change the body 154 U.S. 362 of rates imposed by a legislature or a com-

1894 mission; they do not determine whether one

Appeal from the United States circuit rate is preferable to another, or what under court for the Western District of Texas. all circumstances would be fair and reasonBrewer, J... . Passing from the ques- able as between the carriers and the shiption of jurisdiction to the act itself, there pers; they do not engage in any mere admincan be no doubt of the general power of a_ istrative work; but still there can be no State to regulate the fares and freights which doubt of their power and duty to inquire may be charged and received by railroads or whether a body of rates prescribed by a legisother carriers, and that this regulation may lature or a commission is unjust and unrea-

be carried on by means of a commission. sonable, and such as to work a practical deSuch a commiss:on is merely an administra- struction to rights of property, and, if found tive board created by the State for carrying _ to be so, to restrain its operation. In Chicago, into effect the will of the State, as expressed Burlington & Quincy Railroad v. Iowa, and by its legislation. No valid objection, there- in Peik v. Chicago & Northwestern Railway, fore, can be made on account of the general the question of legislative control over rail-

features of this act; those by which the roads was presented, and it was held that the State has created the railroad commission fixing of rates was not a matter within the and entrusted it with the duty of prescribing absolute discretion of the carriers, but was rates of fares and freights as well as other subject to legislative control. .. . regulations for the management of the rail- These cases all support the proposition

roads of the State... . that while it is not the province of the courts

It appears from the bill that, in pursuance to enter upon the merely administrative duty

of the powers given to it by this act, the of framing a tariff of rates for carriage, it is state commission has made a body of rates within the scope of judicial power and a part for fares and freights. This body of rates, as of judicial duty to restrain anything which, a whole, is challenged by the plaintiff as un- in the form of a regulation of rates, operates reasonable, unjust, and working a destruction to deny to the owners of property invested of its rights of property. The defendant de- in the business of transportation that equa] nies the power of the court to entertain an protection which is the constitutional right

inquiry into that matter, insisting that the of all owners of other property. There is hxing of rates for carriage by a public carrier nothing new or strange in this. It has always

is a matter wholly within the power of the been a part of the judicial function to de-

legislative department of the government termine whether the act of one party and beyond examination by the courts. (whether that party be a single individual, It is doubtless true, as a general proposi- an organized body, or the public as a whole) tion, that the formation of a tariff of charges operates to divest the other party of any for the transportation by a common carrier rights of person or property. ... It was, of persons or property is a legislative or ad- therefore, within the competency of the cir-

136 DOCUMENTS OF AMERICAN HISTORY cult court of the United States for the West- upon an inquiry as to the reasonableness and

ern District of Texas, at the instance of the justice of the rates prescribed by the railplaintiff, a citizen of another State, to enter road commission. toes

320. THE SHERMAN ANTI-TRUST ACT July 2, 1890 (U. S. Statutes at Large, Vol. XXVI, p. 209) The growth of trusts and corporations, and both said punishments, in the discretion of some of the more notorious malpractices of big the court. business, led to a growing demand for the reeu-

lation of trusts by the Federal Government. lien " every person wae shall aby OPO-

Both parties demanded such regulation in their » OF arrempt to monopolize, or combine or platforms of 1888. December 4, 1889, Senator ©°"Spire with any other person or persons, to

Sherman introduced a bill providing for the ™onopolize any part of the trade or comregulation of trusts. The final bill, which bears ™erce among the several States, or with Sherman’s name, was written chicfly by Senators foreign nations, shall be deemed guilty of a

Hoar and Edmunds. The first federal act ever misdemeanor, and, on conviction thereof, passed which attemptcd to regulate trusts, it was shall be punished by fine not exceeding five

couched in general and often ambiguous lan- thousand dollars, or by imprisonment not guage. no definition one year, trust, The or bill of acontains monopoly, and| ofnoa exceeding indication of : oré by both said punishthe meaning of the term “restraint”. Nor was it ments, in the discretion of the court. . .

clear at the time of the passage of the act Sec. 3. Every contract, combination in

whether its terms were meant to embrace com- form of trust or otherwise, or conspiracy, in binations of labor as well as of capital. These, Yestraint of trade or commerce in any Terriand similar questions, were deliberately left to tory of the United States or of the District

the Courts. The literature on the Sherman Act of Columbia, or in restraint of trade or is extensive. For the legislative background, see commerce between any such Territory and anBills and Debates in Congress relating to Trusts, other, or between any such Territory or Ter-

Sith Congress, 2nd Sess., Sen. Doc. No. 147; sitories and any State or States or the DisA. H. Walker, History of the Sherman Law; trict of Columbia, or with foreion nations. ot J. D. Clark, The Federal Trust Policy. The most ‘tC! ° say Bb DAvons, complete single volume on the trust problem is between the District of Columbia and any H. R. Seager and C. A. Gulick, Trust and State or States or foreign nations, is hereby Corporation Problems. The Anti-Trust Decisions declared illegal. Every person who shall have been collected in some twelve volumes. On make any such contract or engage in any the application of the Sherman Act to labor, such combination or conspiracy, shall be see Docs. No. 326, 335. On the “rule of reason” deemed guilty of a misdemeanor, and, on

see Doc. No. 375. conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by An ACT To protect trade and commerce imprisonment not exceeding one year, or by against unlawful restraints and monopo- both said punishments, in the discretion of

lies... . the court. Be tt enacted sec. 4. The several circuit courts of the Sec. 1. Every contract, combination in United States are hereby invested with juris(he form of trust or otherwise, or conspiracy, diction to prevent and restrain violations of in restraint of trade or commerce among the _ this act; and it shall be the duty of the sev-

several States, or with foreign nations, is eral district attorneys of the United States, hereby declared to be illegal. Every person in their respective districts, under the direcwho shall make any such contract or engage tion of the Attorney-General, to institute in any such combination or conspiracy, shall proceedings in equity to prevent and restrain be deemed guilty of a misdemeanor, and, on — such violations. Such proceedings may be by

conviction thereof, shall be punished by fine way of petition setting forth the case and not exceeding five thousand dollars, or by praying that such violation shall be enjoined imprisonment not exceeding 9ne year, or by or otherwise prohibited. When the parties

THE SHERMAN SILVER PURCHASE ACT 137 complained of shall have been duly notified country, shall be forfeited to the United of such petition the courts shall proceed, as States, and may be seized and condemned by soon as may be, to the hearing and determi- _like proceedings as those provided by law for nation of the case; and pending such peti- the forfeiture, seizure, and condemnation of

tion and before final decrees, the court may property imported into the United States at any time make such temporary restraining contrary to law.

order or prohibition as shall be deemed just Sec. 7. Any person who shall be injured

in the premises. in his business or property by any other perSec. 5. Whenever it shall appear to the son or corporation by reason of anything forcourt before which any proceeding under bidden or declared to be unlawful by this

Section four of this act may be pending, that act, may sue therefor in any circuit court of the ends of justice require that other parties the United States in the district in which the should be brought before the court, the court defendant resides or is found, without remay cause them to be summoned, whether spect to the amount in controversy, and shall they reside in the district in which the court recover threefold the damages by him susis held or not; and subpoenas to that end may tained, and the costs of suit, including a

be served in any district by the marshal reasonable attorney’s fee.

thereof. SEc. 8. That the word “person,” or “persec. 6. Any property owned under any sons,” wherever used in this act shall be

contract or by any combination, or pursuant deemed to include corporations and associa-

to any conspiracy (and being the subject tions existing under or authorized by the lhereof) mentioned in section one of this act, laws of either the United States, the laws of and being in the course of transportation any of the Territories, the laws of any State, from one State to another, or to a foreign or the Jaws of any foreign country.

321. THE SHERMAN SILVER PURCHASE ACT July 14, 1890

(U.S. Statutes at Large, Vol. XXVI, p. 289 ff.) , Both the free silver and the gold elements were three hundred and seventy-one and twentydissatistied with the Bland-Allison Act of 1878. five hundredths grains of pure silver, and to The Sherman Act of 1890 represented another issue in payment for such purchases of silver compromise, but one on the whole more fa- bullion Treasury notes of the United States vorable to the silver elements, because it pro- to b d by the S ' f the T vided for the purchase of practically the entire 0 De prepared Dy the vecretary 0 t e 1 Teas domestic output of silver. The concessions made UFY, 1n such form and of such denominations,

to silver were in return for western support to 0t less than one dollar nor more than one the Mc Kinley tariff of 1890. See, D. R. Dewey, thousand dollars, as he may prescribe... . Financial History of the United States, ch. xix; SEc. 2. That the ‘Treasury notes issued in A. B. Hepburn, History of Currency, ch. xvi; accordance with the provisions of this act A. D. Noyes, Forty Years of American Finance; shall be redeemable on demand, in coin, at J. Sherman, Recollections, Vol. It; F. Wellborn, the Treasury of the United States, or at the “Influence of the Silver Republicans, 1889-1891,” office of any assistant treasurer of the United Miss. Valley Hist. Rev., Vol. XIV.

States, and when so redeemed may be reAn act directing the purchase of silver bul- issued; but no greater or less amount of such lion and the issue of Treasury notes thereon, notes shall be outstanding at any time than

and for other purposes. the cost of the silver bullion and the stand-

Be wt enacted . . . , That the Secretary of ard silver dollars coined therefrom, then held the Treasury is hereby directed to purchase, in the Treasury purchased by such notes: from time to time, silver bullion to the ag- and such Treasury notes shall be a legal gregate amount of four million five hundred tender in payment of all debts, public and thousand ounces, or so much thereof as may __ private, except where otherwise expressly

be offered in each month, at the market stipulated in the contract, and shall be reprice thereof, not exceeding one dollar for ceivable for customs, taxes, and all public

138 DOCUMENTS OF AMERICAN HisrTory dues, and when so received may be reissued; sec. 3. That the Secretary of the Treasand such notes, when held by any national ury shall each month coin two million ounces

banking association, may be counted as a of the silver bullion purchased under the part of its lawful reserve. That upon demand provisions of this act into standard dollars

of the holder of any of the Treasury notes until July 1, 1891, and after that time he herein provided for the Secretary of the shall coin of the silver bullion purchased unTreasury shall, under such regulations as he der the provisions of this act as much as may may prescribe, redeem such notes in gold or be necessary to provide for the redemption

silver coin, at his discretion, it being the of the Treasury notes herein provided for, established policy of the United States to and any gain or seigniorage arising from maintain the two metals on a parity with such coinage shall be accounted for and paid each other upon the present legal ratio, or into the Treasury. ... such ratio as may be provided by law.

322. CLEVELAND’S SILVER LETTER February 10, 1891

Letter to E. Ellery Anderson of the Reform Club (Letters of Grover Cleveland, ed. by Allan Nevins, p. 245-6) This letter was one of the dramatic incidents of the meeting as you request, but I am glad the silver struggle. In January, 1891, a free that the business interests of New Vork are silver bill had passed the Senate, largely through at last to be heard from on this subject. Democratic support, and it was widely believed It surely cannot be necessary for me to that Cleveland was drifting toward support of make a formal expression of my agreement dramatically announced his unalterable opposi- with those who believe that the greatest peril tion to free silver and aligned him with the con- Would be initiated by the adoption of the servative eastern wing of the Democratic Party. scheme embraced in the measure now pendFor background, see A. Nevins, Grover Cleve- ing in Congress for the unlimited coinage of

the silver cause. This letter to the Reform Club

land, p. 465 ff. © silver at our mints. If we have developed an unexpected capacity for the assimilation of New York, February 10, 1891 a largely increased volume of this currency, I have this afternoon received your note and even if we have demonstrated the useinviting me to attend tomorrow evening the fulness of such an increase, these conditions meeting called for the purpose of voicing the fall far short of insuring us against disaster, opposition of the business men of our city to if in the present situation we enter upon

the ‘free coinage of silver in the United the dangerous and reckless experiment of

States.’ free, unlimited and independent silver coinI shall not be able to attend and address age.

323. TILLMANISM IN SOUTH CAROLINA The Shell Manifesto January 23, 1890 (The Charleston News and Courter, January 23, 1890) The century-old sectionalism in South Carolina elsewhere. The leader of the agrarian and up-

was partially allayed by the unifying experi- country revolt against the Charleston “aris-

ences of the Civil War and Reconstruction, but tocracy” was Benjamin F. Tillman of Edgefield it came to the front again in the late e‘ghties County. In 1886 and again in 1888 Tillman lost with the agrarian distress of that period. The the nomination for governorship, but by 1890 Populist movement as such made little headway _ the revolt was too strong to be controlled. The

in South Carolina, but the revolt against the campaign of 1890 was inaugurated by the faBourbon control] of the Democratic party was mous Shell Manifesto, written by Tillman, but the political equivalent of the populist revolt published over the name of G. W. Shell. the

TILLMANISM IN SOUTH CAROLINA 139 President of the Farmers’ Association. Tillman have watched closely every move of the eneand his entire ticket were swept into office in the mies of economy—the enemies of true Jef-

elections of that year. See, F. P. Simkins, The fersonian Democracy—and we think the Tillman Movement in South Carolina; J. D. time has come to show the people what it is

ha Pee Revolt; W. W. Ball, The they need and how to accomplish their de-

sO sires. We will draw up the indictment against

THE COMING CAMPAIGN these who have been and are still governing A Contest PROPOSED WITHIN THE our State, because it is at once the cause and

DEMOCRATIC PARTY justification of the course we intend to purAn Address to the Democrats of South Caro- _ sue.

lina, Issued by Order of “the Executive South Carolina has never had a real ReCommittee of the Farmers’ Association of | publican Government. Since the days of the

South Carolina.” “Lords Proprietors” it has been an aristocMr. W. G. Shell of Laurens, president of racy under the forms of Democracy, and the Farmers’ Association of South Carolina, whenever a champion of the people has atrequests the News and Courier to publish the tempted to show them their rights and ad-

following address: vocated those rights an aristocratic oligarchy

To the Democracy of South Carolina: For has bought him with an office, or failing in four years the Democratic party in the State that turned loose the floodgates of misreprehas been deeply agitated, and efforts have sentation and slander in order to destroy his been made at the primaries and conventions influence.

to secure retrenchments and reform, and a The peculiar situation now existing in the recognition of the needs and rights of the State, requiring the united efforts of every masses. The first Farmers’ Convention met true while man to preserve white supremacy in April 1886. Another in November of the and our very civilization even has intensified same year perfected a permanent organiza- and tended to make permanent the condition under the name of the “Farmers Asso- tions which existed before the war. Fear of ciation of South Carolina.” This Association, a division among us and consequent return representing the reform element in the party, of a negro rule has kept the people quiet, has held two annual sessions since, and at and they have submitted to many grievances each of these four conventions, largely at- imposed by the ruling faction because they

tended by representative farmers from dreaded to risk such a division. nearly all of the counties, the demands of The “Farmers’ Movement” has been hamthe people for greater economy in the Gov- _ pered and retarded in its work by this condi-

ernment, greater efficiency in its officials, tion of the public mind, but we have shown and a fuller recognition of the necessity for our fealty to race by submitting to the edicts cheaper and more practical education have of the party and we intend, as heretofore, to been pressed upon the attention of our Leg- make our fight inside the party lines, feeling

islature. assured that truth and justice must finally In each of the two last Democratic State prevail. The results of the agitation thus far Conventions the ‘‘Farmers’ Movement” has are altogether encouraging. Inch by inch and had a large following and we only failed of step by step true Democracy—the rule of the

controlling the Convention of 1888 by a people—has won its way. We have carried small vote—less than twenty-five—and that, all the outposts. Only two strongholds remain too, in the face of the active opposition of | to be taken, and with the issues fairly made nearly every trained politician in the State. up ana plainly put to the people we have no We claim that we have always had a major-__ fear of the result. The House of Representaity of the people on our side, and have only _ tives has been carried twice, and at last held

failed by reason of the superior political after a desperate struggle. tactics of our opponents and our lack of The advocates of reform and economy are

organization. ... no longer sneered at as “Three for a quarter The executive committee of the Farmers’ statesmen.” They pass measures of economy

Association did not deem it worth while to which four years ago would have excited hold any convention last November, but we only derision, and with the Farmers’ Move-

140 DOCUMENTS OF AMERICAN History ment to strengthen their backbone have be more efficiently and economically carried withstood the cajolery, threats and impo- on under one board, mostly at one place, tent rage of the old “ring bosses.” The Sen- and much of it by the same corps of men ate is now the main reliance of the enemies who teach.

of retrenchment and reform, who oppose We have never and do not now want any giving the people their rights. The Senate is increase of taxes to accomplish these the stronghold of “existing institutions” and ends... . . the main dependence of those who are an- The bill prepared by the committee of the tagonistic to all progress. As we captured Farmers’ Association for the reorganization the House we can capture the Senate; but of the board of agriculture would have sewe must control the Democratic State Con- cured our farmers against swindling fertilizer vention before we can hope to make econ- dealers, but it was amended to death by the omy popular in Columbia, or be assured of lawyers in the Senate, who are attorneys for

no more pocket votes. the phosphate miners. and fertilizer comThe General Assembly is largely influenced panies, and the men who were elected on the

by the idea and policy of the State officers, board over the nominees of the Farmers’ and we must elect those before we can say Convention were chosen not because they the Farmers’ Movement has accomplished are more loyal to the agricultural interests, its mission. It is true that we have wrenched or better fitted for the position, but befrom the aristocratic coterie who were edu- cause they are friends of the University and cated at and sought to monopolize every- belong or are subservient to our aristocracy thing for the South Carolina College, the —‘so called”—and the phosphate miners right to control the land script and Hatch are too well satisfied with the system of colfund and a part of the privilege tax on fertil- _lecting the State royalty to permit a change izers for one year, and we have $40,000 with if they can help it. which to commence building a separate agri- How wonderfully perfect or defective this

cultural college, where the sons of poor system is, is shown by the fact that during

farmers can get a practical education at small ten years under the same officials not a sin-

expense. gle indictment has been brought against any

But we dare not relax our efforts or rely one for attempting to swindle the State out upon the loud professions of our opponents of its dues. No wonder Charleston is in love as to their willingness now to build and with the agricultural bureau and cannot bear

equip this agricultural school... . to see the “existing institutions” disturbed.

All the cry about “existing institutions” The recent proposal to sell the State’s inwhich must remain inviolate shows that the terest in the phosphate beds is fortunate, ring—the South Carolina University, Cita- because thereby the attention of taxpayers is } del, Agricultural Bureau, Columbia Club, attracted to this most important matter. The Greenville building ring—intend in the fu- Farmers’ Association proposed in 1886 to inture, as in the past, to get all they can, and crease the royalty as a means of lowering keep all they get. These pets of the aristoc- taxes, and we believe this can be safely done racy and its nurseries are only hoping that to the extent of $100,000. the people will again sink into their accus- A legislative committee was appointed to

tomed apathy... . “Investigate” and report on the subject. This

Is it not plain that these people intend to was only done to give time—waiting ten yield obedience to the law only when they months until the market had been manipuare made to do it? The Farmers’ Associa- lated, etc. This committee proceeded to show tion demands that the land script and Hatch how well it had been chosen “not to do it.” funds and the fertilizer tax shall be consoli- There was no honest effort made to get at dated and used for the building and mainte- the real facts as to the profits of the business nance of a first class industrial school, with and its ability to stand an increase of royalty, experiment stations attached, for farmers and after it had been “wined and dined” and and mechanics. We hold that the experi- brought into a suitable frame of mind that mental work, the educational work and the committee came to Columbia and actually inspection and analysis of fertilizers can all proposed to give the six largest companies a

TILLMANISM IN SOUTH CAROLINA 141 monopoly for a Jess annual rental than the under wing might have done something In State was then receiving. Only one Senator, the interest of the people; but that same to whom all honor is due, dissented from this Senate which has again and again thwarted outrageous proposal. What was the result? the people, which refused to reduce salaries. Of course the Gencral Assembly did not which fought the Clemson College and act favorably upon it, but all thought of an yielded at last to necessity only, which is the increase of royalty was also abandoned, and stronghold of aristocracy with its non-prothis was what the corporation attorneys who gressive, impracticable ideas, which, in a were there in the interest of their clients word, is dominated by Charleston’s rich poland not of their constitutents had been work- iticians—that Senate resolved to maintain ing for. “The goose that lays the golden egg” _ this “existing institution” too, status quo.

was not killed—‘‘existing institutions” were Of all the taxes we pay, the pensions to not disturbed. Phosphate rock, which had Confederate Veterans are submitted to most been manipulated down to $3.40 per ton, willingly, and we regret that we cannot inadvanced in two months after the Legislature crease the pittance they receive. But the con-

adjourned to $6.00 and has since ruled be- tinuance of men in office as political pentween $5.50 and $7.50 per ton. The golden sioners, after their ability or willingness to eggs are still being laid, but not in the State’s serve the people is gone—when the interests

nest—whether some of them have not gone and even rights of the people are thereby into pockets which they ought not is an open — sacrificed, this pandering to sentiment, this

question. favoritism—is a crime, nothing more and Now we want to warn the people that the nothing less. Rotation in office is a cardinal

charter of the Coosaw Company—ob- Democratic principle, and the neglect to tained by bribery, it is said, of a Radical Leg- practice it is the cause of many of the ills we islature—expires in 1891. This Company _ suffer.

which has grown fabulously rich, claims to We cannot elaborate the other counts in have a perpetual contract, with exclusive this indictment. We can only point briefly to right to mine in Coosaw River and pay only the mismanagement of the Penitentiary, one dollar a ton for the privilege. The next which is a burden on the taxpayers, even Legislature must act on this question and the while engaged in no public works which next Attorney General may have to test might benefit the State. To the wrong comthese claims in court. The whole question of mitted against the people of many counties phosphate management, or mismanagement, (strongholds of Democracy) by the failure must be settled. Can the taxpayers afford to to reapportion representation according to allow any but true men to go to the Senate the population, whereby Charleston has five or elect a corporation lawyer as Attorney votes in the House and ten votes in the State General? Shall the politicians choose him, Convention, which choose our State officers, or shall we, casting about among the many to which it is not entitled.

honorable, patriotic lawyers of the State, To the zeal and extravagance of this aris-

make the selection ourselves? tocratic oligarchy, whose sins we are pointing The Legislature which has just adjourned out, in promising higher education for every

has other sins to answer for, or rather the class except farmers, while it neglects the Senate must be held responsible. The people free schools which are the only chance for demanded that the railroad commissioners an education to thousands of poor children, should have something to do besides draw whose fathers bore the brunt in the struggle their salaries and spend them. We want pro- for our redemption in 1876. To the contintection against the greed of the gigantic cor- ued recurrence of horrible lynchings—which porations owned by the North, which regard we can but attribute to bad laws and their South Carolina as a lemon to be squeezed imefficient administration. To the impotence

and care nothing for the welfare of our of justice to punish criminals who have

towns, our State or our people... . money. To the failure to call a constituThe railroad commissioners now in office’ tional convention that we may have an orhave been “tamed,” so to speak, by the rail- ganic law framed by South Carolinians for roads, and men who have not been so long South Carolinians and suited to our wants,

142 DOCUMENTS OF AMERICAN History thereby lessening the burdens of taxation and us purify and reform the Democratic party

giving us better government. and give us a government of the people, by Fellow Democrats, do not all these things the people and for the people.

cry out for a change? Is it not opportune, If we control the State Democratic Conwhen there is no national election, for the vention, a Legislature in sympathy will natcommon people who redeemed the State from __urally follow; failing to do this, we risk los-

Radical rule to take charge of it? Can we ing all we have gained, and have no hope of afford to leave it longer in the hands of those any change for the better... . who, wedded to ante-bellum ideas, but pos- We therefore issue this call for a Consessing little of ante-bellum patriotism and vention of those Democrats who sympathize honor, are running it in the interest of a few with our views and purposes, as herein set families and for the benefit of a selfish ring forth, ... of politicians? As real Democrats and white By order of the executive committee of men, those who here renew our pledge to the Farmers’ Association of South Carolina.

make the fight inside the Democratic party G. W. Shell,

and abide the result, we call upon every true President and Ex Officio Chairman. Carolinian, of all classes and callings, to help

324. THE OCALA DEMANDS December, 1890 (Proceedings of the Supreme Council of the National Farmers’ Alliance and Industrial

Union, 1890, p. 32-3) The Southern Alliance, the Farmers’ Mutual passed by Congress, and demand in lieu Benefit Association, and the Colored Farmers’ thereof the free and unlimited coinage of

Alliance, all met at Ocala, Florida, in 1890. The silver.

demands drawn up presaged the entry of the 4. We demand the passage of laws proAlliance into the political field, and revealed the hibiting alien ownership of land, and that beginnings of the disintegration of the Alliance. Con k tj devi See, J. D. Hicks, The Populist Revolt, ch. viii. gress take prompt action to devise some plan to obtain all lands now owned by aliens

1. a. We demand the abolition of na- and foreign syndicates; and that all lands

tional banks. now held by railroads and other corporations b. We demand that the government shall in excess of such as is actually used and

establish sub-treasuries or depositories in the needed by them be reclaimed by the governseveral states, which shall loan money direct ment and held for actual settlers only.

to the people at a low rate of interest, not 5. Believing in the doctrine of equal rights to exceed two per cent per annum, on non- to all and special privileges to none, we de-

perishable farm products, and also upon real mand— | | a estate, with proper limitations upon the quan- a. That our national legislation shall be so

tity of land and amount of money. framed in the future as not to build up one

c. We demand that the amount of the industry at the expense of another. circulating medium he speedily increased to b. We further demand a removal of the

not less than $50 per capita. existing heavy tariff tax from the necessities 2. We demand that Congress shall pass of life, that the poor of our land must

such laws as will effectually prevent the deal- have. .

ing in futures of all agricultural and me- c. We further demand a just and equitable chanical productions; providing a stringent system of graduated tax on incomes.

system of procedure in trials that will se- d. We believe that the money of the

cure the prompt conviction, and imposing country should be kept as much as possible in such penalties as shall secure the most per- the hands of the people, and hence we de-

fect compliance with the law. mand that all national and state revenues 3. We condemn the silver bill recently shall be limited to the necessary expenses of

PoPULIST PARTY PLATFORM 143 the government economically and honestly ment ownership of such means of communi-

administered. cation and transportation.

6. We demand the most rigid, honest, and 7. We demand that the Congress of the just state and national government control United States submit an amendment to the and supervision of the means of public com- Constitution providing for the election of munication and transportation, and if this United States Senators by direct vote of the control and supervision does not remove the people of each state. abuse now existing, we demand the govern-

325. POPULIST PARTY PLATFORM July 4, 1892 (E. McPherson, A Handbook of Politics for 1892, p. 269 ff.) The Preamble, which appeared first in the for a few, unprecedented in the history of St. Louis platform of March 1892, was written mankind; and the possessors of these, in bY Henaties Donnelly of panesota. The moet turn, despise the Republic and endanger liborough history of the Popuilst movement IS erty From the same prolific womb of gov-

an elaborate bibliography. eae ;

J. D. Hicks, The Populist Revolt, which contains ernmental injustice we breed the two great classes—tramps and millionaires.

Assembled upon the 116th anniversary of The national powér to create money is apthe Declaration of Independence, the Peo- propriated to enrich bond-holders; a _ vast ple’s Party of America, in their first national public debt payable in legal-tender currency convention, invoking upon their action the has bcen funded into gold-bearing bonds, blessing of Almighty God, put forth in the thereby adding millions to the burdens of name and on behalf of the people of this the people. country, the following preamble and dec- Silver, which has been accepted as coin

laration of principles: since the dawn of history, has been demonetized to add to the purchasing power of gold

PREAMBLE by decreasing the value of all forms of prop-

The conditions which surround us best erty as well as human labor, and the supply Justify our co-operation; we meet in the of currency is purposely abridged to fatten midst of a nation brought to the verge of usurers, bankrupt enterprise, and enslave inmoral, political, and material ruin. Corrup- dustry. A vast conspiracy against mankind tion dominates the ballot-box, the Legisla- has been organized on two continents, and tures, the Congress, and touches even the it is rapidly taking possession of the world. ermine of the bench. The people are de- If not met and overthrown at once it foremoralized; most of the States have been bodes terrible social convulsions, the destruccompelled to isolate the voters at the polling tion of civilization. or the establishment of places to prevent universal intimidation and an absolute despotism.

bribery. The newspapers are largely subsi- We have witnessed for more than a quardized or muzzled, public opinion silenced, ter of a century the struggles of the two great business prostrated, homes covered with political parties for power and plunder, while mortgages, labor impoverished, and the land grievous wrongs have been inflicted upon the concentrating in the hands of capitalists. The suffering people. We charge that the con-

urban workmen are denied the right to or- trolling influences dominating both these ganize for self-protection, imported pauper- parties have permitted the existing dreadful ized labor beats down their wages, a hireling conditions to develop without serious effort standing army, unrecognized by our laws, is to prevent or restrain them. Neither do they established to shoot them down, and they now promise us any substantial reform. They are rapidly degenerating into European con- have agreed together to ignore, in the coming ditions. The fruits of the toil of millions are campaign, every issue but one. They propose boldly stolen to build up colossal fortunes to drown the outcries of a plundered people

144 DOCUMENTS OF AMERICAN History with the uproar of a sham battle over the pression, injustice, and poverty shall eventariff, so that capitalists, corporations, na- tually cease in the land. tional banks, rings, trusts, watered stock, the While our sympathies as a party of reform demonetization of silver and the oppressions are naturally upon the side of every proposiof the usurers may all be lost sight of. They tion which will tend to make men intelligent, propose to sacrifice our homes, lives, and virtuous, and temperate, we nevertheless rechildren on the altar of mammon; to destroy gard these questions, important as they are,

the multitude in order to secure corruption as secondary to the great issues now press-

funds from the millionaires. ing for solution, and upon which not only

Assembled on the anniversary of the birth- our individual prosperity but the very existday of the nation, and filled with the spirit ence of free institutions depend; and we ask of the grand general and chicf who estab- all men to first help us to determine whether lished our independence, we scek to restore we are to have a republic to administer bethe government of the Republic to the hands fore we differ as to the conditions upon which of the “plain people,” with which class it it is to be administered, believing that the

originated. We assert our purposes to be forces of reform this day organized will identical with the purposes of the National never cease to move forward until every Constitution; to form a more perfect union wrong is righted and equal rights and equal and establish justice, insure domestic tran- privileges securely established for all the quillity, provide for the common defence, men and women of this country.

promote the general welfare, and secure the

blessings of liberty for ourselves and our pos- PLATFORM

terity. We declare, therefore— We declare that this Republic can only First.—That the union of the labor forces endure as a free government while built upon of the United States this day consummated

the love of the people for cach other and shall be permanent and perpetual; may its for the nation; that it cannot be pinned to- — spirit enter into all hearts for the salvation gether by bayonets; that the Civil War is of the Republic and the uplifting of manover, and that every passion and resentment _ kind.

which grew out of it must die with it, and second.—Wealth belongs to him who crethat we must be in fact, as we are in name, ates it, and every dollar taken from industry

one united brotherhood of free men. without an equivalent is robbery. “If any

Our country finds itself confronted by con- will not work, neither shall he eat.” The inditions for which there is no precedent in terests of rural and civil labor are the same: the history of the world; our annual agri- their enemies are identical. cultural productions amount to hillions of Third.—We believe that the time has come dollars in valuc, which must, within a few when the railroad corporations will either wecks or months, be exchanged for billions own the people or the people must own the of dollars’ worth of commodities consumed railroads; and should the government enter in their production; the existing currency upon the work of owning and managing all supply is wholly inadequate to make this railroads, we should favor an amendment to exchange; the results are falling prices, the the constitution by which all persons enformation of combines and rings, the im- gaged in the government service shall be poverishment of the producing class. We _ placed under a civil-service regulation of the pledge ourselves that if given power we will most rigid character, so as to prevent the labor to correct these evils by wise and rea- increase of the power of the national adminsonable legislation, in accordance with the istration by the use of such additional gov-

terms of our platform. ernment employes.

We believe that the power of government FINANCE.—We demand a national cur-

—in other words, of the people—should be _ rency, safe, sound, and flexible issued by the expanded (as in the case of the postal serv- general government only, a full legal tender

ice) as rapidly and as far as the good sense for all debts, public and private, and that of an intelligent people and the teachings of without the use of banking corporations; a experience shall justify, to the end that op- just, equitable, and efficient means of dis-

PoPULIST PARTY PLATFORM 145 tribution direct to the people, at a tax not to lot and a fair count in all elections, exceed 2 per cent, per annum, to be provided and pledge ourselves to secure it to as set forth in the sub-treasury plan of the every legal voter without Federal inFarmers’ Alliance, or a better system; also tervention, through the adoption by

by payments in discharge of its obligations the States of the unperverted Aus-

for public improvements. tralian or secret ballot system.

1. We demand free and unlimited coinage 2. ResoLvep, That the revenue derived

of silver and gold at the present legal from a graduated income tax should

ratio of 16 to 1. be applied to the reduction of the bur-

2. We demand that the amount of circu- den of taxation now levied upon the lating medium be speedily increased to domestic industries of this country.

not less than $50 per capita. 3. RESOLVED, That we pledge our sup-

3. We demand a graduated income tax. port to fair and liberal pensions to ex4. We believe that the money of the coun- Union soldiers and sailors. try should be kept as much as possible 4. RESOLVED, That we condemn the in the hands of the people, and hence fallacy of protecting American labor we demand that all State and national under the present system, which opens revenues shall be limited to the neces- our ports to the pauper and criminal sary expenses of the government, eco- classes of the world and crowds out nomically and honestly administered. our wage-earners; and we denounce 5. We demand that postal savings banks the present ineffective laws against be established by the government for contract labor, and demand the furthe safe deposit of the earnings of the ther restriction of undesirable emigra-

people and to facilitate exchange. tion.

TRANSPORTATION.—Transportation being 5. RresoLtvep, That we cordially sympa-

a means of exchange and a public necessity, thize with the efforts of organized the government should own and operate the workingmen to shorten the hours of railroads in the interest of the people. The labor, and demand a rigid enforcetelegraph and telephone, like the post-office ment of the existing eight-hour law on system, being a necessity for the transmis- Government work, and ask that a pension of news, should be owned and operated alty clause be added to the said law. by the government in the interest of the peo- 6. RESOLVED, That we regard the mainte-

ple. nance of a large standing army of Lanp.—The land, including all the nat- mercenaries, known as the Pinkerton ural sources of wealth, is the heritage of the system, aS a menace to our liberties, people, and should not be monopolized for and we demand its abolition; and we speculative purposes, and alien ownership of condemn the recent invasion of the land should be prohibited. All land now held Territory of Wyoming by the hired by railroads and other corporations in ex- assassins of plutocracy, assisted by cess of their actual needs, and all lands now Federal officers. owned by aliens should be reclaimed by the 7. Resotvep, That we commend to the government and held for actual settlers only. favorable consideration of the people and the reform press the legislative

EXPRESSION OF SENTIMENTS system known as the initiative and Your Committee on Platform and Resolu- referendum. tions beg leave unanimously to report the 8. ResoLvep, That we favor a constitu-

following: tional provision limiting the office of

Whereas, Other questions have been pre- President and Vice-President to one sented for our consideration, we hereby sub- term, and providing for the election mit the following, not as a part of the Plat- of Senators of the United States by a form of the People’s Party, but as resolutions direct vote of the people. expressive of the sentiment of this Conven- 9. Reso_vep, That we oppose any sub-

tion. sidy or national aid to any private 1. RESOLVED, That we demand a free bal- corporation for any purpose.

146 DOCUMENTS OF AMERICAN HISTORY 10. RresoLvep, That this convention sym- to be a duty of all who hate tyranny pathizes with the Knights of Labor and oppression to refuse to purchase and their righteous contest with the the goods made by the said manufactyrannical comb-ne of clothing manu- turers, or to patronize any merchants facturers of Rochester, and declare it who sell such goods.

1893

326. UNITED STATES v. WORKINGMEN’S AMALGAMATED COUNCIL OF NEW ORLEANS ET AL. 54 Fed. 994

Did the prohibitions of the Sherman Anti-Trust through it from state to state, and to and Act apply to combinations of labor? The word- from foreign countries, was totally intering of the act was ambiguous—perhaps pur- rypted. . . . posely so—and the question was left for the ... The theory of the defense is that this courts to decide. Compare the opinion below case does not fall within the purview of the Uniled States v. Patterson, 55 Fed. 608. For a Statute, that the statute prohibited monopo-

with Waterhouse v. Comer, 55 Fed. 150, and r

careful discussion of the relation of the Sherman lies and combinations which, using words in Law to labor, see A. T. Mason, Organized Labor @ general sense, were of capitalists, and not and the Law; E. Berman, Labor and the Sher- of laborers. I think the congressional debates

man Act. show that the statute had its origins in the evils of massed capital; but, when the con-

BILLINGS, District Judge. gress came to formulating the prohibition

This cause is submitted upon an applica- which is the yardstick for measuring to comtion for an injunction on the bill of com- _ p!ainant’s right to injunction, . . . the subplaint, answer, and numerous affidavits and ject had so broadened in the minds of the exhibits. The bill of complaint in this case legislators that the source of the evil was not is filed by the United States under the act regarded as material, and the evil in its of Congress entitled “An act to protect trade entirety is dealt with. They made the interand commerce against unlawful restraint and diction include combinations of labor, as well

monopolies,” (26 St. at Large, p. 209.) The as of capital; in fact, all combinations in substance of the bill avers that a disagree- restraint of commerce, without reference to ment between the warchousemen and their the character of the persons who entcred into employes and the principal draymen and them. It is true this statute has not been their subordinates had been adopted by all much expounded by judges, but, as it seems the organizations named in the bill, until, by to me, its meaning, as far as relates to the this vast combination of men and of or- sort of combinations to which it is to apply, ganizalions, it was threatened that, unless is manifest, and that it includes combinathere was an acquiescence in the demands tions which are composed of laborers acting of the subordinate workmen and draymen, in the interest of laborers... . all the men in all the defendant organizations The defendants urge (6) that the combinawould leave work, and would allow no work _ tion to secure or compel the employment of in any department of business; that violence none but union men is not in the restraint of was threatened and used in support of this commerce. To determine whether the propodemand; and that this demand included the sition urged as a defense can apply to this

interstate and foreign commerce which flows case, the case must first be stated as it is | through the city of New Orleans. The bill made out by the established facts. The case further states that the proceedings on the is this: The combination setting out to secure part of the defendants had taken such a vast and compel the employment of none but and ramified proportion that, in consequence union men in a given business, aS 4 means to

of the threats of the defendants, the who'e effect this compu'sion, finally enforced a business of the city of New Orleans was discontinuance of labor in all kinds of busiparalyzed, and the transit of goods and ness, including the business of transportation merchandise which was being conveyed of goods and merchandise which were in

CLEVELAND’S MESSAGE ON REPEAL OF SHERMAN AcT 14/7 transit through the city of New Orleans, acts,—the associations themselves become from state to state, and to and from foreign unlawful. The evil. as well as the unlawfulcountries. When the case is thus stated, ness, of the act of the defendants, consists in and it must be so stated to embody the facts this: that, until certain demands of theirs here proven,—I do not think there can be were complied with, they endeavored to preany question but that the combination of vent, and did prevent, everybody from movthe defendants was in restraint of commerce. ing the commerce of the country.... I have thus endeavored to state and deal It is the successful effort of the combinawith the various grounds of defense urged be- tion of the defendants to intimidate and fore me. I shall now, as briefly as possible, overawe others who were at work in conduct-

state the case as it is established in the ing or carrying on the commerce of the

voluminous record. country, in which the court finds their error . . . The question simply is, do these facts and their violation of the statute. One of establish a case within the statute? It seems the intended results of their combined ac-

to me this question is tantamount to the tion was the forced stagnation of all the question, could there be a case under the commerce which flowed through New Orstatute? It is conceded that the labor organi- leans. This intent and combined action are zations were at the outset lawful. But when none the less unlawful because they included lawful forces are put into unlawful, chan- in their scope the paralysis of all other businels,—i.e. when lawful associations adopt and ness within the city as well... . further unlawful purposes and do unlawful

327. CLEVELAND’S MESSAGE ON THE REPEAL OF THE SHERMAN SILVER PURCHASE ACT August 8, 1893 (Richardson, ed. Messages and Papers, Vol. IX, p. 401 ff.) On June 30, 1893, Cleveland issued a call for a perity. With plenteous crops, with abundant

special session of Congress to meet August 7. promise of remunerative production and

Nas a O OLILICE . : .

hee ae or te Jepeal ol the Sr ver Gtr manufacture, with unusual invitation to safe battle of Cleveland’s career. See, A. Nevins, ene and with satisfactory assurance Grover Cleveland, ch. xxix; R. McElroy, Grover o business enterprise, suddenly financial dis-

Cleveland, Vol. Il, ch. i; W. J. Bryan, The Firs, ‘ust and fear have sprung up on every Battle, ch. ii, iii; A. B. Hepburn, History of Cur- side. . . . Values supposed to be fixed are

rency in the United States, ch. xx. fast becoming conjectural, and loss and failure have invaded every branch of business.

EXECUTIVE MANSION, August 8, 1893. I believe these things are principally To the Congress of the United States: chargeable to Congressional legislation touchThe existence of an alarming and extraor- ing the purchase and coinage of silver by the dinary business situation, involving the wel- General Government.

fare and prosperity of all our people, has This legislation is embodied in a statute constrained me to call together in extra ses- passed on the 14th day of July, 1890, which

sion the people’s representatives in Con- was the culmination of much agitation on gress, to the end that through a wise and the subject involved, and which may be conpatriotic exercise of the legislative duty, with sidered a truce, after a long struggle, between which they solely are charged, present evils the advocates of free silver coinage and those

may be mitigated and dangers threatening intending to be more conservative. ...

the future may be averted. This law provides that in payment for the - Qur untortunate financial plight is not the 4,500,000 ounces of silver bu‘lion which the result of untoward events nor of conditions Secretary of the Treasury is commanded to related to our natural resources, nor is it purchase monthly there shall be issued Treastraceable to any of the afflictions which fre- ury notes redeemable on demand in gold or quently check national growth and pros-_ silver coin, at the discretion of the Secre-

148 DOCUMENTS OF AMERICAN HISTORY tary of the Treasury, and that said notes may _ for the use of the people the best and safest

be reissued. It is, however, declared in the money.

act to be “the established policy of the If, as many of its friends claim, silver United States to maintain the two metals on ought to occupy a larger place in our cura parity with each other upon the present rency and the currency of the world through legal ratio or such ratio as may be provided — general international codperation and agreeby law.” This declaration so controls the ac- ment, it is obvious that the United States will

tion of the Secretary of the Treasury as to not be in a position to gain a hearing in prevent his exercising the discretion nom- favor of such an arrangement so long as we inally vested in him if by such action the are willing to continue our attempt to acparity between gold and silver may be dis- complish the result single-handed. .. . turbed. Manifestly a refusal by the Secretary The people of the United States are ento pay these Treasury notes in gold if de-_ titled to a sound and stable currency and to manded would necessarily result in their dis- money recognized as such on every exchange credit and depreciation as obligations payable and in every market of the world. Their Gov-

only in silver, and ‘would destroy the parity ernment has no right to injure them by between the two metals by establishing a financial experiments opposed to the policy

discrimination in favor of gold... . and practice of other civilized states, nor is The policy necessarily adopted of paying it justified in permitting an exaggerated and

these notes in gold has not spared the gold unreasonable reliance on our _ national reserve of $100,000,000 long ago set aside by strength and ability to jeopardize the soundthe Government for the redemption of other ness of the people’s money.

notes, for this fund has already been sub- This matter rises above the plane of party jected to the payment of new obligations politics. It vitally concerns every business amounting to about $150,000,000 on account and calling and enters every household in of silver purchases, and has as a consequence’ the land. There is one important aspect of for the first time since its creation been en- the subject which especially should never be

croached upon. overlooked. At times like the present, when

We have thus made the depletion of our the evils of unsound finance threaten us, the gold easy and have tempted other and more _ speculator may anticipate a harvest gathered

appreciative nations to add it to their from the misfortune of others, the capitalist

stock. ... may protect himself by hoarding or may

Unless Government bonds are to be con-_ even find profit in the fluctuations of values; stantly issued and sold to replenish our ex- but the wage earner—the first to be injured hausted gold, only to be again exhausted, by a depreciated currency and the last to reit is apparent that the operation of the silver- ceive the benefit of its correctlon—is practipurchase law now in force leads in the direc- cally defenseless. He relies for work upon tion of the entire substitution of silver for the ventures of confident and contented capithe gold in the Government Treasury, and tal. This failing him, his condition is without that this must be followed by the payment alleviation, for he can neither prey on the of all Government obligations in depreciated misfortunes of others nor hoard his la-

silver. bor. ...

At this stage gold and silver must part It is of the utmost importance that such

company and the Government must fail in relief as Congress can afford in the existing

its established policy to maintain the two situation be afforded at once. The maxim metals on a parity with each other. Given “He gives twice who gives quickly” is di-

over to the exclusive use of a currency rectly applicable. It may be true that the

greatly depreciated according to the standard embarrassments from which the business of of the commercial world, we could no longer the country is suffering arise as much from claim a place among nations of the first class, evils apprehended as from those actually nor could our Government claim a perform- existing. We may hope, too, that calm counance of its obligation, so far as such an obli- — sels will prevail, and that neither the capigation has been imposed upon it, to provide _ talists nor the wage earners will give way to

REPEAL OF THE SHERMAN SILVER PURCHASE AcT_ 149 \

unreasoning panic and sacrifice their property suffrages, desire and expect, and to the acor their interests under the influence of ex- complishment of which every effort of the aggerated fears. Nevertheless, every day’s de- present Administration is pledged. But while lay in removing one of the plain and principal tariff reform has lost nothing of its immedicauses of the present state of things enlarges ate and permanent importance and must in the mischief already done and increases the the near future engage the attention of Conresponsibility of the Government for its ex- gress, il has seemed to me that the financial

istence. Whatever else the people have a _ condition of the country should at once and right to expect from Congress, they may before all other subjects be considered by certainly demand that legislation condemned your honorable body. by the ordeal of three years’ disastrous ex- I earnestly recommend the prompt repeal perience shall be removed from the statute of the provisions of the act passed July 14, books as soon as their representatives can 1890, authorizing the purchase of silver bul-

legitimately deal with it. lion, and that other legislative action may

It was my purpose to summon Congress in put beyond all doubt or mistake the intention special session early in the coming Septem- and the ability of the Government to fulfill ber, that we might enter promptly upon the its pecuniary obligations in money universally work of tariff reform, which the true interests recognized by all civilized countries.

of the country clearly demand, which so large GROVER CLEVELAND. a majority of the people, as shown by their

328. REPEAL OF THE SHERMAN SILVER PURCHASE ACT November 1, 1893 (U. S. Statutes at Large, Vol. XXVIII, p. 4) The panic of 1893 emphasized to Cleveland the three hundred and seventy-one and twentyimperative necessity of the repeal of the Sher- five one-hundredths grains of pure silver, and man Silver Act of 1890. On June 30, Cleveland to issue in payment for such purchases Treas-

called a special session of Congress to meet ury notes of the United States, be, and the August 7 to repeal the sherman Act. Alter one same is hereby, repealed. And it is hereby

of the most violent debates in our legislative ;

history, the administration was finally successful declared to be the policy of the United States in securing repeal, but only at the cost of a split tO continue the use of both gold and silver

in the Democratic party which led finally to the aS standard money, and to coin both gold triumph of the silver element of that party in and silver into money of equal intrinsic and 1896. On repeal, see Cleveland’s message, Doc. exchangeable value, such equality to be seNo. 327, and A. Nevins, Grover Cleveland, ch. cured through international agreement, or by xxix; J. A. Barnes, John G. Carlisle, ch. *'s such safeguards of legislation as will insure

- 7 Bree per Crone, ean ch. 13 the maintenance of the parity in value of

a ao the coins of the two metals, and the equal

An Act to repeal a part of [the Silver Pur- power of every dollar at all times in the chase Act of July 14, 1890]. markets and in the payment of debts. And it Be it enacted ..., That so much of the is hereby further declared that the efforts of

[Silver Purchase Act of July 14, 1890], as the Governmert should be steadily directed directs the Secretary of the Treasury to pur- to the establishment of such a safe system chase from time to time silver bullion to the of bimetallism as will maintain at all times aggregate amount of four million five hun- the equal power of every dollar coined or dred thousand ounces, or so much thereof issued by the United States, in the markets as may be offered in each month at the market and in the payment of debts. price thereof, not exceeding one dollar for

»

1580, DOCUMENTS OF AMERICAN HIsToORY $29. THE FUR-SEALING CONTROVERSY Convention Between the United States and Great Britain for the Settlement of the Controversy and the Award of the Tribunal 1892, 1893

(Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 746 ff.) The most valuable herds of seals in the world STATES TO PROTECT THE SEALS IN BEHR-

were found off the shores of Alaska and in the ING SEA. waters of Bering Sea, particularly on the Pribi- Concluded, February 29, 1892.

lof claimed jurisdiction The United Stat fA . dH theIslands. wholeRussia of thehad Bering Sea, and theover United ; es 0 Merica an er

Nea, ; Majesty the Queen ofJesty the United States, after the B purchase of Alaska, claimed .* Ite Kingd ing dom

that this sea was a mare clausum. By acts of of Great Britain and Ireland, . being desirous 1869 and 1870 Congress forbade the killing of to provide for an amicable settlement of the seals upon the shores of Alaska or the waters questions which have arisen between their thereof except during the months from June to respective governments concerning the jurisOctober. Subsequently the exclusive right of kill- dictional rights of the United States in the ing seals was leased to the Alaska Commercial waters of Behring’s Sea, and concerning also Company under careful restrictions. The inva- the preservation of the fur-seal in, or habitusion of th © Bering Sea by Canadian sealers led ally resorting to, the said Sea, and the rights to the seizure and condemnation of three f the citi d subiects of eith Canadian vessels. Despite the protests of Great ° © citizens atic SUDJECIS O either country Britain the seizures continued during the late 4S Tegards the taking of fur-seal in, or habitueighties. A modus vivendi was arrived at by the lly resorting to, the said waters, have reUnited States and Great Britain in 1891, and solved to submit to arbitration the questions the following year a convention was concluded involved... . submitting the questions of sealing and of juris- Art. I—The questions which have arisen diction to a tribunal. This Convention of Febru- between the Government of the United ary 29, 1892, presented a series of five major States and the Government of Her Britanquestions which the Tribunal was called Upon nic Majesty concerning the jurisdictional

to adjudicate. The Tribunal met in Paris in 1893 ‘ohts of the United States in th ‘ United States. At the same time it drew up a 0! Behring s Sea, and concerning also the

and decided all points of law adversely to the rg nts 0! ae nite ales im © waters series of regulations designed to protect the fur preservation of the fur-seal in, or habituseals. These regulations were only moderately ally resorting to, the said Sea, and the rights effective, and on their expiration in 1898 they of the citizens and subjects of either country were not renewed. In 1906 President Roosevelt as regards the taking of fur seal In, or habitu-

suggested the extermination of the seal herd by ally resorting to, the said waters, shall be the United States on humanitarian grounds. Fi si bhmitted to a tribunal of Arbitration, to be nally in 1911 Great Britain, Russia, Japan and composed of seven Arbitrators, who shall be the United States concluded a convention which _ ‘ated in the follow; hat ; afforded adequate protection to the seals. On appointed in the lollowing manner, that Is the controversy see J. B. Moore, International 0 say: Two shall be named by the President Arbitrations, Vol. I; J. W. Foster, Diplomatic of the United States; two shall be named by Memoirs, Vol. 11; A. F. Tyler, The Foreign Her Britannic Majesty; His Excellency the Policy of James G. Blaine; J. M. Callahan, President of the French Republic shall be American Relations in the Pacific; 8S. B. Stanton, jointly requested by the High Contracting The Behring Sea Controversy; S. F. Bemis, ed. Parties to name one; His Majesty the King American Secretaries of State, Vol. VIII, p. of Italy shall be so requested to name one: 128 ff.; J. Stanley-Brown, The Bering Sea Con- and His Majesty the King of Sweden and troversy from an Economic Standpoint,” Yale N hall b dt Review, Vol. 11; T. A. Walker, Incernational orway shall be so requested to name one. The seven arbitrators to be so named shall be jurists of distinguished reputation in their A CONVENTION FOR THE SETTLEMENT OF respective countries... . THE DISPUTED RIGHT OF THE UNITED ArT. Il.—The arbitrators shall meet

Law, p. 175 ff. iy to. . ae ;

THe Fur-SEALING CONTROVERSY 151 at Paris within twenty days after the delivery the subject in such position that the conof the counter-case mentioned in Article IV currence of Great Britain is necessary to the and shall proceed impartially and carefully to establishment of Regulations for the proper examine and decide the questions that have protection and preservation of the fur-seal been or shall be laid before them as herein in, or habitually resorting to, the Behring provided on the part of the Governments of Sea, the Arbitrators shall then determine

the United States and Mer Britannic what concurrent Regulations outside the

Majesty respectively. All questions consid- jurisdictional limits of the respective Govered by the tribunal including the final deci- ernments are necessary, and over what wasion, shall be determined by a majority of ters such Regulations should extend, and to

all the Arbitrators. aid them in that determination the report Each of the High Contracting Parties shall of a Joint Commission to be appointed by also name one person to attend the tribunal the respective Governments shall be laid as its Agent to represent it generally in all before them, with such other evidence as matters connected with the arbitration. ... either Government may submit.

Art. VI.—In deciding the matters sub- The High Contracting Parties furthermore mitted to the Arbitrators, it is agreed that agree to cooperate in securing the adhesion the following five points shall be submitted of other Powers to such Regulations. to them, in order that their award shall em- Art. VII] —The High Contracting Parties brace a distinct decision upon each of said having found themselves unab-e to agree

five points, to wit: upon a reference which shall include the 1. What exclusive jurisdiction in the sea question of the liability of each for the

now known as the Behring’s Sea, and what injuries alleged to have been sustained by exclusive rights in the seal fisheries therein, the other, or by its citizens, in connection did Russia assert and exercise prior and up’ with the claims presented and urged by it; to the time of the cession of Alaska to the and, being solicitous that this subordinate

United States? question should not interrupt or longer delay 2. How far were these claims of jurisdic- the submission and determination of the tion as to the seal fisheries recognized and main questions, do agree that either may

conceded by Great Britain? submit to the Arbitrators any question of 3. Was the body of water now known as_ fact involved in said claims and ask for a the Behring’s Sea included in the phrase finding thereon, the question of the liability “Pacific Ocean,” as used in the Treaty of of either Government upon the facts found 1825 between Great Britain and Russia; and to be the subject of further negotiation. .. .

what rights. if any, in the Behring’s Sea were James G. Blaine. held and exclusively exercised by Russia after Julian Pauncefote.

said Treatyr 4. Did not all the rights of Russia as to 2. ARTICLES OF THE AWARD OF THE TRIBUjurisdiction, and as to the seal fisheries in NAL OF ARBITRATION, AUGUST 15, 1893

Behring’s Sea east of the water boundary, “Art. I. The Governments of the United in the Treaty between the United States and States and Great Britain shall forbid their Russia of the 30th March, 1867, pass unim- citizens and subjects, respectively, to kill,

paired to the United States under that capture, or pursue at any time and in any

treaty? manner whatever the animals commonly 5. Has the United States any right, and called fur seals within a zone of 60 miles if so, what right of protection or property around the Pribilof Islands, inclusive of the in the fur-seals frequenting the islands of _ territorial waters. the United States in Behring Sea when such ‘The miles mentioned in the preceding parseals are found outside the ordinary three- agraph are geographical] miles. of 60 to a de-

mile limit? gree of latitude. Art. VIJ.—If the determination of the ‘ArT. 2. The two Governments shall forforegoing questions as to the exclusive juris- bid their citizens and subjects, respectively,

diction of the United States shall leave to kill, capture, or pursue in any manner

152 DOCUMENTS OF AMERICAN History whatever during the season extending each carry a distinguishing flag to be prescribed year from the Ist of May to the 31st of J uly, by its Government. both inclusive, the fur seals on the high sea “ART. 6. The use of nets, firearms, and in the part of the Pacific Ocean, inclusive explosives shall be forbidden in the fur-seal of the Bering Sea, which is situated to the fishing. This restriction shall not apply to north of the thirty-fifth degree of north lati- shotguns when such fishing takes place outtude and eastward of the one hundred and side of Bering Sea during the season when eightieth degree of longitude from Greenwich _ it may be lawfully carried on.

till it strikes the water boundary described “ArT. 9. The concurrent _ regulations in Article I of the treaty of 1867 between hereby determined with a view to the prothe United States and Russia, and following _ tection and preservation of the fur seals shall

that line up to Bering Strait... . remain in force until they have been in whole “ART. 4. Each sailing vessel authorized to or in part abolished or modified by common

fish for fur seals must be provided with agreement between the Governments of the a special license issued for that purpose by United States and of Great Britain. ... its Government, and shall be required to

330. THE ANNEXATION OF HAWAII Message of President Harrison Transmitting Treaty of Annexation February 13, 1893 (Richardson, ed. Messages and Papers, Vol. IX, p. 348 ff.) see Docs. No. 331, 348. For the complicated any other power. The moral support of this story of the Hawaiian Revolution and the at- Government has continually manifested ittempted annexation of the Island, see E. J. Car- self in the most friendly diplomatic relations penter, America in Hawaii; Hi. E. Chambers, and in many acts of courtesy to the Hawaiian Constitutional History of Hawaii; J. W. heen rulers.

met attorney i it rent, 3655 THe overthrow of the monarchy was nol Nevins, Grover Cleveland, ch. xxx. The official 12 any way promoted by this Government, documents are in Foreign Relations of the but had its origin in what seems to have been

United States, 1894, Appendix II. a reactionary and revolutionary policy on the part of Queen Liliuokalani, which put in

EXECUTIVE MANSION, serious peril not only the large and pre-

Washington, February 15, 1893. ponderating interests of the United States in

To the Senate: the islands, but all foreign interests, and,

I transmit herewith, with a view to its indeed, the decent administration of civil ratification, a treaty of annexation concluded affairs and the peace of the islands. It is on the 14th day of February, 1893, between quite evident that the monarchy had become John W. Foster, Secretary of State,... effete and the Queen’s Government so weak and Lorin A. Thurston, W. R. Castle, W. C. and inadequate as to be the prey of designing Wilder, C. L. Carter, and Joseph Marsden, and unscrupulous persons. The restoration of the commissioners on the part of the Gov- Queen Liliuokalani to her throne is unde-

ernment of the Hawaiian Islands... . sirable, if not impossible, and unless actively I do not deem it necessary to discuss at supported by the United States would be any length the conditions which have resulted accompanied by serious disaster and the dis-

in this decisive action. It has been the policy organization of all business interests. The of the Administration not only to respect influence and interest of the United States but to encourage the continuance of an in- in the islands must be increased and not dependent government in the Hawaiian Is- diminished. lands so long as it afforded suitable guaranties Only two courses are now open—one the for the protection of life and property and establishment of a protectorate by the United maintained a stability and strength that gave States, and the other annexation full and adequate security against the domination of complete. I think the latter course, which

CLEVELAND’S WITHDRAWAL OF HAWAII TREATY 153 has been adopted in the treaty, will be highly that no protest has been heard from any promotive of the best interests of the Ha- government against proceedings looking to waiian people, and is the only one that will annexation. Every foretgn representative at adequately secure the interests of the United Honolulu promptly acknowledged the ProStates. These interests are not wholly selfish. visional Government, and I think there is a It is essential that none of the other great general concurrence in the opinion that the powers shall secure these islands. Such a deposed Queen ought not to be restored. possession would not consist with our safety Prompt action upon this treaty is very deand with the peace of the world. This view sirable... . of the situation is so apparent and conclusive

331. CLEVELAND’S WITHDRAWAL OF TREATY FOR ANNEXATION OF HAWAITI

December 18, 1893

(Richardson, ed. Messages and Papers, Vol. IX, p. 461 ff.) Cleveland came to office while the treaty for more than 2,000 miles removed from our annexation of Hawaii was still pending in the pearest coast.

Senate. He at once appointed a special agent, These considerations might not of themJames H. Blount, to investigate into the clr- selves call for interference with the comcumstances of the Hawaiian revolution. Acting pletion of a treaty entered upon by a previon Blount’s report he reversed the policy of the _ . Harrison Administration. For the ultimate an- US Administration, but it appeared from the

nexation of Hawaii see Doc. No. 348. documents accompanying the treaty when submitted to the Senate that the ownership

Executive Mansion of Hawaii was tendered to us by a Provi-

Washington, December 18, 1893. sional Government set up to succeed the To the Senate and House of Represen‘atives: constitutional ruler of the islands, who had

... I] suppose that right and justice been dethroned, and it did not appear that should determine the path to be followed in such Provisional Government had the sanctreating this subject. If national honesty is tion of either popular revolution or suffrage. to be disregarded and a desire for territorial Two other remarkable features of the transextension or dissatisfaction with a form of action naturally attracted attention, One was government not our own ought to regulate the extraordinary haste, not to say precipiour conduct, I have entirely misapprechended tancy, characterizing all the transactions conthe mission and character of our Government nected with the treaty. ... Thus between and the behavior which the conscience of our the initiation of the scheme for a Provisional

people demands of their public servants. Government in Hawaii, on the 14th day of When the present Administration entered January, and the submission to the Senate of upon its duties, the Senate had under con-_ the treaty of annexation concluded with such sideration a treaty providing for the annexa- Government the entire interval was thirtytion of the Hawaiian Islands to the territory two days, fifteen of which were spent by the of the United States. Surely under our Con- Hawaiian commissioners in their journey to

stitution and laws the enlargement of our Washington... . limits is a manifestation of the highest attri- But a protest also accompanied said treaty, bute of sovereignty, and if entered upon as _ signed by the Queen and her ministers at the an Executive act all things relating to the time she made way for the Provisional Gov-

transaction should be clear and free from ernment, which explicitly stated that she suspicion. Additional importance attached to yielded to the superior force of the United this particular treaty of annexation because States, whose minister had caused United it contemplated a departure from unbroken States troops to be landed at Honolulu and American tradition in providing for the ad- declared that he would support such Prodition to our territory of islands of the sea visional Government.

154 DocUMENTS OF AMERICAN HISTORY The truth or falsity of this protest was became apparent that they were supported surely of the first importance. If true, noth- by the people... .

ing but the concealment of its truth could As I apprehend the situation, we are induce our Government to negotiate with the brought face to face with the following consemblance of a government thus created, nor _ ditions:

could a treaty resulting from the acts stated The lawful Government of Hawaii was in the protest have been knowingly deemed overthrown without the drawing of a sword worthy of consideration by the Senate. Yet or the firing of a shot by a process every

the truth or falsity of the protest had not step of which, it may safely be asserted, is

been investigated. directly traceable to and dependent for its I conceived it to be my duty, therefore, to success upon the agency of the United States withdraw the treaty from the Senate for ex- acting through its diplomatic and naval repamination, and meanwhile to cause an ac-_ resentatives. curate, full, and impartial investigation to be But for the notorious predilections of the made of the facts attending the subversion United States minister for annexation the of the constitutional Government of Hawaii committee of safety, which should be called and the installment in its place of the Pro- the committee of annexation, would never

visional Government... . have existed.

The report, with its accompanying proofs But for the landing of the United States and such other evidence as is now before the forces upon false pretexts respecting the danCongress or is herewith submitted, justifies, ger to life and property the committee would in my opinion, the statement that when the never have exposed themselves to the pains

President was led to submit the treaty to and penalties of treason by undertaking the the Senate with the declaration that “the subversion of the Queen’s Government. overthrow of the monarchy was not in any But for the presence of the United States way promoted by this Government,” and forces in the immediate vicinity and in posiwhen the Senate was induced to receive and _ tion to afford all needed protection and sup-

discuss it on that basis, both President and port the committee would not have pro-

Senate were misled... . claimed the Provisional Government from

I believe that a candid and thorough ex- the steps of the Government building. amination of the facts will force the convic- And finally, but for the lawless occupation

tion that the Provisional Government owes of Honolulu under false pretexts by the its existence to an armed invasion by the United States forces, and but for Minister United States. Fair-minded people, with the Stevens’s recognition of the Provisional Govevidence before them, will hardly claim that ernment when the United States forces were the Hawaiian Government was overthrown its sole support and constituted its only mili-

by the people of the islands or that the tary strength, the Queen and her Govern-

Provisional Government had ever existed ment would never have yielded to the Pro-

with their consent. I do not understand that _-visional Government, even for a time and for any member of this Government claims that the sole purpose of submitting her case to the the people would uphold it by their suffrages enlightened justice of the United States. .

if they were allowed to vote on the ques- Believing, therefore, that the United

tion. States could not, under the circumstances

While naturally sympathizing with every disclosed, annex the islands without justly effort to establish 4 republican form of gov- incurring the imputation of acquiring them ernment, it has been the settled policy of the by unjustifiable methods, I shall not again United States to concede to people of foreign submit the treaty of annexation to the Sencountries the same freedom and independ- ate for its consideration, and in the instrucence in the management of their domestic tions of Minister Willis, a copy of which acaffairs that we have always claimed for our- companies this message, I have directed him

selves, and it has been our practice to recog- to so inform the Provisional Governnize revolutionary governments as soon as it ment... .

PoLLocKk v. FARMERS’ LOAN AND Trust ComPANY 155 332. COXEY’S PROGRAM 1894

“General” Jacob S. Coxey of Massillon, Ohio, rated town or village, municipality, township,

proposed to end the depression of 1893 by a County, State or Territory, to give employpublic works program to be undertaken by ment to any idle man applying for work, and federal and local authorities. This program that the rate be not less than one dollar and would have the added advantage of increasing ftty cents per day for common labor and the amount of money in circulation through is- three dollars and fifty cents per day for sues of legal tender. In order to bring these pro- ; posals before Congress, Coxey led an industrial teams and labor, and that eight hours pet army from Ohio to Washington. See, H. Vin- day shall constitute a day’s labor under this cent, The Story of the Commonwealth; D. L. act.

McMurray, Coxey's Army. 2. Coxey’s Goop Roaps BILL 1. Non-INTEREST BEARING BonD BILL (H. Vincent, The Story of the Commonwealth,

(D. L. McMurray, Coxey’s Army, p. 302-303) p. 51-52) A Bill to provide for public improvements SEC. 1. Be it enacted... That the and employment of the citizens of the United Secretary of the Treasury of the United

States. States is hereby authorized and instructed to Be it enacted ... That whenever any have engraved and printed . . . five hundred State, Territory, County, township, munici- millions of dollars of treasury notes, as pality, or incorporated town or village deem legal tender for all debts, public and private,

it necessary to make any public improve- said notes to be in denominations of one, ments, they shall deposit with the Secretary two, five and ten dollars, and to be placed of the Treasury of the United States a non- ina fund to be known as the “seneral county interest bearing twenty-five year bond, not road fund system of the United States,” and to exceed one-half of the assessed valuation to be expended solely for the said purpose.

of the property in said State, Territory, SEC. 2... . That it shall be the duty of County, township, municipality or incorpo- the Secretary of War to take charge of the rated town or village, and said bond to be construction of the General County Road retired at the rate of four per centum per System in the United States, and said con-

annum. struction to commence as soon as... sald SEC. 2. That whenever the foregoing sec- fund is available ... when it shall be the tion of this Act has been complied with it duty of the Secretary of War to inaugurate

shall be mandatory upon the‘Secretary of the the work and expend the sum of twenty mil-

Treasury of the United States to have ... lions of dollars per month, pro rata with the printed Treasury notes in the denomination number of miles of roads in each state and of one, two, five, and ten dollars each, which territory in the United States.

shall be full legal tender for all debts, public SEC, 3... . That all labor other than and private to the face value of said bond, that of the Secretary of War ... shall be and deliver to said State ... ninety-nine paid by the day, and that the rate be not per centum of said notes, and retain one per less than one dollar and fifty cents per day centum for expense of engraving and print- for common labor, and three dollars and

ing same. fifty cents per day for teams and labor, and SEC. 3. That after the passage of this Act that eight hours shall constitute a day’s lait shall be compulsory upon every incorpo- bor under the provisions of this bill.

333. POLLOCK v. FARMERS’ LOAN AND TRUST COMPANY 158 U. 8S. 601 1894

Appeal from U. S. circuit court for the Southern an income tax. The constitutionality of such a District of New York. Rehearing. The Wilson tax was challenged on the ground that it was a tariff bill of 1894 had included provision for direct tax and therefore contrary to the Consti-

156 | DOCUMENTS OF AMERICAN HrstTory tutional requirement that all direct taxes be ap- so different from a tax on the property itself,

portioned among the States according to popu- that it is not a direct, but an indirect, tax

lation. The issues before the Court were in the meaning of the Constitution. . . . nvoved but on the general question of the We do not care to retravel ground already egality of a tax on the income from personal traversed, but some observations may b The opinion below is the opinion of the court added... .

property, the court was divided four to four. ? : y be on a rehearing of the case. On the constitution- The reasons for the clauses of the Constiality of the tax on incomes, the Court stood five tution in respect of direct taxation are not

to four. Justice Jackson, who had not taken far to seek... .

part in the first hearing, dissented from the ma- The founders anticipated that the expendi-

: jority opinion in the final case, while one of tures of the States. their counties, cities, and the other judges changed his position and voted towns, would chiefly be met by direct taxa-

with the majority. It was long believed that 7 tion on accumulated property, while they was Justice Shiras who reversed his opinion, but lately Mr. Sidney Ratner has adduced evi- expected that those of the Federal govern-

dence to the effect that it was Mr. Justice ™ent would be for the most part met by , Brewer who reversed himself. The decision of direct taxes. And in order that the power the Court in this case aroused widespread and of direct taxation by the general government bitter dissatisfaction; it led, eventually, to the should not be exercised except on necessity, Sixteenth Ameridment. For background, see, and, when the necessity arose. should be so Warren, The Supreme Court (1928 ed.) Vol. , exercised as to leave the States at liberty to p. 699H.; L. B. Boudin, Government by Judi- discharge their respective obligations, and cary, Vol. UH, ch. xxvii; A. Nevins, Grover should not be so exercised unfairly and dis-

Cleveland, appendix. criminatingly, as to particular States or FULLER, C. J. Whenever this court is re- otherwise, by a mere majority vote, possibly quired to pass upon the validity of an act of of those whose constituents were intentionCongress, as tested by the fundamental law ally not subjected to any part of the burden, enacted by the people, the duty imposed de- the qualified grant was made... . mands in its discharge the utmost delibera- Those who made it knew that the power tion and care, and invokes the deepest sense to tax involved the power to destroy, and

of responsibility. ... that, in the language of Chief Justice MarWe have, therefore, with an anxious de- shall, in McCulloch v. Maryland, “the only sire to omit nothing which might in any security against the abuse of this power is degree tend to elucidate the questions sub- found in the structure of the government mitted, and aided by further able arguments itself.” . . . And they retained this security embodying the fruits of elaborate research, by providing that direct taxation and reprecarefully re-examined these cases, with the sentation in the lower house of Congress result that, while our former conclusions re- should be adjusted on the same measure. main unchanged, their scope must be enlarged Moreover, whatever the reasons for the by the acceptance of their logical conse- constitutional provisions, there they are, and

quences. ... they appear to us to speak in plain language.

Our previous decision was confined to the It is said that a tax on the whole income consideration of the validity of the tax on of property is not a direct tax in the meanthe income from real estate, and on the ing of the Constitution, but a duty, and, as

income from municipal bonds... . a duty, leviable without apportionment, We are now permitted to broaden the field whether direct or indirect. We do not think of inquiry, and to determine to which of the so. Direct taxation was not restricted in one

two great classes a tax upon a person’s en-- breath, and the restriction blown to the tire income, whether derived from rents or winds in another... . products, or otherwise, of real estate, or The Constitution prohibits any direct tax, from bonds, stocks, or other forms of per- umless in proportion to numbers as ascersonai property, belongs; and we are unable _ tained by the census, and, in the light of the to conclude that the enforced subtraction circumstances to which we have referred, is from the yield of all the owner’s real or per- it not an evasion of that prohibition to hold

sonal property, in the manner prescribed, is that a general unapportioned tax, imposed ,

Pottock v. FARMERS’ LOAN AND TRUST COMPANY 157 upon all property owners as a body for or in received, crops harvested, interest collected,

respect of their property, is not direct, in have lost all connection with their origin, the meaning of the Constitution, because and, though once not taxable, have become

confined to the income therefrom? transmuted, in their new form, into taxable

Whatever the speculative views of politi- subject-matter; in other words, that income , cal economists or revenue reformers may be, is taxable, irrespective of the source whence can it be properly held that the Constitution, it is derived... .

taken in its plain and obvious sense, and We have unanimously held in this case with due regard to the circumstances attend- that, so far as this law operates on the reing the formation of the government, author- ceipts from municipal bonds, it cannot be

izes a general unapportioned tax on the sustained, because it is a tax on the power products of the farm and the rents of real of the States and on their instrumentalities estate, although imposed merely because of to borrow money, and consequently repugownership, and with no possible means of nant to the Constitution. But, if, as conescape from payment, as belonging to a tended, the interest, when received, has betotally different class from that which in- come merely money in the recipient's pocket, cludes the property from whence the income and taxable, as such, without reference to

proceeds? the source from which it came, the question There can be but one answer, unless the is immaterial whether it could have been constitutional restriction is to be treated as originally taxed at all or not. This was adutterly illusory and futile. and the object of mitted by the Attorney General, with charits framers defeated. We find it impossible to acteristic candor; and it follows that if the hold that a fundamental requisition deemed revenue derived from municipal bonds canso important as to be enforced by two pro- not be taxed, because the source cannot be, visions, one affirmative and one negative, can the same rule applies to revenue from any be refined away by forced distinctions be- other source not subject to the tax, and the tween that which gives value to property and lack of power to levy any but an apportioned

the property itself. tax on real and personal property equally Nor can we perceive any ground why the — exists as to the revenue therefrom.

same reasoning does not apply to capital Admitting that this act taxes the income in personalty held for the purpose of income, of property, irrespective of its source, still or ordinarily yielding income, and to the in- we cannot doubt that such a tax is necessar-

come therefrom... . ily a direct tax in the meaning of the ConstiPersonal property of some kind is of gen- tution... . eral distribution, and so are incomes, though The power to tax real and personal propthe taxable range thereof might be narrowed erty and the income from both, there being

through large exemptions... . an apportionment, is conceded; that such a

Nor are we impressed with the contention tax is a direct tax in the meaning of the that, because in the four instances in which Constitution has not been, and, in our judgthe power of direct taxation has been exer- ment, cannot be successfully denied; and yet cised, Congress did not see fit, for reasons of we are thus invited to hesitate in the enexpediency, to levy a tax on personalty, this forcement of the mandate of the Constituamounts to such a practical construction of tion, which prohibits Congress from laying the Constitution that the power did not exist, a direct tax on the revenue from property that we must regard ourselves bound by it. of the citizen without regard to state lines,

We should regret to be compelled to hold and in such manner that the States cannot the powers of the general government thus intervene by payment in regulation of their restricted, and certainly we cannot accede to own resources, lest a government of delethe idea that the Constitution has become gated powers should be found to be, not less weakened by a particular course of inaction powerful, but less absolute, than the imagina-

under it. tion of the advocate had supposed.

The stress of the argument is thrown, We are not here concerned with the queshowever, on the assertion that an income tax tion whether an income tax be or be not Is NOt a property tax at all; ... that rents desirable, nor whether such a tax would en-

158 DocUMENTS OF AMERICAN History able the government to diminish taxes on United States in 1890 was $65,037,091,197, consumption and duties on imports. and to of which real estate with improvements enter upon what may be believed to be a_ thereon made up $39,544,544,333. Of course, reform of its fiscal and commercial system. from the latter must be deducted, in applyQuestions of that character belong to the ing these sections, all unproductive property controversies of political parties. and cannot and all property whose net yield does not be settled by judicial decision. In these cases exceed four thousand do!lars: but, even with Our province is to determine whether this such deductions, it is evident that the income

income tax on the revenue from property from realty formed a vital part of the

does or does not belong to the class of direct scheme for taxation embodied therein. If taxes. If it does, it is, being unapportioned, that be stricken out, and also the income in violation of the Constitution, and we from all invested personal property, bonds,

must so declare. ... stocks, investments of all kinds, it is obvious We have considered the act only in re- that by far the largest part of the anticipated spect of the tax on income derived from real revenue would be eliminated, and this would estate, and from invested personal property, leave the burden of the tax to be borne by and have not commented on so much of it as__ professions, trades, employments, or voca-

bears on gains or profits from business, tions: and in that way what was intended as privileges, or employments, in view of the a tax on capital would remain in substance a instances in which taxation on business, priv- tax on occupations and labor. We cannot ileges, or employments has assumed the guise believe that such was the intention of Conof an excise tax and been sustained as such. gress. We do not mean to say that an act

. . . Being of opinion that so much of laying by apportionment a direct tax on all the section of this law as lays a tax on real estate and personal property, or the inincome from real and personal property is come thereof, might not also lay excise taxes invalid, we are brought to the question of on business, privileges, employments, and vothe effect of that conclusion upon these sec- cations. But this is not such an act; and

tions as a whole. the scheme must be considered as a whole.

It is elementary that the same statute may Being invalid as to the greater part, and be in part constitutional and in part uncon- falling, as the tax would, if any part were stitutional, and, if the parts are wholly inde- held valid, in a direction which could not pendent of each other, that which is consti- have been contemplated except in connection

tutional may stand while that which is with the taxation considered as an entirety, unconstitutional will be rejected. And in the we are constrained to conclude that sections case before us there is no question as to the twenty-seven to thirty-seven, inclusive, of

validity of this act, except sections twenty- the act, which became a law, without the seven to thirty-seven, inclusive, which relate signature of the President, on August 28, to the subject which has been under discus- 1894, are wholly inoperative and void. sion; and, as to them, we think the rule laid Our conclusions may, therefore, be summed down by Chief Justice Shaw in Warren v. up as follows: Charlestown, 2 Gray, 84, is applicable, that First. We adhere to the opinion already if the different parts “are so mutually con- announced, that, taxes on real estate being nected with and dependent on each other, as_ indisputably direct taxes, taxes on the rents conditions, considerations, or compensations or income of real estate are equally direct

for each other, as to warrant a belief that taxes.

the legislature intended them as a whole, and Second. We are of opinion that taxes on that if all could not be carried into effect the personal property, or on the income of perlegislature would not pass the residue inde- sonal property, are likewise direct taxes.

pendently, and some parts are unconstitu- Third. The tax imposed by sections tional, all the provisions which are thus de- twenty-seven to thirty-seven, inclusive, of pendent, conditional, or connected must fall the act of 1894, so far as it falls on the in-

with them.” ... come of real estate and of personal property,

According to the census, the true valua- being a direct tax within the meaning of the tion of real and personal property in the Constitution, and, therefore, unconstitutional

THE ALTGELD--CLEVELAND CONTROVERSY 159 and void because not apportioned according Decrees reversed and relief prayed for to representation, all those sections, consti- granted. tuting one entire scheme of taxation, are Justices HARLAN, BROowN, JACKSON, and

necessarily invalid. WHITE delivered dissenting opinions.

1894 |

334. THE ALTGELD-CLEVELAND CONTROVERSY

(W. R. Browne, Altgeld of Illinois, p. 154 ff.) This notable controversy arose out of Cleve- mated in any way that their assistance was land’s action in sending federal troops to Chi- desired or necessary.

cago during the Pullman Strike. Governor Alt- So far as I have been advised, the local geld had not requested these troops, and there Gfrcials have been able to handle the situais no convincing evidence that the local and tion, But if any assistance were needed, the state fullyaid. competent S qready dq furnish handleauthorities the situation were withoutnot outside Cleve- tateto stood to urnishaahundred Aunered men land’s action broke the strike and earned him for every one man required, and stood ready contemporary applause, but in perspective it ap- to do so at a moment’s notice. Notwithpears unwarranted cither by circumstances or by standing these facts the Federal Government law. See In re Debs, Doc. No. 336. On Altgeld, has been applied to by men who had politisee the biography by Browne; for the contro- ca] and selfish motives for wanting to ignore

versy, see A. Nevins, Grover Cleveland, ch. the State Government. We have just gone xxxill; G. Cleveland, “The Government and the through a coal strike, more extensive here Chicago Strike,” in Presidential Problems. than in any other State. We have now had

l. Executive Office, State of Illinois ten days of the railroad strike, and we have July 5, 1894. promptly furnished military aid wherever the Hon. Grover Cleveland, President of the local officials needed it.

United States, In two instances the United States mar-

Washington, D. C. shal for the Southern District of Illinois apSir:—I am advised that you have ordered _ plied for assistance to enable him to enforce Federal troops to go into service in the State the processes of the United States court, and of Illinois. Surely the facts have not been troops were promptly furnished him, and he correctly presented to you in this case, or was assisted in every way he desired. The law you would not have taken this step, for it is has been thoroughly executed, and every man entirely unnecessary, and, as it seems to me, guilty of violating it during the strike has unjustifiable. Waiving all questions of cour- been brought to justice. If the marshal of the

tesy, I will say that the State of Illinois is Northern District of Illinois or the authorinot only able to take care of itself, but it ties of Cook county needed military assiststands ready to furnish the Federal govern- ance they had but to ask for it in order to ment any assistance it may need elsewhere. get it from the State. Our military force is ample, and consists of At present some of our railroads are par-

as good soldiers as can be found in the alyzed, not by reason of obstruction, but country. They have been ordered promptly because they cannot get men to operate their whenever and wherever they were needed. trains. For some reason they are anxious to We have stationed in Chicago alone three keep this fact from the public, and for this Regiments of Infantry, one Battery and one purpose they are making an outcry about obtroop of Cavalry, and no better soldiers can structions in order to divert attention. Now, be found. They have been ready every mo-_ I will cite to you two examples which illus-

ment to go on duty, and have been and are’ trate the situation: ... now eager to go into service, but they have It is true that in several instances a road not been ordered out because nobody in Cook made efforts to work a few green men and a

county, whether official or private citizen, crowd standing around insulted them and asked to have their assistance. or even inti- tried to drive them away, and in a few other

160 DOCUMENTS OF AMERICAN HISTORY cases they cut off Pullman sleepers from premacy is in no way involved. No one distrains. But all these troubles were local in putes it for a moment; but, under our Concharacter and could easily be handled by the _ stitution, Federal supremacy and _ local State authorities. Illinois has more railroad self-government must go hand in hand, and men than any other State in the Union, but to ignore the latter is to do violence to the as a rule they are orderly and well-behaved. Constitution. This is shown by the fact that so very little As Governor of the State of Illinois, I proactual violence has been committed. Only a_ test against this, and ask the immediate with-

very small percentage of these men have drawal of the Federal troops from active been guilty of infractions of the law. The duty in this State. Should the situation at newspaper accounts have in many cases been any time get so serious that we cannot conpure fabrications, and in others wild exag- trol it with the State forces, we will promptly

gerations. ask for Federal assistance; but until such I have gone thus into details to show that time, I protest, with all due deference,

it is not soldiers that the railroads need so against this uncalled for reflection upon our much as it is men to operate trains, and that people, and again ask the immediate withthe conditions do not exist here which bring drawal of these troops. I have the honor to the cause within the Federal statute, a stat- be, yours respectfully, ute that was passed in 1881 (1861) and was Joun P. ALTGELD, Governor of Illinois. in reality a war measure. The statute author-

ized the use of Federal troops in a State 2. Executive Mansion, Washington, D. C.,

whenever it shall be impracticable to enforce July 5, 1894.

the laws of the United States within such Hon. John P. Altgeld, Governor of Illinois, States by the ordinary Judicial proceedings. Springfield, II. Such a condition does not exist in Illinois. Sir:—Federal troops were sent to Chicago There have been a few local disturbances, in strict accordance with the Constitution but nothing that seriously interfered with and laws of the United States, upon the de. the administration of justice, or that could mand of the postoffice department that obnot be easily controlled by the local or State struction of the mails should be removed, authorities, for the Federal troops can do and upon the representations of the judicial nothing that the State troops cannot do. officers of the United States that the process I repeat that you have been imposed upon of the Federal courts could not be executed in this matter; but even if by a forced con- through the ordinary means, and upon comstruction it were held that the conditions petent proof that conspiracies existed against here came within the letter of the statute, commerce between the States. To meet these then I submit that local self-government is a2 conditions, which are clearly within the fundamental principle of our Constitution. province of Federal authority, the presence Each community shall govern itself so long of Federal troops in the city of Chicago was as it can and is ready and able to enforce the deemed not only proper, but necessary, and law, and it is in harmony with this funda- there has been no intention of thereby intermental principle that the statute authorizing fering with the plain duty of the local authorthe President to send troops into States must ities to preserve the peace of the city.

be construed; especially is this so in matters GROVER CLEVELAND. relating to the exercise of the police power

and the preservation of law and order. 3. Executive Office, State of Illinois,

To absolutely ignore a local government July 6, 1894.

in matters of this kind, when the local gov- Hon. Grover Cleveland, President of the ernment is ready to furnish assistance needed, United States, and is amply able to enforce the law, not Sir:—Your answer to my protest involves only insults the people of this State by im- some startling conclusions and ignores and puting to them an inability to govern them- evades the question at issue—that is, that selves, or an unwillingness to enforce the the principle of local self-government is just law, but is in violation of a basic principle of as fundamental in our institutions as is that our institutions. The question of Federal su- of Federal supremacy.

THE ALTGELD-CLEVELAND CONTROVERSY 161 First—You calmly assume that the execu- office department, and upon representations

tive has the legal right to order Federal of the judicial officers of the United States troops into any community of the United that process of the courts could not be States, in the first instance, whenever there served, and upon proof that conspiracies is the slightest disturbance, and that he can existed. We will not discuss the facts, but do this without any regard to the question as look for a moment at the principle involved to whether that community is able and ready in your statement. All of these officers are

to enforce the law itself. Inasmuch as the appointed by the executive. Most of them executive is the sole judge of the question as can be removed by him at will. They are not to whether any disturbance exists in any part only obliged to do his bidding, but they are in

of the country, this assumption means that fact a part of the executive. If several of the executive can send Federal troops into them can apply for troops, one alone can; any community in the United States at his so that under the law, as you assume it to be, pleasure, and keep them there as long as he an executive, through any one of his apchooses. If this is the law, then the principle pointees, can apply to himself to have the of self-government either never did exist in military sent into any city or number of this country or else has been destroyed, for cities, and base his application on such repno community can be said to possess local resentations as he sees fit to make. In fact, self-government if the executive can, at his it will be immaterial whether he makes any pleasure, send military forces to patrol its showing or not, for the executive is the sole streets under pretense of enforcing some law. judge, and nobody else has any right to The kind of local self-government that could interfere or even inquire about it. Then the exist under these circumstances can be found executive can pass on his own application, his

in any of the monarchies of Europe, and it will being the sole guide—he can hold the is not in harmony with the spirit of our in- application to be sufficient, and order troops

stitutions. to as many places as he wishes and put them Second—It is also a fundamental principle in command of anyone he chooses, and have

in our government that except in times of them act, not under the civil officers, either war the military shall be subordinate to the Federal or State, but directly under military civil authority. In harmony with this pro- orders from Washington, and there is not vision, the State troops are ordered out to’ in the Constitution or laws, whether written act under and with the civil authorities. The or unwritten, any limitation or restraint upon troops you have ordered to Chicago are not his power. His judgment—that is, his will—

under the civil authorities, and are in no way’ is the sole guide; and it being purely a responsible to them for their conduct. They matter of discretion, his decision can never are not even acting under the United States be examined or questioned. Marshal or any Federal officer of the State, This assumption as to the power of the but are acting directly under military orders executive is certainly new, and I respectfully

issued from military headquarters at Wash- submit that it is not the law of the land. ington; and in so far as these troops act at The jurists have told us that this is a govern-

all, it is military government. ment of law, and not a government by the

Third—The statute authorizing Federal caprice of an individual, and, further, introops to be sent into States in certain cases stead of being autocratic, it is a government contemplates that the State troops shall be of limited power. Yet the autocrat of Russia

taken first. This provision has been ignored could certainly not possess, or claim to and it is assumed that the executive is not possess, greater power than is possessed by bound by it. Federal interference with indus- the executive of the United States, if your trial disturbances in the various States is assumption is correct. certainly a new departure, and it opens up Fifth—The executive has the command so large a field that it will require a very little not only of the regular forces of all the stretch of authority to absorb to itself all United States, but of the military forces of

the details of local government. all the States, and can order them to any Fourth—You say that troops were ordered place he sees fit; and as there are always

into Illinois upon the demand of the post- more or less local disturbances over the

162 DOCUMENTS OF AMERICAN History © country, it will be an easy matter under Inasmuch as the Federal troops can do your construction of the law for an ambitious nothing but what the State troops can do executive to order out the military forces of there, and believing that the State is amply

all of the States, and establish at once a able to take care of the situation and en-

military government. The only chance of force the law, and believing that the orderfailure in such a movement could come from ing out of the Federal troops was unwarrebellion, and with such a vast military ranted, I again ask their withdrawal.

power at command this could readily be JouHn P, ALTGELD. crushed, for, as a rule, soldiers will obey

orders. 4. Executive Mansion, Washington, D. C. As for the situation in Illinois, that is of July 6, 1894.

no consequence now compared with the far- While I am still persuaded that I have reaching principle involved. True, according neither transcended my authority nor duty to my advices, Federal troops have now been in the emergency that confronts us, It seems on duty for over two days, and although the to me that in this hour of danger and public men were brave and the officers valiant and distress, discussion may well give way to able, yet their very presence proved to be active efforts on the part of all in authority an irritant because it aroused the indignation to restore obedience to law and to protect

of a large class of people who, while up- life and property.

holding law and order, had been taught to GROVER CLEVELAND, believe in local self-government, and there- Hon. John P. Altgeld, fore resented what they regarded as unwar- Governor of. Illinois.

ranted interference. 335. U.S. v. DEBS ET AL. 64 Fed. 724 1894

Proceedings for contempt against Eugene V. ... The position of the defendants in reDebs and others for violation of injunctions is- spect to this statute, as stated in one of the sued in the Pullman strike of 1894. The extract briefs, is that it “is directed at capital”, “at from the decision of the Circuit Court for the dangers very generally supposed to result Northern District of Illinois bears on the ap- from vast aggregations of capital”, that “the plication of the Sherman Anti-Trust Act to the ys case. The Congressional investigation of the evil aimed at is one of a contractual charstrike can be found in United States Strike Com- acter, and not of force and violence.”, . . It mission Report, Sen. Exec. Doc. 7, 53d. Cong. 1S said we may gather from the debates in 3d. Sess. See also A. Nevins, Grover Cleveland, congress, as from any other source, ‘‘the hisch. xxxiii; W. R. Browne, Altgeld of Illinois, tory of the evil which the legislation was chs. xii-xvi; and Doc. No. 334. On the use of the intended to remedy.” Doubtless this is often injunction in labor disputes see, F. Frankfurter true; and in this instance it is perhaps apand L. Greene, The Labor Injunction; E. E. parent that the original measure, as proposed

Witte, The Government in Labor Op Mes in the senate, “was directed wholly against P. F. Brissenden, an Labor Injunction,” Pot. trusts, and not at organizations of labor in

Sci. Qt. Vol. XLVI. any form’’. But it also appears that before the Woops, Circuit Judge. . . . The question _ bill left the senate its title had been changed, now to be considered [is] whether or not the and material additions made to the text; and

injunction was authorized by the act of it is worthy of note that a proviso to the

July 2, 1890. It was under that act that the effect that the act should not be construed order was asked and was granted; but it has to apply “to any arrangements, agreements been seriously questioned in this proceeding, or combinations made between laborers with as well as by an eminent judge and by lawyers a view of lessening hours of labor or of inelsewhere, whether the statute is by its terms creasing their wages, nor to any arrangeapplicable, or consistently with constitutional ments, agreements or combinations among guaranties can be applied, to cases like this. persons engaged in agriculture made with the

In RE DEBS 163 view of enhancing the price of agricultural press trusts and monopolies created by con-

.. . products” was not adopted. Such an tract or combination in the form of trust, amendment, doubtless, was not necessary in which of course would be of a “contractual order to exclude agreements and arrange- character” was adhered to, is clear; but it 1s ments of the kind mentioned; but the offer- equally clear that a further and more coming of the proposition shows that the pos- prehensive purpose came to be entertained, sible application of the statute to cases not and was embodied in the final form of the in the nature of trusts or monopolies, and, enactment. Combinations are condemned, not in which workmen or farmers should be con- only when they take the form of trusts, but

cerned, was not overlooked. But it is more in whatever form found, if they be in resignificant that, upon the introduction of the straint of trade. That is the effect of the bill into the house, the chairman of the words “or otherwise”. . . . Any proposed rejudiciary committee, ... made the follow- straint of trade, though it be in itself ining statement: “Now just what contracts, nocent, if it is to be accomplished by conwhat combinations in the form of trusts, or spiracy, is unlawful... . what conspiracies will be in restraint of trade I have not failed, I think, to appreciate the or commerce, mentioned in the bill, will not just force of the argument to the contrary, be known until the courts have construed of my opinion,—it has sometimes entangled

and interpreted this provision.” me in doubt,—but my conclusion is clear,

It is therefore the privilege and duty of that under the act of 1890, the court had the court, uncontrolled by considerations jurisdiction of the case presented in the apdrawn from other sources, to find the mean- plication, and that the injunction granted was

ing of the statute in the terms of its pro- not without authority of law, nor for any visions, interpreted by the settled rules of reason invalid... . construction. That the original design to sup-

336. IN RE DEBS 158 U.S: 564 1895

Petition for a writ of habeas corpus. The facts authority in governmental affairs implies both of the case are stated in U.S. v. Debs, Doc. power and duty, has a court of equity jJurisdic-

No. fs important io nonce thatupon me de- tion to issue an injunction in aid of the cisionS88. of thehSupreme Court was based not the Sherman Anti-Trust Act, but upon much P ne rmance of such duty P broader grounds. irst. What are the relations of the general government to interstate commerce and the

Brewer, J. The case presented by the transportation of the mails? They are those bill is this: The United States, finding that of direct supervision, control, and managethe interstate transportation of persons and ment. While under the dual system which property, as well as the carriage of the mails, prevails with us the powers of government is forcibly obstructed, and that a combina- are distributed between the state and the tion and conspiracy exists to subject the con- nation, and while the latter is properly styled trol of such transportation to the will of the a government of enumerated powers, yet conspirators, applied to one of their courts, within the limits of such enumeration it has sitting as a court of equity, for an injunction all the attributes of sovereignty, and, in the to restrain such obstruction and prevent exercise of those enumerated powers, acts carrying into effect such conspiracy. Two directly upon the citizen, and not through the questions of importance are presented: First. intermediate agency of the state... . Are the relations of the general government “We hold it to be an incontrovertible printo interstate commerce and the transporta- ciple, that the government of the United tion of the mails such as to authorize a direct States may, by means of physical force, exinterference to prevent a forcible obstruc- ercised through its official agents, execute on tion thereof? Second. If authority exists, as every foot of American soil the powers and

164 DOCUMENTS OF AMERICAN History functions that belong to it. This necessarily tion of the mails, no other protection than involves the power to command obedience lies in the possible punishment of those who to its laws, and hence the power to keep the interfere with it? To ask the question is to

peace to that extent....” Mr. Justice answer it. By article 3, section 2, clause 3,

Bradley in Ex parte Siebold, 100 U. S. 371, of the federal Constitution it is provided:

395. 0... “The trial of all crimes except in cases of

Among the powers expressly given to the impeachment shall be by jury; and such trial national government are the control of inter- . shall be held in the State where the said state commerce and the creation and man- crime shall have been committed.” If all the agement of the postoffice system for the inhabitants of a state, or even a great body

nation. ... of them, should combine to obstruct. inter-

Obviously these powers given to the na- state commerce or the transportation of the tional government over interstate commerce mails, prosecutions for such offenses had in and in respect to the transportation of the such a community would be doomed in admails were not dormant and unused. Con- vance to failure. And if the certainty of such gress had taken hold of these two matters, failure was known, and the national governand by various and specific acts had assumed ment had no other way to enforce the freeand exercised the powers given to it, and was dom of interstate commerce and the transin the full discharge of its duty to regulate portation of the mails than by prosecution

interstate commerce and carry the mails. and punishment for interference therewith, The validity of such exercise and the ex- the whole interests of the nation in these teclusiveness of its control had been again and spects would be at the absolute mercy of a again presented to this court for considera- portion of the inhabitants of that single state. tion. It is curious to note the fact that in a But there is no such impotency in the nalarge proportion of the cases in respect to tional government. The entire strength of the interstate commerce brought to this court nation may be used to enforce in any part the question presented was of the validity of of the land the full and free exercise of al] state Icgislation in its bearings upon inter- national powers and the sccurity of all rights state commerce, and the uniform course of entrusted by the Constitution to its care. decision has been to declare that it is not The strong arm of the national government within the competency of a state to legislate may be put forth to brush away all obstrucin such a manner as to obstruct interstate tions to the freedom of interstate commerce

commerce. If a state with its recognized or the transportation of the mails. If the powers of sovereignty is impotent to obstruct emergency arises, the army of the nation, and interstate commerce, can it be that any mere all its militia, are at the service of the nation voluntary association of individuals within to compel obedience to its laws. the limits of that state has a power which But passing to the second question, is there

the state itself does not possess? no other alternative than the use of force

As, under the Constitution, power over in- on the part of the executive authorities when-

terstate commerce and the transportation of ever obstructions arise to the freedom of the mails is vested in the national govern- interstate commerce or the transportation of ment, and Congress by virtue of such grant the mails? Is the army the only instrument has assumed actual and direct control, it by which rights of the public can be enforced follows that the national government may and the peace of the nation preserved? Grant prevent any unlawful and forcible inter- that any public nuisance may be forcibly ference therewith. But how shall this be ac- abated either at the instance of the authoricomplished? Doubtless, it is within the com-_ ties, of by any individual suffering private petency of Congress to prescribe by legislation damage therefrom, the existence of this right

that any interference with these matters of forcible abatement is not inconsistent with shall be offenses against the United States, nor does it destroy the right of appeal in and prosecuted and punished by indictment an orderly way to the court for a Judicial

in the proper courts. But is that the only determination, and an exercise of their

remedy? Have the vast interests of the nation powers by writ of injunction and otherwise in interstate commerce, and in the transporta- to accomplish the same result... .

In RE DEBS 165 It is obvious from these decisions that to forcibly remove all such obstructions, it while it is not the province of the government _is equally within its competency to appeal to

to interfere in any mere matter of private the civil courts for an inquiry and determinacontroversy between individuals, or to use tion as to the existence and character of any its great powers to enforce the rights of one alleged obstructions, and if such are found against another, yet, whenever the wrongs to exist, or threaten to occur, to invoke the complained of are such as affect the public powers of these courts to remove or restrain at large, and are in respect of matters which such obstruction; that the jurisdiction of by the Constitution are entrusted to the care courts to interfere in such matters by injunc-

of the nation, and concerning which the tion is one recognized from ancient times nation owes the duty to all the citizens of and by indubitable authority; that such securing to them their common rights, then jurisdiction is not ousted by the fact that the the mere fact that the government has no obstructions are accompanied by or consist pecuniary interest in the controversy is not of acts in themselves violations of the crimi-

sufficient to exclude it from the courts, nal law; that the proceeding by injunction or prevent it from taking measures therein is of a civil character, and may be enforced to fully discharge those constitutional du- by proceedings in contempt; that such pro-

ties. ceedings are not in execution of the criminal The national government, given by the laws of the land; that the penalty for a Constitution power to regulate interstate violation of injunction is no substitute for

commerce, has by express statute assumed and no defense to a prosecution for any crimijurisdiction over such commerce when carried nal offenses committed in the course of such

upon railroads. It is charged, therefore, with violation; that the complaint filed in this the duty of keeping those highways of inter- case clearly showed an existing obstruction state commerce free from obstruction, for it of artificial highways for the passage of inhas always been recognized as one of the terstate commerce and the transmission of powers and duties of a government to re- the mail—an obstruction not only tempomove obstructions from the highway under rarily existing, but threatening to continue;

its control. ... that under such complaint the circuit court We have given to this case the most care- had power to issue its process of injunction; ful and anxious attention, for we realize that that it having been issued and served on these

it touches closely questions of supreme im- defendants, the circuit court had authority portance to the people of this country. Sum- to inquire whether its orders had been disming up our conclusions, we hold that the obeyed, and when it found that they had government of the United States is one hav- been, then to proceed under section 725 ing jurisdiction over every foot of soil within Revised Statutes, which grants power “to its territory, and acting directly upon each punish by fine or imprisonment, .. . dis-

citizen; that while it is a government of obedience, ... by any party ... or other

enumerated powers, it has within the limits person, to any lawful writ, process, order of those powers all the attributes of sover- rule, decree or command,” and enter the eignty; that to it is committed power over order of punishment complained of; and, interstate commerce and the transmission of finally, that, the circuit court, having full the mail; that the powers thus conferred jurisdiction in the premises, its finding of the upon the national government are not dor- fact of disobedience is not open to review on mant, but have been assumed and put into habeas corpus in this or any other court... . practical exercise by the legislation of Con- We enter into no examination of the act gress; that in the exercise of those powers of July 2, 1890, upon which the Circuit Court it is competent for the nation to remove all relied mainly to sustain its jurisdiction. It obstructions upon highways, natural or arti- must not be understood from this that we ficial, to the passage of interstate commerce dissent from the conclusions of that court

or the carrying of the mail; that while it in reference to the scope of the act, but may be competent for the government simply that we prefer to rest our judgement (through the executive branch and in the use on the broader ground which has been disof the entire executive power of the nation) cussed in this opinion, believing it of im-

166 DOCUMENTS OF AMERICAN History portance that the principles underlying it The petition for a writ of habeas corpus is

should be fully stated and affirmed. denied.

337, CLEVELAND’S APPEAL FOR A GOLD GUARANTEE ON BONDS Message to Congress February 8, 1895 (Richardson, ed. Messages and Papers, Vol. VIII, p. 567 ff.) As early as January 1895 it became apparent mediate Executive action with the facilities that the government would have to replenish pow at hand. its gold reserve through a third bond sale. The Therefore, in pursuance of section 3700 of President and Secretary Carlisle accordingly ine Revised Statutes, the details of an ar-

y J. P. Morgan for the sale of $65,000,000 of , .

mace an arrangement with a syndicate headed rangement have this day been concluded with bonds. These bonds were to yield four per cent, Parties abundantly able to fulfill their under-

but if Congress would substitute the words ‘king whereby bonds of the United States “gold bonds” for “coin bonds” the interest rate authorized under the act of July 14, 1875, would be reduced to three per. cent., thus saving payable in coin thirty years after their date,

the government some $16,000,000 in interest. with interest at the rate of 4 per cent per Cleveland’s appeal to Congress to authorize the annum, to the amount of a little less than necessary change was defeated by the silver $62,400,000, are to be issued for the purchase forces, Ied by Bland and Bryan. The terms of of gold coin, amounting to a sum slightly in the third bond deal were considered excessively excess of $65,000,000, to be delivered to the

hard, and both the Government and the syndi- T f the United St hich

cate were bitterly criticised for the transaction. reasury 0 ce vane tates, whic sum See, A. Nevins, Grover Cleveland, p. 661 ff., ded to the gold now held in our reserve will W. J. Bryan, The First Battle, p. 135 ff.; J. A. SO restore such reserve as to make it amount Barnes, John G. Carlisle, ch. xv; L. Corey, The - to something more than $100,000,000. Such House of Morgan, ch. xviii; the bond sale in- a premium is to be allowed to the Governvestigation is in 54th Cong. 2d Sess. Senate ment upon the bonds as to fix the rate of

Exec. Doc. No. 187. interest upon the amount of gold realized at 334 per cent per annum. At least one-half EXxecuTive Mansion, February 8, 1895. of the gold to be obtained is to be supplied

To the Congress of the United States: from abroad, which is a very important and

Since my recent communciation to the favorable feature of the transaction. .

Congress calling attention to our financial The privilege is especially reserved to the condition and suggesting legislation which I Government to substitute at par within ten deemed essential to our national welfare and days from this date, in lieu of the 4 per cent credit the anxiety and apprehension then ex- coin bonds, other bonds in terms payable in

isting in business circles has continued. gold and bearing only 3 per cent interest if As a precaution, therefore, against the the issue of the same should in the meantime failure of timely legislative aid through Con- be authorized by the Congress. gressional action, cautious preparations have The arrangement thus completed, which been pending to employ to the best possible after careful inquiry appears in present ciradvantage, in default of better means, such cumstances and considering all the objects Executive authority as may without addi- desired to be the best attainable, develops tional legislation be exercised for the purpose such a difference in the estimation of inof reénforcing and maintaining in our Treas- __vestors between bonds made payable in coin

ury an adequate and safe gold reserve. and those specifically made payable in gold In the judgment of those especially charged in favor of the latter as is represented by with this responsibility the business situation three-fourths of a cent in annual interest. is so critical and the legislative situation is In the agreement just concluded the annual sO unpromising, with the omission thus far saving in interest to the Government if 3 on the part of Congress to beneficially en- per cent gold bonds should be substituted large the powers of the Secretary of the for 4 per cent coin bonds under the privilege Treasury in the premises, as to enjoin im- reserved would be $539,159, amounting in

APPEAL OF THE SILVER DEMOCRATS 167 thirty years, or al the maturity of the coin transaction herein detailed for the informa-

bonds, to $16,174,770. tion of the Congress promises better results Of course there never should be a doubt — than the efforts previously made in the direcin any quarter as to the redemption in gold _ tion of effectively adding to our gold reserve

of the bonds of the Government which are through the sale of bonds, and I believe it made payable in coin. Therefore the dis- will tend, as far as such action can in present crimination, in the judgment of investors, circumstances, to meet the determination between our bond obligations payable in coin expressed in the law repealing the silverand those specifically made payable in gold purchasing clause of the act of July 14, 1890, is very significant. It is hardly necessary to and that, in the language of such repealing

suggest that, whatever may be our views act, the arrangement made will aid our efon the subject, the sentiments or preferences forts to “insure the maintenance of the parity

of those with whom we must negotiate in in value of the coins of the two metals and disposing of our bonds for gold are not sub- the equal power of every dollar at all times in

ject to our dictation. the markets and in the payment of debts.” I have only to add that in my opinion the GROVER CLEVELAND. 338. APPEAL OF THE SILVER DEMOCRATS March 5, 1895 (W. J. Bryan, The First Battle, p. 156-7) Ever since the beginning of the second Cleve- as it advocates a single gold standard, and land administration, the split in the Democratic that the advocacy of such a financial policy party between the silver and the gold Demo- would be especially fatal to a party which, crats had been steadily widening. In the closing like the Democratic party, derives its voting

days of the Fifty-third Congress, Bryan and strength fr th h . Bland, the two outstanding leaders of the silver ° om those who may without re-

forces in the House, drew up an appeal to the proach be called the common people; and Democratic party, which was signed by about W° point to the overwhelming defeat of the one fifth of the Democratic members of the party in 1894, to the opposition aroused by lower House and by Evan Howell, editor of the the veto of the seigniorage bill and to the Atlanta Constitution. “This address,” wrote still more unanimous protest against the issue Bryan, “was the beginning of the successful ef- of gold bonds, as proof that the Democratic fort on the part of the silver Democrats to take party cannot be brought to the support of the

, gold standard policy.

control of the Democratic organization”. This ; effort culminated In the control of the 1896 con- We bell th h ; vention by the silver forces. See, W. J. Bryan, e Deneve at t e€ money question will The First Battle, ch. vi. be the paramount issue In 1896, and will so

remain until it is settled by the intelligence

An Important Document and patriotism of the American voters.

To the Democrats of the United States: We believe that a large majority of the We, the undersigned Democrats, present Democrats of the United States favor bifor your consideration the following state- metallism, and realize that it can only be

ment: secured by the restoration of the free and We believe that the establishment of gold unlimited coinage of gold and silver at the as the only monetary standard and the present ratio, and we assert that the majority elimination of silver as a full legal tender have, and should exercise, the right to control money, will increase the purchasing power of _ the policy of the party and retain the party

each dollar, add to the burden of all debts, name.

decrease the market value of all other forms We believe that it is the duty of the of property, continue and intensify business majority, and within their power, to take depression, and, finally, reduce the majority charge of the party organization and make

of the people to financial bondage. the Democratic party an effective instrument We believe that no party can hope for in the accomplishment of needed reforms. It enduring success in the United States so long is necessary that Democrats should surrender

168 DOCUMENTS OF AMERICAN History their convictions on other questions in order of any other nation, such gold and silver to take an active part in the settlement of coin to be a full legal tender for all debts the question which at this time surpasses all public and private.

others in importance. We urge all Democrats who favor the We believe that the rank and file of the financial policy above set forth to associate Democratic party should at once assert them- _ themselves together and impress their views

selves in the Democratic party and place the upon the party organization; we urge all party on record in favor of the immediate newspapers in harmony with the above firestoration of the free and unlimited coinage nancial policy to place it at the head of the of gold and silver at the present legal ratio editorial column and assist in the immediate of 16 to 1, as such coinage existed prior to restoration of bimetallism. 1873, without waiting for the aid or consent

339. UNITED STATES v. E. C. KNIGHT COMPANY

156 U. S. 1 . 1895

Appeal from the United States Circuit Court of | manufacture is established by the evidence,

Appeals. Bill by the United States against the that monopoly can be directly suppressed ", ©. Bnightvlolation emPany, andoore under the act of. Congress in the mode atchargin Cccorporations erman NvulLrus : Act. The E. C. Knight Company, the Amcrican rempte’ by this bill.

Sugar Refining Company, had purchased the cannot be denied that the power of a

a ' Statesugar to protect lives, health, and stock of four competing refiningthe comPro cel © fives, ne propprop

panics located in Philadelphia, Pennsylvania, and ¢rty of its citizens, and to preserve good thus secured a practical monopoly on the manu- order and the public morals, “the power to facture of refined sugar in the United States. It govern men and things within the limits of was charged that these purchases constituted a its dominion,” is a power originally and

combination in restraint of trade. The Circuit always belonging to the States, not surCourt of Appeals dismissed the bill. . rendered by them to the general government, The decision in this case constituted a serious yor directly restrained by the Constitution of

set-back to the enforcement of the Sherman the United States, and essentially exclusive. Anti-Trust Act. For a discussion of the case see The relief of the citizens of each State from

A.90 H.ff.Walker, History of the Sherman Law, p. the burden of monopoly and the evils resulting from the restraint of trade among such

FuLier, C. J....In the view which citizens was left with the States to deal with. we take of the case, we need not discuss ... On the other hand, the power of Con-

whether because the tentacles which drew the gress to regulate commerce among the sevoutlying refineries into the dominant corpora- eral States is also exclusive. ... tion were separately put out, therefore there The argument is that the power to control was no combination to monopolize; or, be- the manufacture of refined sugar is a mocause according to political economists, ag- nopoly over a necessary of life, to the engregations of capital may reduce prices, there- joyment of which by a large part of the fore the objection to concentration of power population of the United States interstate

is relieved; or, because others were the- commerce is indispensable, and that, thereoretically left free to go into the business of fore, the general government in the exercise refining sugar, and the original stockholders of the power to regulate commerce may supof the Philadelphia refineries after becoming press such monopoly directly and set aside

stockholders of the American Company the instruments which have created it. But might go into competition with themselves, this argument cannot be confined to necesor, parting with that stock, might set up — saries of life merely, and must include all again for themselves, therefore no objectiona- articles of general consumption. Doubtless

ble restraint was imposed. the power to control the manufacture of a

The fundamental question is, whether con- given thing involves in a certain sense the

ceding that the existence of a monopoly in control of its disposition, but this is a

UNITED STraTes v. E. C. KNIGHT COMPANY 169 secondary and not the primary sense; and between the general government and the although the exercise of that power may re- States, and less likely to have been what the sult in bringing the operation of commerce framers of the Constitution intended, it would into play, it does not control it, and affects be difficult to imagine.” it only incidentally and indirectly. Commerce Contracts, combinations, or conspiracies

succeeds to manufacture, and is not a part to control domestic enterprise in manufacof it. The power to regulate commerce is the ture, agriculture, mining production in all its power to prescribe the rule by which com- forms, or to raise or lower prices or wages,

merce shall be governed, and is a power in- might unquestionably tend to restrain exdependent of the power to suppress mo-_ ternal as well as domestic trade, but the renopoly. But it may operate in repression of — straint would be an indirect result, however monopoly whenever it comes within the rules inevitable and whatever its extent, and such by which commerce is governed or whenever result would not necessarily determine the the transaction is itself a monopoly of com- object of the contract, combination, or con-

merce. spiracy.

It is vital that the independence of the Again, all the authorities agree that in

commercial power and of the police power, order to vitiate a contract or combination and the delimitation between them, however it is not essential that its result should be sometimes perplexing, should always be rec- a complete monopoly; it is sufficient if it

ognized and observed, for while the one really tends to that end and to deprive the furnishes the strongest bond of union, the public of the advantages which flow from free other is essential to the autonomy of the competition. Slight reflection will show that States as required by our dual form of gov- if the national power extends to all contracts ernment; and acknowledged evils, however and combinations in manufacture, agriculture, grave and urgent they may appear to be, had mining, and other productive industries, whose

better be borne, than the risk be run, in the ultimate result may affect external comeffort to suppress them, of more serious con- merce, comparatively little of business opera-

sequences by resort to expedients of even tions and affairs would be left for state con-

doubtful constitutionality. trol.

It will be perceived how far-reaching the It was in the light of well-settled principles proposition is that the power of dealing with that the act of July 2, 1890 was framed. a monopoly directly may be exercised by Congress did not attempt thereby to assert the general government whenever interstate the power to deal with monopoly directly as or international commerce may be ultimately such; or to limit and restrict the rights of affected. The regulation of commerce applies corporations created by the States or the to the subjects of commerce, and not to citizens of the States in the acquisition, conmatters of internal police. Contracts to buy, trol, or disposition of property; or to regulate sell, or exchange goods to be transported or prescribe the price or prices at which such among the several States, the transportation property or the products thereof should be and its instrumentalities, and articles bought, sold; or to make criminal the acts of persons

sold, or exchanged for the purposes of such in the acquisition and control of property transit among the States, or put in the way which the States of their residence or creaof transit, may be regulated, but this is be- tion sanctioned or permitted. Aside from the cause they form part of interstate trade or provisions applicable where Congress might commerce. The fact that an article is manu- exercise municipal power, what the law struck factured for export to another State does at was combinations, contracts, and conspiranot of itself make it an article of interstate cies to monopolize trade and commerce among

commerce, and the intent of the manufac- the several States or with foreign nations; turer does not determine the time when the but the contracts and acts of the defendants article or product passes from the control related exclusively to the acquisition of the of the State and belongs to commerce. .. . Philadelphia refineries and the business of And Mr. Justice Lamar remarked: “A — sugar refining in Pennsylvania, and bore no situation more paralyzing to the state gov- direct relation to commerce between the ernments, and more provocative of conflicts States or with foreign nations. The object

170 DocUMENTS OF AMERICAN History was manifestly private gain in the manufac- facture to fulfil its function. . . . There was ture of the commodity, but not through the nothing in the proofs to indicate any intencontrol of interstate or foreign commerce, It tion to put a restraint upon trad: or comis true that the bill alleged that the products merce, and the fact, as we have seen, that of these refineries were soid and distributed trade or commerce might be indirectly afamong the several States, and that all the fected was not enough to entitle complainants

companies were engaged in trade or com- to a decree... . merce with the several States and with for- Decree of the Circuit Court of Appeals eign nations; but this was no more than to dismissing the bill affirmed. Haran, J. desay that trade and commerce served manu-_ livered a dissenting opinion.

$40. CLEVELAND’S MESSAGE ON THE VENEZUELA BOUNDARY CONTROVERSY December 17, 1895

(Richardson, ed. Messages and Papers, Vol. IX, p. 655 ff.) The dispute between Great Britain and Vene- with Venezuela which provided for the appointzuela over the boundary of British Guiana was ment of an impartial tribunal to pass on the of long standing. The efforts of Venezuela to boundary controversy. The tribunal met in Pari: submit it to arbitration proving vain, Venezuela in 1899 and handed down a decision which broke off diplomatic relations with Great favored the British contentions. See, G. CleveBritain in 1887. Cleveland considered that the land, The Venezuela Boundary Controversy; A. Monroe Doctrine was involved in the dispute, Nevins, Grover Cleveland, ch. xxxiv; R. McEIand in 1895 he determined to force the issue to roy, Grover Cleveland, Vol. II, ch. vi; H. James, a conclusion. July 20, Secretary Olney sent a Richard Olney; S. F. Bemis ed., American Secredespatch for transmission to Lord Salisbury call- _taries of State, Vol. VIII, p. 291 ff.; A. B. Hart, ing attention to the interest of the United States The Monroe Doctrine; T. B. Edgington, The in the boundary dispute and insisting that the Monroe Doctrine, ch. xvi; D. Y. Thomas, One Monroe Doctrine required American interven- Hundred Years of the Monroe Doctrine. tion on behalf of arbitration. In the course of

his letter, Mr. Olney said, “To-day the United Executive Mansion, December 17, 1895. States is practically sovereign on this continent, To the Congress:

and its fiat is law upon the subjects to which In my annual message addressed to the it confines its interposition. Why? ... It is . . because in addition to all other grounds, its in- Congress on the 3d instant I called attention finite resources combined with its isolated posi- [0 the pending boundary controversy between tion render it master of the situation and practi- Great Britain and the Republic of Venezuela

cally invulnerable against any or all other and recited the substance of a representation powers.” And Mr. Olney concluded with a defi- made by this Government to Her Britannic nite request for arbitration. Lord Salisbury re- Majesty’s Government Suggesting reasons plied, November 26, in two notes: one denying why such dispute should be submitted to the applicability of the Monroe Doctrine to the arbitration for settlement and inquiring dispute, the other maintaining the correctness of whether it would be so submitted.

the British position in the boundary controversy.

December 17, President Cleveland laid this cor- The answer of the British Government, respondence before Congress and asked for which was then awaited, has since been reauthority to appoint an independent commission ceived, and, together with the despatch to to pass on the merits of the dispute. To many it which it is a reply, is hereto appended. seemed that war was inevitable, but public Such reply is embodied in two communicaopinion in both countries forced an accommoda- tions addressed by the British prime minister

tion. Furthermore Great Britain was faced, in to Sir Julian Pauncefote, the British ambas-

1896, with a serious outbreak of the noe ‘0 sador at this capital. It will be seen that

South Alrica, and on January 3 Kaiser William one of these communications is devoted ex-

of Germany sent his famous telegram of sym- Jusively t b ti the M

pathy to the Boer leader, Paul Kruger. Under ‘lusively to observations Upon the Asonroe the circumstances Lord Salisbury acquiesced in doctrine, and claims that in the present Inthe American demand. A treaty was negotiated stance a new and strange extension and de-

CLEVELAND’S MESSAGE ON VENEZUELA BOUNDARY 171 velopment of this doctrine is insisted on by code of international law a novel principle the United States; that the reasons justify- which was never recognized before and which ing an appeal to the doctrine enunciated by has not since been accepted by the governPresident Monroe are generally inapplicable ment of any other country.” “to the state of things in which we live at Practically the principle for which we conthe present day,” and especially inapplicable tend has peculiar, if not exclusive, relation to a controversy involving the boundary line to the United States. It may not have been

between Great Britain and Venezuela. admitted in so many words to the code of Without attempting extended argument international law, but since in international in reply to these positions, it may not be councils every nation is entitled to the rights amiss to suggest that the doctrine upon which belonging to it, if the enforcement of the we stand is strong and sound, because its Monroe doctrine is something we may justly enforcement is Important to our peace and claim it has its place in the code of intersafety as a nation and is essential to the national law as certainly and as securely as integrity of our free institutions and the if it were specifically mentioned; and when tranquil maintenance of our distinctive form the United States is a suitor before the high of government. It was intended to apply tribunal that administers international law to every stage of our national life and can the question to be determined is whether or not become obsolete while our Republic en- not we present claims which the justice of dures. If the balance of power is justly a that code of law can find to be right and cause for jealous anxiety among the Gov- _ valid. ernments of the Old World and a subject for The Monroe doctrine finds its recognition our absolute noninterference, none the less is in those principles of international law which

an observance of the Monroe doctrine of are based upon the theory that every nation vital concern to our people and their Govern- shall have its rights protected and its just

ment. claims enforced.

Assuming, therefore, that we may properly Of course this Government is entirely coninsist upon this doctrine without regard to fident that under the sanction of this doctrine “the state of things in which we live” or any we have clear rights and undoubted claims. changed conditions here or elsewhere, it is Nor is this ignored in the British reply. The not apparent why its application may not be prime minister, while not admitting that the

invoked in the present controversy. Monroe doctrine is applicable to present conIf a European power by an extension of ditions, states: its boundaries takes possession of the terri- In declaring that the United States would lory of one of our neighboring Republics resist any such enterprise if it was contemagainst its will and in derogation of its rights, plated, President Monroe adopted a policy it is difficult to see why to that extent such which received the entire sympathy of the European power does not thereby attempt English Government of that date.

to extend its system of government to that He further declares: portion of this continent which is thus taken. Though the language of President Monroe This is the precise action which President is directed to the attainment of objects which Monroe declared to be “dangerous to our most Englishmen would agree to be salutary, peace and safety,” and it can make no dif- it is impossible to admit that they: have been ference whether the European system is ex- inscribed by any adequate authority in the tended by an advance of frontier or other- code of international law.

wise. Again he says:

It is also suggested in the British reply They [Her Majesty’s Government] fully that we should not seek to apply the Mon- concur with the view which President

roe doctrine to the pending dispute because Monroe apparently entertained, that any disit does not embody any principle of inter- turbance of the existing territorial distribunational law which “is founded on the general tion in that hemisphere by any fresh acquisiconsent of nations,” and that “no statesman, _ tions on the part of any European State would

however eminent, and no nation, however be a highly inexpedient change.

powerful, are competent to insert into the In the belief that the doctrine for which

172 DOCUMENTS OF AMERICAN History we contend was clear and definite, that it into of her own free will can not of course was founded upon substantial considerations be objected to by the United States. and involved our safety and welfare, that it Assuming, however, that the attitude of was fully applicable to our present conditions Venezuela will remain unchanged, the disand to the state of the world’s progress, and pute has reached such a stage as to make it

that it was directly related to the pending now incumbent upon the United States to controversy, and without any conviction as take measures to determine with sufficient to the final merits of the dispute, but anxious certainty for its justification what is the true to learn in a satisfactory and conclusive divisional line between the Republic of Venemanner whether Great Britain sought under uela and British Guiana. The inquiry to that a claim of boundary to extend her possessions end should of course be conducted carefully on this continent without right, or whether and judicially, and due weight should be given

she merely sought possession of territory to all available evidence, records, and facts fairly included within her lines of ownership, in support of the claims of both parties.

this Government proposed to the Govern- In order that such an examination should ment of Great Britain a resort to arbitration be prosecuted in a thorough and satisfactory as the proper means of settling the question, manner, I suggest that the Congress make to the end that a vexatious boundary dispute an adequate appropriation for the expenses between the two contestants might be deter- of a commission, to be appointed by the mined and our exact standing and relation Executive, who shall make the necessary inin respect to the controversy might be made _ vestigation and report upon the matter with

clear. the least possible delay. When such report

It will be seen from the correspondence is made and accepted it will, in my opinion, herewith submitted that this proposition has be the duty of the United States to resist been declined by the British Government by every means in its power, as a wilful agupon grounds which in the circumstances gression upon its rights and interests, the seem to me to be far from satisfactory. It is appropriation by Great Britain of any lands deeply disappointing that such an appeal, or the exercise of governmental jurisdiction

actuated by the most friendly feelings toward over any territory which after investigation both nations directly concerned, addressed to we have determined of right belongs to Venethe sense of justice and to the magnanimity zuela.

of one of the great powers of the world, and In making these recommendations I am touching its relations to one comparatively fully alive to the responsibility incurred and weak and small, should have produced no _ keenly realize all the consequences that may

better results. follow. The course to be pursued by this Govern- I am, nevertheless, firm in my conviction

ment in view of the present condition does that while it is a grievous thing to contemnot appear to admit of serious doubt. Having plate the two great English-speaking peoples labored faithfully for many years to induce of the world as being otherwise than friendly Great Britain to submit this dispute to im- competitors in the onward march of civilizapartial arbitration, and having been now _ tion and strenuous and worthy rivals in all finally apprised of her refusal to do so, noth- the arts of peace, there is no calamity which ing remains but to accept the situation, to a great nation can invite which equals that recognize its plain requirements, and deal which follows a supine submission to wrong with it accordingly. Great Britain’s present and injustice and the consequent loss of naproposition has never thus far been regarded _ tional self-respect and honor, beneath which as admissible by Venezuela, though any ad- are shielded and defended a people’s safety justment of the boundary which that country and greatness.

may deem for her advantage and may enter GROVER CLEVELAND.

THE REPUBLICAN PLATFORM OF 1896 173 341. THE REPUBLICAN PLATFORM OF 1896 St. Louis, Missouri June 16, 1896 (K. Porter, ed. National Party Platforms, p. 201 ff.) The Republican National Convention met in foundation of American development and St. Louis, Missouri, June 16, 1896, adopted a prosperity. This true American policy taxes platform calling for the gold standard and high foreign products and encourages home intariffs, and nominated William McKinley ol dustry. It puts the burden of revenue on

Ohio and, G. A. Hobart of NewitJersey for Presids: it themarke A . ket ; oreign goods; secures the Fore; American dent and Vice-President. McKinley was elected

with an clectoral college vote of 271 anda popu- {°F the American producer. It upholds the lar vote of over seven million. See Mark Sulli- American standard of wages for the American van, Our Times, Vol. I; H. T. Peck, Twenty Wworkingman; it puts the factory by the side Years of the Republic; O. S. Olcott, William of the farm, and makes the American farmer McKinley, 2 Vols.; H. Croly, Mark Hanna; less dependent on foreign demand and price;

T. Beer, Mark Hanna; for the campaign, see jt diffuses general thrift, and founds the

W. J. Bryan, The First Battle. strength of each. In its reasonable applica... For the first time since the civil tion il is just, fair and impartial, equally opwar the American people have witnessed the posed to foreign control and domestic mo-

calamitous consequence of full and unre- nopoly, to sectional discrimination and stricted Democratic control of the govern- individual favoritism. ment. It has been a recorc of unparalleled We denounce the present tariff as sectional, incapacity, dishonor, and disaster. In ad- injurious to the public credit and destructive ministrative management it has ruthlessly to business enterprise. We demand such an sacrificed indispensable revenue, entailed an equitable tariff on foreign imports which unceasing deficit, eked out ordinary current come into competition with the American expenses with borrowed money, piled up the products as will not only furnish adequate public debt by $262,000,000, in time of peace, revenue for the necessary expense of the forced an adverse balance of trade, kept a Government, but will protect American labor perpetual menace hanging over the redemp- from degradation and the wage level of tion fund, pawned American credit to alien other lands. We are not pledged to any particsyndicates and reversed all the measures and ular schedules. The question of rates is a results of successful Republican rule. In the practical question, to be governed by the broad effect of its policy it has precipitated condition of time and of production. The panic, blighted industry and trade with pro- ruling and uncompromising principle is the longed depression, closed factories, reduced protection and development of American work and wages, halted enterprise and labor and industries. The country demands a crippled American production, while stimulat- right settlement, and then it wants a rest.

ing foreign production for the American We believe the repeal of the reciprocity market. Every consideration of public safety arrangements negotiated by the last Republi-

and individual interest demands that the can Administration was a national calamity, government shall be wrested from the hands and demand their renewal and extension on of those who have shown themselves incapa- such terms as will equalize our trade with ble of conducting it without disaster at home other nations, remove the restrictions which and dishonor abroad and shall be restored to now obstruct the sale of American products the party which for thirty years administered in the ports of other countries, and secure it with unequaled success and prosperity. And enlarged markets for the products of our in this connection, we heartily endorse the farms, forests, and factories. wisdom, patriotism and success of the ad- Protection and Reciprocity are twin meas-

ministration of Benjamin Harrison. ures of American policy and go hand in We renew and emphasize our allegiance to hand. Democratic rule has recklessly struck the policy of protection as the bulwark of down both, and both must be re-established. American industrial independence and the Protection for what we produce; reciprocal

174 DocUMENTS OF AMERICAN HIsTorRyY agreement of mutual interests, which gain designated to maintain inviolable the obligaopen markets for us in return for our open tions of the United States, of all our money, markets for others. Protection builds up do- whether coin or paper, at the present standmestic industry and trade and secures our ard, the standard of most enlightened naown market for ourselves; reciprocity builds tions of the world. .. . up foreign trade and finds an outlet for our We denounce the practice in the pension

surplus... . bureau so recklessly and unjustly carried on The Republican party is unreservedly for by the present Administration of reducing sound money. It caused the enactment of a pensions and arbitrarily dropping names from law providing for the resumption of specie the rolls, as deserving the severest condemnapayments in 1879. Since then every dollar tion of the American people. © has been as good as gold. We are unalterably Our foreign policy should be at all times opposed to every measure calculated to de- firm, vigorous and dignified, and all our inbase our currency or impair the credit of our terests in the western hemisphere should country. We are therefore opposed to the free be carefully watched and guarded.

coinage of silver, except by international The Hawaiian Islands should be controlled agreement with the leading commercial na- by the United States, and no foreign power tions of the earth, which agreement we pledge should be permitted to interfere with them. ourselves to promote, and until such agree- The Nicaragua Canal should be built, owned ment can be obtained the existing gold stand- and operated by the United States. And, by ard must be maintained. All of our silver the purchase of the Danish Islands we should and paper currency must be maintained at secure a much needed Naval station in the parity with gold, and we favor all measures West Indies... .

342. BRYAN’S CROSS OF GOLD SPEECH July 8, 1896

(W. J. Bryan, The First Battle, p. 199 ff.) Bryan, a delegate from Nebraska to the Demo-_ tion offered in commendation of the Adcratic National Convention at Chicago, made ministration, and also, the resolution offered the concluding speech in the debate on the jn condemnation of the Administration. We adoption of the platform. This speech, the most object to bringing this question down to the notable of his career and one of the most no- level of persons. The individual is but an dramatized Bryan before the Convention and 20M, he is born, he acts, he dies; but prindid much to bring about a nomination already ciples are eternal; and this has been a conhighly probable. See, Bryan, The First Battle, test over a principle. passim; The Memoirs of William Jennings Never before in the history of this country Bryan, ch. vi; P. Hibben, The Peerless Leader, has there been witnessed such a contest as William Jennings Bryan, chs. xv, xvi; M. Sulli- — that through which we have just passed.

table in the history of American oratory, P :

van, Our Times: the Turn of the Century. Never before in the history of American politics has a great issue been fought out as I would be presumptuous, indeed, to pre- this issue has been, by the voters of a great sent myself against the distinguished gentle- party. On the fourth of March 1893, a few men to whom you have listened if this were Democrats, most of them members of Con4 mere measuring of abilities; but this is gress, issued an address to the Democrats of not a contest between persons. The humblest _ the nation, asserting that the money question

citizen in all the land, when clad in the was the paramount issue of the hour; declararmor of a righteous cause, is stronger than ing that a majority of the Democratic party all the hosts of error. I come to speak to you had the right to control the action of the in defense of a cause as holy as the cause party on this paramount issue; and conclud-

of liberty—the cause of humanity. ing with the request that the believers in the When this debate is concluded, a motion free coinage of silver in the Democratic

will be made to lay upon the table the resolu- party should organize, take charge of, and

BRYAN’S CROSS OF GOLD SPEECH 175 control the policy of the Democratic party. toils all day, who begins in the spring and Three months later, at Memphis, an organiza- toils all summer, and who by the application

tion was perfected, and the silver Democrats of brain and muscle to the natural rewent forth openly and courageously proclaim- sources of the country creates wealth, is as

ing their belief, and declaring that, if suc- much a business man as the man who goes cessful, they would crystallize into a plat- upon the Board of Trade and bets upon the form the declaration which they had made. price of grain; the miners who go down a Then began the struggle. With a zeal ap- thousand feet into the earth, or climb two proaching the zeal which inspired the Cru- thousand feet upon the cliffs, and bring forth saders who followed Peter the Hermit, our from their hiding places the precious metals silver Democrats went forth from victory to be poured into the channels of trade are unto victory until they are now assembled, as much business men as the few financial not to discuss, not to debate, but to enter magnates who, in a back room, corner the up the judgement already rendered by the money of the world. We come to speak of plain people of this country. In this contest this broader class of business men.

brother has been arrayed against brother, Ah, my friends, we say not one word

father against son. The warmest ties of love, against those who live upon the Atlantic acquaintance, and association have been dis- Coast, but the hardy pioneers who have regarded; old leaders have been cast aside braved all the dangers of the wilderness, who when they have refused to give expression have made the desert to bloom as the rose to the sentiments of those whom they would -—the pioneers away out there [pointing to lead, and new leaders have sprung up to give the West] who rear their children near to direction to this cause of truth. Thus has the Nature’s heart, where they can mingle their contest been waged, and we have assembled voices with the voices of the birds—out there here under as binding and solemn instructions where they have erected schoolhouses for the

as were ever imposed upon representatives education of their young, churches where

of the people. they praise their Creator, and cemeteries We do not come as individuals. As in- where rest the ashes of their dead—these

dividuals we might have been glad to compli- people, we say, are as deserving of the conment the gentleman from New York [Sena- sideration of our party as any people in this tor Hill], but we know that the people for country. It is for these that we speak. We do whom we speak would never be willing to not come as aggressors. Our war is not a put him in a position where he could thwart war of conquest; we are fighting in the dethe will of the: Democratic party. I saw it fense of our homes, our families, and poster-

was not a question of persons; it was a_ ity. We have petitioned, and our petitions question of principle, and it is not with glad- have been scorned; we have entreated, and

ness, my friends, that we find ourselves our entreaties have been disregarded; we brought into conflict with those who are have begged, and they have mocked when

now arrayed on the other side... . our calamity came. We beg no longer; we When you [turning to the gold delegates] entreat no more; we petition no more. We come before us and tell us that we are about defy them!

to disturb your business interests, we reply The gentleman from Wisconsin [Vilas] that you have disturbed our business inter- has said that he fears a Robespierre. My

ests by your course. friends, in this land of the free you need We say to you that you have made the not fear that a tyrant will spring up from

definition of a business man too limited in among the people. What we need is an Anits application. The man who is employed drew Jackson to stand, as Jackson stood. for wages is as much a business man as his against the encroachments of organized employer; the attorney in a country town wealth. is as much a business man as the corporation They tell us that this platform was made counsel in a great metropolis; the merchant to catch votes. We reply to them that changat the cross-roads store is as much a business ing conditions make new issues; that the man as the merchant of New York; the principles upon which Democracy rests are farmer who goes forth in the morning and as everlasting as the hills, but they must be

176 DOCUMENTS OF AMERICAN History applied to new conditions as they arise. Con- of money is a function of government, and ditions have arisen, and we are here to meet that the banks ought to go out of the governthose conditions. They tell us that the in- ing business. come tax ought not to be brought in here; They complain about the plank which dethat it is a new idea. They criticize us for clares against life tenure in office. They have our criticism of the Supreme Court of the tried to strain it to mean that which it does

United States. My friends, we have not not mean. What we oppose by that plank is criticized; we have simply called attention the life tenure which is being built up in to what you already know. If you want Washington, and which excludes from parcriticisms read the dissenting opinions of the ticipation in official benefits the humbler

court. There you will find criticisms. They members of sociely. ... say that we passed an unconstitutional law; And now, my friends, let me come to the we deny it. The income tax was not uncon- paramount issue. If they ask us why it is stitutional when it was passed; it was not that we say more on the money question unconstitutional when it went before the Su- than we say upon the tariff question, I reply preme Court for the first time; it did not be- that, if protection has slain its thousands, the come unconstitutional until one of the judges gold standard has slain its tens of thousands. changed his mind, and we cannot be expected If they ask us why we do not embody in our to know when a judge will change his mind. platforms all the things that we believe in,

The income tax is just. It simply intends to we reply that when we have restored the put the burden of government justly upon money of the Constitution, all other necesthe backs of the people. I am in favor of an sary reform will be possible: but that until income tax. When I find a man who is not this is done, there is no other reform that willing to bear his share of the burdens of | can be accomplished. the government which protects him, I find Why is it that within three months such a a man who is unworthy to enjoy the blessings change has come over the country? Three

of a government like ours. months ago when it was confidently asserted

They say that we are opposing national that those who believed in the gold standbank currency; it is true. If you will read ard would frame our platform and nominate what Thomas Benton said, you will find he our candidates, even the advocates of the said that, in searching history, he could find gold standard did not think that we could but one parallel to Andrew Jackson; that elect a President. And they had good reason was Cicero, he destroyed the conspiracy of for their doubt, because there is scarcely a Cataline and saved Rome. Benton said that State here today asking for the gold standCicero only did for Rome what Jackson did ard which is not in the absolute control of for us when he destroyed the bank conspiracy the Republican Party. But note the change. and saved America. We say in our platform Mr. McKinley was nominated at St. Louis

we believe that the right to coin and issue upon a platform which declared for the money is a function of government. We be- maintenance of the gold standard until it can

lieve it. We believe that it is a part of be changed into bimetallism by international sovereignty, and can no more with safety agreement. Mr. McKinley was the most be delegated to private individuals than we popular man among the Republicans, and could afford to delegate to private individuals three months ago everybody in the Republi-

the power to make penal statutes or levy can Party prophesied his election. How is it taxes. Mr. Jefferson, who was once regarded today? Why, the man who was once pleased as good Democratic authority, seems to have to think that he looked like Napoleon—that differed in opinion from the gentleman who man shudders today when he remembers that has addressed us on the part of the minority. he was nominated on the anniversary of the Those who are opposed to this proposition battle of Waterloo.

tell us that the issue of paper money is a Not only that, but as he listens, he can function of the banks, and that the govern- hear with ever-increasing distinctness the ment ought to go out of the banking busi- sound of the waves as they beat upon the ness. I stand with Jefferson rather than with lonely shores of St. Helena. them, and tell them, as he did, that the issue Why this change? Ah, my friends, is not

BRYAN’S CROSS OF GoLtb SPEECH 177 the reason for the change evident to any land have ever declared themselves in favor one who will look at the matter? No private of the gold standard. They can find where character, however pure, no personal popular- the holders of fixed investments have deity, however great, can protect from the clared for a gold standard, but not where the avenging wrath of an indignant people a man masses have. Mr. Carlisle said in 1878 that who will declare that he is in favor of fasten- this was a struggle between the “idle holders ing the gold standard upon this country, or of idle capital” and “the struggling masses, who is willing to surrender the right of self- who produce the wealth and pay the taxes government and place the legislative control of the country,” and, my friends, the quesof our affairs in the hands of foreign poten- tion we are to decide is: Upon which side

tates and powers. will the Democratic party fight; upon the

We go forth confident that we shall win. side of “the idle holders of idle capital” or Why? Because upon the paramount issue of upon the side of “the struggling masses’? this campaign there is not a spot of ground That is the question which the party must upon which the enemy will dare to chal- answer first, and then it must be answered by lenge battle. If they tell us that the gold each individual hereafter. The sympathies of ' standard is a good thing, we shall point to the Democratic party, as shown by the plattheir platform and tell them that their plat- form, are on the side of the struggling masses

form pledges the party to get rid of the who have ever been the foundation of the gold standard and substitute bimetallism. If Democratic party. There are two ideas of the gold standard is a good thing why try to government. There are those who believe

get rid of it? I call your attention to the that if you will only legislate to make the fact that some of the very people who are well-to-do prosperous, their prosperity will in this Convention today and who tell us leak through on those below. The Demothat we ought to declare in favor of inter- cratic idea, however, has been that if you national bimetallism—thereby declaring that make the masses prosperous, their prosperity

the gold standard is wrong and that the prin-_ will find its way up through every class ciple of bimetallism is better—these very which rests upon them.

people four months ago were open and You come to us and tell us that the great avowed advocates of the gold standard, and cities are in favor of the gold standard; we

were then telling us that we could not legis- reply that the great cities rest upon our late two metals together, even with the aid broad and fertile prairies. Burn down your of all the world. If the gold standard is a cities and Icave our farms, and your cities good thing, we ought to declare in favor of _ will spring up again as if by magic; but deits retention and not in favor of abandoning — stroy our farms and the grass will grow in it; and if the gold standard is a bad thing _ the streets of every city in the country.

why should we wait until other nations are My friends, we declare that this nation is willing to help us to let go? Here is the line able to legislate for its own people on every of battle, and we care not upon which issue question, without waiting for the aid or conthey force the fight; we are prepared to meet sent of any other nation on earth; and upon them on either issue or on both. If they tell that issue we expect to carry every state in

us that the gold standard is the standard of the Union. I shall not slander the inhabitcivilization, we reply to them that this, the ants of the fair state of Massachusetts nor most enlightened of all the nations of the the inhabitants of the state of New York by earth, has never declared for a gold stand- saying that, when they are confronted with ard and that both the great parties this year the proposition, they will declare that this are declaring against it. If the gold standard nation is not able to attend to its own busiis the standard of civilization, why, my _ ness. It is the issue of 1776 over again. Our friends, should we not have it? If they come ancestors, when but three million in number,

to meet us on that issue we can present had the courage to declare their political the history of our nation. More than that; independence of every other nation; shall we can tell them that they will search the we, their descendants, when we have grown pages of history in vain to find a single in- to seventy millions, declare that we are less stance where the common people of any independent than our forefathers?

178 DOCUMENTS OF AMERICAN History . No, my friends, that will never be the ver- and defend the gold standard as a good thing,

dict of our people. Therefore, we care not we will fight them to the uttermost. Havupon what lines the battle is fought. If they ing behind us the producing masses of this

say bimetallism is good, but that we cannot nation and the world, supported by the comhave it until other nations help us, we re- mercial interests, the laboring interests and ply, that instead of having a gold standard the toilers everywhere, we will answer their

because England has, we will restore bi- demand for a gold standard by saying to metallism, and then let England have bimet- them: You shall not press down upon the allism because the United States has it. If brow of labor this crown of thorns, you shall they dare to come out in the open field not crucify mankind upon a cross of gold.

$43. THE DEMOCRATIC PLATFORM OF 1896 Chicago

July 8, 1896 (K. Porter, ed. National Party Platforms, p. 182 ff.) When the Democrats assembled at Chicago, tions into financial servitude to London. It July 7, the silver wing of the party was in com- ig not only un-American but anti-American, plete control of the situation, A platform com- and it can be fastened on the United States mitting the party to free and unlimited coinage only by the stifling of that spirit and love of silver was adopted by a large majority, and f libert hich laimed litical in. William Jennings Bryan was named for the OF Aberty wailed prociaime Our poitical im Presidency. See Doc. No. 342. Bryan polled dependence in 1776 and won it in the War about six and one half million votes and won Of the Revolution. 176 electoral votes. For references see Doc. No. We demand the free and unlimited coinage

341. of both silver and gold at the present legal ratio of 16 to 1 without waiting for the aid

... The Money Plank or consent of any other nation. We demand

Recognizing that the money question is that the standard silver dollar shall be a full paramount to all others at this time we invite legal tender, equally with gold, for all debts, attention to the fact that the Federal Con- public and private, and we favor such legisstitution named silver and gold together as__ lation as will prevent for the future the de-

the money metals of the United States, and monetization of any kind of legal tender that the first coinage law passed by Congress money by private contract.

under the Constitution made the silver dol- We are opposed to the policy and praclar the monetary unit and admitted gold to tice of surrendering to the holders of the free coinage at a ratio based upon the silver- obligations of the United States the option

dollar unit. reserved by law to the government of reWe declare that the act of 1873 demone- deeming such obligations in either silver coin tizing silver without the knowledge or ap-_ or gold coin.

roval of the American people has resulted

. the appreciation of gold and a correspond- Interest-Bearing Bonds ing fall in the prices of commodities pro- We are opposed to the issuing of interestduced by the people; a heavy increase in the bearing bonds of the United States in time burdens of taxation and of all debts, public of peace and condemn the trafficking with and private; the enrichment of the money- banking syndicates, which, in exchange for lending class at home and abroad; the pros- bonds and at enormous profit to themselves.

’ tration of industry and impoverishment of supply the Federal Treasury with gold to

the people. maintain the policy of gold monometallism. We are unalterably opposed to monomet- . . allism which has locked fast the prosperity Against National Banks

of an industrial people in the paralysis of Congress alone has the power to coin and hard times. Gold monometallism is a British issue money, and President Jackson declared policy, and its adoption has brought other na-___ that this power could not be delegated to

Toe DEMOCRATIC PLATFORM OF 1896 179 corporations or individuals. We therefore

denounce the issuance of notes intended to Trusts and Pools circulate as money by National banks as in The absorption of wealth by the few, the derogation of the Constitution, and we de- consolidation of our leading railroad sysmand that all paper which is made a legal tems, and the formation of trusts and pools tender for public and private debts, or which require a stricter control by the Federal is receivable for dues to the United States, Government of those arteries of commerce. shall be issued by the Government of the We demand the enlargement of the powers United States and shall be redeemable in of the Interstate Commerce Commission and

coin. such restriction and guarantees in the control of railroads as will protect the people

Tariff Resolution from robbery and oppression. ... We hold that tariff duties shall be levied Federal Interference in Local Affairs for purposes of revenue, such duties to be We denounce arbitrary interference by so adjusted as to operate equally throughout Federal authorities in local affairs as a vio-

the country, and not discriminate between ation of the Constitution of the United class or section, and that taxation shall be tates and a crime against free institutions limited by the needs of the Government, nq we especially object to government by honestly and economically administered. We injunction as a new and highly dangerous denounce as disturbing to business the Re- gop of oppression by which Federal Judges, publican threat to restore the McKinley law, ;,, contempt of the laws of the States and which has twice been condemned by the rights of citizens, become at once legislators, people in National elections and which, eN- judges and executives: and we approve the acted under the false plea of protection to hii) passed at the last session of the United home industry, proved a prolific breeder of states Senate, and now pending in the House trusts and monopolies, enriched the few at 4¢ Representatives, relative to contempt in

the expense of the many, restricted trade federal courts and providing for trials by and deprived the producers of the great jury in certain case of contempt... .

American staples of access to their natural

markets. — Sympathy for Cuba Until the money question 1s settled we The Monroe doctrine, as originally deare opposed to any agitation for further lared d at ted b dj changes in our tariff laws, except such as Clared, and as) Mberprere Y Ssuceee cing

are necessary to meet the deficit in revenue Presidents, sa permanent part of the forcaused by the adverse decision of the Su- een policy of the United States, and must preme Court on the income tax. But for this at all times be maintained. decision of the Supreme Court, there would We extend our sympathy to the people of be no deficit in the revenue under the law Cuba in their herioc struggle for liberty and passed by the Democratic Congress in strict independence.

pursuance of the uniform decisions of that Civil-Service Laws

court for nearly 100 years, that court having ,

in that decision sustained Constitutional ob- __ We are opposed to life tenure in the pubjections to its enactment which had previ- lic service, except as provided in the Conously been overruled by the ablest Judges stitution. We favor appointments based on who have ever sat on that bench. We declare merit, fixed terms of office, and such an ad-

that it is the duty of Congress to use all ministration of civil-service laws as will afthe Constitutional power which remains after ford equal opportunities to all citizens of that decision, or which may come from its ascertained fitness.

reversal by the court as it may hereafter be . constituted, so that the burdens of taxation Third-Term Resolution

may be equally and impartially laid, to the We declare it to be the unwritten law of end that wealth may bear its due propor- this Republic, established by custom and tion of the expense of the Government. ... usage of 100 years, and sanctioned by the

180 DOCUMENTS OF AMERICAN HisToRyY examples of the greatest and wisest of those ernment that no man should be eligible for a who founded and have maintained our Gov- third term of the Presidential office.

344. HOLDEN v. HARDY 169 U. S. 366 1898

Error to the Supreme Court of the State of for the public welfare without bringing them Utah. Compare this decision to Lochner v. New into conflict with the supreme law of the

York, Doc. No. 364. land... .

This right of contract, however, is itself Brown, J. This case involves the consti- subject to certain limitations which the state tulionality of an act of the legislature of may lawfully impose in the exercise of its Utah of March 30, 1896, chap. 72, entitled police powers. While this power is inherent “An Act Regulating the Hours of Employ- in all governments, it has doubtless been ment in Underground Mines and in Smelters greatly expanded in its application during the

and Ore Reduction Works.” .. . past century, owing to an enormous increase The validity of the statute in question is, in the number of occupations which are dan-

. .. Challenged upon the ground of an al- gerous, or so far detrimental to the health leged violation of the 14th amendment to of employees as to demand special precauthe Constitution of the United States, in that tion for their well-being and protection, or it abridges the privileges or immunities of the safety of adjacent property. While this citizens of the United States; deprives both court has held that the police power cannot the employer and the laborer of his prop- be put forward as an excuse for oppressive erly without due process of law, and denies and unjust legislation, it may be lawfully reto them the equal protection of the laws... . sorted to for the purpose of preserving the In passing upon the validity of state legis- public health, safety, or morals, or the abatelation under that Amendment, this court has ment of public nuisances, and a large disnot failed to recognize the fact that the law cretion “is necessarily vested in the legisla-

is to a certain extent a progressive science; ture to determine, not only what the that in some of the states methods of pro- interests of the public require, but what cedure which, at the time the Constitution measures are necessary for the protection of was adopted, were deemed essential to the such interests.” .. . protection and safety of the people, or to But if it be within the power of a legislathe liberty of the citizen, have been found ture to adopt such means for the protection to be no longer necessary; that restrictions of the lives of its citizens, it is difficult to which had formerly been laid upon the con- see why precautions may not also be adopted duct of individuals, or of classes of indi- for the protection of their health and morals. viduals, had proved detrimental to their in- It is as much for the interest of the state that terests; while, upon the other hand, certain the public health should be preserved as other classes of persons, particularly those that life should be made secure. With this engaged in dangerous or unhealthful employ- end in view quarantine laws have been enments, have been found to be in need of ad- acted, in most if not all of the states; insane

ditional protection. ... asylums, public hospitals, and institutions for

While the cardinal principles of justice are the care and education of the blind estabimmutable, the methods by which justice is lished, and special measures taken for the administered are subject to constant fluctua- exclusion of infected cattle, rags, and de-

tion, and the Constitution of the United cayed fruit. In other states laws have been States, which is necessarily and to a large enacted limiting the hours during which extent inflexible and exceedingly difficult of _ women and children shall be employed in amendment, should not be so construed as to factories; and while their constitutionality,

deprive the states of the power to so amend at least as applied to women, has been their laws as to make them conform to the doubted in some of the states, they have wishes of the citizens as they may deem best been generally upheld... .

THE DE LOME LETTER 181 Upon the principles above stated, we think as long as they please is alleged to be the act in question may be sustained as a_ thereby violated. The argument would cervalid exercise of the police power of the tainly come with better grace and greater state. The enactment does not profess to cogency from the latter class. But the fact limit the hours of all workmen, but merely that both parties are of full age and comthose who are employed in underground petent to contract does not necessarily demines, or in the smelting, reduction, or re- prive the state of the power to interfere fining of ores or metals. These employments where the parties do not stand upon an when too long pursued the legislature has equality, or where the public health demands judged to be detrimental to the health of that one party to the contract shall be prothe employees, and, so long as there are tected against himself. ‘‘The state still rereasonable grounds for believing that this tains an interest in his welfare, however reckis so, its decision upon this subject cannot less he may be. The whole is no greater than

be reviewed by the Federal courts. the sum of all the parts, and when the indiWhile the general experience of mankind vidual health, safety, and welfare are sacrimay justify us in believing that men may en- _ ficed or neglected, the state must suffer.”

gage in ordinary employments more than We have no disposition to criticise the eight hours per day without injury to their many authorities which hold that state stathealth, it does not follow that labor for the utes restricting the hours of labor are unconsame length of time is innocuous when car- _ stitutional. Indeed, we are not called upon

ried on beneath the surface of the earth, to express an opinion upon this subject. It when the operative is deprived of fresh air is sufficient to say of them that they have and sunlight, and is frequently subjected to no application to cases where the legislature foul atmosphere and a very high temperature, had adjudged that a limitation is necessary

or to influence of noxious gases, generated for the preservation of the health of emby the processes of refining or smelting. ... ployees, and there are reasonable grounds for

It may not be improper to suggest in this believing that such determination is supconnection that although the prosecution in ported by the facts. The question in each this case was against the employer of labor, case is whether the legislature has adopted who apparently under the statute is the only the statute in exercise of a reasonable disone liable, his defense is not so much that cretion, or whether its action be a mere his right to contract has been infringed excuse for an unjust discrimination, or the upon, but that the act works a peculiar hard- oppression, or spoliation of a particular ship to his employees, whose right to labor class... .

345. THE DE LOME LETTER December 1897

(Foreign Relations of the United States, 1898, p. 1007)

hsepuvale iter from the Spanish Minister in MY stolen DISTINGUISHED United States to a friend was from y AND DEAR the Havana post-office by an insurgent spy and oN vou nave no iuitten ° ask ny

held by the Cuban junta in the United States ht also to h owing ome.

until it could be most effectively used. It was CUB DE 2'SO rO have written to you, but I have

given to the press February 9, 1898. De Léme put off doing so because overwhelmed with at once cabled his resignation. De Léme had WOrk and nous sommes quittes. been an exceptionally able diplomat, and his hu- The situation here remains the same. miliation constitutes one of the unpleasant epi- Everything depends on the political and milsodes in the annals of American diplomacy. See, itary outcome in Cuba... . W. Millis, The Martial Spirit, p. 96 ff.; M. A. The message has been a disillusionment. to

insite on and the Spanish the insurgents, who expected something dif-

» P. ferent; but I regard it as bad (for us).

LEGATION OF SPAIN, Washington. Besides the ingrained and inevitable blunt-

His Excellency Don JOSE CANALEJAS. ness (groseria) with which is repeated all

182 DocUMENTS OF AMERICAN History that the press and public opinion in Spain swarms in your hotels are Englishmen, and have said about Weyler, it once more shows while writing for the Journal they are also what nrcusiney 1s, weak and a bidder for the correspondents of the most influential jouradmiration of the crowd, besides being a nals and reviews of London. It has been so would-be politician (politicastro) who tries to ever since this thing began. As I look at it leave a door open behind himself while keep- England’s only object is that the Americans Ing on good terms with the jingoes of his should amuse themselves with us and leave

party. her alone; and if there should be a war, that Nevertheless, whether the practical results would the better stave off the conflict which of it [the message] are to be injurious and she dreads but which will never come about.

adverse vepends only upon ourselves. m It woe i. very advantageous to take up, am enurely of your opinions; without even if only for effect, the question of com-

a military end of the matter nothing will be mercial relations, and to have a man of some accomplished in Cuba, and without a mili- prominence sent hither in order that I may tary and political settlement there will al- make use of him here to Carry on a propaways be the danger of encouragement being ganda among the Senators and others in Op-

piven to the 1f insurgents Py Government. a part of the pubto the junta ic opinion not by the .. . position the refugees... . and to try to win over I do not think sufficient attention has been Ever your attached friend and servant,

paid to the part England 1S playing. ENRIQUE DEPUY DE LOME. Nearly all the newspaper rabble that

346. McKINLEY’S WAR MESSAGE April 11, 1898 (Richardson, ed. Messages and Papers, Vol. X, p. 139 ff.) In this message to Congress President McKinley as he shall judge necessary and expedient, it recounted the events which in his opinion justi- becomes my duty to now address your body fied intervention in Cuba. Filled with suggestion = with regard to the grave crisis that has arisen and innuendo, the account is thoroughly mis- in the relations of the United States to Spain leading, but it struck a responsive note in Con-

. by reason of the warfare that for more than

gress in the public mind. In as three much ashas h hraged dininththe‘shboring | Spain, inand the note received by McKinley April years neighboring is10, promised to order an immediate cessation of ‘and of Cuba... . a

hostilities in Cuba, the principal basis for inter- The present revolution is but the succesvention had disappeared. For recognition of sor of other similar insurrections which have Cuban independence, see Doc. No. 347. See occurred in Cuba against the dominion of W. Millis, The Martial Spirit; F. E. Chadwick, Spain, extending over a period of nearly half Relations of the United States and Spain, Vol. 1; a century, each of which during its progC. S. rane oa) e of William ie cnn : voIs ress has subjected the United States to great J. H. Latane, America as a Wor owen SO. 1 effort and expense in enforcing its neutral-

For diplomatic correspondence, sce Foreign Re- ty ] d 1 to A .

lations of the United States, 1898; and Spanish '\Y “AWS, Caused enormous losses to /Amerl-

Diplomatic Correspondence and Documents, ¢an trade and commerce, caused Irritation. 1896-1900. An analysis of this is in H. E. Flack, annoyance, and disturbance among our ciliSpanish-American Diplomatic Relations Pre- zens, and, by the exercise of cruel, barbarous,

ceding the War of 1898. and uncivilized practices of warfare, shocked

the sensibilities and offended the human sym-

EXECUTIVE Mansion, April 11, 1898. pathies of our people... . To the Congress of the United States: Our trade has suffered, the capital invested Obedient to that precept of the Consti- by our citizens in Cuba has been largely lost, tution which commands the President to give and the temper and forbearance of our peofrom time to time to the Congress informa- ple have been so sorely tried as to beget a tion of the state of the Union and to rec- perilous unrest among our own citizens, which ommend to their consideration such measures _ has inevitably found its expression from time

McKitNLtEyY’sS WAR MESSAGE 183 to time in the National Legislature, so that past the orders of General Weyler have been issues wholly external to our own body poli- revoked. The reconcentrados, it is said, are tic engross attention and stand in the way of _ to be permitted to return to their homes and that close devotion to domestic advancement aided to resume the self-supporting pursuits that becomes a self-contained commonwealth of peace. Public works have been ordered whose primal maxim has been the avoidance to give them employment and a sum of

of all foreign entanglements. All this must $600,000 has been appropriated for their needs awaken, and has, indeed, aroused, the _ relief.

utmost concern on the part of this Govern- The war in Cuba is of such a nature that, ment, as well during my predecessor’s term short of subjugation or extermination, a final

as in my own. military victory for either side seems im-

In April, 1896, the evils from which our practicable. The alternative lies in the physcountry suffered through the Cuban war be- ical exhaustion of the one or the other party, came so onerous that my predecessor made or perhaps of both—a condition which in an effort to bring about a peace through the — effect ended the ten years’ war by the truce mediation of this Government in any way of Zanjon. The prospect of such a protracthat might tend to an honorable adjustment tion and conclusion of the present strife is of the contest between Spain and her revolted a contingency hardly to be contemplated with colony, on the basis of some effective scheme equanimity by the civilized world, and least of self-government for Cuba under the flag of all by the United States, affected and inand sovereignty of Spain. It failed through jured as we are, deeply and intimately, by the refusal of the Spanish government then its very existence. in power to consider any form of mediation Realizing this, it appeared to be my duty, or, indeed, any plan of settlement which did in a spirit of true friendliness, no less to not begin with the actual submission of the Spain than to the Cubans, who have so much insurgents to the mother country, and then to lose by the prolongation of the struggle, only on such terms as Spain herself might see to seek to bring about an immediate termina-

fit to grant. The war continued unabated. tion of the war. To this end I submitted The resistance of the insurgents was in no- on the 27th ultimo, as a result of much

wise diminished... . representation and correspondence, through The overtures of this Government made the United States minister at Madrid, propothrough its new envoy, General Woodford, — sitions to the Spanish Government looking

and looking to an immediate and effective to an armistice until October 1 for the neamelioration of the condition of the island, gotiation of peace with the good offices of although not accepted to the extent of ad- the President. mitted mediation in any shape, were met by In addition I asked the immediate revocaassurances that home rule in an advanced _ tion of the order of reconcentration, so as phase would be forthwith offered to Cuba, to permit the people to return to their farms without waiting for the war to end, and and the needy to be relieved with provisions that more humane methods should thence- and supplies from the United States, coforth prevail in the conduct of hostilities. operating with the Spanish authorities, so as Coincidentally with these declarations the to afford full relief. new government of Spain continued and com- The reply of the Spanish cabinet was re-

pleted the policy, already begun by its ceived on the night of the 31st ultimo. It

predecessor, of testifying friendly regard offered, as the means to bring about peace for this nation by releasing American citi- in Cuba, to confide the preparation thereof zens held under one charge or another con-_ to the insular parliament, inasmuch as the nected with the insurrection, so that by the concurrence of that body would be necessary end of November not a single person entitled to reach a final resu't, it being, however, in any way to our national protection re- understood that the powers reserved by the

mained in a Spanish prison... . constitution to the central Government are The necessity for a change in the condi- not lessened or diminished. As the Cuban tion of the reconcentrados is recognized by parliament does not meet until the 4th of the Spanish Government, Within a few days May next, the Spanish Government would

184 DOCUMENTS OF AMERICAN HISTORY not object for its part to accept at once a As to the first, it is not to be forgotten that suspension of hostilities if asked for by the during the last few months the relation of insurgents from the general in chief, to the United States has virtually been one of whom it would pertain in such case to deter- friendly intervention in many ways, each mine the duration and conditions of the not of itself conclusive, but all tending to

armistice. ... the exertion of a potential influence toward With this last overture in the direction of an ultimate pacific result, just and honorable immediate peace, and its disappointing re- to all interests concerned. The spirit of all ception by Spain, the Executive is brought to our acts hitherto has been an earnest, un-

the end of his effort. selfish desire for peace and prosperity in In my annual message of December last Cuba, untarnished by differences between us

I said. and Spain and unstained by the blood of Of the untried measures there remain only: American citizens.

recognition of the insurgents as belligerents; The forcible intervention of the United recognition of the independence of Cuba; States as a neutral to stop the war, according neutral intervention to end the war by im-_ to the large dictates of humanity and followposing a rational compromise between the ing many historical precedents where neighcontestants, and intervention in favor of one boring states have interfered to check the or the other party. I speak not of forcible hopeless sacrifices of life by internecine conannexation, for that can not be thought of. flicts beyond their borders, is justifiable on That, by our code of morality, would be — rational grounds. It involves, however, hostile

criminal aggression. constraint upon both the parties to the conThereupon I reviewed these alternatives in test, as well to enforce a truce as to guide

the light of President Grant’s measured words, the eventual settlement.

uttered in 1875, when, after seven years of The grounds for such intervention may be sanguinary, destructive, and cruel hostilities briefly summarized as follows: in Cuba, he reached the conclusion that the First. In the cause of humanity and to put recognition of the independence of Cuba was an end to the barbarities, bloodshed, starvaimpracticable and indefensible and that the _ tion, and horrible miseries now existing there, recognition of belligerence was not warranted and which the parties to the conflict are by the facts according to the tests of public either unable or unwilling to stop or mitigate. law. I commented especially upon the latter It is no answer to say this is all in another aspect of the question, pointing out the in- country, belonging to another nation, and

conveniences and positive dangers of a is therefore none of our business. It is

recognition of belligerence, which, while add- specially our duty, for it is right at our door. ing to the already onerous burdens of neutral- Second. We owe it to our citizens in Cuba ity within our own jurisdiction, could not to afford them that protection and indemnity in any way extend our influence or effective for life and property which no government

offices in the territory of hostilities. there can or will afford, and to that end Nothing has since occurred to change my _ to terminate the conditions that deprive them

view in this regard, and I recognize as fully of legal protection.

now as then that the issuance of a proclama- Third. The right to intervene may be tion of neutrality, by which process the so- justified by the very serious injury to the called recognition of belligerents is published, commerce, trade, and business of our people could of itself and unattended by other action and by the wanton destruction of property accomplish nothing toward the one end for and devastation of the island.

which we labor—the instant pacification of Fourth, and which is of the utmost imCuba and the cessation of the misery that portance. The present condition of affairs in

afflicts the island... . Cuba is a constant menace to our peace and

There remain the alternative forms of in- entails upon this Government an enormous tervention to end the war, either as an im- expense. With such a conflict waged for years partial neutral, by imposing a rational com- in an island so near us and with which our

promise between the contestants, or as the people have such trade and business rela-

active ally of the one party or the other, tions; when the lives and liberty of our

McKINLEY’S WAR MESSAGE 185 citizens are in constant danger and their condition which can no longer be endured is property destroyed and themselves ruined; the enforced pacification of Cuba. In the where our trading vessels are liable to seizure name of humanity, in the name of civilizaand are seized at our very door by war ships tion, in behalf of endangered American inof a foreign nation; the expeditions of fili- terests which give us the right and the duty bustering that we are powerless to prevent al- to speak and to act, the war in Cuba must together, and the irritating questions and _ stop. entanglements thus arising—all these and In view of these facts and of these conothers that I need not mention, with the siderations I ask the Congress to authorize resulting strained relations, are a constant and empower the President to take measures

menace to our peace and compel us to- to secure a full and final termination of

keep on a semi-war footing with a nation hostilities between the Government of Spain

with which we are at peace. and the people of Cuba, and to secure in the These elements of danger and disorder al- island the establishment of a stable governready pointed out have been strikingly il- ment, capable of maintaining order and ob-

lustrated by a tragic event which has deeply _ serving its international obligations, insuring

and justly moved the American people. I peace and tranquillity and the security of its have already transmitted to Congress the re- citizens as well as our own, and to use the port of the naval court of inquiry on the military and naval forces of the United States destruction of the battle ship Maine in the as may be necessary for these purposes.

harbor of Havana during the night of the And in the interest of humanity and to 15th of February. The destruction of that aid in preserving the lives of the starving noble vessel has filled the national heart with people of the island I recommend that the inexpressible horror. Two hundred and fifty- distribution of food and supplies be continued eight brave sailors and marines and two of- and that an appropriation be made out of the ficers of our Navy, reposing in the fancied public Treasury to supplement the charity

security of a friendly harbor, have been of our citizens. hurled to death, grief and want brought to The issue is now with the Congress. It is a their homes and sorrow to the nation. solemn responsibility. I have exhausted every The naval court of inquiry, which, it is effort to relieve the intolerable condition of needless to say, commands the unqualified affairs which is at our doors. Prepared to confidence of the Government, was unani- execute every obligation imposed upon me mous in its conclusion that the destruction by the Constitution and the law, I await of the Maine was caused by an exterior ex- your action. plosion—that of a submarine mine. It did Yesterday, and since the preparation of the not assume to place the responsibility. That foregoing message, official information was

remains to be fixed. received by me that the latest decree of the

In any event, the destruction of the Maze, Queen Regent of Spain directs General by whatever exterior cause, is a patent and Blanco, in order to prepare and facilitate

impressive proof of a state of things in Cuba peace, to proclaim a suspension of hostilities,

that is intolerable. That condition is thus the duration and details of which have not shown to be such that the Spanish Govern- yet been communicated to me. ment can not assure safety and security to This fact, with every other pertinent con-

a vessel of the American Navy in the harbor _ sideration, will, I am sure, have your just of Havana on a mission of peace, and right- and careful attention in the solemn delibera-

fully there... . tions upon which you are about to enter. If

The long trial has proved that the object this measure attains a successful result, then for which Spain has waged the war can not our aspirations as a Christian, peace-loving be attained. The fire of insurrection may people will be realized. If it fails, it will be flame or may smolder with varying seasons, only another justification for our contem-

but it has not been and it is plain that it plated action.

can not be extinguished by present methods. WILLIAM McKINLEY. The only hope of relief and repose from a

186 DOCUMENTS OF AMERICAN History 347. THE INDEPENDENCE OF CUBA April 20, 1898

(U.S. Statutes at Large, Vol. XXX, p. 738) April 11, McKinley sent his message to Congress the President of the United States in his recommending intervention in Cuba. See Doc. No. message to Congress of April eleventh, 346, The Joint Resolution of April 20 authorized eighteen hundred and ninety-eight, upon the use of the army and the navy to effect Cuban which the action of Congress was invited: independence; the formal declaration of war fol- Therefore

lowed April 25. The most important of the reso- ;

lutions of April 20 was the fourth, known as the Resolved, First. That the people of the Teller Amendment. See references, Doc. No. 346. 4sland of Cuba are, and of right ought to be, free and independent. second. That it is the duty of the United Joint resolution for the recognition of the States to demand, and the Government of independence of the people of Cuba, demand- the United States does hereby demand, that ing that the Government of Spain relinquish the Government of Spain at once relinquish its authority and government in the Island its authority and government in the Island of Cuba, and to withdraw its land and naval of Cuba and withdraw its land and naval

forces from Cuba and Cuban waters, and forces from Cuba and Cuban waters. directing the President of the United States Third. That the President of the United to use the land and naval forces of the States be, and he hereby is, directed and emUnited States to carry these resolutions into powered to use the entire land and naval

effect. forces of the United States, and to call into

Whereas the abhorrent conditions which the actual service of the United States the have existed for more than three years in the militia of the several States, to such extent Island of Cuba, so near our own borders, as may be necessary to carry these resoluhave shocked the moral sense of the people _ tions into effect.

of the United States, have been a disgrace Fourth. That the United States hereby

to Christian civilization, culminating, as they disclaims any disposition or intention to have, in the destruction of a United States exercise sovereignty, jurisdiction, or control battle ship, with two hundred and sixty-six over said Island except for the pacification of its officers and crew, while on a friendly thereof, and asserts its determination, when visit in the harbor of Havana, and can not that is accomplished, to leave the governlonger be endured, as has been set forth by ment and control of the Island to its people.

348. THE ANNEXATION OF HAWAII July 7, 1898 (U. S. Statutes at Large, Vol. XXX, p. 750-51) Though President Cleveland withdrew from the order to avoid the danger of rejection by oneSenate the Treaty of 1893 providing for the an- third of the Senate.

nexation of the Hawaiian Islands and denounced the methods by which the Hawaiian Joint Resolution To provide for annexing, revolution had been brought about, Queen the Hawatian Islands to the United States. Liliuokalani was not restored to the throne. In WHEREAS the Government of the Republic July 1894 the Republic of Hawaii was estab- of Hawaii having, in due form, signified its lished, and was recognized by the United States. consent, in the manner provided by its conAgitation for annexation continued, and a sec- stitution, to cede absolutely and without reond treaty of annexation was concluded in 1897, serve to the United States of America all

While this treaty was still pending in the Senate Ca a

the war with Spain broke out and the United ‘ights of sovereignty of whatsoever kind in

States used the islands as a naval base. The and over the Hawaiian Islands and their islands were then annexed by joint resolution in dependencies, and also to cede and transfer

TREATY OF PEACE WITH SPAIN 187 to the United States the absolute fee and treaties as may exist, or as may be hereownership of all public, Government, or after concluded, between the United States Crown lands, public buildings or edifices, and such foreign nations. The municipal ports, harbors, military equipment, and all legislation of the Hawaiian Islands, not enother public property of every kind and de- acted for the fulfillment of the treaties so scription belonging to the Government of the extinguished, and not inconsistent with this Hawaiian Islands, together with every right joint resolution nor contrary to the Constituand appurtenance thereunto appertaining: tion of the United States nor to any existing

Therefore, treaty of the United States, shall remain in

Resolved, That said cession is accepted, force until the Congress of the United states ratified, and confirmed, and that the said shall otherwise determine. Hawaiian Islands and their dependencies be, Until legislation shall be enacted extending and they are hereby, annexed as a part of the United States customs laws and regulathe territory of the United States and are tions to the Hawaiian Islands the existing subject to the sovereign dominion thereof, customs relations of the Hawaiian Islands and that all and singular the property and with the United States and other countries rights hereinbefore mentioned are vested in shall remain unchanged.

the United States of America. The public debt of the Republic of Hawaii,

The existing laws of the United States lawfully existing at the date of the passage relative to public lands shall not apply to of this joint resolution, including the amounts such lands in the Hawaiian Islands; but the due to depositors in the Hawaiian Postal Congress of the United States shall enact Savings Bank, is hereby assumed by the Govspecial laws for their management and dis- ernment of the United States; but the labilposition: Provided, That all revenue from or ity of the United States in this regard shall proceeds of the same, except as regards such in no case exceed four million dollars. So part thereof as may be used or occupied for long, however, as the existing Government the civil, military, or naval purposes of the and the present commercial relations of the United States, or may be assigned for the Hawaiian Islands are continued as hereinbeuse of the local government, shall be used fore provided said Government shall continue solely for the benefit of the inhabitants of to pay the interest on said debt.

the Hawaiian Islands for educational and There shall be no further immigration of

other public purposes. Chinese into the Hawaiian Islands, except

Until Congress shall provide for the gov- upon such conditions as are now or may

ernment of such islands all the civil, judicial, hereafter be allowed by the laws of the United

and military powers exercised by the officers States; and no Chinese, by reason of anyof the existing government in said islands thing herein contained, shall be allowed to shall be vested in such person or persons’ enter the United States from the Hawaiian and shall be exercised in such manner as the Islands. President of the United States shall direct; The President shall appoint five commisand the President shall have power to remove _ sioners, at least two of whom shall be resi-

said officers and fill the vacancies so oc- dents of the Hawaiian Islands, who shall, as

casioned. soon as reasonably practicable, recommend to The existing treaties of the Hawaiian Is- Congress such legislation concerning the lands with foreign nations shall forthwith Hawaiian Islands as they shall deem necescease and determine, heing replaced by such _ sary or proper. .. .

349. TREATY OF PEACE WITH SPAIN Concluded at Paris December 10, 1898

(U.S. Statutes at Large, Vol. XXX, p. 1754 ff.) The American commissioners were William R. George Gray, and Whitelaw Reid. For the his-

' Day, Cushman K. Davis, William P. Frye, tory of the negotiations see, Papers relating to

188 DOCUMENTS OF AMERICAN History the Treaty with Spain, 56 Cong. 1 Sess. Senate eighteenth (118th) degree meridian of longiDoc. No. 148; R. Cortissoz, Whitelaw Reid, tude east of Greenwich, and thence along the Vol. II, chs. xii, xiii ; J. H. Latané, America 454 one hundred and eighteenth (118th) degree World Power, ch. iv; W. S. Holt, Treaties De- eridian of longitude east of Greenwich to

feated by the Senate, ch. viii. The cession of the th £ begin;

Philippines to the United States precipitated a € point OF Deginning. ; .

contest over ratification that seriously threat- The United States will pay to Spain the

ened the fate of the treaty. sum of twenty million dollars ($20,000,000)

within three months after the exchange of

Art. I. Spain relinquishes all claim of the ratifications of the present treaty.

sovereignty over and title to Cuba. ArT. IV. The United States will, for the

And as the island is, upon its evacuation term of ten years from the date of the exby Spain, to be oecupied by the United States, change of the ratifications of the present the United States will, so long as such oc- treaty, admit Spanish ships and merchandise cupation shall last, assume and discharge the to the ports of the Philippine Islands on the obligations that may under international law same terms as ships and merchandise of the

result from the fact of its occupation, for United States... .

the protection of life and property. ArT. VII. The United States and Spain Art. II. Spain cedes to the United States mutually relinquish all claims for indemnity, the island of Porto Rico and other islands national and individual, of every kind, of now under Spanish sovereignty in the West either Government, or of its citizens or subIndies, and the island of Guam in the Mari- jects, against the other Government, that

anas or Ladrones. may have arisen since the beginning of the Art. III. Spain cedes to the United States late insurrection in Cuba and prior to the

the archipelago known as the Philippine Is- exchange of ratifications of the present treaty,

lands, and comprehending the islands lying including all claims for indemnity for the

within the following line: cost of the war.

A line running from west to east along or The United States will adjudicate and near the twentieth parallel of north latitude, settle the claims of its citizens against Spain and through the middle of the navigable — relinquished in this article.

channel of Bachi, from the one hundred and ArT. VIII. In conformity with the proeighteenth (118th) to the one hundred and _ visions of Articles I, II, and III of this treaty, twenty seventh (127th) degree meridian of Spain relinquishes in Cuba, and cedes in Porto longitude east of Greenwich, thence along the Rico and other islands in the West Indies, one hundred and twenty seventh (127th) in the island of Guam, and in the Philippine degree meridian of longitude east of Green- Archipelago, all the buildings, wharves, barwich to the parallel of four degrees and forty racks, forts, structures, public highways and five minutes (4° 45’) north latitude, thence other immovable property which, in conalong the parellel of four degrees and forty formity with law, belong to the public do-

five minutes (4° 45’) north latitude to its main, and as such belong to the Crown of intersection with the meridian of longitude Spain. one hundred and nineteen degrees and thirty And it is hereby declared that the re-

five minutes (119° 35’) east of Greenwich, linquishment or cession, as the case may be, thence along the meridian of longitude one to which the preceding paragraph refers, canhundred and nineteen degrees and thirty five not in any respect impair the property or minutes (119° 35”) east of Greenwich to the rights which by law belong to the peaceful parallel of latilude seven degrees and forty possession of property of all kinds, of prov-

minutes (7° 40°) north, thence along the inces, municipalities, public or private esparallel of latitude seven degrees and forty tablishments, ecclesiastical or civic bodies, or minutes (7° 40’) north to its intersection any other associations having legal capacity with the one hundred and sixteenth (116th) to acquire and possess property in the aforedegree meridian of longitude east of Green- said territories renounced or ceded, or of wich, thence by a direct line to the intersec- private individuals, of whatsoever nationality tion of the tenth (10th) degree parallel of | such individuals may be.

north latitude with the one hundred and The aforesaid relinquishment or cession, as

THE OPEN Door IN CHINA 189 the case may be, includes all documents ex- ordinary laws governing the same; and they clusively referring to the sovereignty relin- shall have the right to appear before such

quished or ceded that may exist in the ar- courts, and to pursue the same course as

chives of the Peninsula. Where any document citizens of the country to which the courts

in such archives only in part relates to said belong... . sovereignty, a copy of such part will be Art. XIII. The rights of property secured furnished whenever it shall be requested. by copyrights and patents acquired by Like rules shall be reciprocally observed in Spaniards in the Island of Cuba, and in Porto

favor of Spain in respect of documents in Rico, the Philippines and other ceded territhe archives of the islands above referred to. tories, at the time of the exchange of the In the aforesaid relinquishment or cession, _ratifications of this treaty, shall continue to as the case may be, are also included such be respected. Spanish scientific, literary and rights as the Crown of Spain and its au- artistic works, not subversive of public order thorities possess in respect of the official ar- in the territories in question, shall continue

chives and records, executive as well as to be admitted free of duty into such terrijudicial, in the islands above referred to, tories, for the period of ten years, to be which relate to said islands or the rights and reckoned from the date of the exchange of property of their inhabitants. Such archives the ratifications of this treaty... . and records shall be carefully preserved, and Art. XV. The Government of each counprivate persons shall without distinction have try will, for the term of ten years, accord the right to require, in accordance with law, to the merchant vessels of the other country authenticated copies of the contracts, wills the same treatment in respect of all port and other instruments forming part of no- charges, including entrance and clearance tarial protocols or files, or which may be dues, light dues, and tonnage duties, as it contained in the executive or judicial ar- accords to its own merchant vessels, not chives, be the latter in Spain or in the is- engaged in the coastwise trade.

lands aforesaid... . This article may at any time be terminated Art. X. The inhabitants of the territories on six months’ notice given by either Govover which Spain relinquishes or cedes her ernment to the other. sovereignty shall be secured in the free ex- Art. XVI. It is understood that any ob-

ercise of their religion. ligations assumed in this treaty by the United

Art. XI. The Spaniards residing in the States with respect to Cuba are limited to territories over which Spain by this treaty the time of its occupancy thereof; but it cedes or relinquishes her sovereignty shall will upon the termination of such occupancy, be subject in matters civil as well as crimi- advise any Government established in the isnal to the jurisdiction of the courts of the land to assume the same obligations. country wherein they reside, pursuant to the

350. THE OPEN DOOR IN CHINA 1899-1900 In both England and the United States there the famous Open Door policy. This policy was was at the close of the century a growing ap- first announced in the circular note of September prehension that the encroachments of the Euro- 6, 1899. For the various replies of the Powers, pean powers and of Japan on China would de- many of them far from “final and definitive,” stroy the territorial integrity and sovereignty of see Foreign Relations of the United States, 1899, China and would lead to discriminations at the pp. 128 ff. Evasive as these replies were, Hay in-

expense of English and American rights. In terpreted them to indicate acceptance of the March 1898 the English Ambassador approached Open Door policy and promptly announced such the United States with a suggestion for joint ac- | acquiescence in the circular note of March 20,

tion to protect the integrity of China; eventu- 1900. Shortly thereafter the outbreak of the ally the agitation of Lord Charles Beresford, the Boxer uprising seriously endangered the Open

influence of W. W. Rockhill of the American Door policy, and Hay moved once again to State Department, and of Alfred Hippisley, an formulate and apply that policy. To the note of Englishman, led to the concrete formulation of July 3 there were, however, no satisfactory re-

190 DOCUMENTS OF AMERICAN HIsTORY plies, Of these Open Door notes, Dr. Tyler Den- the commerce of all nations in China the net says, “It would have taken more than a undoubted benefits which should accrue from awyer to define what new rights had been 4 formal recognition by the various powers

recognized, or but required, or even what had actuf int t” that th shall ally been said, such comment is beside the , claiming 6 Spheres“sph or Mees that they . point. These notes had not been put forward by ©"JOY Pet fect equality of treatment for their a lawyer as a contribution to the law of nations, COMmerce and navigation within — such but by a publicist to crystallize public opinion.” “spheres,” the Government of the United

(Hay, p. 293). See, T. Dennett, John Hay, States would be pleased to see His German chs. xxiv-xxvi; W. W. Willoughby, Foreign Majesty’s Government give formal assurances Rights and Interests in China, 2 Vols.; T. F. and lend its codperation in securing like as. paitlard, Democracy and the Eastern Question; surances from the other interested powers

1. Chung, The Oriental Policy of the United that each within its respective sphere of States; M. J. Bau, The Open Door Doctrine. thatever jnfluence— policy see J. Barnes, ed. Empire in the East. An irst. Will in no way interfere with any appreciation of Hay’s gesture is “The Quarry” ‘Teaty port or any vested interest within any

For a critical evaluation of the Open Door * Fi a . .

by William Vaughn Moody. so-called “sphere of interest” or leased terri-

| tory it may have in China.

1. Hay’s Crrcutar LETTER, Second. That the Chinese treaty tariff of September 6, 1899 the time being shall apply to all merchandise (Malloy, ed. Treaties, Conventions, etc., Vol. 1, landed or shipped to all such ports as are

p. 246) within said ‘“‘sphere of interest” (unless they

Mr. Hay To Mr. WHITE be “free ports’), no matter to what nation-

DEPARTMENT OF STATE ality it may belong, and that duties so leviWASHINGTON, September 6, 1899. able shall be collected by the Chinese GovSir: At the time when the Government of | ernment.

the United States was informed by that of Third. That it will levy no higher harbor Germany that it had leased from His Majesty dues on vessels of another nationality frethe Emperor of China the port of Kiao-chao quenting any port in such “sphere” than shall

and the adjacent territory in the province be levied on vessels of its own nationality, of Shantung, assurances were given to the and no higher railroad charges over lines ambassador of the United States at Berlin built, controlled, or operated within its by the Imperial German minister for foreign ‘‘sphere” on merchandise belonging to citiaffairs that the rights and privileges insured zens or subjects of other nationalities transby treaties with China to citizens of the ported through such “sphere” than shall be United States would not thereby suffer or be levied on similar merchandise belonging to in anywise impaired within the area over its own nationals transported over equal which Germany had thus obtained control. distances. More recently, however, the British Gov- The liberal policy pursued by His Imperial ernment recognized by a formal agreement German Majesty in declaring Kiao-chao a with Germany the exclusive right of the free port and in aiding the Chinese Governlatter country to enjoy in said leased area and ment in the establishment there of a customthe contiguous “sphere of influence or in- house are so clearly in line with the propositerest” certain privileges, more especially tion which this Government is anxious to see

those relating to railroads and mining en- recognized that it entertains the strongest terprises; but, as the exact nature and ex- hope that Germany will give its acceptance tent of the rights thus recognized have not and hearty support. been clearly defined, it is possible that serious The recent ukase of His Majesty the conflicts of interest may at any time arise, Emperor of Russia declaring the port of Tanot only between British and German sub- _ lien-wan open during the whole of the lease

jects within said area, but that the interests under which it is held from China, to the of our citizens may also be jeopardized merchant ships of all nations, coupled with

thereby. the categorical assurances made to this GovEarnestly desirous to remove any cause of ernment by His Imperial Majesty’s repre-

irritation and to insure at the same time to sentative at this capital at the time, and

THE OPEN DooR IN CHINA 191 since repeated to me by the present Russian by the notes which I herewith transmit to ambassador, seem to insure the support of you, you will please inform the government the Emperor to the proposed measure. Our to which you are accredited, that the condiambassador at the Court of St. Petersburg tion originally attached to its acceptance— has, in consequence, been instructed to sub- that all other powers concerned should likemit it to the Russian Government and to wise accept the proposals of the United States request their early consideration of it. A —having been complied with, this Governcopy of my instruction on the subject to Mr. ment will therefore consider the assent given Tower is herewith inclosed for your con- to it by ——aas final and definitive.

fidential information. You will also transmit to the minister of The commercial interests of Great Britain foreign affairs copies of the present inclosures,

and Japan will be so clearly served by the and by the same occasion convey to him the desired declaration of intentions, and the expression of the sincere gratification which views of the Governments of these countries the President feels at the successful terminaas to the desirability of the adoption of meas- tion of these negotiations, in which he sees ures insuring the benefits of equality of treat- proof of the friendly spirit which animates ment of all foreign trade throughout China the various powers interested in the unare so similar to those entertained by the trammeled development of commerce and United States, that their acceptance of the industry in the Chinese Empire and a source

propositions herein outlined and their co- of vast benefit to the whole commercial operation in advocating their adoption by world.

the other powers can be confidently expected. I am, etc., JOHN Hay.

I inclose herewith copy of the instruction _ |

‘ect, July 3, 1900

which I have sent to Mr. Choate on the sub- 3. Hay’s CIRCULAR LETTER OF In view of the present favorable condi- (Foreign Relations of the United States, 1900,

tions, you are instructed to submit the above p. 345)

considerations to His Imperial German Maj- Circular telegram sent to the United States esty’s minister for foreign affairs, and to embassies in Berlin, Paris, London, Rome,

request his early consideration of the subject. and St. Petersburg, and to the United Copy of this instruction is sent to our States missions in Vienna, Brussels, Maambassadors at London and at St. Petersburg drid, Tokyo, The Hague, and Lisbon.

for their information. Department of State,

I have, etc., Joun Hay. Washington, July 3, 1900. In this critical posture of affairs in China 2. Hay’s LETTER oF INSTRUCTION it is deemed appropriate to define the attitude

March 20, 1900 of the United States as far as present cir-

(Malloy, ed. Treaties, Conventions, etc., Vol. I, cumstances permit this to be done. We adhere

p. 260) to the policy initiated by us in 1857, of peace

Instructions sent mutatus mutandis to the with the Chinese nation, of furtherance of United States ambassadors at London, lawful commerce, and of protection of lives Paris, Berlin, St. Petersburg, and Rome, and property of our citizens by all means

and to the United States Minister at guaranteed under extraterritorial treaty

Tokyo. rights and by the law of nations. If wrong Department of State, be done to our citizens we propose to hold

Washington, March 20, 1900. the responsible authors to the uttermost ac-

Str: The —— Government having ac- countability. We regard the condition at cepted the declaration suggested by the United Pekin as one of virtual anarchy, whereby States concerning foreign trade in China, the power and responsibility are practically determs of which I transmitted to you in my volved upon the local provincial authorities. instruction No. — of ——, and like action So long as they are not in overt collusion having been taken by all the various powers with rebellion and use their power to protect having leased territory or so-called “spheres foreign life and property we regard them of interest” in the Chinese Empire, as shown as representing the Chinese people, with

192 DOCUMENTS OF AMERICAN History whom we seek to remain in peace and friend- this last result; but the policy of the governship. The purpose of the President is, as it ment of the United States is to seek a soluhas been heretofore, to act concurrently with tion which may bring about permanent safety the other powers, first, in opening up com- and peace to China, preserve Chinese terri-

munication with Pekin and rescuing the torial and administrative entity, protect all American officials, missionaries, and other rights guaranteed to friendly powers by Americans who are in danger; secondly, in treaty and international law, and safeguard affording all possible protection everywhere for the world the principle of equal and im-

in China to American life and property; partial trade with all parts of the Chinese thirdly, in guarding and protecting all legili- Empire. mate American interests; and fourthly, in You will communicate the purport of this aiding to prevent a spread of the disorders instruction to the minister for foreign aflo the other provinces of the Empire and a fairs.

recurrence of such disasters. It is, of course, Hay. too early to forecast the means of attaining

351. PLATFORM OF THE AMERICAN ANTI-IMPERIALIST LEAGUE October 18, 1899 (C. Schurz, Speeches, Correspondence and Political Speeches, Vol. V, p. 77 ff.) This platform was adopted at the Anti- We denounce the slaughter of the Filipinos imperialist Congress which met in Chicago, Oc- as a needless horror. We protest against the tober 17, 1899. The league was composed of extension of American sovereignty by Span-

various local and_ sectional anti-imperialist ish methods. leagues; George S. Boutwell of Massachusetts We demand the immediate cessation of was elected president of Lanzar-Carpia, the new organization. th ‘ast liberty. byspain Spaianq For anti-imperialism, see M. re War against Aberty, begunbby “The Anti-Imperialist League,” Philippine So- Continued by us. We urge that Congress be cial Science Review, Vol. IV; M. A. DeWolfe promptly convened to announce to the FiliHowe, Portrait of an Independent: Moorfield pinos our purpose to concede to them the Storey; M. Storey and M. P. Lichauco, Con- independence for which they have so long quest of the Philippines by the United States; fought and which of right is theirs.

R. F. Pettigrew, The Course of Empire. The United States have always protested against the doctrine of international law We hold that the policy known as im-_ which permits the subjugation of the weak perialism is hostile to liberty and tends toward _ by the strong. A self-governing state cannot

militarism, an evil from which it has been accept sovereignty over an unwilling people.

our glory to be free. We regret that it has The United States cannot act upon the become necessary in the land of Washington ancient heresy that might makes right.

and Lincoln to reaffirm that all men, of Imperialists assume that with the destrucwhatever race or color, are entitled to life, tion of self-government in the Philippines by

liberty, and the pursuit of happiness. We American hands, all opposition here will maintain that governments derive their just cease. This is a grievous error. Much as we powers from the consent of the governed. abhor the war of “criminal aggression” in We insist that the subjugation of any people the Philippines, greatly as we regret that is “criminal aggression” and open disloyalty the blood of the Filipinos is on American to the distinctive principles of our Govern- hands, we more deeply resent the betrayal of

ment. American institutions at home. The real firing

We earnestly condemn the policy of the line is not in the suburbs of Manila. The foe present National Administration in the Philip- is of our own household. The attempt of pines. It seeks to extinguish the spirit of 1861 was to divide the country. That of 1899 1776 in those islands. We deplore the sacrifice is to destroy its fundamental principles and of our soldiers and sailors, whose bravery noblest ideals. deserves admiration even in an unjust war. Whether the ruthless slaughter of the Fili-

DowNEs v. BIDWELL 193 pinos shall end next month or next year is We propose to contribute to the defeat but an incident in a contest that must go of any person or party that stands for the on until the Declaration of Independence forcible subjugation of any people. We shall and the Constitution of the United States oppose for reélection all who in the White are rescued from the hands of their be- House or in Congress betray American liberty trayers. Those who dispute about standards in pursuit of un-American gains. We still of value while the Republic is undermined hope that both of our great political parties will be listened to as little as those who will support and defend the Declaration of would wrangle about the small economies of Independence in the closing campaign of the the household while the house is on fire. The century.

training of a great people for a century, the We hold, with Abraham Lincoln, that “no aspiration for liberty of a vast immigration man is good enough to govern another man are forces that will hurl aside those who in~ without that man’s consent. When the white the delirium of conquest seek to destroy the man governs himself, that is self-government,

character of our institutions. but when he governs himself and also gov-

We deny that the obligation of all citizens erns another man, that is more than selfto support their Government in times of government—that is despotism”. “Our religrave National peril applies to the present ance is in the love of liberty which God has situation. If an Administration may with planted in us. Our defense is in the spirit impunity ignore the issues upon which it was’ which prizes liberty as the heritage of all chosen, deliberately create a condition of men in all lands. Those who deny freedom war anywhere on the face of the globe, de- to others deserve it not for themselves, bauch the civil service for spoils to promote and under a just God cannot long retain the adventure, organize a truth-suppressing it.”’ censorship and demand of all citizens a sus- We cordially invite the cooperation of pension of judgement and their unanimous’ all men and women who remain loyal to the support while it chooses to continue the Declaration of Independence and the Confighting, representative government itself is stitution of the United States. imperiled.

352. DOWNES v. BIDWELL

182 U.S. 244 1901

Error to the United States circuit court for the the constitutional questions involved, see, W. F. Southern district of New York. This was an ac- Willoughby, Territories and Dependencies of the tion brought by Downes against Bidwell, col- United States; C. F. Randolph, Law and Policy lector of the port of New York, to recover back of Annexation; and C. E. Magoon, Legal Status duties paid under protest upon a consignment of the Territory and Inhabitants of the Islands

shipped to the plaintiff from Porto Rico in Acquired by the United States during the War November, 1900. The duties were collected under with ‘Spain.

the Foraker Act of April 2, 1900, providing a temporary government for the icland. This is _ Brown, J. This case involves the quesone of the earliest of the so-called Insular Cases, t!on whether merchandise brought into the dealing with the vexed question of the constitu- port of New York from Porto Rico, since the tional relations of the United States with the passage of the Foraker act, is exempt from territories acquired through the War with Spain. duty, notwithstanding the third section of

Mr. John W. Davis said of these Insular Cases that act, which requires the payment of that “there may be found in these opinions the “fifteen per centum of the duties which are most hotly contested and long continued duel required to be levied, collected and paid upon

in the life of the Supreme Court.” The literature, lik Hc] f handise | technical and controversial, on the insular cases ; © ar res 0 mere andise imported from and the general question of imperialism is enor- foreign countries.”. . .

mous. The briefs and arguments in the insular In the case of De Lima v. Bidwell just cases were published in House Documents, 56 decided, we held that upon the ratification Cong. 2 Sess. No. 509. For general treatments of of the treaty of peace with Spain, Porto Rico

194 DocUMENTS OF AMERICAN Hisrory ceased to be a foreign country, and became in connection with the purchase of Louisiana

a territory of the United States, and that in 1803... . duties were no longer collectible upon Notwithstanding these provisions for the

merchandise brought from that island. We incorporation of territories into the Union, are now asked to hold that it became a part Congress, not only in organizing the territory , of the United States within that provision of Louisiana by Act of March 26, 1804, but of the Constitution which declares that “all all other territories carved out of this vast duties, imposts and excises shall be uniform inheritance, has assumed that the Constituthroughout the United States.” Art. I, Sec. tion did not extend to them of its own force, 8. If Porto Rico be a part of the United and has in each case made special provision, States, the Foraker act imposing duties upon either that their legislatures shall pass no its products is unconstitutional, not only by law inconsistent with the Constitution of the reason of a violation of the uniformity clause, United States, or that the Constitution or but because by section 9 “vessels bound to laws of the United States shall be the suor from one State” cannot “be obliged to preme law of such territories. Finally, in enter, clear or pay duties in another.” Rev. Stat., Sec. 1891, a general provision was The case also involves the broader ques- enacted that “the Constitution and all laws tion whether the revenue clauses of the Con- of the United States which are not locally stitution extend of their own force to our inapplicable shall have the same force and newly acquired territories. The Constitution effect within all the organized territories, and

itself does not answer the question. Its solu- in every territory hereafter organized, as

tion must be found in the nature of the elsewhere within the United States”... .

government created by that instrument, in Indeed, whatever may have been the fluctuthe opinion of its contemporaries, in the ations of opinion in other bodies, (and even practical construction put upon it by Con- this court has not been exempt from them), gress and in the decisions of this court. ... Congress has been consistent in recognizing [Here follows some consideration of the the difference between the States and terriArticles of Confederation, the Ordinance of tories under the Constitution.

1787, and the Constitution. ] The decisions of this court upon this sub-

It is sufficient to observe in relation to ject have not been altogether harmonious.

these three fundamental instruments that it Some of them are based upon the theory that can nowhere be inferred that the territories {he Constitution does not apply to the terriwere considered a part of the United States. tories without legislation. Other cases, arisThe Constitution was created by the people ing from territories where such legislation of the United States, as a union of States, has been had, contain language which would to be governed solely by representatives of justify the inference that such legislation was the States; and even the provision relied unnecessary, and that the Constitution took upon here, that all duties, imposts and excises effect immediately upon the cession of the

shall be uniform “throughout the United territory to the United States. It may be reStates,” is explained by subsequent provisions marked, upon the threshold of an analysis of the Constitution, that “no tax or duty shall of these cases, that too much weight must be laid on articles exported from any State,” not be given to general expressions found in and “no preference shall be given by any several opinions that the power of Congress regulation of commerce or revenue to the over territories is complete and supreme, beports of one State over those of another; nor cause these words may be interpreted as shall vessels bound to or from one State be meaning only supreme under the Constitu-

obliged to enter, clear or pay duties in an- tion; nor upon the other hand, to general other.” In short, the Constitution deals with statements that the Constitution covers the States, their people and their representa- territories as well as the States, since in such

tives... . cases it will be found that acts of Congress

The question of the legal relations between had already extended the Constitution to the States and the newly acquired territories such territories, and that thereby it subfirst became the subject of public discussion ordinated not only its own acts, but those of

DowNES Vv. BIDWELL 195 the territorial legislatures, to what had be- goes to the competency of Congress to pass

come the supreme law of the land.... a bill of that description, Perhaps the same (Here follows a review of the decisions. ] remark may apply to the First Amendment, Eliminating, then, from the opinions of that “Congress shall make no law respecting this court all expressions unnecessary to the an establishment of religion, or prohibiting disposition of the particular case, and glean- the free exercise thereof, or abridging the

ing therefrom the exact point decided in freedom of speech, or of the press, or the each, the following propositions may be con- right of the people to peacefully assemble

sidered as established: and to petition the government for a redress

1. That the District of Columbia and the of grievances.” We do not wish, however, te territories are not States, within the judicial be understood as expressing an opinion how clause of the Constitution giving jurisdiction far the bill of rights contained in the first in cases between citizens of different States; eight amendments is of general and how far 2. That territories are not States, within of local application. the meaning of Revised Statutes, sec. 709, Upon the other hand, when the Constitupermitting writs of error from this court tion declares that all duties shall be uniform in cases where the validity of a state statute “throughout the United States,” it becomes

is drawn in question; necessary to inquire whether there be any 3. That the District of Columbia and the territory over which Congress has Jurisdic-

territories are States, as that word is used tion which is not a part of the “United in treaties with foreign powers, with respect States,” by which term we understand the to the ownership, disposition and inheritance States whose people united to form the Con-

of property; stitution, and such as have since been ad4. That the territories are not within the mitted to the Union upon an equality with clause of the Constitution providing for the them. Not only did the people in adopting creation of a Supreme Court and such in- the Thirteenth Amendment thus recognize a

ferior courts as Congress may see fit to distinction between the United States and

establish ; “any place subject to their jurisdiction,” but , 5. That the Constitution does not apply to Congress itself, in the Act of March 27, 1804,

foreign countries or to trials therein con- cc. 56, 2 Stat. 298, providing for the proof ducted, and that Congress may lawfully pro- of public records, applied the provisions of vide for such trials before consular tribunals, the act, not only to “every court and office without the intervention of a grand or petit within the United States,” but to the “courts

jury; and offices of the respective territories of 6. That where the Constitution has been the United States and countries subject to

once formally extended by Congress to terri- the jurisdiction of the United States.”. . .

tories, neither Congress nor the territorial Unless these words are to be rejected as legislature can enact laws inconsistent there- meaningless, we must treat them as a recogni-

with... . tion by Congress of the fact that there may To sustain the judgment in the case under be territories subject to the jurisdiction of consideration it by no means becomes neces- the United States, which are not of the

sary to show that none of the articles of United States... . the Constitution apply to the Island of Porto Indeed, the practical interpretation put by Rico. There is a clear distinction between Congress upon the Constitution has been long such prohibitions as go to the very root of | continued and uniform to the effect that the the power of Congress to act at all, irrespec- Constitution is applicable to _ territories live of time or place, and such as are opera- acquired by purchase or conquest only when tive only “throughout the United States” or and so far as Congress shall so direct... .

among the several States. We are also of opinion that the power Thus, when the Constitution declares that to acquire territory by treaty implies, not “no bill of attainder or ex post facto law only the power to govern such territory, but shall be passed,” and that ‘“‘no title of nobility to prescribe upon what terms the United shall be granted by the United States,” it States will receive its inhabitants, and what

196 DOCUMENTS OF AMERICAN History their status shall be in what Chief Justice 21 Wall. 162), and to the particular methods Marshall termed the “American empire.” of procedure pointed out in the Constitution, There seems to be no middle ground between which are peculiar to Anglo-Saxon juristhis position and the doctrine that if their prudence, and some of which have already inhabitants do not become, immediately upon been held by the States to be unnecessary annexation, citizens of the United States, to the proper protection of individuals... . their children thereafter born, whether sav- We do not desire, however, to anticipate ages or civilized, are such, and entitled to the difficulties which would naturally arise all the rights, privileges and immunities of in this connection, but merely to disclaim any citizens. If such be their status, the conse- intention to hold that the inhabitants of these quences will be extremely serious. Indeed, it territories are subject to an unrestrained is doubtful if Congress would ever assent to power on the part of Congress to deal with

the annexation of territory upon the condi- them upon the theory that they have no tion that its inhabitants, however foreign rights which it is bound to respect... . they may be to our habits, traditions, and In passing upon the questions involved in modes of life, shall become at once citizens this and kindred cases, we ought not to overof the United States. In allits treaties hitherto look the fact that, while the Constitution the treaty-making power has made special was intended to establish a permanent form provisions for this subject... . In all these of government for the States which should cases there is an implied denial of the right elect to take advantage of its conditions, of the inhabitants to American citizenship and continue for an indefinite future, the until Congress by further action shall signify vast possibilities of that future could never

its assent thereto... . have entered the minds of its framers... .

It is obvious that in the annexation of out- The difficulties of bringing about a union of lying and distant possessions grave questions the States were so great, the objections to

will arise from differences of race, habits, it seemed so formidable, that the whole laws and customs of the people, and from thought of the convention centered upon surdifferences of soil, climate and production, mounting these obstacles. The question of which may require action on the part of territories was dismissed with a single clause, Congress that would be quite unnecessary in apparently applicable only to the territories the annexation of contiguous territory in- then existing, giving Congress the power to habited only by people of the same race, or govern and dispose of them... .

by scattered bodies of native Indians. ... If it be once conceded that we are We suggest, without intending to decide, at liberty to acquire foreign territory, a that there may be a distinction between cer- presumption arises that our power with retain natural rights enforced in the Constitu- spect to such territories is the same power tion by prohibitions against interference with which other nations have been accustomed them, and what may be termed artificial or to exercise with respect to territories acquired

remedial rights which are peculiar to our by them. If, in limiting the power which own system of jurisprudence. Of the former Congress was to exercise within the United class are the rights to one’s own religious opin- States, it was also intended to limit it with ions and to a public expression of them, or, regard to such territories as the people of the as sometimes said, to worship God according United States should thereafter acquire, such to the dictates of one’s own conscience; the limitations should have been expressed. Inright to personal liberty and individual prop- stead of that, we find the Constitution speakerty; to freedom of speech and of the press; ing only to States, except in the territorial

to free access to courts of justice, to due clause, which is absolute in its terms, and

process of law, and to an equal protection suggestive of no limitations upon the power of the laws; to immunities from unreasonable of Congress in dealing with them... . searches and seizures, as well as cruel and ... The liberality of Congress in legislatunusual punishments; and to such other im-_ ing the Constitution into all our contiguous munities as are indispensable to a free gov-_ territories has undoubtedly fostered the imernment. Of the latter case are the rights to pression that it went there by its own force, citizenship, to suffrage (Minor v. Happersett, but there is nothing in the Constitution itself,

DowNES v. BIDWELL 197 and little in the interpretation put upon it, and that the plaintiff cannot recover back to confirm that impression. There is not even the duties exacted in this case. an analogy to the provisions of an ordinary The judgment of the Circuit Court is theremortgage for its attachment to after-acquired fore affirmed.

property, without which it covers only prop- [Wuite, J. delivered a separate opinion erty existing at the date of the mortgage. concurring in the judgment, but for different In short, there is absolute silence upon the reasons. Justices SHIRAS and McKENNA consubject. The executive and legislative depart- curred in this opinion. Chief Justice FULLER

ments of the government have for more delivered a dissenting opinion, in which than a century interpreted this silence as Justices HARLAN, BREWER, and PECKHAM

precluding the idea that the Constitution concurred. HARLAN, J., also delivered a attached to these territories as soon as separate dissenting opinion. | acquired, and unless such interpretation be FULLER, C. J. dissenting. . . . The inquiry manifestly contrary to the letter or spirit of is stated to be: “Had Porto Rico, at the the Constitution, it should be followed by the time of the passage of the act in question,

judicial department... . been incorporated into and become an integral

Patriotic and intelligent men may differ part of the United States?’ And the answer widely as to the desirableness of this or that being given that it had not, it is held that acquisition, but this is solely a political ques- the rule of uniformity was not applicable. tion. We can only consider this aspect of the I submit that that is not the question in case so far as to say that no construction this case. The question is whether, when of the Constitution should be adopted which Congress has created a civil government for

would prevent Congress from considering Porto Rico, has constituted its inhabitants each case upon its merits, unless the language a body politic, has given it a governor and

of the instrument imperatively demand it. other officers, a legislative assembly, and A false step at this time might be fatal to courts, with right of appeal to this court, the development of what Chief Justice Mar- Congress can, in the same act and in the shall called the American empire. Choice in exercise of the power conferred by the first some cases, the natural gravitation of small clause of section eight, impose duties on the bodies towards large ones in others, the commerce between Porto Rico and the States result of a successful war in still others, may and other territories in contravention of bring about conditions which would render the rule of uniformity qualifying the power. the annexation of distant possessions desira- If this can be done, it is because the power ble. If those possessions are inhabited by of Congress over commerce between the alien races, differing from us in religion, States and any of the territories is not recustoms, laws, methods of taxation and modes _ stricted by the Constitution. This was the

of thought, the administration of govern- position taken by the Attorney General, with ment and justice, according to Anglo-Saxon a candor and ability that did him great principles, may for a time be impossible; credit. and the question at once arises whether large But that position is rejected, and the conconcessions ought not to be made for a_ tention seems to be that, if an organized and time, that, ultimately, our own theories may settled province of another sovereignty is be carried out, and the blessings of a free acquired by the United States, Congress has government under the Constitution extended the power to keep it, like a disembodied +o them. We decline to hold that there is shade, in an intermediate state of ambiguous anything in the Constitution to forbid such existence for an indefinite period; and, more

action. than that, that after it has been called from We are therefore of opinion that the Island that limbo, commerce with it is absolutely of Porto Rico is a territory appurtenant and = subject to the will of Congress, irrespective

belonging to the United States, but not a of constitutional provisions. .. . part of the United States within the revenue Great stress is thrown upon the word “inclauses of the Constitution; that the For- corporation” as if possessed of some occult aker act is constitutional, so far as it im- meaning, but I take it that the act under poses duties upon imports from such island, consideration made Porto Rico, whatever its

198 DOCUMENTS OF AMERICAN HISTORY situation before, an organized territory of power to tax involves the power to destroy, the United States. Reing such, and the act and the levy of duties touches all our people undertaking to impose duties by virtue of in all places under the jurisdiction of the clause 1 sec. 8, how is it that the rule which government.

qualifies the power does not apply to its The logical result is that Congress may exercise in respect of commerce with that prohibit commerce altogether between the territory? The power can only be exercised States and territories, and may prescribe as prescribed, and even if the rule of uni- one rule of taxation in one territory, and a formity could be treated as a mere regula- different rule in another. ) tion of the granted power—a suggestion as to That theory assumes that the Constitution which I do not assent—the validity of these created a government empowered to acquire

duties comes up directly, and it is idle to countries throughout the world, to be govdiscuss the distinction between a total want erned by different rules than those obtaining

of power and a defective exercise of it. in the original States and territories, and The concurring opinion recognizes the fact substitutes for the present system of republithat Congress, in dealing with the people of can government a system of domination over

new territories or possessions, is bound to distant provinces in the exercise of unrerespect the fundamental guarantees of life, stricted power. liberty, and property, but assumes that Con- In our judgment, so much of the Porto gress is not bound, in those territories or Rican act as authorized the imposition of possessions, to follow the rule of taxation duties is invalid, and plaintiffs were entitled prescribed by the Constitution. And yet the to recover....

353. THE GOLD STANDARD ACT OF 1900 March 14, 1900 (U. S. Statutes at Large, Vol. XXXI, p. 45 ff.) The election of McKinley in 1896 had tempora- sec. 2. That United States notes, and rily ended the agitation for free silver. The re- Treasury notes issued under the Act of July turn of prosperity during the McKinley adminis- 14, 1800, when presented to the Treasury tration, the great increase in world production = ¢,, redemption, shall be redeemed in gold of gold, and the tailure of the half-hearted et- coin of the standard fixed in the first section forts of the administration to arrive at some of this Act, and in order to secure the prompt

international agreement for bimetallism, all ;

made the enactment of the gold standard in- and certain redemption of such notes as evitable. See, A. B. Hepburn, History of Cur- herein provided it shall be the duty of the rency, p. 371 ff.; D. R. Dewey, Financial His- Secretary of the Treasury to set apart in the

tory, p. 468 ff. Treasury a reserve fund of one hundred and fifty million dollars in gold coin and bullion,

An act to define and fix the standard of which fund shall be used for such redemption value, to maintain the parity of all forms purposes only, and whenever and as often of money issued or coined by the United as any of said notes shall be redeemed from

States. ... said fund it shall be the duty of the SecreBe it enacted, That the dollar consisting tary of the Treasury to use said notes so

of twenty-five and eight-tenths grains of gold redeemed to restore and maintain such re-

nine-tenths fine, as established by section serve fund... . .

thirty-five hundred and eleven of the Revised Sec. 3. That nothing contained in this Act Statutes of the United States, shall be the — shall be construed to affect the legal-tender standard unit of value, and all forms of quality as now provided by law of the silver money issued or coined by the United States dollar, or of any other money coined or issued

shall be maintained at a parity of value with by the United States... .— .

this standard, and it shall be the duty of the Sec. 14. That the provisions of this Act Secretary of the Treasury to maintain such are not intended to preclude the accomplish-

parity. ment of international bimetallism whenever

McKInNtueEY’s RECIPROCITY SPEECH 199 conditions shall make it expedient and prac- world and at a ratio which shall insure perticable to secure the same by concurrent ac- manence of relative value between gold and tion of the leading commercial nations of the _ silver.

354, McKINLEY’S RECIPROCITY SPEECH Buffalo, New York, September 5, 1901 (Richardson, ed. Messages and Papers, Vol. X, p. 393 ff.) In this, McKinley’s last public address, the high- lightened policy will keep what we have. priest of protective tariffs announced that “the No other policy will get more. In these times period of exclusiveness is past” and suggested of marvellous business energy and gain we a modification of the traditional tariff policy of ought to be looking to the future, strengththe Republican party. The following day be was ening the weak places in our industrial and

shot by the anarchist Czolgosz, and he died ‘al t that be read September 14. Roosevelt, who succeeded him, commercial systems, tha we may y cautiously avoided the tariff issue. See, C. S. Ol- for any storm or strain.

cott, Life of William McKinley, 2 Vols. By sensible trade arrangements which will not interrupt our home production, we shall _.. My fellow citizens: Trade statistics extend the outlets for our increasing surplus. indicate that this country is in a state of un- A system which provides a mutual exchange exampled prosperity. The figures are almost of commodities is manifestly essential to the appalling. They show that we are utilizing continued and healthful growth of our export our fields and forests and mines, and that we trade. We must not repose in fancied securare furnishing profitable employment to the ity that we can forever sell everything and millions of working-men throughout the buy little or nothing. If such a thing were United States, bringing comfort and happi- possible, it would not be best for us or for ness to their homes, and making it possible those’ with whom we deal. We should take to lay by savings for old age and disability. from our customers such of their products as That all the people are participating in this we can use without harm to our industries great prosperity is seen in every American and labor. Reciprocity is the natural outcommunity, and shown by the enormous and — growth of our wonderful industrial developunprecedented deposits in our savings banks. ment under the domestic policy now firmly

Our duty is the care and security of these established. What we produce beyond our deposits, and their safe investment demands domestic consumption must have a _ vent the highest integrity and the best business abroad. The excess must be relieved through capacity of those in charge of these deposi- a foreign outlet, and we should sell every-

tories of the people’s earnings. where we can and buy wherever the buying

We have a vast and intricate business, will enlarge our sales and production, and huilt up through years of toil and struggle, thereby make a greater demand for home in which every part of the country has its labor. stake, which will not permit either of neglect The period of exclusiveness is past. The or of undue selfishness. No narrow, sordid, expansion of our trade and commerce is the policy will subserve it. The greatest skill and pressing problem. Commercial wars are unwisdom on the part of manufacturers and profitable. A policy of good will and friendly producers will be required to hold and in-_ trade relations will prevent reprisals. Reci-

crease it. Our industrial enterprises, which procity treaties are in harmony with the have grown to such proportions, affect the spirit of the times; measures of retaliation homes and occupations of the people and the are not.

welfare of the country. Our capacity to pro- If perchance some of our tariffs are no duce has developed so enormously, and our longer needed for revenue or to encourage

products have so multiplied, that the prob- and protect our industries at home, why lem of more markets requires our urgent and should they not be employed to extend and immediate attention. Only a broad and en- promote our markets abroad? ...

200 DocUMENTS OF AMERICAN HisTorRy 355. HAY-PAUNCEFOTE TREATY November 18, 1901 (Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 782 ff.) The first Hay-Pauncefote Treaty was ratified by vessels of commerce and of war of all nathe Senate, December 20, 1900, but with amend- tions observing these Rules, on terms of enments unacceptable to Great Britain. See, T. tire equality, so that there shall be no dis-

Dennett, John Hay, ch. xxi; L. M. Keasby, crimination against any such nation, or its

The Isthmian Highway, ch. xi; W. S. Holt, ? p

Nicaragua Canal, chs. xxi, xxii; H. G. Miller, citizens or subjects, in respect of the condi-

Treaties Defeated by the Senate, ch. ix. tions or charges of traffic or otherwise. Such

conditions and charges of traffic shall be just

TREATY TO FACILITATE THE CONSTRUCTION and equitable.

OF A SHIP CANAL 2, The canal shall never be blockaded, nor The United States of America and His shall any right of war be exercised nor any Majesty Edward the Seventh, of the United act of hostility be committed within it. The Kingdom of Great Britain and Ireland, ... United States, however, shall be at liberty to being desirous to facilitate the construction maintain such military police along the canal

of a ship canal to connect the Atlantic and as may be necessary to protect it against Pacific Oceans, by whatever roule may be _ lawlessness and disorder. considered expedient, and to that end to re- 3. Vessels of war of a belligerent shall not

move any objection which may arise out of revictual nor take any stores in the canal the convention of the nineteenth of April, except so far as may be strictly necessary ; 1850, commonly called the Clayton-Bulwer and the transit of such vessels through the treaty, to the construction of such canal un- canal shall be effected with the least possible der the auspices of the Government of the delay in accordance with the Regulations in

United States, without impairing the “gen- force, and with only such intermission as eral principle” of neutralization established may result from the necessities of the in Article VIII of that convention, have... _— service.

agreed upon the following articles: Prizes shall be in all respects subject to Art. I. The High Contracting Parties the same rules as vessels of war of the belligagree that the present treaty shall supersede _ erents.

the afore-mentioned Convention of the 19th 4. No belligerent shall embark or disem-

April, 1850. bark troops, munitions of war, or warlike

Art. I]. It is agreed that the canal may be materials in the canal, except in case of acconstructed under the auspices of the Gov- cidental hindrance of the transit, and in such ernment of the United States cither directly case the transit shall be resumed with all at its own cost, or by gift or loan of money possible dispatch. to individuals or Corporations, or through 5. The provisions of this Article shall ap-

subscription to or purchase of stock or ply to waters adjacent to the canal, within 3 shares, and that, subject to the provisions of marine miles of either end. Vessels of war of

the present Treaty, the said Government a belligerent shall not remain in such waters shall have and enjoy all the rights incident longer than twenty-four hours at any one to such construction, as well as the exclusive time, except in case of distress, and in such

right of providing for the regulation and case shall depart as soon as possible; but a

management of the canal. vessel of war of one belligerent shall not de-

Art. III. The United States adopts, as part within twenty-four hours from the de-

the basis of the neutralization of such ship parture of a vessel of war of the other belligcanal, the following Rules, substantially as erent.

embodied in the Convention of Constanti- 6. The plant, establishments, buildings nople signed the twenty-eighth of October, and all works necessary to the construction, 1888, for the free navigation of the Suez maintenance and operation of the canal shall

Canal, that is to say: be deemed to be part thereof, for the pur1. The canal shall be free and open to the poses of this treaty, and in time of war, as

PRESIDENT ROOSEVELT AND THE TRUSTS 201 in time of peace, shall enjoy complete im- lations of the country or countries traversed munity from attack or injury by belliger- by the beforementioned canal shall affect the ents, and from acts calculated to impair their general principle of neutralization or the ob-

usefulness as part of the canal. ligation of the High Contracting Parties unArt. IV. It is agreed that no change of der the present Treaty... .

‘erritorial sovereignty or of international re-

356. PRESIDENT ROOSEVELT AND THE TRUSTS Extract from First Annual Message to Congress December 3, 1901 (Richardson, ed. Messages and Papers, Vol. X, p. 417 ff.) With this message President Roosevelt, who suc- have driven the railway systems across this

ceeded to the Presidency on the death of continent, who have built up our commerce, McKinley, gave warning that he would wield the who have developed our manufactures, have “big stick” on lawless business. The message was on the whole done great good to our people.

succinctly summarized by Mr. Dooley, “Th’ writhout them the material development of trusts, says he, are heejoous monsthers built . , up be th’ enlightened intherprise iv th’ men that which we are so justly proud could never have done so much to advance progress in our have taken place. Moreover, we should recog-

beloved country, he says. On wan hand I wud ize the immense importance of this matestamp thim undher fut; on th’ other hand not rial development by leaving as unhampered

so fast.” as is compatible with the public good the strong and forceful men upon whom the sucTo the Senate and House of Representatives: cess of business operations inevitably rests. _, . The tremendous and highly complex The slightest study of business conditions industrial development which went on with will satisfy any one capable of forming a

ever-accelerated rapidity during the latter judgment that the personal equation is the half of the nineteenth century brings us face most important factor in a business operato face, at the beginning of the twentieth, tion; that the business ability of the man at with very serious social problems. The old the head of any business concern, big or laws, and the old customs which had almost little, is usually the factor which fixes the the binding force of law, were once quite gulf between striking success and hopeless sufficient to regulate the accumulation and failure. distribution of wealth. Since the industrial An additional reason for caution in dealing changes which have so enormously increased with corporations is to be found in the inthe productive power of mankind, they are ternational commercial conditions of today.

no longer sufficient. The same business conditions which have The growth of cities has gone on beyond produced the great aggregations of corporate comparison faster than the growth of the and individual wealth have made them very country, and the upbuilding of the great in- potent factors in international commercial dustrial centres has meant a startling in- competition. Business concerns which have crease, not merely in the aggregate of wealth, the largest means at their disposal and are but in the number of very large individual, managed by the ablest men are: naturally and especially of very large corporate, for- those which take the lead in the strife for tunes. The creation of these great corporate commercial supremacy among the nations of fortunes has not been due to the tariff nor the world. America has only just begun to to any other governmental action, but to assume that commanding position in the innatural causes in the business world, operat- ternational business world which we believe Ing in other countries as they operate in our’ will more and more be hers. It is of the

own. utmost importance that this position be not The process has aroused much antagonism, jeopardized, especially at a time when the a great part of which is wholly without war- overflowing abundance of our own natural

rant... . The captains of industry who resources and the skill, business energy, and

202 DOCUMENTS OF AMERICAN History mechanical aptitude of our people make for- sentations as to the value of the property in elgn markets essential. Under such condi- which the capital is to be invested. Corporations it would be most unwise to cramp or to _ tions engaged in interstate commerce should

fetter the youthful strength of our nation. be regulated if they are found to exercise a Moreover, it cannot too often be pointed license working to the public injury. It should

out that to strike with ignorant violence at be as much the aim of those who seek for the interests of one sct of men almost inevi- social betterment to rid the business world tably endangers the interests of all. The of crimes of cunning as to rid the entire body fundamental rule in our national life—the politic of crimes of violence. Great corporarule which underlies all others—is that, on tions exist only because they are created and the whole, and in the long run, we shall go safeguarded by our institutions; and it is

up or down together... . therefore our right and our duty to see that

The mechanism of modern business is so they work in harmony with these institutions. delicate that extreme care must be taken not The first essential in determining how to to interfere with it in a spirit of rashness deal with the great industrial combinations or ignorance. Many of those who have made is knowledge of the facts—publicity. In the it their vocation to denounce the great in- interest of the public, the government should dustrial combinations which are popularly, have the right to inspect and examine the although with technical inaccuracy, known workings of the great corporations engaged as “‘trusts’’, appeal especially to hatred and _ in interstate business. Publicity is the only fear. These are precisely the two emotions, sure remedy which we can now invoke. What particularly when combined with ignorance, further remedies are needed in the way of which unfit men for the exercise of cool and governmental regulation, or taxation, can steady judgment. In facing new industrial only be determined after publicity has been conditions, the whole history of the world obtained, by process of law, and in the course shows that legislation will generally be both of administration. The first requisite is ’ unwise and ineffective unless undertaken knowledge, full and complete—knowledge after calm inquiry and with sober self- which may be made public to the world. . . .

restraint... . The large corporations, commonly called

All this is true; and yet it is also true that trusts, though organized in one State, always there are real and grave evils, one of the do business in many States, often doing very chief being overcapitalization because of its little business in the State where they are many baleful consequences; and a resolute incorporated. There is utter lack of uniformand practical effort must be made to correct ity in the State laws about them; and as no

these evils. State has any exclusive interest in or power

There is a widespread conviction in the over their acts, it has in practice proved imminds of the American people that the great possible to get adequate regulation through corporations known as trusts are in certain State action. Therefore, in the interest of of their features and tendencies hurtful to the whole people, the nation should, without the general welfare. This . . . is based upon interfering with the power of the States in sincere conviction that combination and con- the matter itself, also assume power of sucentration should be, not prohibited, but pervision and regulation over all corporations supervised and within reasonable limits con- doing an interstate business. This is espetrolled; and in my judgment this conviction cially true where the corporation derives a

isIt right. portion of its wealth from the existence of is no limitation upon property rights or some monopolistic element or tendency in its freedom of contract to require that when business. There would be no hardship in such men receive from government the privilege supervision; banks are subject to it, and in of doing business under corporate form, _ their case it is now accepted as a simple matwhich frees them from individual responsi- ter of course. Indeed, it is now probable that bility, and enables them to call into their supervision of corporations by the National enterprises the capital of the puolic, they Government need not gO so far as is now shall do so upon absolutely truthful repre- the case with the supervision exercised over

THE Draco DOCTRINE 203 them by so conservative a State as Massa- calized corporate bodies of the day. The conchusetts, in order to produce excellent re- ditions are now wholly different and wholly

sults. different action is called for. I believe that a When the Constitution was adopted, at law can be framed which will enable the the end of the eighteenth century, no human National Government to exercise control wisdom could foretell the sweeping changes, along the lines above indicated; profiting by alike in industrial and political conditions, the experience gained through the passage which were to take place by the beginning of and administration of the Interstate Comthe twentieth century. At that time it was merce Act. If, however, the judgment of the accepted as a matter of course that the sev- Congress is that it lacks the constitutional eral States were the proper authorities to power to pass such an act, then a constituregulate, so far as was then necessary, the tional amendment should be submitted to comparatively insignificant and strictly lo- confer the power. 357. W.C.T.U. DECLARATION OF PRINCIPLES 1902

(National Woman’s Christian Temperance Union, Annual Leaflet, 1902) The W. C. T. U. was, with the Anti-Saloon gain; in “peace on earth and good-will to League and the Methodist Church, the most ef- men.”

rece of the numerousFor agen working for We therefore formulate, and for ourselves prohibition. background of the prohibition .. movement see J. A. Krout, The Origins of Pro- acer ue rorowine pledge, poune at sisters

hibition. See also, P. Odegard, Pressure Polttics: and brothers of a common danger an a com

The Story of the Anti-Saloon League; E. H. Mon hope, to make common cause with us, Cherrington, Evolution of Prohibition in the ™ working its reasonable and helpful preUnited States; D. L. Colvin, Prohibition in the cepts into the practice of everyday life:

United States. I hereby solemnly promise GOD HELP-

ING ME, to abstain from all distilled, ferWe believe in the coming of His Kingdom mented and malt liquors, including wine, whose service is perfect freedom, because His Beer and Cider, and to employ all proper laws, written in our members as well as in means to discourage the use of and traffic in nature and in grace, are perfect, converting the same.

the soul. To conform and enforce the rationale of We believe in the gospel of the Golden this pledge, we declare our purpose to eduRule, and that each man’s habits of life cate the young; to form a better public senshould be an example safe and beneficent timent; to reform so far as possible, by re-

for every other man to follow. ligious, ethical and scientific means, the We believe that God created both man drinking classes; to seek the transforming

and woman in His own image, and therefore, power of divine grace for ourselves and all we believe in one standard of purity for both for whom we work, that they and we may men and women, and in the equal right of willfully transcend no law of pure and wholeall to hold opinions and to express the same some living; and finally we pledge ourselves

with equal freedom. to labor and to pray that all of these princi-

We believe in a living wage; in an eight _ ples, founded upon the Gospel of Christ, may hour day; in courts of conciliation and arbi- be worked out into the customs of Society tration; in justice as opposed to greed of and the Laws of the Land.

358. THE DRAGO DOCTRINE December 29, 1902

(Foreign Relations of the United States, 1903, p. 1 ff.) This announcement of the doctrine that the use constitute a violation of the principles of the of coercion for the collection of claims would Monroe Doctrine arose out of the Venezuelan

204 DOCUMENTS OF AMERICAN History situation of 1902. On the failure of Venezuela culture and their conduct in business transto make any arrangements for the payment of actions; and these conditions are measured claims of German, English and other foreign ayq weighed before making any loan, the claimants, Great Britain and Germany estab- terms being made more or less onerous 7 shortly joined the blockading powers. The claims accordance with the precise data concerning were eventually arbitrated, and the powers in- them which bankers always have on record. duced to withdraw their blockade. The Drago In the first place the lender knows that he doctrine was embodied in Convention II of the iS entering into a contract with a sovereign Second Hague Convention, 1907. See, Malloy, entity, and it is an inherent qualification of ed. Treaties, Conventions, etc., Vol. Il, p. 2254. all sovereignty that no proceedings for the The Venezuela situation can be tolowed iN execution of a judgment may be instituted Moore’s Digest, Vol. V1; Foreign Relations of oy carried out against it, since this manner of the United States, 1903 and 1904; H. C. Hill, collection would compromise its very exist-

lished a blockade of the Venezuela coast; Italy . .

Roosevelt and the Caribbean. ence and cause the independence and freedom of action of the respective government Tue Draco Docrrine: LETTER oF Dr, Luis _ to disappear. M. Draco, MINIsTER oF ForEIGN RE- Among the fundamental principles of pubLATIONS OF THE ARGENTINE REPUBLIC, TO lic international law which humanity has Mr. Merrovu, ARGENTINE MINISTER TO consecrated, one of the most precious is that THE UNITED STATES, DECEMBER 29, 1902 which decrees that all states, whatever be BuENos AIRES, December 29, 1902. the force at their disposal, are entities in law,

Mr. Minister: I have received your ex- perfectly equal one to another, and mutually cellency’s telegram of the 20th instant con- entitled by virtue thereof to the same concerning the events that have lately taken sideration and respect. place between the Government of the Repub- The acknowledgment of the debt, the paylic of Venezuela and the Governments of ment of it in its entirety, can and must be Great Britain and Germany. According to made by the nation without diminution of its your excellency’s information the origin of inherent rights as a sovereign entity, but the the disagreement is, in part, the damages summary and immediate collection at a given suffered by subjects of the claimant nations moment, by means of force, would occasion during the revolutions and wars that have nothing less than the ruin of the weakest recently occurred within the borders of the nations, and the absorption of their governRepublic mentioned, and in part also the ments, together with all the functions inherfact that certain payments on the external ent in them, by the mighty of the earth. The debt of the nation have not been met at the principles proclaimed on this continent of

proper time. America are otherwise. “Contracts between a

Leaving out of consideration the first class nation and private individuals are obligatory of claims the adequate adjustments of which according to the conscience of the sovereign,

it would be necessary to consult the laws of and may not be the object of compelling the several countries, this Government has force,”’ said the illustrious Hamilton. “They

deemed it expedient to transmit to your ex- confer no right of action contrary to the

cellency some considerations with reference sovereign will.” |

to the forcible collection of the public debt The United States has gone very far in suggested by the events that have taken this direction. The eleventh amendment to

place. its Constitution provided in effect, with the At the outset it is to be noted in this unanimous assent of the people, that the juconnection that the capitalist who lends his dicial power of the nation should not be ex-

money to a foreign state always takes into tended to any suit in law or equity proseaccount the resources of the country and the cuted against one of the United States by probability, greater or less, that the obliga- citizens of another State, or by citizens or tions contracted will be fulfilled without de- subjects of any foreign State. The Argentine

lay. Government has made its provinces indict-

All governments thus enjoy different credit able, and has even adopted the principle that according to their degree of civilization and the nation itself may be brought to trial be#

THE DrRAGO DOCTRINE 205 fore the supreme court on contracts which it The collection of loans by military means

enters into with individuals. implies territorial occupation to make them What has not been established, what could — effective, and territorial occupation signifies

in no wise be admitted, is that, once the the suppression or subordination of the govamount for which it may be indebted has ernments of the countries on which it is imbeen determined by legal judgment, it should _ posed.

be deprived of the right to choose the man- Such a situation seems obviously at variner and the time of payment, in which it ance with the principles many times prohas as much interest as the creditor himself, claimed by the nations of America, and paror more, since its credit and its national ticularly with the Monroe doctrine, sustained

honor are involved therein. and defended with so much zeal on all occaThis is in no wise a defense for bad faith, sions by the United States, a doctrine to disorder, and deliberate and voluntary insol- which the Argentine Republic has heretofore vency. It is intended merely to preserve the solemnly adhered... .

dignity of the public international entity But in very recent times there has been which may not thus be dragged into war observed a marked tendency among the pubwith detriment to those high ends which de- _ licists and in the various expressions of Eu-

termine the existence and liberty of nations. ropean opinion to call attention to these The fact that collection can not be ac- countries as a suitable field for future terricomplished by means of violence does not, torial expansion... . on the other hand, render valueless the And it will not be denied that the simplest acknowledgment of the public debt, the defi- way to the setting aside and easy ejectment

nite obligation of paying it. of the rightful authorities by European govThe State continues to exist in its capacity ernments is just this way of financial interas such, and sooner or later the gloomy sit- ventions—as might be shown by many exuations are cleared up, resources increase, amples. We in no wise pretend that the South common aspirations of equity and justice pre- American nations are, from any point of vail, and the most neglected promises are view, exempt from the responsibilities of all

kept. sorts which violations of international law The decision, then, which declares the ob- impose on civilized peoples. We do not nor ligation to pay a debt, whether it be given can we pretend that these countrics occupy by the tribunals of the country or by those of an exceptional position in their relations with international arbitration, which manifest the European powers, which have the indubitable

abiding zeal for justice as the basis of the right to protect their subjects as completely political relations of nations, constitutes an as in any other part of the world against the indisputable title which can not be compared persecutions and injustices of which they to the uncertain right of one whose claims may be the victims. The only principle which are not recognized and who sees himself the Argentine Republic maintains and which driven to appeal to force in order that they it would, with great satisfaction, see adopted,

may be satisfied. in view of the events in Venezuela, by a naAs these are the sentiments of justice, loy- tion that enjoys such great authority and presalty, and honor which animate the Argentine tige as does the United States, is the principeople and have always inspired its policy, ple, already accepted, that there can be no your excellency will understand that it has territorial expansion in America on the part felt alarmed at the knowledge that the fail- of Europe, nor any oppression of the peoples ure of Venezuela to meet the payments of its of this continent, because an unfortunate public debt is given as one of the determining financial situation may compel some one of causes of the capture of its fleet, the bom- them to postpone the fulfillment of its prombardment of one of its ports, and the estab- ises. Ina word, the principle which she would lishment of a rigorous blockade along its like to see recognized is: that the public debt Shores. If such proceedings were to be defi- can not occasion armed intervention nor even

nitely adopted they would establish a prece- the actual occupation of the territory of dent dangerous to the security and the peace American nations by a European power.

of the nations of this part of America. The loss of prestige and credit experienced

206 DocCUMENTS OF AMERICAN History by States which fail to satisfy the rightful that we should adhere with equal sympathy claims of their lawful creditors brings with to her policy in the Improbable case of her it difficulties of such magnitude as to render attempting to oppress the nationalities of it unnecessary for foreign intervention to this continent which are struggling for their aggravate with its oppression the temporary own progress, which have already overcome

misfortunes of insolvency. the greatest difficulties and will surely triThe Argentine Government could cite its umph—to the honor of democratic instituown example to demonstrate the needlessness tions. Long, perhaps, is the road that the of armed intervention in these cases. . . . South American nations still have to travel. At this time, then, no selfish feeling ani- But they have faith enough and energy and mates us, nor do we seek our own advantage worth sufficient to bring them to their final in manifesting our desire that the public debt development with mutual support. of States should not serve as a reason for an And it is because of this sentiment of conarmed attack on such States. Quite as little tinental brotherhood and because of the force do we harbor any sentiment of hostility with which is always derived from the moral supregard to the nations of Europe. On the con- port of a whole people that I address you, in trary, we have maintained with all of them pursuance of instructions from His Excelsince our emancipation the most friendly re- lency the President of the Republic, that lations, especially with England, to whom we you may communicate to the Government of

have recently given the best proof of the the United States our point of view regardconfidence which her justice and equanimity ing the events in the further development of inspire in us by intrusting to her decision the which that Government is to take so impor-

most important of our international ques- tant a part, in order that it may have it in tions, which she has Just decided, fixing our mind as the sincere expression of the sentilimits with Chile after a controversy of more ments of a nation that has faith in its destiny

than seventy years. and in that of this whole continent, at whose

We know that where England goes civili- head march the United States, realizing our zation accompanies her, and the benefits of ideals and affording us examples.

political and civil liberty are extended. There- Luis M. Drago. fore we esteem her, but this does not mean

359. THE LOTTERY CASE (CHAMPION vy. AMES) 188 U. S. 321 1903

Appeal from the U. S. circuit court for the It was said in argument that lottery tickets Northern district of Illinois. Congress, by act of are not of any real or substantial value in March 2, 1895, had made it a criminal offense themselves, and therefore are not subjects .of to send lottery tickets through the mails. This commerce. If that were conceded to be the case involved the question whether such a pro- only legal test as to what are to be deemed

hibition was a valid exercise of the power of ‘

Congress over commerce. How far Congress can subjects of commerce that may be regulated

go in regulating morals, health, etc. under the by Congress, we cannot accept as accurate authority of the commerce clause, is subject to the broad statement that such tickets are of

dispute. Compare this case to Hammer v. no value... .

Dagenhart, Doc. No. 413. We are of opinion that lottery tickets are HARLAN, J... . We come then to inquire subjects of traffic and therefore are subjects whether there is any solid foundation upon of commerce, and the regulation of the carwhich to rest the contention that Congress riage of such tickets from State to State, at may not regulate the carrying of lottery least by independent carriers, is a regulation tickets from one State to another, at least by of commerce among the several States. — corporations or companies whose business it But it is said that the statute in question

is, for hire, to carry tangible property from does not regulate the carrying of lottery

one State to another. tickets from State to State, but by punishing

THe LottTreryY CASE (CHAMPION V. AMES) 207 those who cause them to be so carried Con- mode, why may not Congress, invested with gress in effect prohibits such carrying; that the power to regulate commerce among the in respect of the carrying from one State to several States, provide that such commerce another of articles or things that are, in fact, shall not be polluted by the carrying of lotor according to usage in business, the sub- tery tickets from one State to another? In jects of commerce, the authority given Con- this connection it must not be forgotten that gress was not to prohibit, but only to regu- the power of Congress to regulate commerce late. This view was earnestly pressed at the among the States is plenary, is complete in bar by learned counsel, and must be exam- itself, and is subject to no limitations except

ined. such as may be found in the Constitution. It is to be remarked that the Constitution What provision in that instrument can be

does not define what is to be deemed a legit- regarded as limiting the exercise of the power imate regulation of interstate commerce. In granted? What clause can be cited which, in Gibbons v. Ogden it was said that the power any degree, countenances the suggestion that

to regulate such commerce is the power to one may, of right, carry or cause to be prescribe the rule by which it is to be gov- carried from one State to another that which erned. But this general observation leaves it will harm the public morals? We cannot to be determined, when the question comes think of any clause of that instrument that before the court, whether Congress in pre- could possibly be invoked by those who asscribing a particular rule, has exceeded its sert their right to send lottery tickets from

power under the Constitution. . . . State to State except the one providing that We have said that the carrying from State no person shall be deprived of his liberty to State of lottery tickets constitutes inter- without due process of law. .. . But surely state commerce, and that the regulation of it will not be said to be a part of anyone’s such commerce is within the power of Con- liberty, as recognized by the supreme law of gress under the Constitution. Are we pre-_ the land, that he shall be allowed to introduce pared to say that a provision which is, in into commerce among the States an element effect a prohibition of the carriage of such that will be confessedly injurious to the pubarticles from State to State is not a fit or lic morals. appropriate mode for the regulation of that If it be said that the act of 1895 is inconparticular kind of commerce? If lottery sistent with the Tenth Amendment, reserving traffic, carried on through interstate com- to the States respectively, or to the people, merce, is a matter of which Congress may the powers not delegated to the United take cognizance and over which its power States, the answer is that the power to regumay be exerted, can it be possible that it late commerce among the States has been must tolerate the traffic, and simply regulate expressly delegated to Congress.

the manner in which it may be carried on? Besides, Congress, by that act, does not Or may not Congress, for the protection of assume to interfere with trafic or commerce

the people of all the States, and under the in lottery tickets carried on exclusively power to regulate interstate commerce, de- within the limits of any State, but has in vise such means, within the scope of the Con- view only commerce of that kind among the

stitution, and not prohibited by it, as will several States. It has not assumed to interdrive that traffic out of commerce among the’ fere with the completely internal affairs of

States? any State, and has only legislated in respect

In determining whether regulation may not of a matter which concerns the people of the under some circumstances properly take the United States. As a State may, for the purform or have the effect of prohibition, the pose of guarding the morals of its own peonature of the interstate traffic which it was ple, forbid all sales of lottery tickets within sought by the act of May 2d, 1895, to sup-__its limits, so Congress, for the purpose of

press cannot be overlooked. ... guarding the people of the United States

If a State, when considering legislation for against the “wide-spread pestilence of lotthe suppression of lotteries within its own teries” and to protect the commerce which limits, may properly take into view the evils concerns all the States, may prohibit the that inhere in the raising of money in that carrying of lottery tickets from one State to

208 DOCUMENTS OF AMERICAN HISTORY another. In legislating upon the subject of leads necessarily to the conclusion that Conthe traffic in lottery tickets, as carried on gress may arbitrarily exclude from commerce through interstate commerce, Congress only among the States any article, commodity, or supplemented the action of those States— thing, of whatever kind or nature, or howperhaps all of them—which, for the protec- ever useful or valuable, which it may choose, tion of the public morals, prohibit the draw- no matter with what motive, to declare shall ing of lotteries, as well as the sale or circula- not be carried from one State to another. It tion of lottery tickets, within their respective will be time enough to consider the constitulimits. It said, in effect, that it would not tionality of such legislation when we must permit the declared policy of the States, do so. The present case does not require the which sought to protect their people against court to declare the full extent of the power the mischiefs of the lottery business, to be that Congress may exercise in the regulation overthrown or disregarded by the agency of of commerce among the States. We may, interstate commerce. We should hesitate long however, repeat, in this connection, what before adjudging that an evil of such appall- the court has heretofore said, that the powel! ing character, carried on through interstate of Congress to regulate commerce among the commerce, cannot be met and crushed by the States, although plenary, cannot be deemed only power competent to that end. We say arbitrary, since it is subject to such limitacompetent to that end, because Congress tions or restriclions as are prescribed by the alone has the power to occupy, by legislation, Constitution. This power, therefore, may not

the whole field of interstate commerce. ... be exercised so as to infringe rights secured If the carrying of lottery tickets from one or protected by that instrument. It would State to another be interstate commerce, and not be difficult to imagine legislation that if Congress is of opinion that an effective would be justly liable to such an objection regulation for the suppression of lotteries, as that stated, and be hostile to the objects carried on through such commerce, is to for the accomplishment of which Congress make it a criminal offense to cause lottery was invested with the general power to regtickets to be carried from one State to an- ulate commerce among the several States, other, we know of no authority in the Courts But, as often said, the possible abuse of a to hold that the means thus devised are not power is not an argument against its exist-

appropriate and necessary to protect the ence. There is probably no governmental country at large against a species of inter- power that may not be exerted to the injury state commerce which, although in general of the public... . use and somewhat favored in both national The whole subject is too important, and and state legislation in the early history of | the questions suggested by its consideration the country, has grown into disrepute, and are too difficult of solution, to justify any has become offensive to the entire people of attempt to lay down a rule for determining the nation. It is a kind of traffic which no in advance the validity of every statute that

one can be entitled’ to pursue as of may be enacted under the commerce clause.

right... . We decide nothing more in the present

That regulation may sometimes appropri- case than that lottery tickets are subjects of ately assume the form of prohibition is also traffic among those who choose to sell or illustrated by the case of diseased cattle, buy them; that the carriage of such tickets transported from one State to another. ... by independent carriers from one State to The Act of July 2, 1890, known as the another is therefore interstate commerce; Sherman Anti-Trust Act... is an illustra- that under its power to regulate commerce tion of the proposition that regulation may among the several States Congress—subject

take the form of prohibition... [Cites to the limitations imposed by the Constitu-

other examples ]. tion upon the exercise of the powers granted

It is said, however, that if, in order to sup- —has plenary authority over such commerce, press lotteries carried on through interstate and may prohibit the carriage of such tickets

commerce, Congress may exclude lottery from State to State; and that legislation to tickets from such commerce, that principle that end, and of that character, is not incon-

THE PLATT AMENDMENT 209 sistent with any limitation or restriction 1m- FuLuer, C. J., delivered a dissenting opinposed upon the exercise of the powers ion in which Justices BREWER, SHIRAS, and

granted to Congress. PECKHAM concurred. The judgment is affirmed.

360. THE PLATT AMENDMENT Treaty with Cuba Embodying the Platt Amendment May 22, 1903 (Malloy, ed. Treaties, Conventions, etc. Vol. I, p. 362 ff.) By the so-called Teller Amendment of the Reso- poses, or otherwise, lodgement in or control lutions of April 19, 1898, the United States dis- over any portion of said island.

claimed any intention of exercising sovereignty Apr II. The Government of Cuba shall over the Island of Cuba and promised to leave not assume or contract any public debt to the government in the hands of the Cuban : ' d to make people. On the conclusion of the war, General pay the interest upon which, an Leonard Wood, military governor of the island, reasonable sinking-fund Provision for the provided for the meeting of a constitutional ultimate discharge of which, the ordinary convention to draw up a form of government. revenues of the Island of Cuba, after deThe convention met in November 1900, and fraying the current expenses of the Governdrew up a constitution modeled upon that of ment, shall be inadequate. the United States, but without any provision for Apr JII. The Government of Cuba confuture relations with the United States. The sents that the United States may exercise the American government was unwilling to acquiesce right to intervene for the ‘preservation of

known as the Platt Amendments were added to °

in this situation, and a series of provisions Cuban independence, the maintenance of a the Army Appropriation Bill of March 2, 1901 government adequate for the protection of These Amendments were drafted by Elihu Root, life, property, and individual liberty, and for with the exception of the fifth, drafted by Gen- discharging the obligations with respect to eral Wood. The Cuban convention duly added Cuba imposed by the treaty of Paris on the them as an appendix to the Cuban Constitution, United States, now to be assumed and un-

and in 1903 they were incorporated into a dertaken by the government of Cuba.

Treaty with the United States. See, Docu- Ary IV. All Acts of the United States in mentary History of ike Incusuration of the Cuba during its military occupancy thereo retary of War, 1902, Appendix A.: Foreign € ratified and validated, and all lawful Policy Association Information Service Reports, rights acquired thereunder shall be main“Cuba and the Platt Amendment,” April, 1929; tained and protected. H. Hagedorn, Leonard Wood, 2 Vols.; G. H. Art. V. The Government of Cuba will exStuart, Cuba and its International Relations; ecute, and as far as necessary extend, the L. H. Jenks, Our Cuban Colony; H. C. Hill, plans already devised or other plans to be Roosevelt and the Caribbean; E. Root, Miltary mutually agreed upon, for the sanitation of

and Colonial Policy of the United States; the cities of the island, to the end that a re-

A. G. Robinson, Cuba and the Intervention; . , ; , C.J. Chapman, History of the Cuban Republic. currence of epidemics and infectious diseases The Platt Amendment was abrogated by Treaty may be prevented thereby assuring protec-

of May 31, 1934, Doc. No. 485. tion to the people and commerce of Cuba, as well as to the commerce of the southern Art. I. The Government of Cuba shall ports of the United States and the people re-

never enter into any treaty or other compact siding therein. with any foreign power or powers which will Arr. VI. The Isle of Pines shall be omitted impair or tend to impair the independence of from the boundaries of Cuba, specified in Cuba, nor in any manner authorize or permit the Constitution, the title thereto being left any foreign power or powers to obtain by to future adjustment by treaty.

colonization or for military or naval pur- Art. VII. To enable the United States to

210 DOCUMENTS OF AMERICAN HISTORY maintain the independence of Cuba, and to sary for coaling or naval stations at certain protect the people thereof, as well as for its specified points to be agreed upon with the own defense, the government of Cuba will President of the United States. ... sell or lease to the United States lands neces-

361. CONVENTION WITH PANAMA FOR THE CONSTRUCTION OF A CANAL Concluded November 18, 1903 (Malloy, ed. Treaties, Conventions, etc., Vol. II, p. 1349 ff.) Upon the failure of the United States to come and Colon and the harbors adjacent to said to any satisfactory agreement with Colombia on cities, which are included within the bounda-

volted Irom o10mDdDia and, Wil ne penevoien 1: a : :

the ainestion a lon ssinmian vanal Panama re ries of the zone above described, shall not protection of the United States, declared her in- Pe included within this grant. The Republic dependence. The revolt took place November 3, 0 Panama further grants to the United

1903; our government recognized the Republic of States in perpetuity the use, occupation and

Panama on the 6th, and concluded a canal control of any other lands and waters outtreaty on the 18th of November. The terms are side of the zone above described which may

practically the same as those offered to be necessary and convenient for the conColombia. In order “to remove all misunder- struction, maintenance, operation, sanitation standings growing out of the political events in and protection of the said Canal or of any Panama in November 1903”, the United States auxiliary canals or other works necessary and paid to Colombia, in 1922, the sum of $25,- convenient for the construction, maintenance,

000,000. The literature on the diplomacy of . was the Canal is extensive, but sec H. Pringle, operation, sanitation and protection of the

Theodore Roosevelt, Book II, chs. v-vi; W. F. said enterprise. McCaleb, Theodore Roosevelt, p. 145 ff.; H. C. The Republic of Panama further grants Hill, Roosevelt and the Caribbean; P. Bunau- in like manner to the United States in perVarilla, Panama. There is a wealth of material petuity all islands within the limits of the in Congressional Investigations. See “The Story zone above described and in addition thereto

of Panama,” Hearings on the Rainey Resolution, the group of small islands in the Bay of House Committee on Foreign Affairs, 1912; Panama, named Perico, Naos, Culebra and Diplomatic History of the Panama Canal, 63d Flamenco.

Congress, 2nd Session, Sen. Doc. No. 474; Art. III. The Republic of Panama grants Senute Committee on Inter-Oceanic Canals, 59th ;

Congress, 2nd Session, Sen. Doc. No. 401. to the United States all the rights, power

— and authority within the zone mentioned and

Art. I. The United States guarantees and described in Article II of this agreement and will maintain the independence of the Re- within the limits of all auxiliary lands and

public of Panama. waters mentioned and described in said ArArt. II. The Republic of Panama grants ticle II which the United States would

to the United States in perpetuity the use, possess and exercise if it were the sovereign occupation and control of a zone of land and of the territory within which said lands and land under water for the construction, main- waters are located to the entire exclusion of tenance, operation, sanitation and protection the exercise by the Republic of Panama of

of said Canal of the width of ten miles ex- any such sovereign rights, power or autending to the distance of five miles on each _ thority... .

side of the center line of the route of the Art. V. The Republic of Panama grants canal to be constructed; the said zone be- to the United States in perpetuity a moginning in the Caribbean Sea, three marine nopoly’ for the construction, maintenance miles from mean low water mark, and ex- and operation of any system of communicatending to and across the Isthmus of Panama tion by means of canal or railroad across its ‘nto the Pacific Ocean to a distance of three territory between the Caribbean Sea and the

marine miles from mean low water mark, Pacific Ocean. ... with the proviso that the cities of Panama Art. VII. The Republic of Panama grants

CONVENTION WITH PANAMA 211 to the United States within the limits of the and Colon shall be free for all time so that

cities of Panama and Colon and their ad- there shall not be imposed or collected jacent harbors and within the territory ad- custom house tolls, tonnage, anchorage, light-

jacent thereto the right to acquire by pur- house, wharf, pilot or quarantine dues or chase or by the exercise of the right of any other charges or taxes of any kind upon eminent domain, any lands, buildings, water any vessel using or passing through the Canal rights or other properties necessary and con- or belonging to or employed by the United

venient for the construction, maintenance, States, directly or indirectly, in connection operation and protection of the Canal and of with the construction, maintenance, operaany works of sanitation, such as the collec- tion, sanitation and protection of the main tion and disposition of sewage and the dis- Canal, or auxiliary works, or upon the cargo. tribution of water in the said cities of Pan- officers, crew or passengers of any such vesama and Colon, which, in the discretion of sels, except such tolls and charges as may

the United States may be necessary and be imposed by the United States for the convenient for the construction, maintenance, use of the Canal and other works, and exoperation, sanitation and protection of the cept tolls and charges imposed by the Re-

said Canal and railroad. public of Panama upon merchandise destined

The Republic of Panama agrees that the to be introduced for the consumption of the cities of Panama and Colon shall comply rest of the Republic of Panama, and upon in perpetuity with the sanitary ordinances vessels touching at the ports of Colon and whether of a preventive or curative character Panama and which do not cross the Canal. prescribed by the United States and in case The Government of the Republic of Pan-

the Government of Panama is unable or ama shall have the right to establish in fails in its duty to enforce this compliance such ports and in the towns of Panama and

by the cities of Panama and Colon with the -Colon such houses and guards as it may deem sanitary ordinances of the United States the necessary to collect duties on importations

Republic of Panama grants to the United destined to other portions of Panama and States the right and authority to enforce the to prevent contraband trade. The United

same. States shall have the right to make use of

The same right and authority are granted the towns and harbors of Panama and Colon to the United States for the maintenance of as places of anchorage, and for making republic order in the cities of Panama and _ pairs, for loading, unloading, depositing or Colon and the territories and harbors ad- trans-shipping cargoes either in transit or jacent thereto in case the Republic of Pan- destined for the service of the canal and for ama should not be, in the judgment of the other works pertaining to the canal. - United States, able to maintain such order. Art. X. The Republic of Panama agrees ArT. VIII. The Republic of Panama grants that there shall not be imposed any taxes, to the United States all rights which it now national, municipal, departmental or of any has or hereafter may acquire to the property other class upon the Canal, the railways and of the New Panama Canal Company and _ auxiliary works, tugs and other vessels emthe Panama Rajlroad Company as a result ployed in the service of the canal, storehouse, of the transfer of sovereignty from the Re- workshops, offices, quarters for laborers, fac-

public of Colombia to the Republic of tories of all kinds, warehouses, wharves, Panama over the Isthmus of Panama and machinery and other works, property, and authorizes the New Panama Canal Company _ effects appertaining to the Canal or railroad

to sell and transfer to the United States its and auxiliary works, or their officers or emrights, privileges, properties and concessions ployees, situated within the cities of Panama as well as the Panama Railroad and all the and Colon, and that there shall not be im-

shares or part of the shares of that com- posed contributions or charges of a per-

pany. sonal character of any kind upon officers, Art. IX. The United States agrees that employees, laborers and other individuals in the ports at either entrance of the Canal and the service of the Canal and railroad and

the waters thereof and the Republic of auxiliary works... .

Panama agrees that the towns of Panama Art. XIV. As the price or compensation

212 DocUMENTS OF AMERICAN History for the rights, powers and privileges granted to the said third power the requisite notificain this convention by the Republic of Panama tion within the term of four months from to the United States, the Government of the the date of the present convention, and in United States agrees to pay to the Republic case the existing treaty contains no clause of Panama the sum of ten million dollars permitting its modifications or annulment, ($10,000,000) in gold coin of the United the Republic of Panama agrees to procure States on the exchange of the ratification of its modifications or annulment in such form this convention and also an annual payment that there shall not exist any conflict with

during the life of this convention of two the stipulations of the present convenhundred and fifty thousand dollars ($250, tion... . 000) in like gold coin, beginning nine years Art. XXII. The Republic of Panama re-

after the date aforesaid. nounces and grants to the United States the The provisions of this article shall be in participation to which it might be entitled addition to all other benefits assured to the in the future earnings of the Canal under Republic of Panama under this conven- Article XV of the concessionary contract

tion. with Lucien N. B. Wyse, now owned by the But no delay or difference of opinion under New Panama Canal Company, and any and

this article or any other provisions of this all other rights or claims of a pecuniary natreaty shall affect or interrupt the full opera- ture arising under or relating to said contion and effect of this convention in all other cession, or arising under or relating to the

respects. ... concessions to the Panama Railroad Com-

Art. XVIII. The Canal, when constructed, pany or any extension or modification and the entrances thereto shall be neutral thereof; and it likewise renounces, confirms in perpetuity, and shall be opened upon the and grants to the United States, now and

terms provided for by Section 1 of Article hereafter, all the rights and property re-

ITI of, and in conformity with all the stipula- served in the said concessions which othertions of, the treaty entered into by the Gov- wise would belong to Panama at or before

ernments of the United States and Great the expiration of the terms of ninety-nine

Britain on November 18, 1901. years of the concessions granted to or held

Art. XIX. The Government of the Re- by the above-mentioned party and compublic of Panama shall have the right to panies, and all right, title and interest which transport over the Canal its vessels and its it now has or may hereafter have, in and troops and munitions of war in such vessels to the lands, canal, works, property and at all times without paying charges of any _ rights held by the said companies under said kind. The exemption is to be extended to concessions or otherwise, and acquired or to the auxiliary railway for the transportation be acquired by the United States from or of persons in the service of the Republic of _ through the New Panama Canal Company, Panama, or of the police force charged with including any property and rights which the preservation of public order outside of might or may in the future either by lapse said zone, as well as to their baggage, muni- of time, forfeiture or otherwise, revert to

tions of war and supplies. the Republic of Panama under any con-

Art. XX. If by virtue of any existing tracts or concessions, with said Wyse, the treaty in relation to the territory of the Universal Panama Canal Company, the PanIsthmus of Panama, whereof the obligations ama Railroad Company and the New Panama shall descend or be assumed by the Republic Canal Company.

of Panama, there may be any privilege or The aforesaid rights and property shall concession in favor of the Government or _ be and are free and released from any present

the citizens and subjects.of a third power or reversionary interest in or claims of relative to an interoceanic means of com- Panama and the title of the United States munication which in any of its terms may thereto upon consummation of the conbe incompatible with the terms of the pres- templated purchase by the United States ent convention, the Republic of Panama from the New Panama Canal Company, agrees to cancel or modify such treaty in shall be absolute, so far as concerns the due form, for which purpose it shall give Republic of Panama, excepting always the

RooSEVELT COROLLARY TO THE MONROE DOcTRINE 213 rights of the Republic specifically secured If the Republic of Panama shall hereafter

under this treaty. enter as a constituent into any other GovArt. XXIII. If it should become necessary ernment or into any union or confederation at any time to employ armed forces for the of States, so as to merge her sovereignty or safety or protection of the Canal, or of the independence in such Government, union or ships that make use of the same, or the confederation, the rights of the United States railways and auxiliary works, the United under this convention shall not be in any States shall have the right, at all times and respect lessened or impaired.

in its discretion, to use its police and its ArT. XXV. For the better performance land and naval forces or to establish fortifica- of the. engagements of this convention and

tions for these purposes. to the end of the efficient protection of the Art. XXIV. No change cither in the Gov- Canal and the preservation of its neutrality, ernment or in the laws and treaties of the the Government of the Republic of Panama Republic of Panama shall, without the con- will sell or lease to the United States lands sent of the United States, affect any right adequate and necessary for naval or coaling of the United States under the present con- stations on the Pacific coast and on the vention, or under any treaty stipulation be- western Caribbean coast of the Republic at tween the two countries that now exists or certain points to be agreed upon with the may hereafter exist touching the subject mat- President of the United States... .

ter of this convention. Joun Hayv—BuNAU-VARILLA 362. THE ROOSEVELT COROLLARY TO THE MONROE DOCTRINE

1904, 1905 :

Roosevelt’s experience in the Venezuela episode that it knows how to act with reasonable and the outbreak of disorder in Santo Domingo efficiency and decency in social and political led him to develop the so-called Roosevelt corol- matters, if it keeps order and pays its obligalary to the Monroe Doctrine—the principle that tions it need fear no interference from the inasmuch as We permit no European nation © United States. Chronic wrongdoing, or an countries we must ourselves assume the responsi- !™potence which results In a general loosenbility of preserving order and protecting life and ng of the ties of civilized society, may in property in those countries. This principle led America, as elsewhere, ultimately require in-

intervene in the affairs of Latin-American. . ,

to protracted intervention in Santo Domingo tervention by some civilized nation, and in and, subsequently, to intervention in Haiti, the Western Hemisphere the adherence of Nicaragua and Cuba. There is no necessary con- the United States to the Monroe Doctrine nection between this principle of moral and po- may force the United States, however reluclice responsibility and the original Monroe Doc- tantly, in flagrant cases of such wrongdoing his annual messages of 1904 and 1905. See ref- or impotenc e, to the exercise of an interna-

trine. Roosevelt formulated his “corollary” in . .

erences, Docs. No. 398, 460, 469. tional police power. If every country washed

by the Caribbean Sea would show the prog-

; ress in stable and just civilization which with

1. Roosrvert’s ANNUAL MESSAGE the aid of the Platt amendment Cuba has

December 6, 1904 shown since our troops left the island, and (Messages and Papers of the Presidents, which so many of the republics in both Amer-

Vol. XIV, p. 6923 if.) icas are constantly and brilliantly showing, .. . It is not true that the United States all question of interference by this Nation feels any land hunger or entertains any with their affairs would be at an end. Our projects as regards the other nations of the interests and those of our southern neighbors

Western Hemisphere save such as are for are in reality identical. They have great their welfare. All that this country desires is natural riches, and if within their borders the to see the neighboring countries stable, or- reign of law and justice obtains, prosperity

derly, and prosperous. Any country whose is sure to come to them. While they thus people conduct themselves well can count obey the primary laws of civilized society upon our hearty friendship. If a nation shows they may rest assured that they will be

214 DOCUMENTS OF AMERICAN HIstToRyY treated by us in a spirit of cordial and help- protect our rights; but such action will not ful sympathy. We would interfere with them be taken with a view to territorial aggression, only in the last resort, and then only if it and it will be taken at all only with extreme became evident that their inability or un- reluctance and when it has become evident willingness to do justice at home and abroad that every other resource has been exhad violated the rights of the United States hausted. or had invited foreign aggression to the detri- Moreover, we must make it evident that

ment of the entire body of American na- we do not intend to permit the Monroe tions. It is a mere truism to say that every Doctrine to be used by any nation on this nation, whether in America or anywhere else, Continent as a shield to protect it from the which desires to maintain its freedom, its in- consequences of its own misdeeds against dependence, must ultimately realize that the foreign nations, If a republic to the south right of such independence can not be sepa- of us commits a tort against a foreign narated from the responsibility of making good tion, such as an outrage against a citizen

use of it. of that nation, then the Monroe Doctrine

In asserting the Monroe Doctrine, in tak- does not force us to interfere to prevent ing such steps as we have taken in regard punishment of the tort, save to see that the to Cuba, Venezuela, and Panama, and in punishment does not assume the form of endeavoring to circumscribe the theater of territorial occupation in any shape. The case war in the Far East, and to secure the open is more difficult when it refers to a condoor in China, we have acted in our own __ tractual obligation. Our own Government has interest as well as in the interest of humanity always refused to enforce such contractual at large. There are, however, cases in which, obligations on behalf of its citizens by an ap-

while our own interests are not greatly in- peal to arms. It is much to be wished that volved, strong appeal is made to our sympa-_ all foreign governments would take the same

thies. . . . But in extreme cases action may view. But they do not; and in consequence be justifiable and proper. What form the ac- we are liable at any time to be brought face tion shall take must depend upon the cir- to face with disagreeable alternatives. On cumstances of the case; that is, upon the the one hand, this country would certainly degree of the atrocity and upon our power decline to go to war to prevent a foreign to remedy it. The cases in which we could government from collecting a just debt; on interfere by force of arms as we interfered the other hand, it is very inadvisable to perto put a stop to intolerable conditions in Cuba mit any foreign power to take possession,

are necessarily very few. even temporarily, of the custom houses of an American Republic in order to enforce the 2. RoosEVELT’s ANNUAL MESSAGE payment of its obligations; for such tempo-

December 5, 1905 rary occupation might turn into a permanent

(Messages und Papers of the Presidents, Vol. occupation. The only escape from these alter-

XIV, p. 6994 ff.) ° natives may at any time be that we must

... It must be understood that under ourselves undertake to bring about some arno circumstances will the United States use rangement by which so much as possible of

the Monroe Doctrine as a cloak for ter- a just obligation shall be paid. It is far betritorial aggression. We desire peace with all ter that this country should put through such the world, but perhaps most of all with the an arrangement, rather than allow any for-

other peoples of the American Continent. eign country to undertake it. To do so inThere are, of course, limits to the wrongs sures the defaulting republic from having which any self-respecting nation can endure. to pay debt of an improper character under

It is always possible that wrong actions duress, while it also insures honest creditors toward this Nation, or toward citizens of this of the republic from being passed by in the Nation, in some State unable to keep order interest of dishonest or grasping creditors.

among its own people, unable to secure jus- Moreover, for the United States to take tice from outsiders, and unwilling to do such a position offers the only possible way justice to those outsiders who treat it well, of insuring us against a clash with some may result in our having to take action to foreign power. The position is, therefore,

NORTHERN SECURITIES COMPANY V. UNITED STATES 215 in the interest of peace as well as in the and most of all it is really of benefit to the interest of justice. It is of benefit to our people of the country concerned. ... people; it is of benefit to foreign peoples;

363. NORTHERN SECURITIES COMPANY v. UNITED STATES 193 U. S. 197 1904

Appeal from the circuit court of United States spiracy was formed at all material when it for the district of Minnesota. It was with this appears that the necessary tendency of the celebrated suit that President Roosevelt made particular combination or conspiracy in queshis first bid for popularity as a “trust-buster™. tion is to restrict or suppress free competiA struggle between the Harriman and the Hill tion between competing railroads engaged in interests for the control of the stock of the the States? D the act Northern Pacific Railway had ended, in 1901, commerce among tne otales: oes une with the formation of the Northern Sccurities Congress prescribe, as a rule for mterstate Company as a holding company to hold the OF international commerce, that the operation stock of the competing interests. This was the of the natural laws of competition between first great holding company, and the question those engaged in such commerce shall not whether such a device constituted a violation of be restricted or interfered with by any conthe Sherman Anti-Trust Act was one of great tract, combination or conspiracy? .. . importance. The opinion of Mr. Justice Holmes, _.. The first case in this court arising who had just been appointed to the Supreme nder the Anti-Trust Act was Uwited States Court, was awaited with particular interest. See, ; B. H. Meyer, A Ilistory of the Northern Se- v. B.C. Knight Co., 156 U. 5. 1. The next curities Case; F. B. Clark, Constitutional Doc- CaS€ Was that of United States v. Transtrines of Justice Harlan; D. Richardson, Con- Missouri Freight Association, 166 U. 8. 290. stitutional Doctrines of Justice O. W. Holmes. That was followed by United States v. Joint Traffic Association, 171 U. S. 505, Hopkins

Haran, J... . The Government charges v. United States, 171 U. S. 578, Anderson that if the combination -was held not to be’ v. United States, 171 U. S. 604, Addyston in violation of the act of Congress, then Pipe & Steel Co. v. United States 175 U.S. all efforts of the National Government to 211, and Montague & Co. v. Lowry, 193 preserve to the pcople the benefits of free U.S. 38. To these may be added Pearsall v. competition among carriers engaged in inter- Great Northern Railway, 161 U. 5. 646, state commerce will be wholly unavailing, which, although not arising under the Antiand all transcontinental lines, indeed the en- Trust Act, involved an agreement under lire railway systems of the country, may be which the Great Northern and Northern absorbed, merged and consolidated, thus plac- Pacific Railway companies should be coning the public at the absolute mercy of the solidated and by which competition between

holding corporation. those companies was to cease.

... In our judgment, the evidence fully .. . We will not incumber this opinion by

sustains the material allegations of the bill, extended extracts from the former opinions and shows a violation of the act of Congress, of this court. It 1s sufficient to say that from in so far as it declares illegal every combina- the decisions in the above cases certain tion or conspiracy in restraint of commerce propositions are plainly deducible and emamong the several States and with foreign brace the present case. Those propositions nations, and forbids attempts to monopolize are:

such commerce or any part of it. That although the act of Congress known

... Is the act to be construed as forbid- as the Anti-Trust Act has no reference to the ding every combination or conspiracy in re- mere manufacture or production of articles straint of trade or commerce among the or commodities within the limits of the sevStates or with foreign nations? Or, does it eral States, it does embrace and declare to be embrace only such restraints as are unrea- illegal every contract, combination or consonable in their nature? Is the motive with spiracy, in whatever form, of whatever nawhich a forbidden combination or con- ture, and whoever may be parties to it, which

216 DOCUMENTS OF AMERICAN History directly or necessarily operates im restraint of a State over such subjects Congress canof trade or commerce among the several not forbid single individuals from disposing

States or with foreign nations; of their stock in a state corporation, even if That the act is not limited to restraints of | such corporation be engaged in interstate and

interstate and international trade or com- international commerce; that the holding or merce that are unreasonable in their nature, purchase by a state corporation or the purbut embraces all direct restraints imposed by chase by individuals, of the stock of another any combination, conspiracy or monopoly corporation, for whatever purposes, are mat-

upon such trade or commerce; ters In respect of which Congress has no That railroad carriers engaged in inter- authority under the Constitution. . .. It is

state or international commerce are embraced unnecessary in this case to consider such ab-

by the act; stract, general questions. The court need not That combinations even among private now concern itself with them... . manufacturers or dealers whereby interstate In this connection, it is suggested that the or international commerce is restrained are contention of the Government is that the

equally embraced by the act; acquisition is itself interstate commerce, if

That Congress has the power to establish that corporation be engaged in interstate rules by which interstate and international commerce... . For instance, it is said that commerce shall be governed, and, by the the question here is whether the power of Anti-Trust Act, has prescribed the rule of Céngress over interstate commerce extends free competition among those engaged in such to the regulation of the ownership of the

commerce; stock in state railroad companies, by reason That every combination or conspiracy of their being engaged in such commerce.

which would extinguish competition between Again it is said that the only issue in this otherwise competing railroads engaged in case is whether the Northern Securities Com-

interstate trade or commerce, and which pany can acquire and hold stock in other would in that way restrain such trade or state corporations. . . . Such statements as commerce, is made illegal by the act; to the issues in this case are, we think, wholly That the natural effect of competition is unwarranted and are very wide of the mark; to increase commerce, and an agreement it is the setting up of mere men of straw to whose direct effect is to prevent this play be easily stricken down. .. . What the Govof competition restrains instead of promotes ernment particularly complains of, indeed,

trade and commerce; all that it complains of here, is the existence That to vitiate a combination, such as the of a combination among the stockholders of act of Congress condemns, it need not be competing railroad companies which in violashown that the combination, in fact, results tion of the act of Congress restrains interor will result in a total suppression of trade state and international commerce through

or in a complete monopoly, but it is only the agency of a common corporate trustee essential to show that by its necessary opera- designated to act for both companies in retion it tends to restrain interstate or inter- pressing free competition between them. . . . national trade or commerce and to deprive Whether the free operation of the normal the public of the advantages that flow from laws of competition is a wise and wholesome

free competition; rule for trade and commerce is an economic

That the constitutional guarantee of lib- question which this court need not consider erty of contract does not prevent Congress or determine. Undoubtedly, there are those from prescribing the rule of free competition who think that the general business interests for those engaged in interstate and interna- and prosperity of the country will be best

tional commerce; and, promoted if the rule of competition is not That under its power to regulate commerce applied. But there are others who believe among the several States and with foreign that such a rule is more necessary in these / nations, Congress had authority to enact the days of enormous wealth than it ever was in

statute in question... . any former period of our history. Be all this It is said that whatever may be the power as it may, Congress has, in effect, recognized

NORTHERN S#CURITIES COMPANY V. UNITED STATES 217 the rule of free competition by declaring The judgement of the court is that the illegal every combination or conspiracy in decree below be and hereby is affirmed... . restraint of . . . commerce.

Indeed, if the contentions of the de- Hormes, J., with whom concurred Chief fendants are sound, why may not all the rail- Justice Futter, Justice Wuite and Justice way companies in the United States, that are PrcKHAM, dissenting.

engaged, under state charters, in interstate ... Great cases like hard cases make bad and international commerce, enter into a law. For great cases are called great, not by combination such as the one here in ques- reason of their real importance in shaping the tion, and by the device of a holding corpora- law of the future, but because of some action obtain the absolute control throughout cident of immediate overwhelming interest the entire country of rates for passengers and which appeals to the feelings and distorts the freight, beyond the power of Congress to judgement. These immediate interests exer-

protect the public against their exactions? cise a kind of hydraulic pressure which The argument in behalf of the defendants makes what previously was clear seem doubtnecessarily leads to such results and places ful, and before which even well settled prinCongress, although invested by the people ciples of law will bend. What we have to do of the United States with full authority to in this case is to find the meaning of some regulate . . . commerce, ina condition of ut- not very difficult words... .

ter helplessness, so far as the protection of ... We must try, I have tried, to do it the public against such combinations is con- with the same freedom of natural and spon-

cerned. ... taneous interpretation that one would be sure It was said in argument that the cir- of if the same question arose upon an in-

cumstances under which the Northern Se- dictment for a similar act which excited no curities Company obtained the stock of the public attention, and was of importance only constituent companies imported simply an to a prisoner before the court. Furthermore, investment in the stock of other corpora- while at times judges need for their work the

tions, a purchase of that stock; which in- training of economists or statesmen, and vestment or purchase, it was contended was must act in view of their foresight and of not forbidden by the charter of the company consequences, yet when their task is to inand could not be made illegal by any act of terpret and apply the words of a statute, Congress. This view is wholly fallacious. ... their function is merely academic to begin There was no actual investment, in any sub- with—to read English intelligently—and a stantial sense, by the Northern Securities consideration of consequences comes into Company in the stock of the two con- _ play, if at all, only when the meaning of the stituent companies. . . . However that com- words used is open to reasonable doubt. pany may have acquired for itself the stock The question to be decided is whether, in the Great Northern and Northern Pacific under the act of July 2, 1890, it is unlawful, Railway companies . . . all the stock it held at any stage of the process, if several men or acquired in the constituent compcnies was unite to form a corporation for the purpose acquired and held to be used in suppressing of buying more than half the stock of each competition between those companies. It of two competing interstate railroad com-

came into existence only for that pur- panies, if they form the corporation, and the

pose. ... corporation buys the stock. I will suppose Guided by these long established rules of further that every step is taken, from the construction, it is manifest that if the Anti- beginning, with the single intent of ending

Trust Act is held not to embrace a case competition between the companies... . such as is now before us, the plain intention This act is construed by the Government of the legislative branch of the Government to affect the purchasers of shares in two ~ will be defeated. If Congress has not, by the railroad companies because of the effect it words used in the act, described this and like may have, or, if you like, is certain to have, cases, it would, we apprehend, be impossible upon the competition of these roads. If such

to find words that would describe them. ... a remote result of the exercise of an or-

218 DOCUMENTS OF AMERICAN History dinary incident of property and personal and if that business is trade between two freedom is enough to make that exercise un- States it monopolizes a part of the trade lawful, there is hardly any transaction con- among the States. Of course the statute does

cerning commerce between the States that not forbid that. It does not mean that all may not be made a crime by the finding of business must cease. A single railroad down a jury or a court. The personal ascendency a narrow valley or through a mountain gorge of one man may be such that it would give monopolizes all the railroad transportation to his advice the effect of a command, if he through that valley or gorge. Indeed every owned but a single share in each road. The railroad monopolizes, in a popular sense, the tendency of his presence in the stockholders’ trade of some area. Yet I suppose that no

meetings might be certain to prevent com- one would say that the statute forbids a petition, and thus his advice, if not his combination of men into a corporation to

mere existence, become a crime. build and run such a railroad between the

. . . Contracts in restraint of trade are dealt States. with and defined by the common law. They .. . I will suppose that three parties apply are contracts with a stranger to ‘the con- toa State for charters; one for each of two tractor’s business, (although in some cases new and _ possibly competing lines respeccarrying on a similar one,) which wholly or tively, and one for both of these lines, and

partially restrict the freedom of the con- that the charter is granted to the last. I

tractor in carrying on that business as other- think that charter would be good, and I wise he would. The objection of the common think the whole argument to the contrary law to them was primarily on the contractor’s rests on a popular instead of an accurate and

own account. The notion of monopoly did legal conception of what the word “monot come in unless the contract covered the nopolize” in the statute means. I repeat,

whole of England... . that in my opinion there is no attempt to

... The provision of the statute against monopolize, and what, as I have said, in my contracts in restraint of trade has been held judgment amounts to the same thing, that to apply to contracts between railroads, there is no combination in restraint of trade, otherwise remaining independent, by which until something is done with the intent to they restricted their respective freedom as _ exclude strangers to the combination from to rates. This restriction by contract with competing with it in some part of the busia stranger to the contractor’s business is ness which it carries on. the ground of the decision in United States v. Unless I am entirely wrong in my underJoint Traffic Association, following and af- stand:ng of what a “combination in restraint

firming United States v. Trans-Missouri of trade” means, then the same monopoly Freight Association. I accept those decisions may be attempted and effected by an inabsolutely, not only as binding upon me, but dividual, and is made equally illegal in that as decisions which I have no desire to criti- case by Sec. 2. But I do not expect to hear

cize or abridge. But the provision has not it maintained that Mr. Morgan could be been decided, and, it seems to me, could not _ sent to prison for buying as many shares as

be decided without perversion of plain lan- he liked of the Great Northern and the guage, to apply to an arrangement by which Northern Pacific, even if he bought them competition is ended through community of both at the same time and got more than interest—an arrangement which leaves the half the stock of each road... . parties without external restriction. That pro- A partnership is not a contract or com-

vision, taken alone, does not require that bination in restraint of trade between the all existing competitions shall be maintained. partners unless the well known words are It does not look primarily, if at all, to com- to be given a new meaning invented for the

petition. It simply requires that a party’s purpose of this act. ... The law, I repeat, freedom in trade between the States shall says nothing about competition, and only not be cut down by contract with a_ prevents its suppression by contracts or com-

stranger. ... binations in restraint of trade, and such

. . . According to popular speech, every con- contracts or combinations derive their charcern monopolizes whatever business it does, acter as restraining trade from other features

LocHNER V. NEw YorRK 219 than the suppression of competition alone. I am happy to know that only a minority To see whether I am wrong, the illustrations of my brethren adopt an interpretation of put in the argument are of use. If Iam, then the law which in my opinion would make a partnership between two stage drivers who eternal the bellum omnium contra omnes had been competitors in driving across a state and disintegrate society so far as it could line, or two merchants once engaged in rival into individual atoms. If that were its incommerce among the States whether made tent I should regard calling such a law a after or before the act, if now continued, regulation of commerce as a mere pretense. is a crime. For, again I repeat, if the restraint It would be an attempt to reconstruct society. on the freedom of the members of a com- Iam not concerned with the wisdom of such bination caused by their entering into part- an attempt, but I believe that Congress was

nership is a restraint of trade, every such not entrusted by the Constitution with the combination, as well the small as the great, power to make it and I am deeply persuaded

is within the act.... that it has not tried. 364. LOCHNER v. NEW YORK

198 U.S. 45 1905

Error to the County Court of Oneida County, legitimate exercise of its police power, has New York. A New York law limited the hours the right to prohibit, it is not prevented

of labor in bakeries to not more than sixty from prohibiting it by the Fourteenth

hours a week or ten hours a day. The validity of Amendment... . this law was challenged on the ground that 1t .. . This court has recognized the existence but a violation of the rights of contract and of and upheld the exercise of the police Powers property guaranteed in the Fourteenth Amend- of the States in many cases which might ment. Compare the decision of the Court here fairly be considered as border ones, and it with the decision in Holden v. Hardy, Doc. No. has, in the course of its determination of 344, and Bunting v. Oregon, Doc. No. 421. questions regarding the asserted invalidity of

was not a proper exercise of the police power, . .

such statutes, on the ground of their viola-

PecKHAM, J... . The statute necessarily tion of the rights secured by the federal interferes with the right of contract between Constitution, been guided by rules of a very the employer and employees, concerning the liberal nature, the application of which has

number of hours in which the latter may resulted, in numerous instances, in upholdlabor in the bakery of the employer. The ing the validity of state statutes thus asgeneral right to make a contract in relation sailed. Among the later cases where the state

to his business is part of the liberty of law has been upheld by this court is that

the individual protected by the Fourteenth of Holden v. Hardy, 169 U. S. 366... . Amendment of the Federal Constitution. It will be observed that, even with regard .. . There are, however, certain powers, ex- to that class of labor, the Utah statute proisting in the sovereignty of each State in vided for cases of emergency wherein the the Union, somewhat vaguely termed police provisions of the statute would not apply. powers, the exact description and limitation The statute now before this court has no of which have not been attempted by the emergency clause in it, and, if the statute is courts. These powers, broadly stated and valid, there are no circumstances and no without, at present, any attempt at a more emergencies under which the slightest violaspecific definition, relate to the safety, health, tion of the provisions of the act would be

morals and general welfare of the pub- innocent. There is nothing in Holden v.

lic... . Hardy which covers the case now before

The State, therefore, has power to prevent us.... the individual from making certain kinds It must, of course, be conceded that there of contracts, and in regard to them the Fed- is a limit to the valid exercise of the police eral Constitution offers no protection. If the power by the State. There is no dispute con-

contract be one which the State, in the cerning this general proposition. Otherwise

220 DOCUMENTS OF AMERICAN History the Fourteenth Amendment would have no purely labor law, with no reference what-

efficacy and the legislatures of the States ever to the question of health, we think

would have unbounded power, and it would that a law like the one before us involves be enough to say that any piece of legislation neither the safety, the morals, nor the welwas enacted to conserve the morals, the fare, of the public, and that the interest of health, or the safety of the people; such the public is not in the slightest degree aflegislation would be valid, no matter how fected by such an act. The law must be up-

absolutely without foundation the claim held, if at all, as a law pertaining to the

might be. The claim of the police power health of the individual engaged in the ocwould be a mere pretext—become another cupation of a baker. It does not affect any and delusive name for the supreme sover- other portion of the public than those who eignty of the State to be.exercised free from are engaged in that occupation. Clean and constitutional restraint. This is not con- wholesome bread does not depend upon tended for. In every case that comes before whether the baker works but ten hours per this court, therefore, where legislation of day or only sixty hours a week. The limitathis character is concerned, and where the tion of the hours of labor does not come protection of the federal Constitution is within the police power on that ground. sought, the question necessarily arises: Is It is a question of which of two powers or this a fair, reasonable, and appropriate ex- rights shall prevail—the power of the State ercise of the police power of the State, or to legislate or the right of the individual to is 1t an unreasonable, unnecessary, and ar- liberty of person and freedom of contract. bitrary interference with the right of the in- The mere assertion that the subject relates, dividual to his personal liberty or to enter though but in a remote degree, to the public into those contracts in relation to labor health, does not necessarily render the enwhich may seem to him appropriate or neces- actment valid. The act must have a more sary for the support of himself and his fam- direct relation, as a means to an end, and ily? Of course the liberty of contract relat- the end itself must be appropriate and legitiing to labor includes both parties to it. The mate, before an act can be held to be valid one has as much right to purchase as the which interferes with the general right of

other to sell labor. an individual to be free in his person and

This is not a question of substituting the in his power to contract in relation to his judgment of the court for that of the legisla- own labor... . ture. If the act be within the power of the We think the limit of the police power State it is valid, although the judgment of has been reached and passed in this case. the court might be totally opposed to the There is, in our judgment, no reasonable enactment of such a law. But the question foundation for holding this to be necessary would still remain: Is it within the police or appropriate as a health law to safeguard power of the State? and that question must the public health, or the health of the in-

be answered by the court. dividuals who are following the trade of a The question whether this act is valid as baker. If this statute be valid, and if, therea labor law, pure and simple, may be dis- fore, a proper case is made out in which to missed in a few words, There is no reasonable deny the right of an individual, su juris, as ground for interfering with the liberty of employer or employee, to make contracts for person or the right of free contract, by de- the labor of the latter under the protection termining the hours of labor, in the occupa- of the provisions of the federal Constitution, tion of a baker. There is no contention that there would seem to be no length to which bakers as a class are not equal in intelligence legislation of this nature might not go... .

and capacity to men in other trades or It is impossible for us to shut our eyes to manual occupations, or that they are not the fact that many of the laws of this charable to assert their rights and care for them- acter, while passed under what is claimed to

selves without the protecting arm of the be the police power for the purpose of proState, interfering with their independence of tecting the public health or welfare, are, in judgment and of action. They are inno sense reality, passed from other motives. We are wards of the State. Viewed in the light of a justified in saying so when, from the char-

LOCHNER V. NEw YORK 221 acter of the law and the subject upon which decided upon an economic theory which a

it legislates, it is apparent that the public large part of the country does not enter-

health or welfare bears but the most remote tain. If it were a question whether I agreed relation to the law. The purpose of a statute with that theory, I should desire to study

must be determined from the natural and it further and long before making up my legal effect of the language employed; and mind. But I do not conceive that to be my whether it is or is not repugnant to the Con- duty, because I strongly believe that my stitution of the United States must be de- agreement or disagreement has nothing to termined from the natural effect of such do with the right of a majority to embody statutes when put into operation, and not their opinions in law. It is settled by various from their proclaimed purpose.... The decisions of this court that state constitutions court looks beyond the mere letter of the and state laws may regulate life in many

law in such cases. ways which we as legislators might think as ... The act is not, within any fair mean- injudicious, or if you like as tyrannical, as ing of the term, a health law, but is an illegal this, and which, equally with this, interfere interference with the rights of individuals, with the liberty to contract. Sunday laws and both employers and employees, to make con- usury laws are ancient examples. A more

tracts regarding labor upon such terms as modern one is the prohibition of lotteries. they may think best, or which they may agree The liberty of the citizen to do as he likes upon with the other parties to such contracts. so long as he does not interfere with the Statutes of the nature of that under review, liberty of others to do the same, which has limiting the hours in which grown and in- been a _ shibboleth for some well-known telligent men may labor to earn their living, writers, is interfered with by school laws, by are mere meddlesome interferences with the the post-office, by every state or municipal

rights of the individual, and they are not institution which takes his money for pursaved from condemnation by the claim that poses thought desirable, whether he likes it they are passed in the exercise of the police or not. The Fourteenth Amendment does not power and upon the subject of the health enact Mr. Herbert Spencer’s Social Statics. of the individual whose rights are interfered ... United States and state statutes and dewith, unless there be some fair ground, rea- cisions cutting down the liberty to contract

sonable in and of itself, to say that there by way of combination are familiar to this is material danger to the public health, or court. . . . Some of these laws embody conto the health of the employees, if the hours victions or prejudices which judges are likely

of labor are not curtailed... . to share. Some may not. But a constitution is It is manifest to us that the limitation of not intended to embody a particular economic

the hours of labor as provided for in this theory, whether of paternalism and the orsection of the statute ... has no such di- ganic relation of the citizen to the state or rect relation to and no such substantial effect of laissez faire. It is made for people of upon the health of the employee, as to justify fundamentally differing views, and the acus in regarding the section as really a health cident of our finding certain opinions natural law. It seems to us that the real object and and familiar, or novel, and even shocking, purpose were simply to regulate the hours of ought not to conclude our judgement upon labor between the master and his employees __ the question whether statutes embodying

... In a private business, not dangerous in them conflict with the Constitution of the any degree to morals or in any real and United States. substantial degree, to the health of the em- General propositions do not decide conployees. Under such circumstances the free- crete cases. The decision will depend on a dom of master and employee to contract with judgement or intuition more subtle than any each other in relation to their employment, articulate major premise. But i think that and in defining the same, cannot be pro- the proposition just stated, if it is accepted,

hibited or interfered with, without violating will carry us far toward the end. Every

the Federal Constitution. opinion tends to become a law. I think that Judgement reversed. the word “liberty,” in the Fourteenth Amend-

Hoitmes, J., dissenting... .. The case is ment, is perverted when it is held to prevent

222 DOCUMENTS OF AMERICAN History the natural outcome of a dominant opinion, — the statute before us. A reasonable man might

unless it can be said that a rational and fair think it a proper measure on the score of

man necessarily would admit that the statute health. Men whom I certainly could not proproposed would infringe fundamental princi- nounce unreasonable would uphold it as a ples as they have been understood by the tra- first instalment of a general regulation of

ditions of our people and our law. It does the hours of work. Whether in the latter not need research to show that no such aspect it would be open to the charge of in-

sweeping condemnation can be passed upon equality I think it unnecessary to discuss.

365. PEOPLE v. WILLIAMS 189 New York, 131 1907

Appeal from order of the Appellate Division of a divided vote, have affirmed the order of the

the Supreme Court. Compare the decision in trja] court. this case to the decision in Commonwealth v. In my judgment, the determination below Hamilton Manufacturing Company, Doc. No. was correct. I think that the legislature, in

295. preventing the employment of an adult

Gray, J. The defendant was arrested woman in a factory, and in prohibiting her and convicted upon the charge of having to work therein, before six o’clock in the violated the provisions of section 3841 of the morning, or after nine o’clock in the evening

Penal Code. . . . The provision of the Labor has overstepped the limits set by the ‘ConLaw now in question is contained in section stitution of the state to the exercise of the 77; which is entitled: “Hours of labor of power to interfere with the rights of citizens.

minors and women” and reads that “No The fundamental law of the state, as emminor under the age of eighteen years, and bodied in its Constitution, provides that “no

no female shall be employed, permitted or person shall... be deprived of life, libsuffered to work in any factory in this state erty or property without due process of law.” before six o’clock in the morning, or after (Art. 1, sec. 6.) The provisions of the State

nine o'clock in the evening of any day; or and the Federal Constitutions protect every

for more than ten hours in any one day citizen in the right to pursue any lawful

except to make a shorter work day on the employment in a lawful manner. He enjoys last day of the week; or for more than the utmost freedom to follow his chosen pursixty hours in any one week, or more hours suit and any arbitrary distinction against, in any one week than will make an average or deprivation of, that freedom by the legof ten hours per day for the whole number islature is an invasion of the constitutional of days so worked.” (L. 1903, ch. 184, sec. 2.) guaranty. Under our laws men and women The information and the proof were that a now stand alike in their constitutional rights female, named Katie Mead, over twenty one and there is no warrant for making any dis-

years of age, was found by the factory in- crimination between them with respect to spector at work in a book binding establish- the liberty of person, or of contract. It is ment, in the city of New York, at twenty claimed, however, in this case, that the enminutes after ten o’clock in the evening. ... actment in question can be justified as an Ii the inhibition against employing a female exercise of the police power of the state: in any factory after that hour was a valid having for its purpose the general welfare act of legislation, then the defendant came of the state in a measure for the preservawithin its operation and he was amenable to tion of the health of the female citizens. It punishment. After the defendant had been is to be observed that it is not a regulation found guilty, the trial court granted his mo- of the number of hours of labor for working tion in arrest of judgment and discharged women; the enactment goes far beyond this.

him; holding that the legislative enactment It attempts to take away the right of a was unconstitutional. The justices of the Ap- woman to labor before six in the morning, pellate Division, in the first department, by or after nine o’clock in the evening without

MULLER V. OREGON 223 any reference to other considerations... . time of the day that suits her, I think it Except as to women under twenty one years is time to call a halt. It arbitrarily deprives

of age, this was the first attempt on the citizens of their right to contract with each part of the state to restrict their liberty of other. The tendency of legislatures, in the person, or their freedom of contract, in the form of regulatory measures, to interfere pursuit of a vocation. I find nothing in the with the lawful pursuits of citizens is belanguage of the section which suggests the coming a marked one in this country, and it purpose of promoting health, except as it behooves the courts, firmly and fearlessly, to might be inferred that for a woman to work interpose the barriers of their judgments, during the forbidden hours of night would be when invoked to protect against legislative unhealthful. If the inhibition of the section acts, plainly transcending the powers conin question had been framed to prevent the ferred by the Constitution upon the legisla-

ten hours of work from being performed at tive body. ... night, or to prolong them beyond nine o’clock Without extended reference to the cases in the evening, it might, more readily, be ap- bearing upon the much discussed subject of preciated that the health of women was the the exercise of the police power, I need only

matter of legislative concern. That is not refer to the recent case of Lochner v. State the effect, nor the sense, of the provision of of New York, (198 U. S. 45); where the the section with which, alone, we are deal- Supreme Court of the United States had being. It was not the case upon which this fore it a case arising in this state under a defendant was convicted. If this enactment provision of the Labor Law, which restricted

is to be sustained, then an adult woman, al- the hours of labor for the employés of though a citizen and entitled as such to all bakers. ... It was held that bakers “are the rights of citizenship under our laws, may in no sense wards of the State.”... not be employed, nor contract to work, in So I think, in this case, that we should any factory for any period of time, no mat- say, as an adult female is in no sense a ward

ter how short, if it is within the prohibited of the state, that she is not to be made the hours; and this, too, without any regard to special object of the exercise of the paternal the healthfulness of the employment. It is power of the state and that the restriction, clear, as it seems to me, that this legislation here imposed upon her privilege to labor, cannot, and should not, be upheld as a proper _— violates the constitutional guarantees. In the

exercise of the police power. It is, certainly, gradual course of legislation upon the rights

discriminative against female citizens, in of a woman in this state, she has come to denying to them equal rights with men in possess all of the responsibilities of the man the same pursuit. The courts have gone very and she is entitled to be placed upon an far in upholding legislative enactments, equality of rights with the man.

framed clearly for the welfare, comfort and It might be observed that working in a health of the community, and that a wide factory in the night hours is not the only range in the exercise of the police power of situation of menace to the working woman; the state should be conceded, I do not deny; but such occupation is, arbitrarily, debarred

but, when it is sought under the guise of a her. labor law, arbitrarily, as here, to prevent an For these reasons, I advise that the order adult female citizen from working at any appealed from should be affirmed.

366. MULLER v. OREGON 208 U. S. 412 1908

Error to the supreme court of Oregon. An Ore- duced a mass of evidence of a statistical, sociogon law of 1903 prohibited the employment of logical, and historical character bearing on the any female in any factory or laundry for more reasonableness of the law in question, which was than ten hours a day. Mr. Louis Brandeis, subse- admitted by the court. Mr. Brandeis’s brief was quently Justice of the Supreme Court, was one printed by the National Consumers’ League as of the counsel for the state of Oregon, and pro- Women in Industry.

224 DocuUMENTS OF AMERICAN History BREWER, J. . . . The single question is the wise would be lacking. At the same time, constitutionality of the statute under which when a question of fact is debated and dethe defendant was convicted, so far as af- batable, and the extent to which a special fects the work of a female in a laundry... . constitutional limitation goes is affected by It is the law of Oregon that women, _ the truth in respect to that fact, a widespread whether marricd or single, have equal con- and long-continued belief concerning it is tractual and personal rights with men.... worthy of consideration. We take judicial It thus appears that, putting to one side cognizance of all matters of general knowlthe elective franchise, in the matter of per- edge... . sonal and contractual rights they stand on That woman’s physical structure and the the same plane as the other sex. Their rights performance of maternal functions place her in these respects can no more be infringed ata disadvantage in the struggle for subsistthan the equal rights of their brothers. We ence is obvious. This is especially true when held in Lochner v. New York, 198 U. S. 45, the burdens of motherhood are upon her. that a law providing that no laborer shall be Even when they are not, by abundant testirequired or permitted to work in a bakery mony of the medical fraternity continuance more than sixty hours in a week or ten hours for a long time on her feet at work, repeatin a day was not as to men a legitimate ex- ing this from day to day, tends to injurious ercise of the police power of the State, but effects upon the body, and, as healthy mothan unreasonable, unnecessary, and arbitrary ers are essential to vigorous offspring, the interference with the right and liberty of the physical well-being of woman becomes an obindividual to contract in relation to his labor, ject of public interest and care in order to

and as such was in conflict with, and void preserve the strength and vigor of the under, the federal Constitution. That de- race... . cision is invoked by plaintiff in error as de- Differentiated by these matters from the cisive of the question before us. But this other sex, she is properly placed in a class by assumes that the ditference between the sexes herself, and legislation designed for her pro-

does not justify a different rule respecting a tection may be sustained, even when like

restriction of the hours of labor. legislation is not necessary for men, and . .. It may not be amiss, in the present could not be sustained. It is impossible to case, before examining the constitutional close one’s eyes to the fact that she still question, to notice the course of legislation, looks to her brother and depends upon him. as well as expressions of opinion from other Even though all restrictions on political, than judicial sources. In the brief filed by personal, and contractual rights were taken Mr. Louis D. Brandeis for the defendant in away, and she stood, so far as statutes are error is a very copious collection of all these concerned, upon an absolutely equal plane

matters. ... with him, it would still be true that she is

The legislation and opinions referred to so constituted that she will rest upon and ... may not be, technically speaking, au- look to him for protection; that her physical thoritics, and in them is little or no dis- structure and a proper discharge of her macussion of the constitutional question pre- ternal functions—having in view not merely sented to us for determination, yet they her own health, but the well-being of the are significant of a widespread belief that race—justify legislation to protect her from woman’s physical structure, and the functions the greed as well as the passion of man. The she performs in consequence thereof, Justify limitations which this statute places upon special legislation restricting or qualifying her contractual powers, upon her right to the conditions under which she should be agree with her employer as to the time she permitted to toil. Constitutional questions, it shall labor, are not imposed solely for her is true, are not settled by even a consensus of _ benefit, but also largely for the benefit of present public opinion, for it is the peculiar all. Many words cannot make this plainer. value of a written constitution that it places The two sexes differ in structure of body, in in unchanging form limitations upon legisla- the functions to be performed by each, in tive action, and thus gives a permanence and’ the amount of physical strength, in the castability to popular government which other- pacity for long continued labor, particularly

ADAIR V. UNITED STATES 225 when done standing, the influence of vigorous For these reasons, and without questioning

health upon the future well-being of the in any respect the decision in Lochner v. race, the self-reliance which enables one to New York, we are of the opinion that it can-

assert full rights, and in the capacity to not be adjudged that the act in question is maintain the struggle for subsistence. This in conflict with the federal Constitution, so difference justifies a difference in legislation, far as it respects the work of a female in a and upholds that which is designed to com- laundry, and the judgment of the supreme pensate for some of the burdens which rest court of Oregon is

upon her... . Affirmed.

367. JAPANESE IMMIGRATION—THE GENTLEMEN’S AGREEMENT 1908

(Report of the Commissioner General of Immigration, 1908, p. 125) The growing number of Japanese in California, tion of its subjects of the laboring classes and the hostility of labor to Oriental competi- to continental United States should be contion, led to an agitation against Japanese immi- tinued, and should, by co-operation with the gration that culminated in the San Francisco governments, be made as effective as pos-

school laws of 1906. These laws required, in in- ‘ble Thi derstandi t lates that sulting terms, that Chinese, Japanese, and spleens Understanding Con empla cs tne

Korean children attend a separate Oriental Pub- the Japanese government shall issue passlic School. The danger of further hostile legisla- Ports to continental United States only to tion led President Roosevelt to conclude with such of its subjects as are non-laborers or Japan the famous Gentlemen’s Agreement,—an are laborers who, in coming to the continent, execulive agreement, the exact terms of which seek to resume a formerly acquired domicile, have never been revealed. The agreement salved to join a parent, wife, or children residing

the pride of Japan, and temporarily placated there, or to assume active control of an the Californians. By permitting the immigration already possessed interest in a farming enter-

of wives, it increased the Japancse population . .

in California materially, and was eventually prise in this country, 50 that the three classes

superseded by the Immigration Act of 1924. See, of laborers entitled to recelve passports have

E. G. Mears, Resident Orientals on the Ameri- come to be designated “former residents,” can Pacific Coast; S. L. Gulick, The American “parents, wives, or children of residents,” Japanese Problem; E. Root, “The Real Ques- and “settled agriculturists.” tions under the Japanese Treaty and the San With respect to Hawaii, the Japanese govFrancisco School Board Resolution,” Proc. Am. ernment of its own volition stated that, exSoc. of International Law, 1907; K. K. Ama- perimentally at least, the issuance of passkami, The Real Japanese Question; T. Iyenaga ports to members of the laboring classes prolem; R. D. McKenzie, Oriental Exclusion; J. —, Ceding thence would be limited to “former

and K. Sato, Japan and the California Prob- : wo. i

Johnsen, ed. Japanese Exclusion. residents” and “parents, wives, or children

of residents.” The said government has also In order that the best results might follow been exercising a careful supervision over from an enforcement of the regulations, an the subject of emigration of its laboring understanding was reached with Japan that class to foreign contiguous territory. the existing policy of discouraging emigra-

368. ADAIR v. UNITED STATES 208 U. S. 161 1908

Error to the District Court of United States for stitutionality of certain provisions of the act Eastern District of Kentucky to review convic- of Congress of June 1, 1898, .. . concerning tion of an agent of an interstate carrier for dis-~ carriers engaged in interstate commerce and

charging an employce from service because of . The 10th section upon which the present HARLAN, J. This case involves the con- prosecution is based is in these words:

his membership in a labor organization their employees. . . .

226 DOCUMENTS OF AMERICAN History “That any employer subject to the pro- its departments, it was the defendant Adair’s visions of this act, ... who shall require right—and that right inhered in his personal any employee, or any person seeking em- liberty, and was also a right of property— ployment, as a condition of such employment, to serve his employer as best he could, so to enter into an agreement, either written or long as he did nothing that was reasonably verbal, not to become or remain a member forbidden by law as injurious to the public

of any labor corporation, association, or interest. It was the right of the defendant organization; . .. is hereby declared to be to prescribe the terms upon which the serv-

guilty of a disdemeanor. .. .” ices of Coppage would be accepted, and it The specific charge... was “that said was the right of Coppage to become or not, William Adair, agent and employee of said as he chose, an employee of the railroad common carrier and employer, . . . did un- company upon the terms offered to him... . lawfully and unjustly discriminate against In every case that comes before this court, O. B. Coppage, employee, . . . by then and therefore, where legislation of this character there discharging said O. B. Coppage from is concerned, ... the question necessarily such employment ... because of his mem- arises: Is this a fair, reasonable, and apbership in said labor organization and thereby propriate exercise of the police power of the did unjustly discriminate against an employee — state, or is it an unreasonable, unnecessary,

of a@ common carrier and employer engaged and arbitrary interference with the right of wu interstate commerce because of his mem- the individual to his personal liberty or to bership in a labor organization, contrary to enter into those contracts in relation to labor

the forms of the Statute.”. .. which may seem to him appropriate or neces-

May Congress make it a criminal offense sary for the support of himself and his against the United States—as, by the 10th family? ... section of the Act of 1898 it does,—for an While, . . . the right of liberty and propagent or officer of an interstate carrier, ... erty guaranteed by the Constitution against to discharge an employee from service simply deprivation without due process of law is because of his membership in a labor organi- subject to such reasonable restraints as the

zation? ... common good or the general welfare may reThe first inquiry is whether the part of the quire, it is not within the functions of gOov-

10th section of the Act of 1898 upon which ernment ... to compel any person in the the first count of the indictment is based is course of his business and against his will, to

repugnant to the Sth Amendment of the accept or retain the personal services of anConstitution, declaring that no person shall other, or to compel any person, against his be deprived of liberty or property without will, to perform personal services for andue process of law. In our opinion that sec- other... . tion in the particular mentioned is an invasion As the relations and the conduct of the of the personal liberty, as well as of the right parties towards each other was not conof property, guaranteed by that Amendment. trolled by any contract other than a general Such liberty and right embrace the right employment on one side to accept the servto make contracts for the purchase of the ices of the employee and a general agreement labor of others, and equally the right to make on the other side to render services to the contracts for the sale of one’s own labor; employer,—no term being fixed for the con-

each right, however, being subject to the tinuance of the employment,—Congress fundamental condition that no contract, could not, consistently with the 5th Amendwhatever its subject-matter, can be sustained ment, make it a crime against the United which the law, upon reasonable grounds, for- States to discharge the employee because bids as inconsistent with the public interest, of his being a member of a labor organizaor as hurtful to the public order, or as detri- tion.

mental to the common good... . It is suf- But it is suggested that the authority to ficient in this case to say that, as agent of the make it a crime... can be referred to the railroad company, and, as such, responsible power of Congress to regulate interstate com-

for the conduct of the business of one of merce, without regard to any question of

ADAIR Vv. UNITED STATES 227 personal liberty or right of property arising by Congress. If so, legislation to prevent the under the 5th Amendment. This suggestion exclusion of such unions from employment can have no bearing, in the present discus- is sufficiently near. sion unless the statute, in the particular just The ground on which this particular law

stated, is, within the meaning of the Con- is held bad, is not so much that it deals stitution, a regulation of commerce among’ with matters remote from commerce among

the States. If it be not, then clearly the the states, as that it interferes with the

government cannot invoke the commerce paramount individual rights secured by the clause of the Constitution as sustaining the 5th Amendment. The section is, in substance,

indictment against Adair... . a very limited interference with freedom

Looking alone at the words of the statute of contract, no more. It does not require the for the purpose of ascertaining its scope and carriers to employ anyone. It does not forbid

effect, and of determining its validity, we them to refuse to employ anyone, for any . hold that there is no such connection be- reason they deem good, even where the notween interstate commerce and membership tion of a choice of persons is a fiction and in a labor organization as to authorize Con- wholesale employment Is necessary upon gen-

gress to make it a crime against the United’ eral principles that it might be proper to States for an agent of an interstate carrier control. The section simply prohibits the to discharge an employee because of such more powerful party to exact certain under-

membership on his part... . takings, or to threaten dismissal or unjustly

It results, on the whole case, that the pro- discriminate on certain grounds against those vision of the statute under which the de- already employed. I hardly can suppose that fendant was convicted must be held to be the grounds on which a contract lawfully repugnant to the 5th Amendment and as not’ may be made to end are less open to reguembraced by nor within the power of Con- lation than other terms. So I turn to the gress to regulate interstate commerce, but, general question whether the employment under the guise of regulating commerce, and __can be regulated at all. I confess that I think

as applied to this case, it arbitrarily sanc- that the right to make contracts at will that tions an illegal invasion of the personal has been derived from the word “liberty” liberty as well as the right of property of the in the Amendments, has been stretched to

defendant Adair. its extreme by the decisions; but they agree

Judgement reversed. that sometimes the right may be restrained. Homes, J., dissenting: I... think that Where there is, or generally is believed to be, the statute is Constitutional, and, but for an important ground of public policy for the decision of my brethren, I should have _ restraint, the Constitution does not forbid

felt pretty clear about it. it, whether this court agrees or disagrees with

As we all know, there are special labor the policy pursued. It cannot be doubted that unions of men engaged in the service of car- to prevent strikes and, so far as possible, to riers. These unions exercise a direct influence foster its scheme of arbitration, might be upon the employment of labor in that busi- deemed by Congress an important point of ness, upon the terms of such employment, policy, and I think it impossible to say that and upon the business itself. Their very ex- Congress might not reasonably think that istence is directed specifically to the business, the provision in question would help a good

and their connection with it is, at least, as deal to carry its policy along. But suppose intimate and important, as that of safety the only effect really were to tend to bring couplers, and, I should think, as the liability about-the complete unionizing of such railof master to servant,—matters which, it is road laborers as Congress can deal with, I adntitted, Congress might regulate so far as think that object alone would justify the they concerned commerce among the states. act. I quite agree that the question what and I suppose that it hardly would be denied that how much good labor unions do, is one on some of the relations of railroads with unions which intelligent people may differ: I think of railroad employees are closely enough con- that laboring men sometimes attribute to nected with commerce to justify legislation them advantages, as many attribute to com-

228 DOCUMENTS OF AMERICAN HiIsTORY binations of capital, disadvantages, that cide that to foster a strong union was for really are due to economic conditions of a far the best interests, not only of the men, but of wider and deeper kind; but I could not pro- the railroads and the country at large. nounce it unwarranted if Congress should de-

369. THE CONSERVATION OF NATURAL RESOURCES Roosevelt’s Seventh Annual Message to Congress Dec. 3, 1907 (The Works of Theodore Roosevelt, Vol. XV, p. 443 ff.) Of all Roosevelt’s policies, that of conservation few years, through several agencies, the gov-

of the natural resources of the nation was of ernment has been endeavoring to get our the most permanent significance. In his first people to look ahead and to substitute a . message to Congress he had announced that the planned and orderly development of our reforest and water problems were the most vital sources in place of a haphazard striving for

domestic problems facing the American people, . ; .

and during his administration he succeeded in immediate profit. Our great river systems setting aside almost 150,000,000 acres of timber should be developed as national water highland and some 85,000,000 acres of mineral lands WAYS, the Mississippi, with its tributaries, in Alaska. More than this, he dramatized the standing first in importance, and the Columproblem of conservation before the country by bia second, although there are many others his speeches, his actions, and by the convening of importance on the Pacific, the Atlantic, of the Conservation Conference, Doc. No. 370. and the Gulf slopes. The National GovernOn Roosevelt and conservation, see, Theodore ont should undertake this work, and I hope Roosevelt, an Autobiography, ch. xi; the vari- beginning will be made in the present Conthe Inland Waterways Commission, and the Na- 87°SS; and the greatest of all Our rivers, the tional Conservation Commission; C. R. Van Mississippi, should receive special attention. Hise, Conservation of Natural Resources in the From the Great Lakes to the mouth of the United States; F. H. Newell, Irrigation in the Mississippi there should be a deep waterway, United States; W. E. Smyth, The Conquest of — with deep waterways Jeading from it to the Arid America; G. Pinchot, The Fight for Con- East and the West. Such a waterway would

ous Reports of the Public Lands Commission,

servation; B. H. Hibbard, History of Public practically mean the extension of our coastLand Policies, ch. xxii; on the enduring nature Jine into the very heart of our country. It of the problem, see S. Chase, The Tragedy of would be of incalculable benefit to our peo-

Waste. ple. If begun at once it can be carried To the Senate and House of Representatives: through in time appreciably to relieve the

_. . The conservation of our natural re- congestion of our great freight-carrying lines sources and their proper use constitute the of railroads. The work should be systematfundamental problem which underlies almost ically and continuously carried forward in every other problem of our national life... . accordance with some well-conceived plan. As a nation we not only enjoy a wonderful The main streams should be improved to the measure of present prosperity but if this pros- highest point of efficiency before the imperity is used aright it is an earnest of future provement of the branches is attempted; and success such as no other nation will have. the work should be kept free from every The reward of foresight for this nation is _ taint of recklessness or jobbery. The inland great and easily foretold. But there must be waterways which lie just back of the whole the look ahead, there must be a realization Eastern and Southern coasts should likewise of the fact that to waste, to destroy, our be developed. Moreover, the development of natural resources, to skin and exhaust the our waterways involves many other imporland instead of using it so as to increase its tant water problems, all of which should be usefulness, will result im undermining in the considered as part of the same general

days of our children the very prosperity scheme. The government dams should be which we ought by right to hand down to used to produce hundreds of thousands of them amplified and developed. For the Jast horse-power as an incident to improving nav-

THe CoNSERVATION OF NATURAL RESOURCES 229 igation; for the annual value of the unused a farm of 160 acres is inadequate for selfwater-power of the United States perhaps support. ... Three years ago a public-lands exceeds the annual value of the products of commission was appointed to scrutinize the all our mines. As an incident to creating the law, and defects, and recommend a remedy. deep waterways down the Mississippi, the Their examination specifically showed the government should build along its whole existence of great fraud upon the public dolower length levees which, taken together main, and their recommendations for changes with the control of the headwaters, will at in the law were made with the design of once and forever put a complete stop to all conserving the natural resources of every threat of floods in the immensely fertile delta part of the public lands by putting it to its region. The territory lying adjacent to the best use. Especial attention was called to the Mississippi along its lower course will prevention of settlement by the passage of thereby become one of the most prosperous great areas of public land into the hands of a and populous, as it already is one of the most few men, and to the enormous waste caused fertile, farming regions in all the world. I by unrestricted grazing upon the open range. have appointed an inland waterways com- The recommendations of the Public-Lands mission to study and outline a comprehensive Commission are sound, for they are especially scheme of development along all the lines in the interest of the actual home-maker; and indicated. Later I shall lay its report before where the small home-maker cannot at pres-

the Congress. ent utilize the land they provide that the Irrigation should be far more extensively government shall keep control of it so that developed than at present, not only in the it may not be monopolized by a few men. States of the great plains and the Rocky The Congress has not yet acted upon these Mountains, but in many others, as, for in- recommendations, but they are so just and stance, in large portions of the South At- proper, so essential to our national welfare, lantic and Gulf States, where it should go that I feel confident, if the Congress will hand in hand with the reclamation of swamp- take time to consider them, that they will land. The Federal Government should seri- ultimately be adopted. ously devote itself to this task, realizing that Some such legislation as that proposed is utilization of waterways and water-power, essential in order to preserve the great forestry, irrigation, and the reclamation of stretches of public grazing-land which are lands threatened with overflow, are all inter- unfit for cultivation under present methods dependent parts of the same problem. The and are valuable only for the forage which work of the Reclamation Service in develop- they supply. These stretches amount in all ing the larger opportunities of the Western to some 300,000,000 acres, and are open to half of our country for irrigation is more im- the free grazing of cattle, sheep, horses, and portant than almost any other movement. goats, without restriction. Such a system, or The constant purpose of the government in lack of system, means that the range is not connection with the Reclamation Service has so much used as wasted by abuse. As the been to use the water resources of the public West settles, the range becomes more and lands for the ultimate greatest good of the more overgrazed. Much of it cannot be used greatest number; in other words, to put upon to advantage unless it is fenced, for fencing the land permanent home-makers, to use and is the only way by which to keep in check

develop it for themselves and for their chil- the owners of nomad flocks which roam

dren and children’s children... . hither and thither, utterly destroying the The effort of the government to deal with pastures and leaving a waste behind so that

the public land has been based upon the same _ their presence is incompatible with the pres-

principle as that of the Reclamation Service. ence of home-makers, The existing fences The land law system which was designed to are all illegal... . All these fences, those

meet the needs of the fertile and well- that are hurtful and those that are beneficial, watered regions of the Middle West has are alike illegal and must come down. But it largely broken down when applied to the is an outrage that the law should necessitate drier regions of the great plains, the moun-_ such action on the part of the Administratains, and much of the Pacific slope, where tion. The unlawful fencing of public lands

230 DOCUMENTS OF AMERICAN HISTORY for private grazing must be stopped, but the that this present enormous loss of fertility necessity which occasioned it must be pro- is entirely unnecessary. The preservation or vided for. The Federal Government should replacement of the forests is one of the most have control of the range, whether by permit important means of preventing this loss. We or lease, as local necessities may determine. have made a beginning in forest preservation, Such control could secure the great benefit of but ... so rapid has been the rate of exlegitimate fencing, while at the same time haustion of timber in the United States in securing and promoting the settlement of the the past, and so rapidly is the remainder country. ... The government should part being exhausted, that the country is unqueswith its title only to the actual home-maker, tionably on the verge of a timber famine not to the profit-maker who does not care which will be felt in every household in the to make a home. Our prime object is to se- land. ... The present annual consumption cure the rights and guard the interests of of lumber is certainly three times as great as the small ranchman, the man who ploughs’ the annual growth; and if the consumption and pitches hay for himself. It is this small and growth continue unchanged, practically

ranchman, this actual settler and home- all our lumber will be exhausted in another maker, who in the long run is most hurt by generation, while long before the limit to permitting thefts of the public land in what- complete exhaustion is reached the growing

ever form. scarcity will make itself felt in many blightOptimism is a good characteristic, but if ing ways upon our national welfare. About carried to an excess it becomes foolishness. twenty per cent of our forested territory is We are prone to speak of the resources of | now reserved in national forests; but these this country as inexhaustible; this is not so. do not include the most valuable timberThe mineral wealth of the country, the coal, lands, and in any event the proportion is too iron, oil, gas, and the like, does not reproduce small to expect that the reserves can accomitself, and therefore is certain to be exhausted _plish more than a mitigation of the trouble

ultimately; and wastefulness in dealing with which is ahead for the nation.... We it today means that our descendants will should acquire in the Appalachian and feel the exhaustion a generation or two be- White Mountain regions all the forest-lands

fore they otherwise would. But there are that it is possible to acquire for the use of

certain other forms of waste which could be the nation. These lands, because they form entirely stopped—the waste of soil by wash- a national asset, are as emphatically national

ing, for instance, which is among the most as the rivers which they feed, and which dangerous of all wastes now in progress in flow through so many States before they the United States, is easily preventable, so reach the ocean... . 370. DECLARATION OF THE CONSERVATION CONFERENCE May 15, 1908 (Proceedings of a Conference of Governors, May 13-15, 1908, p. 192 ff.)

To cap his work for the conservation of natural DECLARATION

resources, President Roosevelt called a conference of governors, congressmen, supreme court We the Governors of the States and Terrijustices, members of the cabinet, and other dis- tories of the United States of America, in tinguished public men, to consider the broad Conference assembled, do hereby declare the

problem of conservation. The conference conviction that the great prosperity of our adopted the resolution given below, and pro- country rests upon the abundant resources of vided for the appointment of thirty-six state the land chosen by our forefathers for their conservation commissions and a national con- tomes and where they laid the foundation of servation commission. The national commission, 4), great Nation

of which Gifford Pinchot was chairman, pre- We look th ources as a heritage pared an inventory of the natural resources of € look upon these resource a 8

the country. On conservation see references in to be made use of in establishing and promot-

Doc. No. 369. ing the comfort, prosperity, and happiness of

DECLARATION OF THE CONSERVATION CONFERENCE 231 the American People, but not to be wasted, sources of national wealth exist for the bene-

deteriorated, or needlessly destroyed. fit of the People, and that monopoly thereof We agree that our country’s future is in- should not be tolerated.

volved in this; that the great natural re- We commend the wise forethought of the sources supply the material basis on which President in sounding the note of warning our civilization must continue to depend, and as to the waste and exhaustion of the natural on which the perpetuity of the Nation itself resources of the country, and signify our high

rests. appreciation of his action in calling this Con-

We agree, in the light of facts brought to ference to consider the same and to seek our knowledge and from information re- remedies therefor through cooperation of the celved from sources which we can not doubt, Nation and the States. that this material basis is threatened with We agree that this cooperation should find exhaustion. Even as each succeeding genera- expression in suitable action by the Congress

tion from the birth of the Nation has per- within the limits of and coextensive with the

formed its part in promoting the progress national jurisdiction of the subject, and, and development of the Republic, sodo we in complementary thereto, by the legislatures of

this generation recognize it as a high duty to the several States within the limits of and perform our part; and this duty in large de- coextensive with their jurisdiction. gree lies in the adoption of measures for the We declare the conviction that in the use

conservation of the natural wealth of the of the natural resources our independent

country. States are interdependent and bound to-

We declare our firm conviction that this gether by ties of mutual benefits, responsiconservation of our natural resources is a_ bilities and duties. subject of transcendent importance, which We agree in the wisdom of future confershould engage unremittingly the attention of ences between the President, Members of the Nation, the States, and the People in Congress, and the Governors of States on the earnest cooperation. These natural resources conservation of our natural resources with a include the land on which we live and which view of continued cooperation and action on ylelds our food; the living waters which fer- the lines suggested; and to this end we advisc tilize the soil, supply power, and form great that from time to time, as in his judgment avenues of commerce; the forests which yield may seem wise, the President call the Govthe materials for our homes, prevent erosion ernors of the States and Members of Conof the soil, and conserve the navigation and gress and others into conference. Other uses of our streams; and the minerals We agree that further action is advisable which form the basis of our industrial life, to ascertain the present condition of our and supply us with heat, light, and power. natural resources and to promote the conWe agree that the land should be so used _ servation of the same; and to that end we that erosion and soil-wash shall cease; that recommend the appointment by each State there should be reclamation of arid and semi- of a Commission on the Conservation of arid regions by raeans of irrigation, and of Natural Resources, to cooperate with each swamp and overflowed regions by means of other and with any similar commission of the drainage; that the waters should be so con- Federal Government. served and used as to promote navigation, to We urge the continuation and extension of enable the arid regions to be reclaimed by forest policies adapted to secure the husirrigation, and to develop power in the inter- banding and renewal of our diminishing timests of the People; that the forests which ber supply, the prevention of soil erosion, the regulate our rivers, support our industries, protection of headwaters, and the mainteand promote the fertility and productive- nance of the purity and navigability of our ness of the soil should be preserved and per- streams. We recognize that the private ownpetuated; that the minerals found so abun- ership of forest lands entails responsibilities dantly beneath the surface should be so used in the interests of all the People, and we as to prolong their utility; that the beauty, favor the enactment of laws looking to the healthfulness, and habitability of our country protection and replacement of privately should be preserved and increased; that the owned forests.

232 DOCUMENTS OF AMERICAN History We recognize in our waters a most valu- sheds required for the uses of commerce and able asset of the People of the United States, the protection of the interests of our People.

and we recommend the enactment of laws We recommend the enactment of laws looking to the conservation of water re- looking to the prevention of waste in the minsources for irrigation, water supply, power, ing and extraction of coal, oil, gas, and other and navigation, to the end that navigable and minerals with a view to their wise conservasource streams may be brought under com-_ tion for the use of the People, and to the plete control and fully utilized for every pur- protection of human life in the mines.

pose. We especially urge on the Federal Let us conserve the foundations of our Congress the immediate adoption of a wise, prosperity. active, and thorough walerway policy, pro- Respectfully submitted,

viding for the prompt improvement of our [SIGNATURES ] streams and the conservation of their water-

371. THE SOCIAL CREED OF THE CHURCHES Statement Adopted by the General Conference of the Methodist Episcopal Church May 1908

(A Year Book of the Church and Social Service in the United States, ed. by H. F. Ward, 1916, p. 197-8) One of the most significant developments in the gerous machinery, occupational disease, inhistory of the church in America is the move- juries and mortality. ment for the socialization of Christianity. While For the abolition of child labor.

the roots of this movement go back to the For such regulation of the conditions of

climax in the first two decades of the twentieth ;

period of the rise of Unitarianism, it reached its labor for women as shall safeguard the physcentury. See, A. M. Schlesinger, The Rise of the ical and moral health of the community,

City, ch. x; W. E. Garrison, The March of For the suppression of the “sweating sys-

Faith; W. Gladden, Recollections; S. Matthews, tem.”

“The Development of Social Christianity in For the gradual and reasonable reduction of

America,” in G. B. Smith, ed. Religious the hours of labor to the lowest practical Thought in the Last Quarter Century; J.R.Com- point, with work for all; and for that degree mons, Social Reform and the Church; W. Rau- of Jeisure for all which is the condition of

Fee oeard, cea€itooclia the ere Crt the co an rPEEA O > bighest human lif

R. T. Ely, Social Aspects of Christianity; F. G@ ,. For a release from employment one day

Peabody, Jesus Christ und the Social Question; ™ Seven. a .

G. Taylor, Social Idealism and the Changing For a living wage in every industry.

Theology. For the highest wage that each industry can afford, and for the most equitable diviThe Methodist Episcopal Church stands: sion of the products in industry that can ultiFor equal rights and complete justice for mately be devised.

all men in all stations of life. For the recognition of the Golden Rule, and For the principle of conciliation and arbi- the mind of Christ as the supreme law of

tration in industrial dissensions. society and the sure remedy for all social For the protection of the worker from dan- ills.

372. THE ROOT-TAKAHIRA AGREEMENT November 30, 1908 (Foreign Relations of the United States, 1908, p. 510-511) This agreement was brought about by an ex- China, and both nations bound themselves to change of notes between the Japanesc Ambassa- maintain the existing status quo in China. In as dor and Sccretary of State Root. By it Japan much as Japan had, in the preceding years, con-

apparently confirmed the Open Door policy in cluded a number of secret agreements with

THe INJUNCTION IN LABOR DISPUTES 233 China and with Russia, giving to her exceptional ment of their commerce on the Pacific privileges in China and Manchuria, the signifi- Ocean. cance of the agreement 1S somewhat ambiguous. 2. The policy of both Governments, uninSee, W. W. Willoughby, Foreign Rights and In- fuenced by any aggressive tendencies, is di-

terests in China, 2 Vols.; G. Hi. Blakeslee, ed., rected to the maintenance of the existing Japan and Japanese-American Relations; H. K. . .

Norton, China and the Powers; P. J. Treat, status quo in the region above mentioned Japan and the United States, 1853~1921. and to the defense of the principle of equal opportunity for commerce and industry in China.

The Japanese Ambassador to the Secretary 3. They are accordingly firmly resolved

of State reciprocally to respect the territorial posImperial Japanese Embassy sessions belonging to cach other in said re-

Washington, November 30, 1908 gion,

sir: The exchange of views between us, 4. They are also determined to preserve which has taken place at the several inter- the common interest of all powers in China views which I have recently had the honor of | by supporting by all pacific means at their holding with you, has shown that Japan and disposal the independence and integrity of the United States holding important outly- China and the principle of equal opportunity ing insular possessions in the region of the for commerce and industry of all nations in Pacific Ocean, the Governments of the two that Empire. countries are animated by a common aim, __ 5. Should any event occur threatening the

policy, and intention in that region. status quo as above described or the prinBelieving that a frank avowal of that aim, ciple of equal opportunity as above defined, policy, and intention would not only tend to it remains for the two Governments to com-

strengthen the relations of friendship and municate with each other in order to arrive good neighborhood, which have immemo- at an understanding as to what measures they rially existed between Japan and the United may consider it useful to take. States, but would materially contribute to the If the foregoing outline accords with the preservation of the general peace, the Impe- view of the Government of the United States, rial Government have authorized me to pre- I shall be gratified to receive your confirma-

sent to you an outline of their understand- _ tion. :

ing of that common aim, policy and inten- I take this opportunity to renew to your ex-

tion. cellency the assurance of my highest consid1. It is the wish of the two Governments _ eration.

to encourage the free and peaceful develop- K. Takahira. 373. THE INJUNCTION IN LABOR DISPUTES Extract from Inaugural Address of President Taft March 4, 1909

(Supplement to the Messages and Papers of the Presidents C overing the Administration

of W. H. Taft, p. 7758) Before his entry into politics, Taft had been a ... Another labor question has arisen Judge of the Circuit Court, and his decisions had which has awakened the most excited disaroused the hostility of labor. His position on cussion. That is in respect to the power of questions involving the power, prestige, and in- the federal courts to issue injunctions in in-

ependence of the judiciary was consistently dustrial disputes. As to that to. conservative; see Doc. No. 378. See in connec- paces: AS to that, my convict ons

tion with the opinion here expressed, the Norris- 1° fixed. Take away from the courts, if it LaGuardia Anti-Injunction Law, Doc. No. 474, Could be taken away, the power to issue inOn Taft, see H. S. Duffy, William Howard Taft, Junctions in labor disputes, and it would and the forthcoming biography by Henry create a privileged class among the laborers

Pringle. and save the lawless among their number

234 DocUMENTS OF AMERICAN HIsToRY from a most needful remedy available to all abused by its inconsiderate exercise, and to men for the protection of their business remedy this the platform upon which I was against lawless invasion. The proposition that elected recommends the formulation in a business is not a property or pecuniary right statute of the conditions under which such a which can be protected by equitable injunc- temporary restraining order ought to issue. A tien is utterly without foundation in prec- statute can and ought to be framed to em-

edent or reason. The proposition is usually body the best modern practice, and can linked with one to make the secondary boy- bring the subject so closely to the attention cott lawful. Such a proposition is at variance of the court as to make abuses of the process with the American instinct, and will find no unlikely in the future. The American people, support, in my judgment, when submitted to if I understand them, insist that the authorthe American people. The secondary boycott ity of the courts shall be sustained, and are is an instrument of tyranny, and ought not to opposed to any change in the procedure by

be made legitimate. which the powers of a court may be weakThe issue of a temporary restraining order ened and the fearless and effective adminiswithout notice has in several instances been tration of justice be interfered with.

374. TAFT’S DEFENCE OF THE PAYNE-ALDRICH TARIFF

Speech at Winona, Minnesota |

| September 1909

(Supplement to the Messages and Papers of the Presidents Covering the Administration

of W. H. Taft, p. 7773 ff.) The Republican platform of 1908 called for a try that deserved protection. They found revision of the tariff, and shortly after his ac- that the determination of the question, what cession to the Presidency, Taft called a special was the actual cost of production and session of Congress to carry out this pledge. The nother an industry in this country could result was the Payne-Aldrich Tariff which Patt live under a certain rate and withstand signed 5,aroused 1909. widespread The high-protectionist th dq irom wie abroad, fy q was characterAugust of the tariff dis- reatene competition satisfaction, and partly to allay this dissatisfac- ™ost difficult. The manufacturers were tion Taft undertook a speaking tour through prone lo exaggerate the injury which a reducthe mid-western states. In his Winona speech he _ tion in the duty would give and to magnify the

declared that this bill was the best tariff bill that amount of duty that was needed; while the the Republican Party had ever passed, a state- importers, on the other hand, who were inment which brought down upon him a storm of {erested in developing the importation from derisive criticism. See, N. W. Stephenson, Nelson foreign shores, were quite likely to be equally W. Aldrich, p. 346 ff.; C. G. Bowers, Beveridge biased on the other side

and the Progressive Era, Book IV; R. M. Mr P d bill—the P La Follette, La Follette’s Autobiography, chs. are ayne reporte a bill-—the Payne

x-xi; F. A. Ogg, National Progress, ch. xxii; Tariff bill—which went to the Senate and was

F. W. Taussig, Tariff History of the United amended in the Senate by increasing the States (5th ed.), ch. viii; I. M. Tarbell, Tarif duty on some things and decreasing it on

in Our Times, ch. xiii. others. The difference between the House bill and the Senate bill was very much less than

... The Ways and Means Committee of the newspapers represented... . the House, with Mr. Payne at its head, spent One way of stating what was done is to a full year in an investigation, assembling say what the facts show—that under the evidence in reference to the rates under the JDingley law there were 2,024 items. This intariff, and devoted an immense amount of cluded dutiable items only. The Payne law work in the study of the question where the leaves 1,150 of these items unchanged. . . . tariff rates could be reduced and where they Now, the promise of the Republican platought to be raised with a view to maintain- form was not to revise everything downward, ing a reasonably protective rate, under the and in the speeches which have been taken principles of the platform, for every indus- as interpreting that platform, which I made

THE RULE OF REASON 235 in the campaign, I did not promise that ule is that there were two contending factions everything should go downward. What I early in the history of Republican tariffs, to promised was, that there should be many de- wit, woolgrowers and the woolen manufaccreases, and that in some few things increases turers, and that finally, many years ago, they would be found to be necessary; but that on settled on a basis by which wool in the grease

the whole I conceived that the change of should have 11 cents a pound, and by which conditions would make the revision necessar- allowance should be made for the shrinkage

ily downward—and that, I contend, under of the washed wool in the differential upon the showing which I have made, has been woolen manufactures. The percentage of duty the result of the Payne bill. I did not agree, was very heavy—dquite beyond the difference

nor did the Republican party agree, that we in the cost of production, which was not would reduce rates to such a point as to re- then regarded as a necessary or proper limiduce prices by the introduction of foreign tation upon protective duties... . competition. That is what the free traders On the whole, however, I am bound to say desire. That is what the revenue tariff re- that I think the Payne tariff bill is the best

formers desire; but that is not what the tariff bill that the Republican party ever Republican platform promised, and it is not passed... . what the Republican party wished to bring If the country desires free trade, and the about. To repeat the statement with which country desires a revenue tariff and wishes the I opened this speech, the proposition of the manufacturers all over the country to go out Republican party was to reduce rates so as_ of business, and to have cheaper prices at the to maintain a difference between the cost of | expense of the sacrifice of many of our manuproduction abroad and the cost of produc- facturing interests, then it ought to say so and tion here, insuring a reasonable profit to the ought to put the Democratic party in power manufacturer on all articles produced in this if it thinks that party can be trusted to carry country; and the proposition to reduce rates out any affirmative policy in favor of a revand prevent their being excessive was to enue tariff. Certainly in the discussions in the avoid the opportunity for monopoly and the Senate there was no great manifestation on suppression of competition, so that the exces- the part of our Democratic friends in favor sive rates could be taken advantage of to of reducing rates on necessities. They voted

force prices up. to maintain the tariff rates on everything that With respect to the wool schedule, I agree came from their particular sections. If we are

that it probably represents considerably to have free trade, certainly it can not be had more than the difference between the cost of through the maintenance of Republican maproduction abroad and the cost of production jorities in the Senate and House and a Rehere. The difficulty about the woolen sched- publican administration. ...

375. THE RULE OF REASON 1897-191] Did the Sherman Anti-Trust Act prohibit all Law, passim; W. H. Taft, The Anti-Trust Act contracts in restraint of trade between the States, and the Supreme Court; and the illuminating or only unreasonable restraints? Unreasonable or bibliography in Warren, The Supreme Court undue restraint of trade had long been illegal at (1928 ed.) Vol. II, p. 733, 734, n. common law. Inasmuch as the Federal Courts had

no common law jurisdiction, was the Sherman 1 United States v. Trans-Missouri Freight Act intended merely to grant the Federal Courts Association, 166 U. S. 290. (1897)

much jurisdiction, or was the act intended to go Prcxuam, J.... The next question to be urther than the common law in outlawing con- discussed is as to what is the true construc-

tracts in restraint of trade? The evolution of tion of the statute What is the mean-

the so-called “rule of reason” is indicated in the. Dt

following extracts. The literature on the Sherman 8 Of the language as used in the statute Act is voluminous. See, on the question of the “that every contract, combination in the rule of reason, P. L. Anderson, The Rule of form of trust or otherwise, or conspiracy in Reason; A. H. Walker, History of the Sherman restraint of trade or commerce among the

236 DocUMENTS OF AMERICAN History several States . . . is hereby declared to be that it cannot be supposed Congress intended illegal”? Is it confined to a contract or com- the natural import of the language to be bination which is only in unreasonable re- used. This we cannot and ought not to do,

straint of trade or commerce, or does it in- ... If the act ought to read as contended clude what the language of the act plainly for by the defendants, Congress is the body and in terms covers, all contracts of that to amend it and not this court, by a process nature? It is now ... urged that the statute, of judicial legislation wholly unjustifiin declaring illegal every combination in the able... . form of trust or otherwise, or conspiracy in

restraint of trade or commerce, does not 2 Report of Senator Nelson, on behalf of mean what the language therein plainly im- Senate Judiciary Committee, in reference to ports, but that it only means to declare ille- bill to amend the Anti-Trust Act in certain gal any such contract which is in unreasonable particulars. Federal Anti-Trust Decisions. restraint of trade, while leaving all others Vol. IV, p. 160 ff. (1909),

unaffected by the provisions of that act; ... The Anti-Trust Act makes it a crim-

that the common law meaning of the term inal offense to violate the Jaw, and provides “contract in restraint of trade” includes only a punishment both by fine and imprisonment. such contracts as are in unreasonable re- To inject into the act the question of whether straint of trade, and when that term is used an agreement or combination is reasonable or in the Federal statute it is not intended to swmnreasonable would render the act as a criminclude all contracts in restraint of trade, but inal or penal statute indefinite and uncertain, only those which are in unreasonable restraint and hence, to that extent, utterly nugatory thereof. . . . By the simple use of the term and void, and would practically amount to

“contract in restraint of trade”, all contracts a repeal of that part of the act... . And of that nature, whether valid or otherwise, while the same technical objection does not would be included and not alone that kind apply to civil prosecutions, the injection of of contract which was invalid and unen- the rule of reasonableness or unreasonableforceable as being in unreasonable restraint ness would lead to the greatest variableness of trade. When, therefore, the body of an and uncertainty in the enforcement of the act pronounces illegal every contract or com- law. The defense of reasonable restraint bination in restraint of trade... among the would be made in every case and there would several States etc. the plain and ordinary be as many different rules of reasonableness meaning of such language is not limited to as cases, courts and juries. What one court that kind of contract alone which is in un- or jury might deem unreasonable another reasonable restraint of trade, but all con- court or jury might deem reasonable. A court tracts are included in such language, and no or jury in Ohio might find a given agreement exception or limitation can be added with- or combination reasonable, while a court and out placing in the act that which has been jury in Wisconsin might find the same agree-

omitted by Congress. ... The arguments ment and combination unreasonable. In the which have been addressed to us against the case of People v. Sheldon 139 N. Y. 264,

inclusion of all contracts in restraint of Chief Justice Andrews remarks, “If agreetrade, as’provided for by the language of the ments and combinations to prevent competiact, have been based on the alleged presump- tion in prices are or may be hurtful to trade, tion that Congress, notwithstanding the lan- the only sure remedy is to prohibit all agreeguage of the act, could not have intended to ments of that character. . . .” To amend the

embrace all contracts, but only such con- Anti-Trust Act, as suggested by this bill, tracts as were in unreasonable restraint of would be to entirely emasculate it, and for all trade. . . . In other words, we are asked to practical purposes render it nugatory as a read into the act by way of judicial legisla- remedial statute. Criminal prosecutions tion an exception that is not placed there by would not lie and civil remedies would labor

the lawmaking branch of the Government, under the greatest doubt and uncertainty. and this is to be done upon the theory that The act as it exists is clear, comprehensive, the impolicy of such legislation is so clear certain, and highly remedial It practically

THE RULE OF REASON 237 covers the field of Federal jurisdiction and tect that commerce from being restrained by is in every respect a model law. To destroy methods, whether old or new, which would or undermine it at the present juncture, when constitute an interference that is an undue combinations are on the increase . .. would _ restraint.

be a calamity. (c) And as the contracts or acts embraced in the provision were not expressly defined, 3 Standard Oil Company of New Jersey et al since the enumeration addressed itself sim-

v. The United States, 221 U. S. 1. (1911) ply to classes of acts, those classes being WuirteE, C. J... . It is certain that only one broad enough to embrace every conceivable point of concord between the parties is dis- contract or combination which could be made cernible, which is, that the controversy in concerning trade or commerce or the subevery aspect is controlled by a correct con- jects of such commerce, and thus caused any ception of the meaning of the first and sec- act done by any of the enumerated methods ond sections of the Anti-Trust Act. ... We anywhere in the whole field of human acshall make our investigation under four sep- _ tivity to be illegal if in restraint, it inevitably arate headings: First, the text of the first follows that the provision necessarily called

and second sections of the act originally for the exercise of judgement which reconsidered and its meaning in the light of the quired that some standard should be recommon law and the law of this country at sorted to for the purpose of determining the time of its adoption; second, the conten- whether the prohibitions contained in the tions of the parties concerning the act, and statute had or had not in any given case the scope and effect of the decisions of this been violated. Thus not specifying, but in-

court upon which they rely... . dubitably contemplating and requiring a

In view of the common law and the law in | standard, it follows that it was intended that

this country as to restraint of trade, which the standard of reason which had been apwe have reviewed, and the illuminating effect plied at the common law and in this country which that history must have under the rule in dealing with subjects of the character emto which we have referred, we think it re- braced by the statute, was intended to be the

sults: measure used for the purpose of determining (a) That the context manifests that the whether in a given case a particular act had statute was drawn in the light of the existing or had not brought about the wrong against

practical conception of the law of restraint which the statute provided... . of trade, because it groups as within that class, not only contracts which were in re- 4 Dissenting opinion of Justice Harlan in straint of trade in the subjective sense, but Standard Oil case. all contracts or acts which theoretically were ... After what has been adjudged, upon attempts to monopolize, yet which in practice full consideration, as to the meaning and the had come to be considered as in restraint of scope of the Anti-Trust Act, and in view of

trade in a broad sense. the usages of this court when attorneys for (b) That in view of the many new forms litigants have attempted to reopen questions of contracts and combinations which were that have been deliberately decided, I confess being evolved from existing economic condi- to no little surprise as to what has occurred

tions, it was deemed essential by an all- in the present case. The court says that the embracing enumeration to make sure that no previous cases, above cited, “cannot by any form of contract or combination by which possible conception be treated as authorita-

an undue restraint of interstate or foreign tive without the certitude that reason was commerce was brought about could save such_ resorted to for the purpose of deciding restraint from condemnation. The statute them.” ... It is more than once intimated. under this view evidenced the intent not to if not suggested, that if the Anti-Trust Act restrain the right to make and enforce con- is to be construed as prohibiting every contracts, whether resulting from combination tract or combination, of whatever nature, or otherwise, which did not unduly restrain which is in fact in restraint of commerce. interstate or foreign commerce, but to pro- regardless of the reasonableness or unreason-

238 DOCUMENTS OF AMERICAN HisToRyY ableness of such restraint, that fact would being inserted, give it a meaning which the show that the court had not proceeded, in its words of the act, as passed, if properly interdecision, according to “the light of reason”, preted, would not justify. The Court has debut had disregarded the “rule of reason”... cided that it could not thus change a public Now this court is asked to do that which it policy formulated and declared by Congress;

has distinctly declared it could not and __ that Congress has paramount authority to would not do, and has now done what it then regulate interstate commerce, and that it said 1 could not constitutionally do. It has, alone can change a policy once inaugurated by mere interpretation, modified the act of _ by legislation. The courts have nothing to do

Congress, and deprived it of practical value with the wisdom or policy of an act of as a defensive measure against the evils to be Congress. Their duly is to ascertain the will

remedied. . . . In effect, the court says, that of Congress, and if the statute embodying it will now, for the first time, bring the dis- the expression of that will is constitutional, cussion under the “‘light of reason” and ap- the courts must respect it. They have no ply the “rule of reason” to the questions tobe function to declare a public policy, nor to decided. I have the authority of this court amend legislative enactments... . Neverfor saying that such a course of proceeding theless, if I do not misapprehend its opinion, on its part would be “judicial legislation”. the court has now read into the act of ConStill more, what is now done involves a gress words which are not to be found there, serious departure from the settled usages of and has thereby done that which it adjudged this court. Counsel have not ordinarily been in 1896 and in 1898 could not be done withallowed to discuss questions already settled out violating the Constitution, namely, by in-

by previous decisions. .. . terpretation of a statute, changed a public

But my brethren, in their wisdom, have policy declared by the legislative departdeemed it best to pursue a different course. ment... .

They have now said to those who condemn

our former decisions and who object to all 5 Extract from Special Message of Presilegislative prohibitions of contracts, combi- dent Taft, December 5, 1911, Supplement nations, and trusts in restraint of interstate to the Messages and Papers of the Presidents commerce, “You may now restrain such com- Covering the Administration of William merce, provided you are reasonable about it; Howard Taft, p. 8025-6.

only take care that the restraint is not un- ...In two early cases, where the

due.” ... statute was invoked to enjoin a transporta-

It remains for me to refer, more fully than tion rate agreement between interstate railI have heretofore done, to another, and, in road companies, it was held that it was no demy judgment—if we look to the future—the fense to show that the agreement as to rates most important aspect of this case. That as- complained of was reasonable at common pect concerns the usurpation by the judicial law, because it was said that the statute was branch of the Government of the functions directed against all contracts and combinaof the legislative department. ... I said at tions in restraint of trade whether reasonable the outset that the action of the court in at common law or not. It was plain from the

this case might well alarm thoughtful men record, however, that the contracts comwho revered the Constitution. I meant by plained of in those cases would not have been this thal many things are intimated and said deemed reasonable at common law. In subin the court’s opinion which will not be re- sequent cases the court said that the statutc garded otherwise than as sanctioning an in- should be given a reasonable construction vasion by the judiciary of the constitutional and refused to include within its inhibition, domain of Congress—an attempt by inter- certain contractual restraints of trade which pretation to soften or modify what some re- it denominated as incidental or as indirect. gard as a harsh public policy. This court, let These cases of restraint of trade that the

me repeat, solemnly adjudged many years court excepted from the operation of the ago that it could not, except by “judicial statute were instances which, at common law, legislation” read words into the Anti-Trust would have been called reasonable. In the Act not put there by Congress, and which, Standard Oil and Tobacco cases, therefore,

PRINCIPLES OF PROGRESSIVE REPUBLICAN LEAGUE 239 the court merely adopted the tests of the the terms of the statute. This is wholly uncommon law, and in defining exceptions to true. A reasonable restraint of trade at comthe literal application of the statute, only mon law is well understood and is clearly desubstituted for the test of being incidental fined. It does not rest in the discretion of the or indirect, that of being reasonable, and court. It must he limited to accomplish the this, without varying in the slightest the ac- purpose of a lawful main contract to which, tual scope and effect of the statute. In other in order that it shall be enforceable at all, it words, all the cases under the statute which must be incidental. If it exceed the needs of have now been decided would have been de- that contract, it is void.

cided the same way if the court had origi- The test of reasonableness was never apnally accepted in its construction the rule at plied by the court at common law to con-

common law. , tracts or combinations qr conspiracies in reIt has been said that the court, by intro- straint of trade whose purpose was or whose ducing into the construction of the statute necessary effect would be to stifle competicommon-law distinctions, has emasculated it. tion, to control prices, or establish monopo-

This is obviously untrue. By its judgment lies. The courts never assumed power to say every contract and combination in restraint that such contracts or combinations or conof interstate trade made with the purpose or spiracies might be lawful if the partics to necessary effect of controlling prices by them were only moderate in the use of the stifling competition, or of establishing in power thus secured and did not exact from whole or in part a monopoly of such trade, is the public too great and exorbitant prices. It condemned by the statute. The most extreme is true that many theorists, and others encritics can not instance a case that ought to gaged in business violating the statute, have be condemned under the statute which is not hoped that some such line could be drawn brought within its terms as thus construed. by courts; but no court of authority has ever The suggestion is also made that the Su- attempted it. Certainly there is nothing in preme Court by its decision in the last two the decisions of the latest two cases from cases has committed to the court the unde- which such a dangerous theory of judicial fined and unlimited discretion to determine discretion in enforcing this statute can dewhether a case of restraint of trade is within rive the slightest sanction.

376. DECLARATION OF PRINCIPLES OF THE NATIONAL PROGRESSIVE REPUBLICAN LEAGUE January 21, 1911 (The Autobiography of Robert La Follette, p. 495-6) Insurgency, which had been stirring in the Re- _ tive appreciation of La Follette is in J. Chamberpublican Party ever since the fight on the Hep- lain, Farewell to Reform, ch. viii. burn Act of 1906, was crystallized by the ad-

ministration support to the Payne-Aldrich Tariff. . .

See Doc. No. 374. Robert La Follette of Wis- We, the undersigned, associate ourselves consin was by common consent the natural leader together as The National Progressive Reof the progressive element in the Republican publican League.

party. “During the holiday recess in the last The object of the League is the promodays of December, 1910,” he says in his Auto- tion of popular government and progressive biography, “I drafted a Declaration of Principles legislation.

_ jorm or fe beittn ron the organization of Popular government in America has been Bourne and Bristow. ... The organization was thwarted and progressive legislation strangled

effected at a meeting held at my residence on the by the special interests, which control 21st day of January, 1911. Jonathan Bourne was Caucuses, delegates, conventions, and party elected President; Frederic C. Howe, Secretary; organizations; and, through this control of Charles R. Crane, Treasurer”. For the campaign the machinery of government, dictate nomiof 1912 see references, Doc. No. 379. A provoca- nations and platforms, elect administrations,

240 DOCUMENTS OF AMERICAN HIstToRY legislatures, representatives in Congress, convention system, and the people have asUnited States Senators, and control cabinet sumed control of the machinery of govern-

officers. ment, has government become responsive to

Under existing conditions legislation in the the popular will, and progressive legislation public interest has been baffled and defeated. been secured.

This is evidenced by the long struggle to se- The Progressive Republican League becure laws but partially effective for the con- _ lieves that popular government is fundamen-

trol of railway rates and services, the re- tal to all other questions. To this end it ad-

vision of the tariff in the interest of the vocates:

producer and consumer, statutes dealing (1) The election of United States Senators with trusts and combinations, based on sound _ by direct vote of the people.

economic principles, as applied to modern (2) Direct primaries for the nomination industrial and commercial conditions; wise, of elective officials.

comprehensive and impartial reconstruction (3) The direct election of delegates to of banking and monetary laws, the conserva- national conventions with opportunity for tion of coal, oil, gas, timber, waterpowers, the voter to express his choice for President and other natural resources belonging to the and Vice-President.

people, and for the enactment of all legisla- (4) Amendment to state constitutions tion solely for the common good. providing for the Initiative, Referendum and

Just in proportion as popular government Recall. has in certain states superseded the delegate (5) A thoroughgoing corrupt practices act.

377. CANADIAN RECIPROCITY Special Message of President Taft January 26, 1911 {Supplement to the Messages and Papers of the Presidents Covering the Administration

of W. H. Taft, p. 7961 ff.)

A reciprocity treaty with Canada had been con- lution, and which were inevitable under the

cluded in 1854, only to be denounced by the then conditions, have been eliminated— United States in 1866. The Payne-Aldrich Tariff ome by arbitration and some by direct neof 1909 precipitated what appeared to be a potiation, The merits of these disputes, many dangerous tariff war between United States them extending and Canada, and Taft the attempted to of avoid this ; through a century, need by concluding another reciprocity agreement. An not now be reviewed. They related to the

agreement negotiated by Secretary Knox re- settlement of boundaries, the definition of ceived the assent of Congress, and was signed fights of navigation, the interpretation of by the President July 26, 1911. In the course of _ treaties, and many other subjects. the debates on the measure, however, the argu- The path having been thus opened for the ment had been advanced that reciprocity was a improvement of commercial relations, a restep toward ultimate annexation; this argument ciprocal trade agreement is the logical searoused nationalistic sentiment in Canada, and quence of all that has been accomplished in

led to the rejectionParliament. of the agreement by the disposing of matters of a Tariff diplomatic;and Dominion See, United States ; Commission, Reciprocity with Canada; S. F. controversial character. The identity of inBemis, ed. American Secretaries of States, Vol. terest of two peoples linked together by. race, IX, p. 344 ff.; H. Keenleyside, Canada and the language, political institutions, and geograph-

United States. ical proximity offers the foundation. .. .

The guiding motive in seeking adjustment

Tue Wuire House, January 26, 1911. of trade relations between two countries so

To the Senate and House of Representatives: — situated geographically should be to give

, .. One by one the controversies re- play to productive forces as far as practicasulting from the uncertainties which attended ble, regardless of political boundaries. While

the partition of British territory on the equivalency should be sought in an arrangeAmerican Continent at the close of the Revo- ment of this character, an exact balance of

CANADIAN RECIPROCITY 241 financial gain is neither imperative nor at- ple does not call for a tariff between this tainable. No yardstick can measure the country and one whose conditions as to probenefits to the two peoples of this freer com- duction, population, and wages are so like mercial intercourse and no trade agreement ours, and when our common boundary line should be judged wholly by custom house of three thousand miles in itself must make

statistics. a radical distinction between our commercial We have reached a stage in our own de- treatment of Canada and of any _ other velopment that calls for a statesmanlike and country... . broad view of our future economic status In the reciprocal trade agreement numer-

and its requirements. We have drawn upon ous additions are made to the free list. These our natural resources in such a way as to include not only food commodities, such as invite attention to their necessary limit. This cattle, fish, wheat and other grains, fresh has properly aroused effort to conserve them, vegetables, fruits, and dairy products, but to avoid their waste, and to restrict their use also rough lumber and raw materials useful to our necessities. We have so increased in to our own industries. Free lumber we ought

population and in our consumption of food to have. By giving our people access to products and the other necessities of life, Canadian forests we shall reduce the conhitherto supplied largely from our own sumption of our own, which, in the hands of country, that unless we materially increase comparatively few owners, now have a value our production we can see before us a change _ that requires the enlargement of our available

in our economic position, from that of a timber resources. country selling to the world food and natural Natural, and especially food, products beproducts of the farm and forest, to one con- ing placed on the free list, the logical desuming and importing them. Excluding cot- velopment of a policy of reciprocity in rates ton, which is exceptional, a radical change on secondary food products, or foodstuffs is already shown in our exports in the falling partly manufactured, 1s, where they canoff in the amount of our agricultural products not also be entirely exempted from duty, to sold abroad and a correspondingly marked in- lower the ‘duties in accord with the exempcrease in our manufactures exported. A far- tion of the raw material from duty. This has sighted policy requires that if we can enlarge been followed in the trade agreement which

our supply of natural resources, and es- has been negotiated. As an example, wheat pecially of food products and the necessities is made free and the rate on flour is equalized

of life, without substantial injury to any of on a lower basis. In the same way, live aniour producing and manufacturing classes, mals being made free, the duties on fresh we should take steps to do so now. We have meats and on secondary meat products and on the north of us a country contiguous to on canned meats are substantially lowered. vurs for three thousand miles, with natural Fresh fruits and vegetables being placed on resources of the same character as ours which __ the free list, the duties on canned goods of have not been drawn upon as ours have been, __ these classes are reduced. . . .

and in the development of which the condi- This trade agreement, if entered into, will tions as to wages and character of the wage cement the friendly relations with the Doearner and transportation to market differ minion which have resulted from the satisbut little from those prevailing with us. The factory settlement of the controversies that difference is not greater than it is between have lasted for a century, and further prodifferent States of our own country or be- mote good feeling between kindred peoples. tween different Provinces of the Dominion It will extend the market for numerous of Canada. Ought we not, then, to arrange products of the United States among the a commercial agreement with Canada, if we inhabitants of a prosperous neighboring can, by which we shall have direct access to country with an increasing population and an her great supply of natural products without increasing purchasing power. It will deepen an obstructing or prohibitory tariff? This is and widen the sources of food supply in not a violation of the protective principle, contiguous territory, and will facilitate the as that has been authoritatively announced movement and distribution of these foodby those who uphold it, because that princi- stuffs.

242 DOCUMENTS OF AMERICAN HIsToRY The geographical proximity, the closer re- assault, and she never will. She has sought lation of blood, common sympathies, and to agree with us quickly when differences identical moral and social ideas furnish very have disturbed our relations. She shares with real and striking reasons why this agreement us common traditions and aspirations. I feel

ought to be viewed from a high plane. I have correctly interpreted the wish of the Since becoming a nation, Canada has been American people by expressing, in the arour good neighbor, immediately contiguous rangement now submitted to Congress for its across a wide continent without artificial or approval, their desire for a more intimate

natural barrier except navigable waters used and cordial relationship with Canada. I

in common. therefore earnestly hope that the measure She has cost us nothing in the way of will be promptly enacted into law.

preparations for defense against her possible WILLIAM H. TAFT. 378. TAFT’S VETO OF ARIZONA ENABLING ACT August 22, 1911 (Supplement to the Messages and Papers of the Presidents Covering the Administration

of W. H. Taft, p. 8016 ff.) Taft based his veto of the joint resolution ad- see how I can escape responsibility for the mitting New Mexico and Arizona to the Union judicial recall of the Arizona constitution. on the clause in the Arizona constitution provid- The joint resolution admits Arizona with the ing tor the recall of judges. Arizona changed the judicial recall, but requires the submission Constitution to conform to Taft s objections, and, of the question of its wisdom to the voters. after admission, restored the objectionable pro- In oth ds. th luty th vision. Roosevelt, in 1911 and 1912, had given n other words, rhe resolution approves tne his support to the principle of the recall of 2@mission of Arizona with the judicial rejudges, and Colorado had an arrangement for call, unless the voters themselves repudiate the recall of judicial decisions. See, C. A. Beard it. Under the Arizona constitution all elective and B. E. Schultz, Documents on the Initiative, officers, and this includes county and State Referendum, and Recall; W. B. Munro, The In- judges, six months after their election are itiative, Referendum and Recall. On the struggle subject to the recall... . of Arizona and New Mexico for statehood, the This provision of the Arizona constitution, most elaborate account is in C. A. Bowers, in its application to county and State judges, Beveridge and the Progressive Era, passim. seems to me so pernicious in its effect, so destructive of independence in the judiciary,

Tue Wuite House, August 22, 1911. so likely to subject the rights of the indi-

To the House of Representatives: vidual to the possible tyranny of a popular I return herewith, without my approval, majority, and, therefore, to be so injurious House joint resolution No. 14, “To admit to the cause of free government, that I must the Territories of New Mexico and Arizona disapprove a constitution containing it... . as States into the Union on an equal footing I am discharging my constitutional func-

with the original States.” ... tion in respect to the enactment 02 laws, and

I have not approved the Arizona constitu- my discretion is equal to that of the Houses tion, nor have the two Houses of Congress, of Congress. I must therefore withhold my

except as they have done so by the Joint approval from this resolution if in fact ] resolution under consideration. The resolu- do not approve it as a matter of governtion admits [Arizona] to statehood ...on mental policy. Of course, a mere difference condition ... that Arizona shall submit to of opinion as to the wisdom of details in its electors, at the time of the election of its a State constitution ought not to lead me State officers, a proposed amendment to its to set up my opinion against that of the constitution by which judicial officers shall people of the Territory. It is to be their be excepted from the section permitting a government, and while the power of Con-

recall of all elective officers. | gress to withhold or grant statehood is absoIf I sign this joint resolution, I do not lute, the people about to constitute a State

TaFt’s VETO OF ARIZONA ENABLING ACT 243 should generally know better the kind of of the individual in his relation to other government and constitution suited to their individuals, and in his relation to the whole needs than Congress or the Executive. But people in their character as a state or gov-

when such a constitution contains some- ernment....

thing so destructive of free government as By the recall in the Arizona constitution the judicial recall, it should be disapproved. it is proposed to give to the majority power A government is for the benefit of all the to remove arbitrarily, and without delay, any people. . . . Now, as the government is for judge who may have the courage to render

all the people, and is not solely for a ma- an unpopular decision. By the recall it is jority of them, the majority in exercising proposed to enable a minority of 25 per cent control either directly or through its agents of the voters of the district or State, for is bound to exercise the power for the bene- no prescribed cause, after the judge has

fit of the minority as well as the majority. been in office six months, to submit the quesBut all have recognized that the majority of tion of his retention in office to the electoa people, unrestrained by law, when aroused rate. The petitioning minority must say on and without the sobering effect of delibera- the ballot what they can against him in 200 tion and discussion, may do injustice to the words, and he must defend as best he can in minority or to the individual when the selfish the same space. Other candidates are per-

interest of the majority prompts. Hence mitted to present themselves and have their arises the necessity for a constitution by names printed on the ballot, so that the rewhich the will of the majority shall be per- call is not based solely on the record or the mitted to guide the course of the govern- acts of the judge, but also on the question ment only under controlling checks that ex- whether some other and more popular candiperience has shown to be necessary to secure date has been found to unseat him. Could for the minority its share of the benefit to there be a system more ingeniously devised

the whole people that a popular government to subject judges to momentary gusts of is established to bestow. A popular govern- popular passion than this? We can not be ment is not a government of a majority, by blind to the fact that often an intelligent a majority, for a majority of the people. It and respectable electorate may be so roused is a government of the whole people, by a upon an issue that it will visit with condemmajority of the whole people under such nation the decision of a just judge, though rules and checks as will secure a wise, just, exactly in accord with the law governing the and beneficent government for all the people. case, merely because it affects unfavorably It is said you can always trust the people to their contest. Controversies over elections,

do justice. If that means all the people and labor troubles, racial or religious issues as : they all agree, you can. But ordinarily they to the construction or constitutionality of do not all agree, and the maxim is interpreted liquor laws, criminal trials of popular or unto mean that you can always trust a majority popular defendants, the removal of county

of the people. This is not invariably true; seats, suits by individuals to maintain their and every limitation imposed by the people constitutional rights in obstruction of some upon the power of the majority in their popular improvement—these and many other constitutions is an admission that it is not cases could be cited in which a majority of a always true. No honest, clear-headed man, district electorate would be tempted by hasty however great a lover of popular govern- anger to recall a conscientious judge if the ment, can deny that the unbridled expression opportunity were open all the time. No of the majority of a community converted period of delay is interposed for the abatehastily into law or action would sometimes ment of popular feeling. The recall is demake a government tyrannical and cruel. vised to encourage quick action, and to lead Constitutions are checks upon the hasty ac- the people to strike while the iron is hot.

tion of the majority. They are the self- The judge is treated as the instrument and “mposed restraints of a whole people upon a servant of a majority of the people and majority of them to secure sober action and = subject to thcir momentary will, not after a respect for the rights of the minority, and a long term in which his qualities as a judge

244 DoCUMENTS OF AMERICAN History and his character as a man have been sub- acterize it as one which will destroy the

jected to a test of all the varieties of ju- judiciary, its standing, and its usefuldicial work and duty so as to furnish a ness?.. .

proper means of measuring his fitness for Attempt is made to defend the principle continuance in another term. On the instant of judicial recall by reference to States in of an unpopular ruling, while the spirit of | which judges are said to have shown themprotest has not had time to cool and even selves to be under corrupt corporate influwhile an appeal may be pending from his ence and in which it is claimed that nothing ruling in which he may be sustained, he is but a desperate remedy will suffice. If the to be haled before the electorate as a tri- political control in such States is sufficiently bunal, with no judicial hearing, evidence, or wrested from corrupting corporations to perdefense, and thrown out of office, and dis- mit the enactment of a radical constitutional

graced for life because he has failed, in a amendment like that of Judicial recall, it single decision, it may be, to satisfy the would seem possible to make provision in its popular demand. Think of the opportunity stead for an effective remedy by impeachsuch a system would give to unscrupulous ment in which the cumbrous features of the political bosses in control, as they have been present remedy might be avoided, but the in control not only of conventions but elec- opportunity for judicial hearing and defense

tions! Think of the enormous power for before an impartial tribunal might be reevil given to the sensational, muckraking por- _ tained. Real reforms are not to be effected tion of the press in rousing prejudice against by patent short cuts or by abolishing those

a just judge by false charges and insinua- requirements which the experience of ages tions, the effect of which in the short period has shown to be essential in dealing justly

of an election by recall it would be impossi- with everyone. Such innovations are certain

ble for him to meet and offset! Supporters in the long run to plague the inventor or of such a system seem to think that it will first user and will come readily to the hand

work only in the interest of the poor, the of the enemies and corrupters of society humble, the weak and the oppressed; that it after the passing of the just popular indigwill strike down only the judge who is sup- nation that prompted their adoption. posed to favor corporations and be affected Again judicial recall is advocated on the

by the corrupting influence of the rich. ground that it will bring the judges more Nothing could be further from the ultimate into sympathy with the popular will and the

result. The motive it would offer to un- progress of ideas among the people. It is

scrupulous combinations to seek to control said that now judges are out of touch with politics in order to control judges is clear. the movement toward a wider democracy Those would profit by the recall who have and a greater control of governmental agenthe best opportunity of rousing the majority cies in the interest and for the benefit of the of the people to action on a sudden impulse. people. The righteous and just course for a Are they likely to be the wisest or the best judge to pursue is ordinarily fixed by statute people in a community? Do they not include or clear principles of law, and the cases in those who have money enough to employ the which his judgment may be affected by his firebrands and slanderers in a community and political, economic, or social views are infre-

the stirrers-up of social hate? Would not quent. But even in such cases, judges are self-respecting men well hesitate to accept not removed from the people’s influence. judicial office with such a sword of Damocles Surround the judiciary with all the satehanging over them? What kind of judgments guards possible, create judges by appointmight those on the unpopular side expect ment, make their tenure for life, forbid from courts whose judges must make their diminution of salary during their term, and decisions under such legalized terrorism? The _ still it is impossible to prevent the influence

character of the judges would deteriorate to of popular opinion from coloring judgments that of trimmers and time-servers, and in- in the long run. Judges are men, intelligent, dependent judicial action would be a thing sympathetic men, patriotic men, and in those of the past. As the possibilities of such a fields of the law in which the personal equasystem pass in review, 1s it too much to char- tion unavoidably plays a part, there will be

RooOSEVELT’S CANDIDACY IN 1912 245 found a response to sober popular opinion Constitution by its framers and has been

as it changes to meet the exigency of social, maintained by our independent jupolitical, and economic changes. Indeed this diciary. ... should be so. Individual instances of a hide- But it is said that the people of Arizona bound and retrograde conservatism on the are to become an independent State when part of courts in decisions which turn on created, and even if we strike out judicial the individual economic or sociological views recall now, they can reincorporate it in their of the judges may be pointed out; but they constitution after statehood.

are not many, and do not call for radical ac- To this I would answer that in dealing tion. In treating of courts we are dealing with the courts, which are the corner stone with a human machine, liable like all the of good government, and in which not only inventions of man to err, but we are deal- the voters, but the nonvoters and nonresiing with a human institution that likens it- dents, have a deep interest as a security for self to a divine institution because it seeks their rights of life, liberty, and property, and preserves justice. It has been the corner no matter what the future action of the stone of our gloriously free government in State may be, it is necessary for the auwhich the rights of the individual and of thority which is primarily responsible for its the minority have been preserved, while gov- creation to assert in no doubtful tones the ernmental action of the majority has lost necessity for an independent and untramnothing of beneficent progress, efficacy, and meled judiciary... .

directness. This balance was planned in the WILLIAM H. TAFT. 379. ROOSEVELT’S CANDIDACY IN 1912

(The Works of Theodore Roosevelt, National ed. Vol. XVII, p. 149-150) When Roosevelt returned from his European large majority of the Republican voters of trip in June, 1910, he was drawn, though with the country favor your nomination, and a apparent reluctance, into State and national poli- large majority of the people favor your tics. As early as August 31, 1910, in his speech gJection as the next President of the United at Ossawatomie, Kansas he sounded a note of States protest against theapparent conservatism the that Taftyour Ww 'b icyh will . ay: administration. With the waning of ©of Deneve candida inthe La Follette movement, progressives turned SUF success in the next campaign. We beto Roosevelt to assume the leadership of the lieve that you represent as no other man insurgents in the Republican Party. Roosevelt represents those principles and policies upon himself had definitely decided to enter the race which we must appeal for a majority of the for the nomination early in 1912, and he was votes of the American people, and which, instrumental in having the Progressive Governors in our opinion, are necessary for the happidraw up the letter of February 10. Roosevelt re- yess and prosperity of the country.

pred from New York February 24. See H. We believe that, in view of this public deringle, Theodore Roosevelt, Book III; J. B. d hould decl : Bishop, Theodore Roosevelt and His Time, mand, YOU shoud soon declare whether, if Vol. HW, ch. xx—-xxiv; L. Einstein, Roosevelt: His the nomination for the presidency comes to Mind in Action; R. La Follette, Autobiography, YOU unsolicited and unsought, you will acchs. x-xiii; H. S. Duffy, W. H. Taft, chs. xxviii- Cept it.

xxix. The speeches of the campaign can be In submitting this request we are not

found in Roosevelt’s Works, Vol. XVII, and in considering your personal interests. We do

W. Wilson, The New Freedom. not regard it as proper to consider either the

. interests or the preference of any man as

Chicago, Illinois, February 10, 1912 regards the nomination for the presidency. We, the undersigned Republican Gover- We are expressing our sincere belief and best nors, assembled for the purpose of consider- judgment as to what is demanded of you ing what will best insure the continuation of in the interests of the people as a whole the Republican Party as a useful agency of and we feel that you would be unresponsive good government, declare it our belief, after to a plain public duty if you should decline

a careful investigaticn of the facts, that a to accept the nomination coming as the

246 DOCUMENTS OF AMERICAN History voluntary expression of the wishes of a I absolutely agree with you that this matmajority of the Republican voters of the ter is not one to be decided with any referUnited States through the action of their ence to the personal preferences or interests delegates in the next National Convention. of any man, but purely from the standpoint

Yours truly, of the interests of the people as a whole.

William E. Glasscock, West Virginia. I will accept the nomination for President

Chester H. Aldrich, Nebraska. if it is tendered to me, and I will adhere to Robert P. Bass, New Hampshire. this decision until the convention has ex-

Joseph M. Cary, Wyoming. pressed its preference. Chase S. Osborn, Michigan. One of the chief principles for which I W. R. Stubbs, Kansas. have stood, and for which I now stand, and Herbert S. Hadley, Missouri. which I have always endeavored and always

shall endeavor to reduce to action, is the New York, February 24, 1912 genuine rule of the people, and therefore I

GENTLEMEN: hope that so far as possible the people may I deeply appreciate your letter, and I real- be given the chance, through direct primaries,

ize to the full the heavy responsibility it to express their preference as to who shall puts upon me, expressing as it does the care- be the nominee of the Republican Presifully considered convictions of the men _ dential Convention.

elected by popular vote to stand as the heads Very truly yours,

of government in their several States. THEODORE ROOSEVELT. 380. ROOSEVELT AND THE NEW NATIONALISM Speech of Theodore Roosevelt before the Ohio Constitutional Convention, Columbus Ohio

February 21, 1912 (The Works of Theodore Roosevelt, National ed. Vol. XVII, p. 119 ff.) Roosevelt had already decided, when he delivered the people full power and at the same time this speech, to enter the race in 1912. The speech to trick them out of it. Yet this is precisely can therefore be regarded as the opening note in what js done in every case where the State the pre-convention campaign. Three days later, permits its representatives, whether on the February 24, Roosevelt formally accepted the in- ) ench or in the legislature or in executive vitation the Seven Governors to be aThe candi-principal office, to declare date onofthe Republican ticket. in- ; that it has not the power to terest of this address lics in Roosevelt’s energetic "Sht grave social wrongs, or that any of the advocacy of the recall of judicial decisions. Roose- °fficers created by the people, and rightfully velt’s attitude toward the Courts alienated many the servants of the people, can set themof his more conservative followers such as Root, selves up to be the masters of the people. Stimson, Knox, Lodge, etc., and was partly re- Constitution-makers should make it clear besponsible for his subsequent defeat. For the origins yond shadow of doubt that the people in

of this attitude, see Doc. No. 310. their legislative capacity have the power to enact into law any measure they deem neces-

... The only safe course to follow in sary for the betterment of social and inthis great American democracy, is to pro- dustrial conditions. The wisdom of framing vide for making the popular judgement really any particular law of this kind is a proper

effective. subject of debate; but the power of the When this is done, then it 1s our duty to people to enact the law should not be subject

see that the people, having the full power, to debate. To hold the contrary view is to realize their heavy responsiblity for exercis- be false to the cause of the people, to the

ing that power aright. cause of American democracy. Lae

But it is a false constitutionalism, a false We stand for the rights of property, but

statesmanship, to endeavor by the exercise we stand even more for the rights of man.

of a perverted ingenuity to seem to give We will protect the rights of the wealthy

ROOSEVELT AND THE NEw NATIONALISM 247 man, but we maintain that he holds his mary, remedy is needed; some remedy at wealth subject to the general right of the least as summary and as drastic as that emcommunity to regulate its business use as bodied in the Massachusetts constitution.

the public welfare requires... . And whenever it be found in actual practice Moreover, shape your constitutional ac- that such remedy does not give the needed tion so that the people will be able through results, I would unhesitatingly adopt the retheir legislative bodies, or, failing that, by call.

direct popular vote, to provide workmen’s But there is one kind of recall in which compensation acts to regulate the hours of I very earnestly believe, and the immediate labor for children and for women, to pro- adoption of which I urge.

vide for their safety while at work, and to There are sound reasons for being cauprevent overwork or work under unhygienic tious about the recall of a good judge who or unsafe conditions. See to it that no re- has rendered an unwise and improper decistrictions are placed upon legislative powers sion. Every public servant, no matter how (hat will prevent the enactment of laws un- valuable—and not omitting Washington or

der which your people can promote the Lincoln or Marshall—at times makes misgeneral welfare, the common good. Thus only — takes. Therefore we should be cautious about will the “general welfare” clause of our Con- recalling the judge, and we shall be cautious

stitution become a vital force for progress, about interfering in any way with the judge instead of remaining a mere phrase. This in decisions which he makes in the ordinary

also applies to the police powers of the course as between individuals. But when a eavernment. Make it perfectly clear that on judge decides a constitutional question, when every point of this kind it is your intention he decides what the people as a whole can

that the people shall decide for themselves or cannot do, the people should have the how far the laws to achieve their purposes right to recall that decision if they think it shall go, and that their decision shall be bind- wrong. We should hold the judiciary in all ing upon every citizen in the State, official respect; but it is both absurd and degrading or non-official, unless, of course, the Supreme to make a fetich of a judge or of any one

Court of the nation in any given case de- else... .

cides otherwise... . Again and again in the past justice has There remains the question of the recall been scandalously obstructed by State courts

of judges. ... declaring State laws in conflict with the I do not believe in adopting the recall Federal Constitution, although the Supreme save as a last resort, when it has become Ccurt of the nation had never so decided or clearly evident that no other course will had even decided in a contrary sense.

achieve the desired result. When the supreme court of the State de-

But cither the recall will have to be clares a given statute unconstitutional, beadopted or else it will have to be made _ cause in conflict with the State of the Namuch easier than it now is to get rid, not tional Constitution, its opinion should be merely of a bad judge, but of a judge who, subject to revision by the people themselves. however virtuous, has grown so out of touch Such an opinion ought always to be treated

with social needs and facts that he is unfit with great respect by the people, and unlonger to render good service on the bench. questionably in the majority of cases would

It is nonsense to say that impeachment be accepted and followed by them. But acmeets the difficulty. In actual practice we. tual experience has shown the vital need of have found that impeachment does not work, the people reserving to themselves the right that unfit judges stay on the bench in spite to pass upon such opinion. If any considerof it, and indeed because of the fact that able number of the people feel that the deciliapeachment is the only remedy that can sion is in defiance of justice, they should be be used against them. Where such is the’ given the right by petition to bring before

actual fact it is idle to discuss the theory the voters at some subsequent election, of the case. Impeachment as a remedy for special or otherwise, as might be decided. the ills of which the people justly complain and after the fullest opportunity for deis a complete failure. A quicker, a more sum-__ liberation and debate, the question whether

248 DocUMENTS OF AMERICAN History or not the judges’ interpretation of the Con- is to be treated as reversed, and the construcstitution is to be sustained. If it is sustained, tion of the Constitution definitely decided—

well and good. If not, then the popular subject only to action by the Supreme Court verdict is to be accepted as final, the decision of the United States... .

381. RECOMMENDATIONS OF THE ALDRICH COMMISSION 1912

(Publications of the National Monetary Commission, Vol. XXVI, p. 6 ff.) The Monetary Commission was authorized by all such qualities by the fact that its volume Act of Congress in 1908, under the chairman- js largely dependent upon the amount and ship of Nelson W. Aldrich. It submitted numer- price of United States bonds. ous volumes dealing with the financial history of 5. We lack means to insure such effective

the United States and European nations, and .. . .

some recommendations for the reconstruction of cooperation on the part of banks as is NECES-

the American banking system. Some of these S@tY t© protect their own and the public were adopted by Congress in 1913-14 in the Fed- terests in times of stress or crisis. There eral Reserve Act. On Aldrich and the Monetary 35 RO cooperation of any kind among banks

Commission, see N. W. Stephenson, Nelson W. Outside the clearing-house cities. While

Aldrich, ch. xxi. clearing-house organizations of banks have been able to render valuable services within

We have made a thorough study of the a limited sphere for local communities, the defects of our banking system, which were lack of means to secure their codperation or largely responsible for these disasters and affiliation in broader fields makes it imposhave sought to provide effective remedies for sible to use these or similar local agencies these and other defects, in the legislation we to prevent panics or avert calamitous dis-

propose. turbances affecting the country at large. The principal defects in our banking sys- These organizations have, in fact, never been tem we believe may be summarized as fol- able to prevent the suspension of cash pay-

lows: ments by financial institutions in their own 1, We have no provision for the concen- localities in cases of emergency.

tration of the cash reserves of the banks 6. We have no effeclive agency covering and for their mobilization and use wherever the entire country which affords necessary needed in times of trouble. Experience has facilities for making domestic exchanges beshown that the scattered cash reserves of our tween different localities and sections, or banks are inadequate for purposes of as- which can prevent disastrous disruption of

sistance or Cefense at such times. all such exchanges in times of serious trouble. 2. Antiquated Federal and State laws re- 7. We have no instrumentality that can strict the use of bank reserves and prohibit deal effectively with the broad questions the lending power of banks at times when, which, from an international standpoint, afin the presence of unusual demands, reserves fect the credit and status of the United should be freely used and credit liberally States as one of the great financial powers extended to all deserving customers. of the world. In times of threatened trouble 3. Our banks also lack adequate means or of actual panic these questions, which inavailable for use at any time to replenish volve the course of foreign exchange and the their reserves or increase their loaning pow- international movements of gold, are even ers when necessary to meet normal or un- more important to us from a national than

usual demands. from an international standpoint.

4. Of our various forms of currency the 8. The lack of commercial paper of an

bank-note issue is the only one which we established standard, issued for agricultural, might expect to respond to the changing industrial, and commercial purposes, availneeds of business by automatic expansion able for investments by banks, leads to an and contraction, but this issue is deprived of unhealthy congestion of loanable funds in

| SocIALIST Party PLATFORM oF 1912 249 great centers and hinders the development ableness of rates of discount in all parts of

of the productive forces of the country. the country.

9, The narrow character of our discount 13. We have no effective agency that can market, with its limited range of safe and surely provide adequate banking facilities for profitable investments for banks, results in different regions promptly and on reasonable sending the surplus money of all sections, in terms to meet the ordinary or unusual deexcess of reserves and local demands, to mands for credit or currency necessary for New York, where it is usually loaned out on moving crops or for other legitimate purcall on Stock Exchange securities, tending to _ poses.

promote dangerous speculation and inevitably 14. We have no power to enforce the leading to injurious disturbances in reserves. adoption of uniform standards with regard This concentration of surplus money and to capital, reserves, examinations, and the available funds in New York imposes upon character and publicity of reports of all the managers of the banks of that city the banks in the different sections of the country. vast responsibilities which are inherent in 15. We have no American banking instituthe control of a large proportion of the bank- tions in foreign countries. The organization

ing resources of the country. of such banks is necessary for the develop10. The absence of a broad discount mar- ment of our foreign trade.

ket in our system, taken together with the 16. The provision that national banks restrictive treatment of reserves, creates at shall not make loans upon real estate retimes when serious financial disturbances are stricts their power to serve farmers and anticipated a condition of dependence on the other borrowers in rural communities.

part of individual banks throughout the 17. The provision of law under which the country, and at the same time places the Government acts as custodian of its own farmers and others engaged in productive in- funds results in irregular withdrawals of dustries at a great disadvantage ‘n securing money from circulation and bank reserves in the credit they require for the growth, reten- periods of excessive Government revenues,

tion, and distribution of their products. and in the return of these funds into circula11. There is a marked lack of equality in tion only in periods of deficient revenues. credit facilities between different sections of Recent efforts to modify the Independent the country, reflected in less favored com- ‘Treasury system by a partial distribution of munities, in retarded development, and great the public moneys among national banks

disparity in rates of discount. | have resulted, it 1s charged, in discrimina-

12. Our system lacks an agency whose in- tion and favoritism in the treatment of diffluence can be made effective in securing ferent banks. greater uniformity, steadiness, and reason-

382. SOCIALIST PARTY PLATFORM OF 1912 Indianapolis, Indiana, May 12, 1912 (K. Porter, ed. National Party Platforms, p. 361 ff.) The Socialist Party offered its first candidate tory of Socialism in the United States; F. E. in a national election in 1892. The history of the Haynes, Social Politics in the United States, party is closely identified with the career of _ chs. ix, xii. On Debs see D. Karsner, Debs, His

Eugene V. Debs, who became converted to Authorized Life and Letters; M. Coleman,

socialism during his imprisonment at the time Eugene V. Debs. of the Pullman Strike. In 1912 the party nom-

inated Debs for the presidency for the fourth . as . time: Emil Seidel of Milwaukee was the nominee The Socialist party declares that the caplfor the vice-presidency. Debs polled a popular talist system has outgrown its historical vote of almost nine hundred thousand. On the ‘Unction, and has become utterly incapable Socialist Party, see N. Fine, Labor and Farmer of meeting the problems now confronting Parties in the United States, 1828-1928 ; J. Macy, society. We denounce this outgrown system Socialism in the United States; M. Hillquit, His- | as incompetent and corrupt and the source of

250 DOCUMENTS OF AMERICAN History , unspeakable misery and suffering to the In the face of these evils, so manifest that

whole working class. all thoughtful observers are appalled at Under this system the industrial equip- them, the legislative representatives of the ment of the nation has passed into the Republican and Democratic parties remain absolute control of a plutocracy which exacts the faithful servants of the oppressors.

an annual tribute of hundreds of millions of Measures designed to secure to the wagedollars from the producers. Unafraid of any earners of this Nation as humane and just

organized resistance, it stretches out its treatment as is already enjoyed by the

greedy hands over the still undeveloped re- wage-earners of all other civilized nations sources of the nation—the land, the mines, have been smothered in committee without the forests and the water powers of every debate, the laws ostersibly designed to bring

State of the Union. relief to the farmers and general consumers

In spite of the multiplication of labor- are juggled and transformed into instruments saving machines and improved methods in for the exaction of further tribute. The industry which cheapen the cost of produc- growing unrest under oppression has driven tion, the share of the producers grows ever these two old parties to the enactment of a less, and the prices of all the necessities of variety of regulative measures, none of which life steadily increase. The boasted pros- has limited in any appreciable degree the perity of this nation is for the owning class power of the plutocracy, and some of which alone. To the rest it means only greater have been perverted into means of increashardship and misery. The high cost of living ing that power. Anti-trust laws, railroad reis felt in every home. Millions of wage- strictions and regulations, with the prosecuworkers have scen the purchasing power of tions, indictments and investigations based their wages decrease until life has become a upon such legislation, have proved to be

desperate battle for mere existance. utterly futile and ridiculous.

Multitudes of unemployed walk the streets Nor has this plutocracy been seriously reof our cities or trudge from State to State strained or even threatened by any Republiawaiting the will of the masters to move the can or Democratic executive. It has con-

wheels of industry. - tinued to grow in power and insolence alike

The farmers in every state are plundered under the administration of Cleveland, Mcby the increasing prices exacted for tools and Kinley, Roosevelt and Taft. machinery and by extortionate rents, freight We declare, therefore, that the longer suf-

rates and storage charges. ferance of these conditions is impossible, and

Capitalist concentration is mercilessly we purpose to end them all. We declare them crushing the class of small business men and _ to be the product of the present system in driving its members into the ranks of proper- which industry is carried on for private tyless wage-workers. The overwhelming ma- _ greed, instead of for the welfare of society.

jority of the people of America are being We declare, furthermore, that for these evils

forced under a yoke of bondage by this there will be and can be no remedy and no

soulless industrial despotism. substantial relief except through Socialism

It is this capitalist system that is responsi- under which industry will be carried on for ble for the increasing burden of armaments. the common good and every worker receive the poverty, slums. child labor. most of the the full social value of the wealth he creates. insanity, crime and prostitution, and much Society is divided into warring groups and

of the disease that afflicts mankind. classes, based upon material interests. FundaUnder this svstem the working class is ex- mentally, this struggle is a conflict between

posed to poisonous conditions. to irightful the two main classes, one of which, the and needless perils to life and limb, is capitalist class, owns the means of producwalled around with court decisions, injunc- tion, and the other, the working class, must tions and unjust laws. and Is preyed upon — use these means of production, on terms dicincessantly for the benefit of the controlling tated by the owners. oligarchy of wealth. Under it also, the chil- The capitalist class, though few in num-

dren of the working class are doomed to bers, absolutely controls the government,

ignorance, drudging toil and darkened lives legislative, executive and judicial. This class

SOCIALIST PARTY PLATFORM OF 1912 251 owns the machinery of gathering and dis- mines of the nation in their struggles for seminating news through its organized press. economic justice. It subsidizes seats of learning—the colleges In the defeat or victory of the working class and schools—and even religious and moral party in this new struggle for freedom lies agencies. It has also the added prestige which the defeat or triumph of the common people

established customs give to any order of of all economic groups, as well as the failure

society, right or wrong. or triumph of popular government. Thus the The working class, which includes all those Socialist party is the party of the present who are forced to work for a living whether day revolution which makes the transition by hand or brain, in shop, mine or on the from economic individualism to socialism, soil, vastly outnumbers the capitalist class. from wage slavery to free co-operation, from Lacking effective organization and class capitalist oligarchy to industrial democracy.

solidarity, this class is unable to enforce its Working Program

will. Given such a class solidarity and ef- As measures calculated to strengthen the fective organization, the workers will have working class in its fight for the realization the power to make all laws and control all of its ultimate aim, the co-operative comindustry in their own interest. All political monwealth, and to increase its power against parties are the expression of economic class capitalist oppression, we advocate and pledge interests. All other parties than the Socialist ourselves and our elected officers to the folparty represent one or another group of the lowing program:

ruling capitalist class. Their political con- Collective Ownership

flicts reflect merely superficial rivalries be- 1. The collective ownership and democratic tween competing capitalist groups. However management of railroads, wire and wireless they result, these conflicts have no issue of telegraphs and telephones, express service,

real value to the workers. Whether the steamboat lines, and all other social means Democrats or Republicans win politically, it of transportation and communication and of

is the capitalist class that is victorious all large scale industries.

economically. 2. The immediate acquirement by the muni-

The Socialist party is the political expres- cipalities, the states or the federal governsion of the economic interests of the work- ment of all grain elevators, stock yards, ers. Its defeats have been their defeats and storage warehouses, and other distributing its victories their victories. It is a party agencies, in order to reduce the present exfounded on the science and laws of social tortionate cost of living. development. It proposes that, since all 3. The extension of the public domain to social necessities to-day are socially pro- include mines, quarries, oil wells, forests and duced, the means of their production and water power. distribution shall be socially owned and 4. The further conservation and development

democratically controlled. of natural resources for the use and benefit

In the face of the economic and political of all the people: .. . aggressions of the capitalist class the only 5. The collective ownership of land where-

reliance left the workers is that of their ever practicable, and in cases where such economic organizations and their political ownership is impracticable, the appropriapower. By the intelligent and class conscious tion by taxation of the annual rental value use of these, they may resist successfully the of all the land held for speculation and excapitalist class, break the fetters of wage ploitation. slavery, and fit themselves for the future 6. The collective ownership and democratic society, which is to displace the capitalist management of the banking and currency system. The Socialist party appreciates the system.

full significance of class organization and Unemployment

urges the wage-earners, the working farmers The immediate government relief of the and all other useful workers to organize for unemployed by the extension of all useful economic and political action, and we pledge public works. All persons employed on such ourselves to support the toilers of the fields works to be engaged directly by the govern:

as well as those in the shops, factories and ment under a work day of not more than

252 DocuMENTS OF AMERICAN History eight hours and at not less than the prevail- 3. The abolition of the monopoly ownership ing union wages. The government also to es- of patents and the substitution of collective tablish employment bureaus; to lend money ownership, with direct rewards to inventors to states and municipalities without interest by premiums or royalties. for the purpose of carrying on public works, 4. Unrestricted and equal suffrage for men and to take such other measures within its and women. power as will lessen the widespread misery 5. The adoption of the initiative, referendum of the workers caused by the misrule of the and recall and of proportional representa-

capitalist class. tion, nationally as well as locally.

Industrial Demands 6. The abolition of the Senate and of the

The conservation of human resources, par- veto power of the President.

ticularly of the lives and well-being of the 7. The election of the President and Vice-

workers and their familics: President by direct vote of the people.

1. By shortening the work day in keeping 8. The abolition of the power usurped by the with the increased productiveness of ma- Supreme Court of the United States to pass

chinery. upon the constitutionality of the legislation

2. By securing for every worker a rest enacted by Congress. National laws to be reperiod of not less than a day and a half in pealed only by act of Congress or by a refer-

each week. endum vote of the whole people.

3. By securing a more effective inspection of 9. Abolition of the present restrictions upon

workshops, factories and mines. the amendment of the constitution, so that 4. By the forbidding the employment of instrument may be made amendable by a ma-

children under sixteen years of age. jority of the voters in a majority of the 5. By the co-operative organization of the States. industries in the federal penitentiaries for 10. The granting of the right of suffrage in the benefit of the convicts and their de- the District of Columbia with representation

pendents. in Congress and a democratic form of munic6. By forbidding the interstate transporta- ipal government for purely local affairs. tion of the products of child labor, of con- 11. The extension of democratic government vict labor and of all uninspected factories to all United States territory.

and mines. 12. The enactment of further measures for 7. By abolishing the profit system in govern- the conservation of health. The creation of ment work and substituting either the direct an independent bureau of health, with such hire of labor or the awarding of contracts to restrictions as will secure full liberty to all

co-operative groups of workers. schools of practice.

8. By establishing minimum wage scales. 13. The enactment of further measures for 9. By abolishing official charity and substi- general education and particularly for vocatuting a non-contributary system of old age tional education in useful pursuits. The Bupensions, a general system of insurance by reau of Education to be made a department.

the State of all its members against un- 14. The separation of the present Bureau of employment and invalidism and a system Labor from the Department of Commerce of compulsory insurance by employers of ard Labor and its elevation to the rank of a their workers, without cost to the latter, department. against industrial diseases, accidents and 15. Abolition of all federal districts courts

death. and the United States circuit court of apPolitical Demands peals. State courts to have jurisdiction in all 1. The absolute freedom of press, speech cases arising between citizens of several states

and assemblage. and foreign corporations. The election of all 2. The adoption of a graduated income tax judges for short terms. and the extension of inheritance taxes, gradu- 16. The immediate curbing of the power of ated in proportion to the value of the estate the courts to issue injunctions. and to nearness of kin—the proceeds of these 17. The free administration of the law. taxes to be employed in the socialization of 18. The calling of a convention for the re-

industry. vision of the constitution of the U. S.

THE PROGRESSIVE PARTY PLATFORM 253 Such measures of relief as we may be able thereby lay hold of the whole system of so-

to force from capitalism are but a prepara- cialized industry and thus come to their tion of the workers to seize the whole powers __ rightful inheritance.

of government, in order that they may 383. BRYAN’S RESOLUTIONS, DEMOCRATIC NATIONAL CONVENTION June 27, 1912 (Official Proceedings of the Democratic National Convention, 1912, p. 149) With the rupture of the Republican Party, and Resdlved, That in this crisis in our party's the probability that the Democratic nominee career and in our country’s history this conwould be elected to the Presidency, Bryan began vention sends greetings to the people of the an intensive campaign to nominate a liberal can- —_ [Jnjted States, and assures them that the

didate. The first step was the contest over the party of Jefferson and Jackson is still the temporary chairmanship of; the Convention. .; champion of The popular government and equal-

second, designed as a dramatic gesture to In-_. . fluence public opinion, was the Resolution below. LY before the law. As proof of our fidelity to “Tf (the convention) passed the resolution,” wrote the people, we hereby declare ourselves Op-

Bryan, “it excluded anyone who was the rep- posed to the nomination of any candidate for

resentative of Morgan, Belmont, or Ryan or President who is the representative of or under their influence; if they voted it down, the under obligation to J. Pierpont Morgan, rebuke from the country would make it impos- Thomas F. Ryan, August Belmont, or any sible for New York to select a candidate.” The other member of the privilege-hunting and resolution passed, 883 to 201, even New York favor-seeking class. voting tor it. Th e second paragraph In these Pes- Be It Further Resolved, That we demand olutions was withdrawn by Bryan, but this was - . . not generally understood by the delegates. See, the withdrawal from this convention of any Bryan, A Tale of Two Conventions; R.S. Baker, ‘delegate or delegates constituting or repreWoodrow Wilson, Life and Letters, Vol. III, p. senting the above-named interests. 340 ff,

384. THE PROGRESSIVE PARTY PLATFORM August 5, 1912 (K. Porter, ed. National Party Platforms, p. 334 ff.) The steam-roller tactics of the Republican Na- justice. We of the Progressive party here tional Convention of 1912 in ruling against the dedicate ourselves to the fulfillment of the Roosevelt delegates to that convention led to duty laid upon us by our fathers to maintain ine formation of the Progressive Party. June 22, the government of the people, by the people oosevelt’s followers met at Orchestra Hall, Chi- d for th h ¢ dati h cago, and pledged support to him and to his ang FOr the people whose roundations they principles. July 7, the call for a nominating con- laid... .

vention was issued, and the convention duly met THE Otp Parties

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 popular vote of over four millions. See, G. H. parties have turned aside. Instead of instruaan The Birth of a New Party; V. Rosewater, ments to promote the general welfare, they

ackstage in 1912; O. K. Davis, Released for h by th Is of . .

Publication; M. Sullivan, Our Times, Vol. III; ave pecome me £00 5° corrupt interests R. M. La Follette, Autobiography, chs. xi-xii, Which use them impartially to serve their

H. Pringle, Theodore Roosevelt. selfish purposes. Behind the ostensible gov-

ernment 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 History 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 CoRRUPT 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 mod-

pelling 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;

facials. Minimum wage standards for working THE Courts 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 inte;xests.

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 publi 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 (Congressional 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, Resolved, 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 poration. See, T. A. Bailey, “The Lodge Corol- other place by any Government, not American, lary,” Pol. Sci. Qt., Vol. XLVIII, p. 220 ff.; 5S. F. as to give that Government practical power

Bemis, ed., American Secretaries of State, Vol. of control for naval or 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 promot-

South American investments, but prior to the ing international accord among the powers accession of Taft to the Presidency 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 ; a 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- Case 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 has admittedly been a great factor in that

advent of Wilson to the Presidency brought a ; ;

in floating a Chinese loan for £25,000,000, but the concert of the powers which has been so hap-

sharp repudiation of “dollar diplomacy” in the pily conspicuous during the perilous period Far East, and the Americans withdrew. For the 0! 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 oo nsostiure Foreign Relations, 1912. On dollar CENTRAL America Neeps 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 Hon-

ergn Policy of the United States; M. C. Hsu, duras to help themselves. They are the im-

Railway Problems in China; H. Croly, Willard ; a

Straight; F. V. Field, American Participation in mediate beneficiaries. The national benefit to

the Chinese Consortiums. the United States is twofold. First, it is obvious that the Monroe doctrine is 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 docitself 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

TAFT’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 yroperty, 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 pon that ground have been brought to our reine veto of the literacy test, see Doc. No. attention. The matter has been considered from that point of view, and I became com-

To the Senate: pletely satished that upon that ground the I return herewith, without my approval, test could not be sustained. The older argu-

Senate Bill No. 3175. ment 1s 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 Is to be defended as a practical present immigration law which will insure ™easure to exclude a large proportion of ungreater 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 8t0und of practical policy, the final purpose commission after an extended investigation being 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 able 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,Ican ®8*e4t many desirable people, and the embarnot approve that test. The Secretary’s letter rassment, expense, and distress to those who

accompanies this. seek to enter would be out of all proportion WM. EL. TAFT. to any good that can possibly be promised for this measure.

My Dear Mr. PRESIDENT: My observation leads me to the conclu... Ll 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 Hi1stToRY 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- bill 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. S. 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. Brandeis, 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 Era 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 tility 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 21.73 per cent of the ments of railway, industrial, and public utilitotal banking resources of the country as re- Lies 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 4——Agents of C erat panies in New York City, the 20 largest held ection gents of Loncentration 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 York

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 potentially competitive banks and trust com- Combined Power of Morgan & Co., the

panies. This is the simplest way of acquiring Furst 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 unThird, 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 __—ithe 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 Rail-

——————= way: 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: Mem-

banking 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 directors or officers in common with this com-

Second, as regards the greater transporta- pany, and since 1909, in association with

tion systems. others, have purchased or procured the mar(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, 1s 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 ({) 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

(o) 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 Lotal 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 capital. company, 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 capagreed 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 enunciated 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? rable statements of, democratic faith in OM ‘That isthe question that uppermost in ou favorably with Jefferson's First Inaugural and minds to-day. That is the question Tam goLincoln’s Second Inaugural. On Wilson, see R.S. 398 to try to answer, In order, if I may, to Baker, Woodrow Wilson, Life and Letters, interpret the occasion. Vol. IV; W. E. Dodd, Woodrow Wilson; J. Ker- Tt 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 which 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

WILSON’S FirStT 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 believed 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 lim- 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 modified, 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 wellastheir 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 in the 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 is a day of duty of law is to keep sound the society it dedication. Here muster, not the forces of serves. Sanitary Jaws, 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 hana 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!

THE 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 clated 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 de-

industrial 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 paronly 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 be-

The 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 it 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 HISTORY 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 uron his or knows anything that lies beneath the suraccession to office he called Congress intoa special face of action can fail to perceive the prinsession, and on April 8, reviving a custom that ciples upon which recent tariff legislation has

had not been observed since Jefferson, addressed been based. We lone ag d b d th

Congress in person. In response to Wilson’s de- ven pasec. We one AsO Passe eyon t c

mand for downward revision Congress promptly modest notion of “protecting” the industries passed the Underwood tariff which became law of 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... 1 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-_ lain 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 al last nothing is normal, nothing is

what the fiscal changes are to be tc 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 necessily to be efficient, economical, what it is to-day. Our task is lo 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 oiher 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 rnatters, 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 1s 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 HIsTorRyY 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 deterlives 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 opportunAccordingly, 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 MoBILeE 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 forbidcountry 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 liaritv ab he hi were materially improved during the Wilson ad- re 38 one pecu larity about t € story

ministrations. See, E. E. Robinson and V. J. of the Latin American States which I am

West, The Foreign Policy of Woodrow Wilson; Sure 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.

270 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 consti-

we 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 (han 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 Amercomprehending 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 degracing 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. S. 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- rested were taken from the boat itself—that manded an apology and a salute of twenty-one jg tg say, from the territory of the United guns. This demand was sustained by the Amen” ct ates “but had it stood by itself it might can government, though in as much as the United have been attributed to the ignorance or arobvious legal difficulties. Huerta refused to com- Fosance of a single officer. Un ortunately, i

States did not recognize Huerta, it presented Unfort tely. it

ply with the American demands, and April 20 Was not an isolated case. A series of inclWilson 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, and the tives of General Huerta were willing to go Senate by a vote of 72-13, gave Wilson the neces- sg yt of their way to show disregard for the

sary authority. On the 22d, Admiral Fletcher dignity and rights of this Government and

pnese a one at Cee eee eee ems felt perfectly safe in doing what they pleased, from a German ship. This action brought the making free to show in many ways their irri-

United States and Mexico to the verge of war, [tation and contempt... .

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 A.B.C. powers with the offer of media- pross and intolerable a sort as to lead directly tion. See Doc. No. 396. For the Tampico inci- and inevitably to armed conflict. It ‘was dent, see R. S. Baker, Woodrow Wilson, Vol. IV, necessary that the apologics of General p. 313 ff.; M. E. Curti, Bryan and World Peace, Huerta and his representatives should go p. 181 ff.; C. P. Lamar, Life of Joseph Rucke 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

advice and cooperation in acting upon it. On a new spirit and attitude on the part of the the 9th of April a paymaster of the U.S.S. Huertistas. 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 crew to take off certain supplies needed by support in the course I now propose to purhis ship, and while engaged in loading the © sue. boat was arrested by an officer and squad of This Government can, I earnestly hope, in men of the army of General Huerta. .. . Ad- no circumstances be forced into war with the miral Mayo regarded the arrest as so serious people of Mexico. Mexico is torn by civil an affront that he was not satisfied with the _ strife. If we are to accept the tests of its own apologies offered, but demanded that the flag constitution, it has no government. General 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 Conchose 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 situ tion oie rapidly haping ‘up Tor sar when at noon on the ———— day of ——— 1914, 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.

ml .

the A.B.C. powers, several lesser Latin American

nd the United States, decided to recog-

se Carranza, The A.B.C. Conference is im- Protocol No. 4, June 24, 1914.

portant not so much for its accomplishments as 1.

a tne indication of the willingness oe to joint The Provisional Government referred to in veaponsibility for the maintenance of American protocol No. 3 sna be constituted by ane policies. Other documents on the Conference can ment of the de egates 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. No. 3. See also, J.ch. F. REPPY» Il. tesVI,and Mexico, xx; E.rheE.United Robinson

an gs ,

0 t 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- ITI.

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- plain 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 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, 11S meaning is not debated outside the to follow Wilson’s leadership in Mexican rela- United States. Everywhere else the language tions. See, R. S. Baker, Woodrow Wilson, Vol. of the treaty is given but one interpretation,

Treaty of 1901, Article III, sec. 1; see Doc. No. 4 ;

IV, viii.precludes ; . the exemp; and thatch. interpretation 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 etc., Vol. II, p. 1279 if. The Bryan-Chamorro at such place on the territory of Nicaragua

of 1867, see Malloy, ed., Treaties, Conventions, ;

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 sovercignty. 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 zarded the ruling of the Court, and it came to ; ; , an inglorious end. See S. Nearing and J. Freeman, grant aforesaid shall be subject exclusively Dollar Diplomacy; D. G. Munro, The Five Re- 0 the laws and sovereign authority of the publics of Central America; 1. 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 of 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

Arr. Il. 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 Governmen: 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 ratified 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.

THE 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 in-

| Suit 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 ad-

sion, 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 comreasonable, 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- Gayl to allay it. Those responsible for exdent Wilson reinforcedfor this official proclamation citing it willas assume with an appeal neutrality “in thought wella heavy eye responsibility, .

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. A, 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 lion of international disputes that he had advo- ember shall be designated by common concated since the beginning of his public career. cent and shall not belong to any of the nese treaties called I 1 ne meen or ” ute nationalities already represented on the combetween the United States and other nations, "Ss!0n, he shall perform the duties of 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 cOmgarded them as his most permanent claim to missioner, the other four shall be called

10n COmmissions fo adjudicate issues . .

fame. See, M. E. Curti, Bryan and World Peace; upon to designate him, and failing an underC. L. Lange, The American Peace Treaties; P. standing between them, the provisions of

abpen, oe Lees eaen j an ae the Article 45 of the Hague Convention of 1907

reatles are coliecte in reaties or C & vance- shall be applied. ad Peace Negotiated by William Jennings The commission shall be organized within

as six months from the exchange of ratification of the present convention.

Treaty Between CHINA AND THE UNrrep 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; renewed. 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. XX XVIII, 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 a chal] be appointed by the President, by and federal trade commission to advise, inform and with the advice and consent of the Senate.

ude busines, bin rmony mt Use SE Not more than three of the commissioners and with the ‘energetic support of Senator New- shall be members of the same 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

H. R. Scager ane C. A. Gulick, Trust and appointed only for the unexpired term of the

Corporation Problems. commissioner whom he shall succeed... .

An act to create a Federal Trade Commis- SEc. 3. That upon the organization of the sion, to define its 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

THE CLAYTON 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 Fedcral 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 bet The most important sections of the Clayton dite ; price between Jaw 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- OF 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 organ-

where 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-

WILson’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 toa 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 peo-

To 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 ta dissent. of political asylum has brought to this coun-

282 ‘DocUMENTS OF AMERICAN HISTORY . 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 striclions 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 1 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 partics speak out upon this antecedents as were likely to make them a_ policy and the peop‘e 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. 1 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 carricd 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 to in- 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 lirst 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 Amer1-

commander on the ground that the Lusitania can ships.” (For. Rel. of the U.S., 1915, Suppl.,

Tue First Lusirania 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 +5094 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. Prescribed by the naval codes 89 ff.; C. Seymour, Intimate Papers of Colonel tions, the Government of the United States House, Vol. I, ch. xiv, Vol. II, chs. i-ii; 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 Impcrial German ship Lusitania on May 7, 1915, by which Government considered themselves obliged over 100 American citizens lost their lives, by the extraordinary circumstances cf 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 tc 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

fight 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 beland 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 1s 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 or-

not 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

ELrrau 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- not 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? ramen and boss rule. On Boss Platt, see The row have our cities been lifted up from the Gosnell, Boss Platt and his New York Machine; Ow grace of incompetency and corruption D. S. Alexander, Four Famous New Yorkers. on which they stood when the “American Commonwealth” was written? It has been

utobiography of Thomas Collier Platt; H. S. de of j .

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 politi-

cities 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 I 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 ad-

Then 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-continued 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 appoint-

by 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 Conthe 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-

Ture 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 partics 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 chicf executive made the credit mobilier scandal possible in not selected by the people, not acting for the the Congress of the United States has becn 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 sce being done Lo 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 and 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 financiers. 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, here-

6. 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 Foundation, 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 1s 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, Federal 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 is (e) Complete publicity through open re-

believed, however, that 1f 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 comties 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 Or 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. T think the country will feel Americans were ‘orbidden to travel on. the no uneasiness about my course in that respect. refused to accept this point of view as cither rough many anxious months I have striven reasonable or necessary. The German threat of for that object, amidst difficulties more mania 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.

armed ships of belligerent powers. Mr. Wilson Th h ; .

cratic Congressional leaders served notice on the The course which the Central European powPresident that unless he placed an embargo upon ers 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- 1g 1s 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 of the yan put a different aspect upon it. We have administration support came from Republicans. had no reason to question their good faith or the World War p. 116 fi.; “Armed Liner Issue,” their fidelity to their promises in the past,

See C. Seymour, American Diplomacy During .

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 zens 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 1M 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 conplace 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 destruttion of the French cross-chanwould not be sunk by submarines without warn- nel steamer Sussex. It must stand forth, as ing and without safety for the lives of noncom- the ginking of the Lusitania did, as so singubatants. This pertod of quiet in submarine war- larly tragical and unjustifiable as to consticross-channel steamer Sussex, March 24, 19106. lute 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 ™anity 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 wartare. 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 GovThat 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

elther 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 Ammals, 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 eominge, Report site to their final discharge. States, 67th Congress, 2nd Sess. ene Nepor Art. V. All sums collected and received by

794, and A. C. Millspaugh, Haiti Under the General Receiver shall be American Control, 1915-1930. . applied, first, to the 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 elfect 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 upply- 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 asmay 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 purlic 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 pav 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 neces- . organized 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 oc-

Government, 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 an-

wise, 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, ;

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 hie, 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 noi that important half of agriculture which con- only, but will also result in the more efficient

296 DOCUMENTS OF AMERICAN HISTORY 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. XX XIX, 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 “wo continued to hope for independence, and their a wat 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, 1910, not Wooseas for the speedy accomplishment of 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 Philippines 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 mean-

only greatly enlarged Philippine self-government, y f

tcon ;

Philippines 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, Phe Philip pine Islands, 2 States, in order that, by the use and exerVols. Z J. S. Rey Ss eee a i O ibigpmen: cise of popular franchise and governmental C.B. Elliott, The Philippines to the End of the POWerS, they may be the better prepared Commission Government; F. B. Harrison, The to fully assume the responsibilities and 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 Philippine 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-

OrcANIC AcCT 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, ... not 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 tongue. 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

clected 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 lure 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, insurrec-

power 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. XXXIX, 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 Hipolite 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. Unitéd 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 inter-

merce 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 au-

their 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 factoauthority 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 ils 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.]J.... 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 Tagree 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 have 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.” Veazie 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 ConstituThe 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 is 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 BRANDEIS, and Mr. JusTICE CLARKE concur

upholding the exercise of all its powers by _ in this opinion.

the United States. |

WILSON v. NEw 303 414. THE ADAMSON ACT September 3, 5, 1916 (U.S. Statutes at Large, Vol. XXXIX, 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- , property on railroads, ... from any wide strike unless their demands were complied = State oy Territory of the United States or with. As a tie-up in our transportation system ihe District of Columbia to any other State

at that time would have been disastrous, Wilson or Territory of the United States or the appeared before Congress and asked for the en- Lo ; .

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 {o 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 industria] 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 raiiroads, 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 Act by Congress]

on interstate carriers. On the constitutionality of All th 43 lied Moratorium Case, Doc. No. 483. ments advanced ultimately come to two emergency legislation see the Minnesota Mortgage © Proposi 10nS teed upon and argu-

questions: first, the entire want of constituWuire, 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 Lo 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 mght 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 1s 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 comits 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 pos-

But, 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 W1THOUT VICTORY 305 us ... to exert the legislative will for the the parties—a power none the less efficactpurpose 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 inlerests 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 specch, 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 { t der it

“peace without victory” inspired a great deal of Cer ee LO Fender lt. . .

contemporary derision. See C. Seymour, Ameri- That sevice Is 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 night that before it comes dress you because JI thought that I owed it this Government should frankly formulate to you, as the counsel associated with me the conditions upon which it would fee) 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. J 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 DoOcUMENTS 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 W1iTHOUT 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 seck 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 1f 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 is 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 influkeeping 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 internationa! 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 History 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 Ministcr 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 promp ly Biven to the Press) and was You are instructed to inform the President

very effective in consolidating public opinion in

favor of war against Germany. Sce, 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 1t 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. had considerable influence in his re-cleclion in I have called the Congress into extraordiGermany informed the United States that she "4tY Session because there are Serious, very intended to resume unrestricted submarine war- S€rious, choices of policy to be made, and fare; on February 3, Ambassador Bernstorff ree 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

November, 1916. In January,'1917, however, ;

rines, and Wilson called Congress into extraordi- —Jajq before you the extraordinary announce-

eclared war wi ermany; war was not de-

nary session nase Four days later woneress ment of the Imperial German Government clared upon Austria until December 7, 1917. Wil- that on and aiter the first day “" February 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 chilGovernment 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 temper-

their 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 J am 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 cooperation 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 con-

sources 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

WILSON’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 Govern-

when 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 T arnowski, the Ambassador recently acgroups of ambitious men who were accus- credited to this Government by the Imperial 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 warfare 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 postpon-

never 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 early 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,—exercising 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 princip‘es 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 HistToRY 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 fiery 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 regulations and to issue such orders as are the price was at $2.20 bushel. Herbert 4. on tialH. effectively to carry out the proviHoover wasfixed made Fooda Commissioner, and

A. Garfield Fucl Commissioner. Sec, 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 guarancessful 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 produc- 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 de-

dependent upon the action of the President fense will be subserved thereby, he is 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, prohibition, 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 muitary 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 limitation, 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, Democ-

to 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 secured . special concessions and promises of territorial Department of State 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 communi-

a special mission for the purpose of quicting cate herein my understanding of the agreeAmerican apprehensions of Japanese policies and ment reached by us in our recent conversa-

securing 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 China. Theconfirming Lansing-Ishii In order sile ‘schi whileinapparently theagreement, Open Door . nce toMISC levous reports

policy, did actually recognize that Japan had that have from 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. Sce, 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 terriJapan 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 all em- 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 “ it oth, be nl id at the rate o ten hours a regular day’s labor in the occupa-

time and one-hall of the regular wage. tions 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 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 dif-

That 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, 954 | 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, 104; 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 Wute, C. J., and VAN DevanTer, J., and or arbitrary as to hours of labor. Statistics McReyNoxps, 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 surmmary of the two The immigration act of 1882, which. as important laws is given in lieu of the acts them- Loge . a selves. For a collection of Documents on Immi- already indicated, was the hrst general law 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 iaw, 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 turpithe provision barring illiterate aliens from tude; polygamists, or persons who practice admission, which was added to the general polygamy or believe :n or advocate the prac-

law 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; centract laborers:

316 DOCUMENTS OF AMERICAN HisToRyY 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 affirma- 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 move-

both 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 agi-

tory; 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 general 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 immigra-

cern 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 ft.) 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:

Interallied Conference to agree upon a formula- . . . It will be our wish and purpose that

tion of war aims, and the overtures of Russia the processes of pea hen t} b toward Germany. The fourteen points were based P 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 tle 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, assisttherefore, 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-

Tur FourRTEEN 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 distinc-

: by 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. We 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 pur-by 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 Htrstory 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 neu(Intimate Papers of Colonel House, Vol. IV, trals shall be maintained against the bellig-

p. 154.) Seethe C. Seymour, the rights be clear!an 7 During World American War, p.Diplomacy 372 ff. erents, . 8 s Of DO of0 both be cto early precisely defined in the law of nations.

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 apply-

diplomatic 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 is 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 1s 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 1s, 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 fall] colonial powers. slate on which to write a policy for all the 6. The first question is whether Russian Russian pcoples. 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 France, 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 terliterated, 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 largenum- 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-Slavs may 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-

Tue 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” agrced 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 is 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

ing to an armistice on the basis of the Fourteen passed between the President of the United Points. While Wilscn was willing to conclude an States and the German Government. Subject armistice on this basis as far as the United States to the qualifications which follow they dewas concerned, he could not bind the Alles to Qjare their willingness to make peace with the

any such agreement. The diplomacy of Colonel CG ae P . House and the threat from Wilson of independent overnment Or Nermany 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 Fcurteen Points as Congress of January, 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. Sce 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. viii-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 HistToRy 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

e-.. 424. RAILWAY ADMINISTRATION ACT

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 rele were disappointing and in December 1917 rngintenance, repair, renewals, and deprecia

roads. The Act of March 21, 1917 provided for tion of the property, for the creation of the operation of the roads and for compensation @2Y Teserves or reserve funds found necesto the owners. Governmental operation aroused S@Fy 1n connection therewith, and for such considerable criticism on grounds of extravagance, 4CCounting 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.

Tur EspionaAGE ActT 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 needtful 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- ll 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 1s 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 Act... 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

(he 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

... Or 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 oor 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 alleged that the act violated the First Amendment of the press, and bringing the case here on

to the Constitution. Compare this opinion to that dh q th nt

the dissenting opinion of Mr. Justice Holmes in at ground have argue 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-

Hoitmes, 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 sume effect, and we do not printed. ‘ihere 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 i 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 il 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 15

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 recruit-

described 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 elgn shores to shoot up the people of other which it is done are the same, we perceive no iands, 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 4917 But to make the conduct criminal that be read in Schenck v. United States, Doc. No. statute requires that it should be “with in-

426, and Gitlow v. New York, Doc. No. 456. Mr. tent b | all Le Justice Holmes’s dissent is significant because it eat dy such curtal ment 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 The 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 HoumMgEs, 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 follow, and he may be lo the United States in the same war and to _ liable for it even if he regrets it, but he does altempt 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... . defendanjs’ 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 carrymunition 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... .

THE 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 imthat 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 sweep-

and 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 lI 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 in-

realized 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 intcr- Moore, ed. American Expedition in North Rusvention”, it pledges the Government to do Just sa; 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 Siberian 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 bodies in the north. But it owes it to frank

Phe Secretary of state to the Allied counsel to say that it can go no further Ambassadors Aide-Mémoire than these modest and experimental plans.

. . . Itis 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 emp:oyed, it submits, 1s 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 acceptabte 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 con-

also, 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 Fee elections ot November ° resulted in Repub- I must frankly tell you so because so many Wilson’s partia) failure at Paris may be attributed critical issues depend upon y our 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 allies 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

ican majorities in both Houses of Congress. es

cally repudiated by them. Mr. Wilson and his ys

Fourtecn Points and his four supplementary harbor such an idea. I mean only that the

points and his five complementary points and ‘“iffficulties 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 {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

1o0n oO e genera axation 1 ass .

contre nee interstate on. bill In an o tag which children under the age of fourteen upon the products of child labor. For the fate of °™"* have been employed or permitted to 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 Vv. 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 4 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 Jaw 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 un-

so-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 HistToRyY 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 judg. enforce 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. XXXXI, 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 after its sponsor, Volstead ol Minnesota, States attorney for the district in which

was passed over the veto of President Wilson. On

the constitutionality of the Act, see Doc. No. 433. committed, who shall be charged with the The literature on Prohibition is enormous, but uly of prosecuting, subject to the direction most of it is of a controversial character. See E. olf 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 Its Worst; F. Franklin, The fore United States commissioners or other A.B.C. of Prohibition; The Federal Council of officers or courts authorized to issue the Situation; Annals of the American Academy of 22 for the apprehension of such offenders, Pol. and Social Science, Vol. CIX. The famous nd may, subject to the control of the said

Churches of Christ in America, The Prohibition

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 pur-

pose of having the offenders held for the

Be tt Enacted. ... That the short title of action of a grand jury... .

wus Act shall be the “National Prohibition TITLE IL

a PROHIBITION OF INTOXICATING TITLE I. BEVERAGES.

TO PROVIDE FOR THE ENI‘ORCE- 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, is-

| 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 pretilled 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, trans‘ing and selling such warehouse receipts. ... 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 liquor 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 sucn 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 relief 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 herein provided. . . . to prescribe liquor unless he is a physician SEC. 18. It shall he 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 direcNothing 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... .

1920 :

433. NATIONAL PROHIBITION CASES

253 U.S. 350

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 involved.

the court stated its opinion of a question of 1. The adoption by both houses of Conconstitutional law without giving its reason- gress, each by a two-thirds vote, of a joint

mB resolution proposing an amendment to the VAN DeEvanrTER, 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 1s —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, 1s 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 im4. 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 legisla- 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 trealed 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 WuiteE, 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 Ciarke, 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 1. 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 Icft 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 7. 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 he!ping 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 underComm:ttee 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 com-

chairman 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. pow most frequently asked about the League Malin, The United States After the World War, o¢ Nations were all canvassed with a view to

chs. U-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 mo 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-

WiLtson’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 Siates 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 1s 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 1s 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, inasmuch 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 (Congressional 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 two-

read 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 suppres-

condition 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 consideraand 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 inter-

international 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 con-

tion of the Congress of the United States. tained in the said treaty of peace with Ger2. 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 hberty 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, shal! 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 politi11. 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 peopte 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 Vv. 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 portant question raised was whether Congress o% the treaty except as permitted by regu

tween the United States and Canada. The 1m- ; ar by \acould, 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 1s umnecessary to go national power in our constitutional history. into any details, because, as we have said, the question raised is the general one whether Hotmes, 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 States from attempt- To answer this question it is not enough 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 he 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 vy.

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. $19, 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. 8. 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 itis 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,

Tue 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-

ship and operation under careful regulations. TITLE III.

The most interesting feature of the Transporta-

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, The Government and Railroad i... and their officers, employees, and agents,

Transportation; W. M. Splawn, Government .

Ownership and Operation of Railroads; R. Mac- to exert every reasonable effort . . . to avoid Veagh, The Transportation Act of 1920; F. H. amy interruption to the operation of any carDixon, Railroads and Government; W.D. Hines, ier 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 IU. considered and, if possible, decided in con-

TERMINATION 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 suck 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 HisToORY 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; reasonabieness 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 resu:t of previous wage

Board who during his term of office is an ac- orders or adjustments.

tive member or in the emp:oy of or holds any SEC. 407... office in any organization of emp-oyees or (4) The Commission shall as soon as pracsubordinate officials, or any carrier, or owns ticable pzepare 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 num-

eligible 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 cperation of the prop-

Ges to the Labor Board that in its opinion erties theretofore in scparate 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 v. 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 ir 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 way, 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 herein-

of 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

| 1922

257 U.S. 563

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 HISTORY state statute of February 28, 1920, fixing a traffic will contribute will be proportionately maximum rate of 2 cents a mile for intrastate less... . 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 hich raise the intrastat tes t level of

conformity with those charged over interstate Ww sea False the intrastate rares (0 a leve .

transportation. the interstate structure violate the specific proviso of the original Interstate Commerce

Tarr, 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 remove? ... 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 Transpoints. 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 is clear that this would include unless compensation is received for the intra-

many 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.

DAYTON-GoosE CREEK RAILWAY 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.an 438)income provided in thatexcess any railroad the property itself. The recelving of Amendment such fair as return .

as shall be established by the Interstate Com- statute declares the carrier to be only a merce Commission shall hold the excess earnings 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, due 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 in« We 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 HISTORY 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 sum not exceeding $5,000,000 . .. These taxation for the maintenance of State-managed bonds are to be issued and sold for the purmanufacturing and banking institutions. The )oce of carrying on the business of the Mill decision in Loan Association v. Top eka, 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

money 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 altempted 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 ils 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 opcople, 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 affrmed 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 beneit.

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 it 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 justified 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 DOCUMENTS 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 ceclaring 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 condi- 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, privConsidering 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

ratified 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 shell 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, VIII, [X, 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 and hygiene of maternity and infancy, and unwarranted intrusion on the jurisdiction of the for other purposes.

states, statesofrefused to avail Be; at it ted th ‘s hereb ; selves ofand themany provisions the act. See A. F.them1 enacle thereThat is hereby authorized

Macdonald, Federal Aid: a Study of the Ameri- t© 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, sce F. Frank- tween employers and employees, or between

furter and N. Greene, The Labor Injunction; 1 between persons emploved and P. F. Brissenden, “The Labor Injunction,” Pol. EMpioyees, OF e P Pp ye

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 is

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. Hop-

Plaintiffs’ business is a property right kins, 118 U. $. 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 Hoimes, 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 scem 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 prohave 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 il definitencss 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 docs not even appear that the tain in and determine legislation; but ii 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 tc 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 Pirney and BRANDEIS and

DuPLEX PRINTING PRESS COMPANY V. DEERING 357 in their conclusion that the judgment should in which Cxarke, 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 US. 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 Interunlawful conspiracy in restraint of trade. The national Association, for the purpose of enfacts are stated in the opinion. This is the lead- forcing a boycott of complainant’s prod-

ee Doc. No. 403. .

ing case on the interpretation of the labor uct...

causes of the Clayton Anti-Trust Act of 1914. All the judges of the Circuit Court of Appeals concurred in the view that defendPitney, 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 pro~ ucts 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 comlion 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 lives 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 mercly 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 lawful?’ 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 conditions 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, Hotmes and Crarke 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 guaranteed Amendment to thehim Federal ConTart, C. . We have stitution the right ofJ...trial by 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

BALzac 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 nol 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 shal! 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 i38, 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 ter-

ing 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 /nsular 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 HisToRyY 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 disre-

In 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 SYSlature 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 is 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 36) 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-

zens. ... 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 in the 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 fol-

our 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 Hotmes concurs in the result.

447, NAVAL LIMITATION TREATY Signed February 6, 1922 Proclaimed August 21, 1923 (U. S. Statutes at Large, Vol. XXX XIII, 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 proto 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 tollowing Provisions of this Arference sce 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

gram was embodied in the Naval Limitation’ . . a oF

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. XII, no. 3; 5. 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 In Sennig Docume 126, ich complete and retain two ships of the West

449 Breesy , co > Virginia class now under construction. On the 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 IJ,

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-

tentlaries; ... posed of as prescribed in Chapter II, Part 2. Who, having communicated to each other ART. Il. 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 rep!acement 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 replaceinent 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, tke 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, _Lerritories and possessions specified herefor, 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 includ-

ART. 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 000 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

{0,000 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 spec-

specifically 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,

Tuer Four-PoweER TREATY 363 does not preclude such repair and replacement PART 3

of worn-out weapons and equipment as 1s "

customary in naval and military establish- SEC. I.

ments in time of peace.... RULES FOR REPLACEMENT.

CHAPTER II (a) Capital ships and aircraft carriers twenty years after the date of their complePART 1. tion may, except as otherwise provided in

CAPITAL SHIPS WHICH MAY Article VIII and in the tables in Section I] 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. Il 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 Il ever, that no capital ship tonnage, with the

and If. exception of the ships referred to in the third I. A vessel to be scrapped must be placed in paragraph of Article 11, and replacement ton-

such condition that it cannot be put to nage specifically mentioned in Section IT of

combatant use. this Part, shall be laid down until ten years

II. This result must be finally effected in any {rom November 12, 192l.... one of the following ways:

(a) Permanent sinking of the vessel;

(b) Breaking the vessel up. CHAPTER HI

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. XXXNIII, 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, QOccan,

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 parII. 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 con. to arrive at an understanding as to the most cluded at London on July 13, 1911, shall terefficient measures to be taken, jointly or sep- minate.... arately, to mect the exigencies of the particular situation.

449. THE NINE-POWER TREATY February 6, 1922. Proclaimed August 5, 1925 (U.S. Statutes at Large, Vol. XX XXIV, 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 independ-

treaty attempte ; , . _

poliey aoa china. ree ences wien ence, and the territorial and administrative shortly violated by Japan. A number of other integrity of ree

treaties and resolutions concerning China were (2) To provide t c fullest and most unemadopted 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 II. 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 posl(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 hy 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- _ shal) 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. Washingion 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 HIsToRyY 450. WOLFF PACKING CO. v. COURT OF INDUSTRIAL RELATIONS OF KANSAS 2602 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 clothKansas (1920). The act declares the foilow- 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 p-oyer 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 dissatisSed 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. ... emp‘oyer, on the one hand, and that of the In January, 1921, the president and secre- cmp‘oyee, 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 w.th 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 feldanger of monopoly on the one hand, and _ lows gives him... . such disaster from stoppage on the other, that The minutely detailed government superhoth 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 regu-

declaration, 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 is not too much to say that the ruling the relation of government to general busi- in Wzlson 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 act of Congress of September 19, 1918. for determination by these appeals is the The statute authorizea the Board to ascertain constitutionalit f the Act of Septemb

and declare standards cf minimum wages for ry © te Act 0 eptember

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 W@8€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 HiIsToORY 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 is obvious that the individual expense exclusively a price-fixing law, confined to will be less in the case of a member of a famadu.t 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- needs 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 obprisonment, 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 ot 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 opposile 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 to the 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 _emp!oyment 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 respectab‘e 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 society 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. Hotes, J., dissenting: The question in

It follows from what has been said that the this case is the broad one, whether Congress act in question passes the limit prescribed by can establish minimum rates of wages for the Constitution, 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 between 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 tc 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 examp'es. |

that can be urged is founded in the vague The criterion of constitutionahity 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. TEAPOT DOME Joint Resolution of Congress Respecting Prosecution for Cancellation of Oil Leases February 8, 1924

(U. S. Statutes at Large, Vol. XXXXIIT, 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 cerning the leasing of rich oil reserves to private lessee, and that certain contract between the interests by the Secretaries of the Navy and , 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

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 ang that certain lease of naval reserve No. 1, successful ; on the criminal charges arising from in the State of California, bearing date Decorruption, Secretary Fall was convicted and , : imprisoned. 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 joint 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 vioming, bearing date April 7,1922,madeinform 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 nd 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 ad-

of immigrants; they did not discriminate suf- mitted 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 Hmited 9

remedy the first defect by reducing the per- © acmitted annually 1s Amitec: to per cent centage of immigrants admitted in relation to of the population of such nationality resident nationals already in the country from three to in 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- 300 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

Tue IMMIGRATION AcT oF 1924 373 following proclamation of the President, is- Quota sued on the last day of the present fisca] year: 1924-1925 (3,4) .cvcccccvccceccee 121

By THE PRESIDENT OF THE UNITED STATES AUStIIA 6 eee e cence eer eees 785

or AMERICA BelgiumBhutan (5) ...ceeeeeeeee 912 ...ccceeccecneves 100

A PROCLAMATION Bulgaria . ne 100

Whereas it is provided in the act of Con- Cameroon (proposed British

gress approved May 26, 1924, entitled “An mandate) .......e.eeee- 100 act to limit the immigration of aliens into the Cameroon (French mandate) 100 United States, and for other purposes” that— China ....-cccecuceeceees 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.++- 2,789

in continental United States as determined Egypt ...ccceeceveuceees 100 by the United States census of 1890, but the Esthonia .....ccccceceeece 124 minimum quota of any nationality shall be Ethiopia (Abyssinia) ...... 100

100 (Sec. 11(a)).... Finland .........0 cece eee 170 “The Secretary of State, the Secretary of France (1, 5,6) ...ceeee0+ 3,954

Commerce, and the Secretary of Labor, Germany ee $1,227 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 ....cccccccccccees 100 nationalities resident in continental United Hungary ...ccceeeceeeeee 473 States as determined by the United States Iceland ..cccccceccccecces 100 census of 1890, which statement shall be the India (3) ..ccseceeceeeees 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 Castello-

tionality under subdivision (a) of section 11, rizzo (5) m3 gas

together with the statements, estimates, and Japan .ceeccceseceeeeeuee "100 revisions provided for in this section. The Latvia. occccccccccecccen 142 President shall proclaim and make known the Liberia... ccccecccceccuce 100

quotas so reported.” (Sec. 12 (e)). Liechtenstein ............. 100 Now, therefore, I, Calvin Coolidge, Presi- Lithuania ......cccceccece 344 dent of the United States of America acting Luxemburg .......eeeeeee- 100 under and by virtue of the power in me vested Monaco .......cccecccuce 100 by the aforesaid act of Congress, do hereby Morocco (French and Span-

proclaim and make known that on and after ‘sh 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) ....eseee. 100

Country or area of birth Nepal ......... cece ee eees 100 Quota Netherlands (1, 5,6) ...... 1,648 1924-1925 New Zealand (including apAfghanistan .......eeeeees 100 pertaining islands (3, 4) . 100 Albania .....c cece eee eee 100 Norway (5) .........2.+-- 6,453 Andorra ......ccceceecees 100 New Guinea, and other PaArabian peninsula (1, 2)... 100 cific Islands under proArmenia ....... cece ee ees 124 posed Australian mandate

Australia, including Papua, > 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) .....cccececces 100 the quota of the country to which such colony Poland ........ccceeeeees 5,982 or dependency belongs or by which it is ad-

Portugal (1, 5) ........68.. 503 ministered as a protectorate. Ruanda and Urundi (Belgium 2. The quota-area denominated “Arabian mandate) ........ceeee 100 peninsula” consists of all territory except Rumania ........cceceeee 603 Muscat and Aden, situated in the portion of Russia, European and Asiatic that peninsula and adjacent islands, to the (1) wo... ee... 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) ...ccccccceeee 100 self-governing dominions or in the Empire of

San Marino ..........000. 100 India, will be charged to the appropriate

SIAM wo. cece ccc cece nee 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) .......eeceeeee 131 in the United States. born in a colony, de-

Sweden ...ccceeeceecceeee 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) ...........00- 100 ica, South America, or the islands adjacent to Togoland (French mandate) 100 the American continents (except NewfoundTurkey ........... ee eeee 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 | (4) Lice cece cece ccc cves 100 or dependency belongs. Yugoslavia ....ssssseeees 071 GENERAL NoTteE.—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 recognition 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 partics in 1924, offered the nomination on a that organization. Its place was taken by the third party ticket to Robert La Foliette of WisConference for Progressive Political Action, consin, long leader of the progressive clement which had the support of the Four Rauroad in the Republican party. The American FederaBrotherhoods. The Conference, dissatished with tion of Labor, the Socialist Party, and other

THE LA FoLtLtETTE 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. ... |

polied 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 elect.on: The present condition of American agriculere is no adequate biography La Follette ut several are promised. See N.ofFine, Labor ture constitutes an emergency of the gravest and Farmer Parties in the United 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 foreundermining representative government. closure or bankruptcy; that more than 122,Through control of government, monopoly OOO 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 iarmer 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 peop-e still retain the right and courage to foreign po:icy In the interests of predatory exercise their sovereign control over their wealth, and make wars and conscript the sons government. In urder 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 nu-lify 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 THEHOUSE viceCLEANING to relieve multi-millionaires at the expense 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 profiteer-

ing, 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, iron 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

PrerceE 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 conWe 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 McReynotps, 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 re-

The challenged act, effective September 1, quires Inng-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 deyear” 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 right of parents to choose

compel general attendance at public schools schools where their children will receive apby 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 in- 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 speech, but the question of how far that right by word of mouth or writing is a felony. may be used is one of the most perplexing that “Section 161. Advocacy of criminal anthe Courts have to face. As Mr. Justice Holmes

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 advo-

speech 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 gr 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 U.S. 616, and Patterson v. ‘2. Prints, publishes, edits, issues or know-

Colorado, 205 U. 8. 454. For a general discus- on

sion, 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

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

GitLow v. PreorpLte 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 govtaining the wrilings 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 unequivocal 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 apptied 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 duc 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 cialism. 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

... The 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 pub-

license 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 1s 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 wailing 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 iis 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 incipiency.. . . » ized society being essential to the security of We cannot hold that the present statute

Tuer UNITED STATES AND THE WORLD COURT 38! is an arbitrary or unreasonable exercise of 52, applies: ‘ie 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 I am 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 upon an reservations below. These reservations were in- equality with the other states, members, recorporated with slight mod.fications into the spectively, of the Council and Assembly of Protocol March 19, 1929, and the signature the League25, of Nations. of the of United States affixed November 1929.in. any , and all proThe Senate has not yet (1934) acted upon the ceedings of either the council or the assembly ratification of the protocol. The Senate reserva- fOr the election of judges or deputy judges tions are in Congressional Record, Vol. LXVII, 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, Jol. 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 {ermined and appropriated from time to

Pamphlets, Vol XII, No. 4. time by the Congress of the United States.

. That th

1. CONDITIONS UP ON WHICH THE ime seithdraw ite, wihorence to the said prot

UNITED sTAl ES 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 op.nion 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 hear-

sent 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 con-

December 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, sect 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 agrecing 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, namely: and 1. That such adherence 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

Tir 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 Assembly of the League for obtaining an ad-

2. DRAFT PROTOCOL FOR THE visory opinion from the Court, and _ thereACCESSION 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 loth, 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 enabte 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 nolice 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 fied. 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 cach 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- yation completely since appellant’s business senting opinion of Mr. Justice Holmes is par- gmbraces 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., Is 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, ac-

entrance 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 v. 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 im-

ture 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 be-

erain 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 Jospital, 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 dis-

lation 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

Hoitmes, J., dissenting. We fear to grant to say that the business should end. What

386 DOCUMENTS OF AMERICAN History 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,

) 272 U.S. 52

459. MYERS v. UNITED STATES 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 0) ane eet us dent’s removal of Myers during his term. If

pete vas unable - ‘the time, to bring 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- full term and the judgement of the court of plete vindication of the position of President (aims 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 faithfuly 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 con-

We come now (o 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 successors should have in like manner dent and the majority leaders of Congress been appointed and qualified, that certain over the reconstruction measures adopted heads of departments, including the Secretary as a means of restoring to their proper status of War, shou!d 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 crea~President 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 HotmeEs, J., dissenting. ... The argu- have in accepting the undoubted power of ments (for the President’s power of removal) Congress to decree its end, J 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 McREyYNoLps, 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 To the Con € the United States: opinion, made intervention imperative. Within IBIESS O e Unite ALES | 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 legation 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, gq 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 to the Presidency, and Sane fed to specifically provides in Article II marines were withdrawn from Nicaragua in that the Governments of the contracting par-

dino voluntarily laid down his arms. American ;

1933. See, I, J. Cox, Nicaragua and the United ties will not recognize any other government

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 revuJutionists 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 Sth 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. I 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- in the 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 sughly 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 sect 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 cach 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 States.DY by & andvice withan theconscn adv; d t tended to level down all prices towhich the world

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 forcign market, and make good Four of the members of the nominating comthe loss through an “equal-zation tee” to be mittee 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 Los ; nanreneas Pet 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. Sotaman, 7 Toonomes each district shall be elected by a majority Frm in the cue ia States ack, Agricultural Ke- vote of the heads of the agricultural depart-

m ee 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 commodi- 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 Dehereby 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 app:icable toa 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 agrecments, 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 othsr 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 availab:e 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 surpius 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 rémain 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 process-

which 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 and __ or 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 hable 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-

CooLtripGEe’s VETO oF THE McNARY-HAUGEN BIL 393 ation for periods of 12 months against 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 1s 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 50 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 tdeals of paid by farm taxpayers. .. . Amervican 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 HIstTorRY islative relief in which the only persons who year mean 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, 1s 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 restric-

This 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 na-

ers 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.

CooLttpcer’s VETO oF THE MCNARY-HAUGEN BILtu_ 895 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 praducits 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 de-

be 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 bill 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

463. BUCK v. BELL

274 U.S. 200 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 Houmes, 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. Hernvon (TEXAS WHITE PRIMARY CASE) 39/ cute degenerate offspring for crime, or to jet 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 is that the law does all that 1s 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. BuTLER, J., dissentare in the institutions named and is not ap- ing.

464, NIXON v. HERNDON (TEXAS WHITE PRIMARY CASE) 273 U. S. 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 pon the ground that the subject matter of a great variety of contrivances to evade the re- the suit 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 dlclusion is generally 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... .

Class and Party. .

excellent discussion of negro participation in The important question is whether the politics in the South, see P. Lewinsohn, Race, statute can be sustained. But although we state it as a question the answer does not

Hotes, J. This is an action against the seem to us open to a doubt. We find it un-

judges 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 Watley, 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.

405. 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, Aprilmuch 15, 1920. In themade to live of independently and to course of the trial was the radical ; ,live ,; what

beliefs and activities of the defendants, and it the world concelves to be a higher life than was alleged that Judge Thayer had been guilty not to gain our bread with the sweat of our of prejudice against the defendants and of con- brow... . duct unbecoming in a judge. The widespread Well, I want to reach a little point farther, belief 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 _ bcen trying to steal in Bridgewater, not only have found on grounds having to do with their JY not been in Braintree to steal and kill and poutical jockrines and ont nomen on character have,never e O extraordinary emorts elr bena . steal or kill or spilt blood in all liberals throughout the world. After the sentence my lite, not only have I struggled hard of death was imposed on the defendants, Gover- “84nst Cres, but T have refused myself 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.I.T. and Judge Robert Grant, Now, I should say that I am not only into review the case. The committee’s report sus- nocent 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 Sacco and Vanzetti on August 23, 1927 ee crimes 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

garded by many as on a par with the execution

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 un- | Everybody that knows these two arms derstanding in the world, not only in this counknows 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 itis wrong, against the foreigner, against slackers, and it it is I and this man. You see it is seven years seems 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—lI am sorry to say this times, I woud 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 HisToORY 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 jo¢ 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- 424 which are justiciable in their nature by tion. Unlike the traditional treaties of arbitra- reason of being susceptible of decision by

the Department of State at once entered into ; co. sae

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. shall 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. ; oer .

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 (b) 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 nance 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 observHave decided to conclude a treaty of ar- ance of the obligations of Germany in ac-

bitration 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

Art. 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 Ketrtocc PEACE PActT 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 apDone 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 investiArt. 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. KELLOGG. 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- ave 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- emmnly declare in the names of their respec-

peror 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 so'utions of various publican party in the years after the World national problems have been presented and

War. For the campaign, see, R. V Peel and T C. being earnest! ‘dered b ;

Donnelly, The 1928 Campaign: An Analys.s. For are 8 earnestty considered bY 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

Tue PHILOSOPHY OF RUGGED INDIVIDUALISM 403 would be guided in carrying that platform and state socialism. The acceptance of these into adminigtration. 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 HtsTory 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 1t- 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 poi- political. On the contrary, it demands ecosons the very roots of liberalism—that is, 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 fulrassment and dithculty in dealing with Latin fill its obligations as a member of the famil Hoover administration, and the abandonment of nations. This country recognized the right formalized in this statement by Secretary Stim- Of other nations to regulate their own inter-

American countries. It was abandoned by the . , ay son. 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 HisTorRy 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 pro-

ditional 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 peop'e 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 Jaw and upon the public conscience and ap- for prompt measures of financial stabiliza-

proval. 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 ins:sted 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 went 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 -ontrol, reclamation or stream regulation are message reiterated the Republican doctrine of of dominant importance, and where they are

individualism in business and the belief that ;

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 deliberI 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 ness 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 ot

fore unnecessary to maintain this plant for interstate power in cooperation with State

any such purposes. authorities. This bill would launch the FedThis 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 Gov-

under 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 contory upon the Government to manufacture template the future of our institutions, of nitrogen fertilizers al 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 1s 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 HISTORY 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 Mooncy-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 4H. 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 ithe 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 feeling thatthat an the injustice was Gone tn CONCLUSIONS 1Sthe ommended President

iatercede 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 — secytion 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- turned over to a private detective who used open the case clifoeaha wore Pardon ron te his position to cause the arrest of the de1931 a sub-committee of the Wickersham Com- fendants. The police investigation was Temittee on Law Observance and Enforcement, duced to a hunt for evidence to convict the consisting of Professor Z. Chafee, 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- intempcrate 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. LIEBMANN 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 bakcr, may be submanufacture, sale, and distribution of ice asa jected to appropriate regulations in the public business, that no one shall be permitted * 8 6

year an excise tax, with respect to having in- Trust Fund i.

dividuals C his een nee the ible by (b) It shall be the duty of the Secretary Ing Percensages One ° doth } Of the Treasury to invest such portion of the

calendar year: - ~

him with respect to employment Curing suc Fund as is not, in his judgment, required to

, meet current withdrawals. Such investment

(1) With respect to er ya quning may be made only in interest bearing obliga-

the calendar year 1936 the rate shali be I per tions of the United States or in obligations

(2) With respect to employment during Boa oe ted ae principal and interest the calendar year 1937 the rate shall be 2 per -?¥ ‘© Ite See

ith respect to employ - ,

3) Wi th bt lovment after De INTERSTATE COMMERCE

hall be 3 ver Sec. 906. No person required under a State

cember 31, 1937, the rate sha . law to make payments to an unemployment

oT fund shall be relieved from compliance there-

CERTIFICATION OF STATE LAWS with on the ground that he is engaged in Sec. 903. (a) The Social Security Board interstate commerce, or that the State law shall approve any State law submitted to it, does not distinguish between employees enwithin thirty days of such submission, which gaged in interstate commerce and those en-

it finds provides that— gaged in intrastate commerce. (1) All compensation is to be paid

through public employment offices in the DEPINTTIONS .

State or such other agencies as the Board Sec. 907. When used in this title—

may approve; (a) The term “employer” does not include (2) No compensation shall be payable any person unless on each of some twenty

with respect to any day of unemployment days during the taxable year, each day being occurring within two years after the first in a different calendar week, the total numday of the first period with respect to ber of individuals who were in his employ for

which contributions are required; some portion of the day (whether or not at (3) All money received in the unem- the same moment of time) was eight or ployment fund shall immediately upon such more... . receipt be paid over to the Secretary of the

Treasury to the credit of the Unemploy-

ment Trust Fund... . TITLE STD wo THE SIND FOR (5) Compensation shall not be denied in

such State to any otherwise eligible individ- APPROPRIATION ual for refusing to accept new work under SECTION 1001. For the purpose of enabling any of the following conditions: (A) If the each State to furnish financial assistance, as position offered is vacant due directly to a far as practicable under the conditions in such strike, lockout, or other labor dispute; (B) State, to needy individuals who are blind, if the wages, hours, or other conditions of | there is hereby authorized to be appropriated the work offered are substantially less fa- for the fiscal year ending June 30, 1936, the

514 DOCUMENTS OF AMERICAN IIIstTorRyY | sum of $3,000,000, and there is hereby au- making payments to States which have sub-

thorized to be appropriated for each fiscal mitted, and had approved by the Social year thereafter a sum sufficient to carry out Security Board, State plans for aid to the the purposes of this title. The sums made blind... . available under this section shall be used for

$04. STEWARD MACHINE CO. v. DAVIS 301 U. S. 548 1937

Writ of Certiorari of U.S. Circuit Court of Ap- states in submitting to it have yielded to copeals. This case involved the constitutionality of ercion and have abandoned governmental the tax imposcd by the Social Security Act of — functions which they are not permitted to 1935. For refs. see Doc. No. 503 and Nicholson, surrender. “Recent Decisions on the Power to Spend for The objections will be considered seriatim the General Welfare,” 12 Temple L. Qt. 435; , : Herbert, “(General Welfare Clauses in the Con- with such further explanation as may be necstitution of the U. S.,” 7 Fordham L. Rev. 390; cSsary to make their meaning clear. Brebner-Smith, “Judicial lim‘tations on Federal First: The tax, which is described in the

appropriations,” 25 Virginia L. Rev. 613; statute as an excise, is laid with uniformity Lowndes,” “The Supreme Court on Taxation, 1936 throughout the United States as a duty, an

Term,” 86 U. of Pa. L. Rev. 1; Denby, “The jmpost or an excise upon the relation of emCase against the Constitutionality of the Social ployment.

security Act 3 Law and Contemporary Prob- 1. We are told that the relation of employ-

one ment is one so essential to the pursuit of hap-

Carpozo, J. The validity of the tax imposed piness that it may not be burdened with a by the Social Security Act on employers of tax. Appeal is made to history. From the eight or more is here to be determined. precedents of colonial days we are supplied Petitioner, an Alabama corporation, paid a ___- with illustrations of excises common in the

tax in accordance with the statute, filed a colonies. They are said to have been bound claim for refund with the Commissioner of up with the enjoyment of particular comInternal Revenue, and sued to recover the modities. Appeal is also made to principle or payment (46.14), asserting a conflict between the analysis of concepts. An excise, we are the statute and the Constitution of the United told, imports a tax upon a privilege; employ-

States. Upon demurrer the District Court ment, it is said, is a right, not a privilege, gave judgment for the defendant dismissing from which it follows that employment is not the complaint, and the Circuit Court of Ap- subject to an excise. Neither the one appeal peals for the Fifth Circuit affirmed. ... An nor the other leads to the desired goal. . . .

important question of constitutional law be- The historical prop failing, the prop or ing involved, we granted certiorari. fancied prop of principle remains. We learn The Social Security Act is divided into that employment for lawful gain is a ‘‘nateleven separate titles, of which only Titles ural” or “inherent” or “inalienab‘e” right, and IX and III are so related to this case as to not a “privilege” at all. But natural rights, so

stand in need of summary. [See Doc. No. called, are as much subject to taxation as

503]... . rights of less importance. An excise is not The assault on the statute proceeds on an _ limited to vocations or activities that may be

extended front. Its assailants take the ground prohibited altogether. It is not limited to that the tax is not an excise; that it is not those that are the outcome of a franchise. It uniform throughout the Uniled States as ex- extends to vocations or activities pursued as cises are required to be; that its exceptions of common right. What the individual does are so many and arbitrary as to violate the in the operation of a business is amenable to Fifth Amendment; that its purpose was not taxation just as much as what he owns, at all revenue, but an unlawful invasion of the re- events if the classi.ication is not tyrannical or

served powers of the states; and that the arbitrary. “Business is as legitimate an object

STEWARD MacuHINE Co. v. Davis S15 of the taxing powers as property.” City of put aside as baseless. Congress may tax the Newton v. Atchison, 31 Kan. 151, 154 (per transmission of property by inheritance or Brewer, J.). Indeed, ownership itself, as we will, though the states and not Congress have had occasion to point out the other day, is created the privilege of succession. Congress only a bundle of rights and privileges invested may tax the enjoyment of a corporate franwith a single name. Henneford v. Silas Mason chise, though a state and not Congress has Co., Inc., March 29, 1937, 300 U.S. 577... . brought the franchise into being. The statute Employment is a business relation, if not it- books of the states are strewn with illustraself a business. It is a relation without which tions of taxes laid on occupations pursued of business could seldom be carried on effec- common right. We find no basis for a holdtively. The power to tax the activities and re- ing that the power in that regard which belations that constitute a calling considered as longs by accepted practice to the legislatures a unit is the power to tax any of them. The of the states, has been denied by the Consti-

whole includes the parts. tution to the Congress of the nation.

The subject matter of taxation open to the 2. The tax being an excise, its imposition rower of the Congress is as comprehensive as must conform to the canon of uniformity. that open to the power of the states, though There has been no departure from this rethe method of apportionment may at times quirement. According to the settled doctrine be different. ‘““‘The Congress shall have power the uniformity exacted is geographical, not

to lay and collect taxes, duties, imposts and intrinsic... . excises.” Art. 1, § 8. If the tax is a direct Second: The excise is not invalid under the one, it shall be apportioned according to the provisions of the Fifth Amendment by force census or enumeration. If it is a duty, impost, of its exemptions.

or excise, it shall be uniform throuzhout the The statute does not apply, as we have United States. Tozether, these classes include seen, to employers of less than eight. It does every form of tax appropriate to sovereignty. not apply to agricultural labor, or domestic Whether the tax is to be classified as an “‘ex- service in a private home or to some other cise” is in truth not of critical importance. If classes of less importance. Petitioner con-

not that, it is an “impost” or a “duty.” A tends that the effect of these restrictions is an capitation or other “direct” tax it certainly is arbitrary discrimination vitiating the tax. not. “Although there have been from time to The T'ifth Amendment unlike the Fourtime intimations that there might be some teenth has no equal protection clause. But tax which was not a direct tax nor included even the states, though subject to such a under the words ‘duties, imposts and excises,’ clause, are not confined to a formula of rigid

| such a tax for more than one hundred years uniformity in framing measures of taxation. of national existence has as yet remained un- They may tax some kinds of property at one discovered, notwithstanding the stress of par- rate, and others at another, and exempt others ticular circumstances has invited thorough in- altogether. They may lay an excise on the vestigation into sources of powers.” Pollock operations of a particular kind of business,

v. Farmers’ Loan and Trust Co., 157 U. S. and exempt some other kind of business 429, 557. There is no departure from that closely akin thereto. If this latitude of judgthought in later cases, but rather a new em- ment is lawful for the states, it is lawful, a phasis of it. Thus, in Thomas v. United fortiori, in legislation by the Congress, which States, 192 U. S. 363, 370, it was said of the 1s subject to restraints less narrow and con-

words “duties, imposts and excises” that fining. ‘they were used comprehensively to cover The classiications and exemptions directed customs and excise duties imposed on impor- by the statute now in controversy have suptation, consumption, manufacture and sale of _ port in considerations of policy and practical certain commodities, privileges, particular convenience that cannot be condemned as arbusiness transactions, vocations, occupations bitrary. The classifications and exemptions and the like.” At times taxpayers have con- would therefore be upheld if they had been tended that the Congress is without power to adopted by a state and the provisions of the lay an excise on the enjoyment of a privilege Fourteenth Amendment were invoked to ancreated by state law. The contention has been nul them. This is held in two cases passed

516 DOCUMENTS OF AMERICAN HISTORY upon today in which precisely the same pro- employment that are now matters of common

visions were the subject of attack, the pro- knowledge. ... The fact developed quickly visions being contained in the Unemployment that the states were unable to give the requiCompensation Law of the State of Alabama. _ site relief. The problem had become national Carmichael v. Southern Coal & Coke Co., in area and dimensions. There was need of No. 724, 301 U. S. 495, and Carmichael v. help from the nation if the people were not to Gulf States Paper Corp., No. 797, 301 U. S. — starve. It is too late today for the argument -———-. The opinion rendered in those cases to be heard with tolerance that in a crisis so covers the ground fully. It would be useless extreme the use of the moneys of the nation

to repeat the argument. The act of Congress to relieve the unemployed and their deis therefore valid, so far at least as its system pendents is a use for any purpose narrower of exemptions is concerned, and this though than the promotion of the general welfare.

we assume that discrimination, if gross The nation responded to the call of the disenough, is equivalent to confiscation and sub- __tressed. Between January 1, 1933 and July 1, ject under the Fifth Amendment to challenge 1936, the states (according to statistics sub-

and annulment. mitted by the Government) incurred obligaThird: The excise is not void as involving tions of $689,291,802 for emergency relief;

the coercion of the States in contravention of local subdivisions an additional $775,675 ,366.

the Tenth Amendment or of restrictions im- In the same period the obligations for emerplicit in our federal form of government. gency relief incurred by the national governThe proceeds of the excise when collected ment were $2,929,307,125, or twice the obliare paid into the Treasury at Washington, gations of states and local agencies combined. and therefore are subject to appropriation According to the President’s budget message like public moneys generally. No presumption for the fiscal year 1938, the national governcan be indulged that they will be misapplied ment expended for public works and unemor wasted. Even if they were collected in the ployment relief for the three fiscal years 1934,

hope or expectation that some other and col- 1935, and 1936, the stupendous total of lateral good would be furthered as an incident, $8,681,000,000. The parens patriae has many that without more would not make the act reasons—fiscal and economic as well as social invalid. This indeed is hardly questioned. The and moral—for planning to mitigate disasters case for the petitioner is built on the conten- that bring these burdens in their train.

tion that here an ulterior aim is wrought into In the presence of this urgent need for the very structure of the act, and what is some remedial expedient, the question is to even more important that the aim is not only be answered whether the expedient adopted ulterior, but essentially unlawful. In particu- has overlept the bounds of power. The assaillar, the 90 per cent credit is relied upon as ants of the statute say that its dominant end supporting that conclusion. But before the and aim is to drive the state legislatures unstatute succumbs to an assault upon these der the whip of economic pressure into the lines, two propositions must be made out by enactment of unemployment compensation the assailant. There must be a showing in _ laws at the bidding of the central government. the first place that separated from the credit Supporters of the statute say that its operathe revenue provisions are incapable of stand- tion is not constraint, but the creation of a ing by themselves. There must be a showing _ larger freedom, the states and the nation joinin the second place that the tax and the credit ing in a cooperative endeavor to avert a comin combination are weapons of coercion, de- mon evil. Before Congress acted, unemploystroying or impairing the autonomy of the ment compensation insurance was still, for states. The truth of each proposition being the most part, a project and no more. Wisessential to the success of the assault, we pass consin was the pioneer. Her statute was for convenience to a consideration of the adopted in 1931. At times bills for such insursecond, without pausing to inquire whether ance were introduced elsewhere, but they did there has been a demonstration of the first. not reach the stage of law. In 1935 four states To draw the line intelligently between du- (California, Massachusetts, New Hampshire ress and inducement there is need to remind and New York) passed unemployment laws ourselves of facts as to the problem of un-_ on the eve of the-adoption of the Social Se-

STEWARD MACHINE Co. v. DAVIS 517 curity Act, and two others did likewise after ture. Not the state. Even now she does not the federal act and later in the year. The offer a suggestion that in passing the unemstatutes differed to some extent in type, but ployment law she was affected by duress. For

were directed to a common end. In 1936, all that appears she is satisfied with her

twenty-eight other states fell in line, and eight choice, and would be sorely disappointed if more the present year. But if states had been _it were now to be annulled. The difficulty with holding back before the passage of the federal the petitioner’s contention is that it confuses

law, inaction was not owing, for the most motive with coercion. “Every tax is in some part to the lack of sympathetic interest. measure regulatory. To some extent it interMany held back through alarm lest in laying poses an economic impediment to the activity such a toll upon their industries, they would taxed as compared with others not taxed.” place themselves in a position of economic Sonzinsky v. United States, supra, March 29, disadvantage as compared with neighbors or 1937. In like manner every rebate from a tax competitors. See House Report, No. 615, 74th when conditioned upon conduct is in some Congress, Ist session, p. 8; Senate Report, measure a temptation. But to hold that moNo. 628, 74th Congress, Ist session, p. 11. tive or temptation is equivalent to coercion Two consequences ensued. One was that the is to plunge the law in endless difficulties. The freedom of a state to contribute its fair share outcome of such a doctrine is the acceptance

to the solution of a national problem was of a philosophical determinism by which paralyzed by fear. The other was that in so choice becomes impossible. Till now the law far as there was failure by the states to con- has been guided by a robust common sense tribute relief according to the measure of which assumes the freedom of the will as a their capacity, a disproportionate burden, and working hypothesis in the solution of its proba mountainous one, was laid upon the re- lems. The wisdom of the hypothesis has illussources of the Government of the nation. tration in this case. Nothing in the case sugThe Social Security Act is an attempt to gests the exertion of a power akin to undue find a method by which all these public agen- influence, if we assume that such a concept cles may work together to a common end. can ever be applied with fitness to the relaEvery dollar of the new taxes will continue in tions between state and nation. Even on that all likelihood to be used and needed by the assumption the location of the point at which nation as long as states are unwilling, whether pressure turns into compulsion, and ceases to through timidity or for other motives, to do be inducement, would be a question of degree, what can be done at home. At least the in- —at times, perhaps, of fact. The point had ference is permissible that Congress so be- not been reached when Alabama made her lieved, though retaining undiminished free- choice. We cannot say that she was acting, dom to spend the money as it pleased. On the not of her unfettered will, but under the strain other hand fulfillment of the home duty will of a persuasion equivalent to undue influence, be lightened and encouraged by crediting the when she chose to have relief administered taxpayer upon his account with the Treasury under laws of her own making, by agents of of the nation to the extent that his contribu- her own selection, instead of under federal tions under the laws of the locality have sim- laws, administered by federal officers, with all plified or diminished the problem of relief the ensuing evils, at least to many minds, of and the probable demand upon the resources federal patronage and power. There would be of the fisc. Duplicated taxes, or burdens that a strange irony, indeed, if her choice were approach them, are recognized hardships that now to be annulled on the basis of an assumed government, state or national, may properly duress in the enactment of a statute which avoid. If Congress believed that the general her courts have accepted as a true expression

welfare would better be promoted by relief of her will. We think the choice must through local units than by the system then stand... . In vogue, the codperating localities ought not Fourth: The statute does not call for a in all fairness to pay a second time. surrender by the states of powers essential Who then is coerced through the operation to their quasi-sovereign existence. of this statute? Not the taxpayer. He pays in Argument to the contrary has its source in fulfilment of the mandate of the local legisla- two sections of the act. One section (903)

518 DocCUMENTS OF AMERICAN IItstory defines the minimum criteria to which a state the Unemployment Trust Fund all moneys decompensation system is required to conform posited therein by a state agency for a state

if it is to be accepted by the Board as the unemployment fund and to invest in obligabasis for a credit. The other section (904) tions of the United States such portion of the rounds out the requirement wilh complemen- Fund as is not in his judzment required to tary rights and duties. Not all the criteria or meet current withdrawals. We are told that their incidents are challenged as unlawful. We Alabama in consenting to that deposit ‘has re-

will speak of them first generally, and then nounced the plenitude of power inherent in more specifically in so far as they are ques- her statehood.

tioned... . The same pervasive misconception is in

Even if opinion may differ as to the funda- evidence again. All that the state has done is mental quality of one or more of the condi- to say in effect through the enactment of a tions, the difference will not avail to vitiate statute that her agents shall be authorized to the statute. In determining essentials Con- deposit the unemployment tax receipts in the gress must have the benefit of a fair margin Treasury at Washington. Alabama Unemployof discretion. One cannot say with reason that ment Act of September 14, 1935, section 10

this margin has been exceeded, or that the (i). The statute may be repealed. Section basic standards have been determined in any 903 (a) (6). The consent may be revoked. arbitrary fashion. In the event that some par- The deposits may be withdrawn. The moment ticular condition shall be found to be too un- the state commission gives notice to the decertain to be capable of enforcement, it may positary that it would like the moneys back, be severed from the others, and what is left the Treasurer will return them. To find state

will still be valid. destruction there is to find it almost any-

We are to keep in mind steadily that the where. With nearly as much reason one might conditions to be approved by the Board as_ say that a state abdicates its functions when the basis for a credit are not provisions of a it places the state moneys on deposit in a contract, but terms of a statute, which may national bank. be altered or repealed. Section 903 (a) (6). There are very good reasons of fiscal and The state does not bind itself to keep the law governmental policy why a State should be in force. It does not even bind itself that the willing to make the Secretary of the Treasury moneys paid into the federal fund will be kept the custodian of the fund. His possession of there indednitely or for any stated time. On the moneys and his control of investments the contrary, the Secretary of the Treasury will be an assurance of stability and safety in will honor a requisition for the whole or any times of stress and strain. A report of the part of the deposit in the fund whenever one Ways and Means Committee of the House of is made by the appropriate officials. The only Representatives, quoted in the margin, deconsequence of the repeal or excessive amend- __ velops, the situation clearly. Nor is there risk

ment of the statute, or the expenditure of the of loss or waste. The credit of the Treasury money, when requisitioned, for other than is at all times back of the deposit, with the compensation uses or administrative expenses, result that the right of withdrawal will be is that approval of the law will end, and with unaffected by the fate of any intermediate it the allowance of a credit, upon notice to investments, Just as if a checking account in the state agency and an opportunity for hear- the usual form had been opened in a bank.

ing. Section 903 (b) (c). The inference of abdication thus dissolves These basic considerations are in truth a_ in thinnest air when the deposit is conceived

solvent of the problem. Subjected to their of as dependent upon a statutory consent, test, the several objections on the score of and not upon a contract effective to create a

abdication are found to be unreal... . duty. By this we do not intimate that the

Finally and chiefly, abdication is supposed conclusion would be different if a contract to follow from section 904 of the statute and were discovered. Even sovereigns may con-

the parts of section 903 that are comp‘e- tract without derogating from their sovmentary thereto. Section 903 (a) (3). By ereignty. The states are at liberty, upon obthese the Secretary of the Treasury is au- taining the consent of Congress, to make thorized and directed to receive and hold in agreements with one another. Constitution,

TIELVERING Er. AL. v. DAVIS 519 Art. I, section 10, par. 3. We find no room _ ditions that will assure a fair and just requital

for doubt that they may do the like with for bene‘dts received. But we will not labor Congress if the essence of their statehood is the point further. An unreal prohibition dimaintained without impairment. Alabama is rected to an unreal agreement will not vitiate seeking and obtaining a credit of many mil- an act of Congress, and cause it to collapse lions in favor of her citizens out of the Treas- in ruin... . ury of the nation. Nowhere in our scheme of The judgment is affirmed. government—in the limitations express or implied of our federal constitution—do we find Justices MCREYNOLDS, SUTHERLAND, BUTLER that she is prohibited from assenting to con- and VAN DEVANTER dissented.

505. TTELVERING et. al. v. DAVIS 301 U. S. 619 1937

On Writ of Cert orari to the U.S. Circuit Court vailed over that of Madison, which has not of Appeals for the First Circuit. In the Stewart been lacking in adherents. Yet difficulties are Machine Co. case the Supreme Court sustained left when the power is conceded. The line that part of the Social Security Act which im- must still be drawn between one welfare and

posed an excise upon employers. The present case .

involved the constitutionality of the tax upon another, between particular and general. employees and presented the broad question of Where this shall be placed cannot be known the nature and limits of taxation for the general through a formula in advance of the event. welfare. The opinion is notable for its recognition There is a middle ground or certainly a peof the economic background and motivation of | numbra in which discretion is at large. The the legislation under consideration. Compare this discretion, however, is not confided to the opinion w.th the cp-nion of the majority in the courts. The discretion belongs to Congress,

Nee Tea 478. For references sce Docs. _ ynless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgCarpozo, J. The Social Security Act is chal- ment. This is now familiar law. “When such a

lenged once again... . contention ccmes here we naturally require a

In this case Titles VIII and II are the Showing that by no reasonable pogsibility can subject of attack. Title VIII... laysaspe- the challenged legislation fall within the wide cial income tax upon employees to be de- ‘ange of discretion permitted to the Conducted from their wages and paid by the em- gress.” United States v. Butler, supra, p. 67. ployers. Title II provides for the payment Nor is the concept of the general welfare of Old Age Benefits, and supplies the motive static. Needs that were narrow or parochial and occasion, in the view of the assailants of | a century ago may be interwoven in our day the statute, for the levy of the taxes imposed With the well-being of the nation. What is

by Title VIII. ... critical or urgent changes with the times.

Second: The scheme of benefits created by The purge of nation-wide calamity that bethe provisions of Title II is not in contra- gan in 1929 has taught us many lessons. Not vention of the limitations of the Tenth _ the least is the solidarity of interests that may

Amendment. once have seemed to be divided. Unemploy-

Congress may spend money in aid of the ment spreads from state to state, the hinter“general welfare.” Constitution, Art. I, sec- land now settled that in pioneer days gave tion 8; United States v. Butler, 297 U.S. 1, an avenue of escape. Spreading from state to 65; Steward Machine Co. v. Davis. There state, unemployment is an ill not particular have been great statesmen in our history who but general, which may be checked, if Conhave stood for other views. We will not resur- gress so determines, by the resources of the rect the contest. It is now settled by decision. nation. If this can have been doubtful until

United States v. Butler. The conception of now, our ruling today in the case of the the spending power advocated by Hamilton Steward Machine Co. has set the doubt at

and strongly reinforced by Story has pre- rest. But the ill is all one or at least not

520 DocUMENTS OF AMERICAN HISTORY greatly different whether men are thrown out institutional care, employment under the of work because there is no longer work to works program, or some other form of aid do or because the disabilities of age make from public or private funds; two-fifths to them incapable of doing it. Rescue becomes one-half were dependent on friends and relanecessary irrespective of the cause. The hope _ tives, one-eighth had some income from earnbehind this statute is to save men and women ings; and possibly one-sixth had some savings from the rigors of the poor house as well as__ or property. Approximately three out of four from the haunting fear that such a lot awaits persons 65 or over were probably dependent

them when journey’s end is near. wholly or partially on others for support.” Congress did not improvise a judgment We summarize in the margin the results of when it found that the award of old age other studies by state and national commisbenefits would be conducive to the general sions. They point the same way. welfare. The President’s Committee on Eco- The problem is plainly national in area and nomic Security made an investigation and re- dimensions. Moreover, laws of the separate port, aided by a research staff of Government states cannot deal with it effectively. Conofficers and employees, and by an Advisory gress, at least, had a basis for that belief. Council and seven other advisory groups. Ex- States and local governments are often lacktensive hearings followed before the House’ ing in the resources that are necessary to Committee on Ways and Means, and the finance an adequate program of security for Senate Committee on Finance. A great mass’ the aged. This is brought out with a wealth of evidence was brought together supporting of illustration in recent studies of the probthe policy which finds expression in the act. lem, Apart from the failure of resources, Among the relevant facts are these: The states and local governments are at times renumber of persons in the United States 65 luctant to increase so heavily the burden of years of age or over is increasing proportion- taxation to be borne by their residents for ately as well as absolutely. What is even more fear of placing themselves in a position of important the number of such persons unable economic disadvantage as compared with to take care of themselves is growing at a neighbors or competitors. We have seen this threatening pace. More and more our popula- _in our study of the problem of unemployment tion is becoming urban and industrial instead compensation. Steward Machine Co. v. Davis.

of rural and agricultural. The evidence is im- A system of old age pensions has special pressive that among industrial workers the dangers of its own, if put in force in one state younger men and women are preferred over and rejected in another. The existence of the older. In time of retrenchment the older such a system is a bait to the needy and deare commonly the first to go, and even if re- pendent elsewhere, encouraging them to mi-

tained, their wages are likely to be lowered. grate and seek a haven of repose. Only a The plight of men and women at so low an power that is national can serve the interests age as 40 is hard, almost hopeless, when they _ of all.

are driven to seek for reemployment. Statis- Whether wisdom or unwisdom resides in tics are in the brief. A few illustrations will be the scheme of benefits set forth in Title II, it

chosen from many there collected. In 1930, is not for us to say. The answer to such inout of 224 American factories investigated, quiries must come from Congress, not the 71, or almost one third, had fixed maximum courts. Our concern here as often is with hiring age limits; in 4 plants the limit was power, not with wisdom. Counsel for reunder 40; in 41 it was under 46. In the other spondent has recalled to us the virtues of self153 plants there were no fixed limits, but in reliance and frugality. There is a possibility, practice few were hired if they were over 50 he says, that aid from a paternal government

years of age. With the loss of savings inevita- may sap those sturdy virtues and breed a ble in periods of idleness, the fate of workers race of weaklings. If Massachusetts so beover 65, when thrown out of work, is little lieves and shapes her laws in that conviction, less than desperate. A recent study of the must her breed of sons be changed, he asks, Social Security Board informs us that “one- because some other philosophy of government fifth of the aged in the United States were finds favor in the halls of Congress? But the receiving old-age assistance, emergency relief, answer is not doubtful. One might ask with

CANADIAN RECIPROCAL TRADE AGREEMENT 521 equal reason whether the system of protective be not arbitrary, the locality must yield. Con-

tariffs is to be set aside at will in one state stitution, Art. VI, Par. 2. .

or another whenever local policy prefers the Ordered accordingly.

rule of laissez faire. The issue is a closed one. . It was fought out long ago. When money is Mr. Justice McReyNnoLps and Mr. Justice spent to promote the general welfare, the BUTLER are of opinion that the provisions of concept of welfare or the opposite is shaped _ the Act here challenged are repugnant to the by Congress, not the states. So the concept Tenth Amendment, and that the decree of the

Circuit Court of Appeals should be affirmed.

506. CANADIAN RECIPROCAL TRADE AGREEMENT Signed November 15, 1935; Ratified May 14, 1936 (U. S. Dept. of State. Executive Agreements Series, No. 91) When the Democrats came into office in March United States (as a means of assisting in the 1933 they found in effect the highest tariff in our present emergency in restoring the American history. Instead of a general reduction through standard of living, in overcoming domestic new tariff regislation, Pres. Roosevelt and his unemployment and the present economic deSecretary of State Cordell Hull determined to use pression, in increasing the purchasing power the power to lower tariffs for bargaining purposes. , ; , blishin The purpose of this policy was not only economic of the American public, and in esta ISnIng but political as well. The Trade Agreements Act and maintaining a better relationship among of 1934 authorized the President to make recipro- various branches of American agriculture, 1ncal agreements with foreign nations lowcring dustry, mining, and commerce) by regulating tariffs on particular articles up to fifty per cent. the admission of foreign goods into the United Under this authority Sec. Hull, in the following States in accordance with the characteristics six years, negotiated twenty-two reciprocal pacts. and needs of various branches of American The new policy resulted in a gratifying expansion production so that foreign markets will be of American exports and was not without effect made available to those branches of American in improving American relations with Latin- , ; American nations. The Canadian reciprocity production which require and are capable of agreement here given aroused widespread op- developing such outlets by affording correposition especially from Mid-westcrn farming sponding market opportunities for foreign interests. Sec, R. L. Buell, The Hull Trade Pro- products in the United States, the President, gram and the American System (World Affairs whenever he finds as a fact that any existing

Pamphlets, no. 2); H. S. Patton, The Mid-West duties or other import restrictions of the and the Trade Agreements Program (Dept. of United States or any forcign country are unState Commercial Policy Ser. no. 27); F. B. duly burdening and restricting the foreign Sayre, The Way Forward; H. J. Tasca, "he trade of the United States and that the pur-

Reciprocal Trade Policy of the United States. ;

For an earlier effort at reciprocity with Canada pose above declared will be pron noted by the

see L. E. Ellis, Reciprocity, 1911. means hereinafter specified, is authorized from time to time—

“(1) To enter into foreign trade agreeBy THE PRESIDENT OF THE UNITED STATES ents with foreign governments or instru-

OF AMERICA mentalities thereof; and

‘“(2) To proclaim such modifications of

A PROCLAMATION existing duties and other import restrictions,

WHEREAS it it provided in the Tariff Act of oF such additional import restrictions, or such 1930 of the Congress of the United States of continuance, and for such minimum periods, America, as amended by the Act of June 12, of existing customs or excise treatment of any 1934, entitled “An Act To Amend the Tariff ar ticle covered by foreign trade agreements,

Act of 1930” (48 Stat. 943), as follows: as are required or appropriate to carry out

. any foreign trade agreement that the Presi-

. Sec. 350. (a) For the purpose of expand- dent has entered into hereunder. No proclaing foreign markets for the products of the mation shall be made increasing or decreasing

522 DocUMENTS OF AMERICAN HI1stTory by more than SO per centum any existing rate mutual and reciprocal concessions and advan-

of duty or transferring any article between tages for the promotion of trade, have rethe dutiable and free lists. The proclaimed solved to conclude a Trade Agreement as a duties and other import restrictions shall ap- step toward the lowering of the barriers imply to articles the growth, produce, or manu- _ peding trade between their two countries, and facture of all foreign countries, whether im- for this purpose have through their respective ported directly, or indirectly: Provided, That Plenipotentiaries agreed upon the following the President may suspend the application to Articles: articles the growth, produce, or manufacture

of any country because of its discriminatory ARTICLE I

treatment of American commerce or because The United States of America and Canada of other acts or policies which in his opinion — will grant each other unconditional and unre-

tend to defeat the purposes set forth in this stricted most-favored-nation treatment in all

section; ... matters concerning customs duties and subWuereas I, Franklin D. Roosevelt, Presi- sidiary charges of every kind and in the dent of the United States of America, have method of levying duties, and, further, in all found as a fact that certain existing duties and matters concerning the rules, formalities and

other import restrictions of the United States charges imposed in connection with the clearof America and the Dominion of Canada are ing of goods through the customs, and with unduly burdening and restricting the foreign _ respect to all laws or regulations affecting the trade of the United States of America and sale or use of imported goods within the coun-

that the purpose declared in the said Tariff _ try. Act of 1930, as amended by the said Act of Accordingly, natural or manufactured prodJune 12, 1934, will be promoted by a foreign ucts having their origin in either of the countrade agreement between the United States of tries shall in no case be subject, in regard to America and the Dominion of Canada; the matters referred to above, to any duties, WHEREAS reasonable public notice of the taxes or charges other or higher, or to any

intention to negotiate such foreign trade rules or formalities other or more burdenagreement was given and the views presented some, than those to which the like products

by persons interested in the negotiation of having their origin in any third country are such agreement were received and consid- or may hereafter be subject.

ered; Similarly, natural or manufactured prod-

WHeRiAS, after seeking and obtaining in- ucts exported from the territory of the United formation and advice with respect thereto States of America or Canada and consigned to from the United States Tariff Commission, the territory of the other country shall in no the Departments of State, Agriculture, and case be subject with respect to exportation Commerce, and from other sources, I entered and in regard to the above-mentioned matinto a foreign Trade Agreement on Novem- _ ters, to any duties, taxes or charges other or ber 15, 1935, through my duly empowered higher, or to any rules or formalities other or plenipotentiary, with His Majesty the King more burdensome, than those to which the of Great Britain, Ireland and the British do- like products when consigned to the territory minions beyond the Seas, Emperor of India,in of any third country are or may hereafter be respect of the Dominion of Canada, through — subject. his duly empowered Plenipotentiary, which Any advantage, favor, privilege or immu-

Agreement, 1s as follows: nity which has been or may hereafter be granted by the United States of America or

The President of the United States of Canada in regard to the above-mentioned America and His Majesty the King of Great matters, to a natural or manufactured prodBritain, Ireland and the British dominions uct originating in any third country or conbeyond the Seas, Emperor of: India, in re- signed to the territory of any third country spect of the Dominion of Canada, being de- shall be accorded immediately and without sirous of facilitating and extending the com- compensation to the like product originating mercial relations existing betwéen the United _ in or consigned to the territory of Canada or States of America and Canada by granting the United States of America, respectively,

CANADIAN RECIPROCAL TRADE AGREEMENT $23 and irrespective of the nationality of the car- ArTIcLeE VI

rier. Articles the growth, produce or manufac-

| ture of the United States of America or CanArTIcLe IT ada shall, after importation into the other

Neither the United States of America nor Country, be exempt from all internal taxes,

Canada shall establish any prohibition or fees, charges or exactions other or higher maintain any restriction on imports from the than those payable on like articles of national

territory of the other country which is not OFgin or any other foreign origin. . . .

applied to the importation of any like article Arricte VII originating in any third country. Any aboli- vag .

tion of an import prohibition or restriction No ro hibitions, import or customs quotas, which may be granted even temporarily by import licenses, or any other form of quantieither country in favor of an article of a third tative regulation, whether or not operated in country shall be applied immediately and un- connection with any agency of centralized conditionally to the like article originating in control, shall be imposed by the United States

the territory of the other country. These pro- ae he oth Seduce or manufac visions equally apply to exports. . . . of Canada enumerated and described in Schedule II, nor by Canada on the importation or

. Article III sale of any article the growth, produce or aries growates prowuce or manu:acmanufactureand of the United States of America ure O ethe Unite of America, enu- enumerated described in Schedule I, exmerated and described in Schedule I annexed cept as specifically provided for in the said to this Agreement, shall, on their importation Schedules. into Canada, be exempt from ordinary cus- The foregoing provision shall not apply to toms duties in excess of those set forth inthe quantitative restrictions in whatever form said Schedule. The said articles shall also be jmposed by either country on the importa-

nem from a oes, iinwosed taxes, fees, tion or sale of any article the growth, produce ges, Or ex » ImMpo on Or in CON- or manufacture of the other country In connae with aaranere J excess oF these junction with governmental measures operatAgreement or vequired to be ‘imposed there- oe a reguate _ control a Procuction,

after under laws of Canada in force on the Nesorontending seating to ine abe ticles, to increase the hae laborcoats costs day of the signature of this Agreement... - of production of such articles. Whenever the Government of either country proposes to es-

ARTICLE IV tablish or change any restriction authorized Articles the growth, produce or manufac- by this paragraph, it shall give notice thereof ture of Canada, enumerated and described in in writing to the other Government and shall Schedule II annexed to this Agreement, shall, afford such other Government an opportunity on their importation into the United States of within thirty days after receipt of such noAmerica, be exempt from ordinary customs lice to consu.t with it in respect of the Pro-

duties in excess of those set forth and pro- posed action; and if an agreemen t with re-

vided for in the said Schedule. . . . spect thereto is not reached within thirty

days following receipt of the aforesaid notice, the Government which proposes to take such

ARTICLE V action shall be free to do so at any time thereThe provisions of Articles III and IV of after, and the other Government shall be free this Agreement shall not prevent the Govern- within fifteen days after such action is taken ment of either country from imposing on the to terminate this Agreement in its entirety on

importation of any product a charge equiva-___ thirty days’ written notice... . . lent to an internal tax imposed on a like do-

mestic product or on a commodity from ARTICLE IX which theorimported hasorbeen manuThe tariff advantages and other benefits actured producedproduct in whole in part. provided for in this Agreement are granted

524 DOCUMENTS OF AMERICAN HistToRy by the United States of America and Can- trol of the export or sale for export of arms, ada to each other subject to the condition ammunition, or implements of war, and, in that if the Government of either country shall exceptional circumstances, all other military establish or maintain, directly or indirectly, supplies. any form of control of foreign exchange, it Subject to the requirement that there shall shall administer such control so as to insure be no arbitrary discrimination by either counthat the nationals and commerce of the other try against the other country in favor of any country will be granted a fair and equitable third country where similar conditions pre-

share in the allotment of exchange. .. . vail, the provisions of this Agreement shall not extend to prohibitiors or restrictions (1)

ARTICLE X imposed on moral or humanitarian grounds;

In the event that a wide variation occurs in (2) designed to protect human, animal or the rate of exchange between the currencies plant life; (3) relatins to prison-made goods: of the United States of America and Canada, (4) relating to the enforcement of police or the Government of either country, if it con- revenue laws; (5) directed against misbrandsiders the variation so substantial as to preju- ing, adulteration, and other fraudulent pracdice the industries or commerce of the coun-_ tices, such as are provided for in the pure try, shall be free to propose negotiations for food and drug laws of either country; and the modification of this Agreement; and if (6) directed against unfair practices in im-

an agreement with respect thereto is not port trade... .

reached within thirty days following receipt Articte XIV of such proposal, the Government making such proposal shall be free to terminate this The Government of each country reserves Agreement in its entirety on thirty days’ writ- the right to withdraw or to modify the con-

ten notice. cession granted on any article under this Agreement, or to impose quantitative re-

ARTICLE XI strictions on any such article if, as a result In the event that the Government of either of the extension of such concession to third

country adopts any measure which, even countries, such countries obtain the major though it does not conflict with the terms of benefit of such concession and in consequence this Agreement, is considered by the Govern- thereof an unduly large increase in importa-

ment of the other country to have the effect tions of such article takes place... . of nullifying or impairing any object of the Done in duplicate, at the City of WashingAgreement, the Government which has ton, this fifteenth day of November, 1935. adopted any such measure shall consider such For the President of the United States of representations and proposals as the other America:

Government may make with a view to effecting CorpetL Hutz

a mutually satisfactory adjustment of the Secretary of State

matter... . of the United States of America. ae ARTICLE XT For His Majesty the King of Great Britain, Nothing in this Agreement shall be con- Jyejan4 and the British dominions beyond the strued to prevent the adoption of measures Seas, Emperor of India, for the Dominion of

prohibiting or restricting the exportation or Canada: importation of gold or silver, or to prevent

the adoption of such measures as either Gov- W. L. Mackenziz Kine

ernment may see fit with respect to the con- Prime Minister 507. CARTER v. CARTER COAL CO. et. al. 298 U. S. 238 1936

On Writs of Certiorari to the U.S. Court of Ap- dustry had long been recognized as “sick” and peals for the District of Columbia. The coal in- an appropriate object of federal regulation. The

CARTER V. CARTER COAL Co. ET. AL. 525 Guffey Coal Act of 30 Aug., 1935, whose provi- and the general welfare of the nation, require sions are here set forth in some detail, represented that the bituminous coal industry should be an effort to regulate both production and labor. regulated as the act provides.

The Court, in this opinion, not only reaffirmed Section 1, among other things, further dethe doctrine of the Schechter case (see Doc. No. clares that the production and distribution the E. C. Knight case (see Doc. No. 339). Mr. by producers of such coal bear upon and di C. J. Hughes in a separate opinion insisted that rectly affect interstate commerce, and render the invalidity of the labor provisions of the Tegulation of production and distribution 1mGuffey Act did not necessarily invalidate the perative for the protection of such commerce;

486) but appeared to return to the position of diprice-fixing provisions. A second Guffey Coal Act that certain features connected with the prowas passed, 26 April, 1937. For conditions in the duction, distribution, and marketing have led coal industry, see E. E. Hunt, ed. What the Coal to waste of the national coal resources, dis-

Session - ound ean. nn I organization of interstate commerce in such Carter case see E. S. Corwin, Twilight of the Su- coal, and burdening and obstructing interpreme Court and Commerce Power versus States state Commme4nce therein ; that p ractices pIeRights; W. Hamilton and O. Adair, The Power Valling in the production of such coal directly to Govern; Black, “The Commerce Clause and affect interstate commerce and require regula-

the New Deal,” 20 Cornell L. Qt. 169; Eisenstein, tion for the protection of that commerce; ‘The Final Phase of the Schechter Episode,” 5 and that the right of mine workers to organize Brooklyn L. Rev. 454; Hetsko, “Congressional and collectively bargain for wages, hours of Power under the Commerce Clause, etc.” 34 Jabor, and conditions of employment should

Mich. L. Rev. 1167. be guaranteed in order to prevent constant SUTHERLAND, J. The purpose of the “Bitumi- Wage cutting and disparate labor costs detrinous Coal Conservation Act of 1935,” involved ™ental to fair interstate competition, and in in these suits, as declared by the title, are to Order to avoid obstructions to interstate comstabilize the bituminous coal-mining industry ™erce that recur in industrial disputes over and promote its interstate commerce; to pro- labor relations at the mines. These declara-

vide for cooperative marketing of bituminous 0S constitute not enactments of law, but coal; to levy a tax on such coal and provide for _legislative averments by way of inducement a drawback under certain conditions; to de- t0 the enactment which follows. clare the production, distribution, and use of The substantive legislation begins with § 2, such coal to be affected with a national public Which establishes in the Department of the interest; to conserve the national resources of Interior a National Bituminous Coal Comsuch coal; to provide for the general welfare, ™SSion, to be appointed and constituted as and for other purposes. C. 824, 49 Stat. 991. the section then specifically provides. Upon

The constitutional validity of the act is chal- this commission is conferred the power to

lenged in each of the suits. hear evidence and find facts upon which its By the terms of the act, every producer of orders and actions may be predicated.

bituminous coal within the United States is Section 3 provides:

brought within its provisions. “ ; , Section 1 is a detailed assertion of circum- 4g Mae Bee, imposed upon the seo

Tae epee co ustity the a Neues within the United States an excise tax of 15 per

8 centum on the sale price at the mine, or in the

coal throughout the United States by the case of captive coal the fair market value of such producer are affected with a national public coal at the mine, such tax, subject to the later Interest; and that the service of such coal provisions of this section, to be payable to the in relation to industrial activities, transporta- | United States by the producers of such coal, and tion facilities, health and comfort of the peo- © be payable monthly for each calendar month, ple, conservation by controlled production on or before the first business day of the second and economical mining and marketing, mainte- succeeding month, and undcr such regulations, nance of just and rational relations between and in such manner, as shall be prescribed by the public, owners, producers and employees, ne [ommissioner of Internal Revenue: Provided,

the right th blic to and tantadeand aforesaid, ade. at in the theCommissioncr case of captive produced as 8 tneof public cons ofcoal Internal Revenue quate supplies of coai at reasonable prices, shall fix a price therefor at the current market

526 DocUMENTS OF AMERICAN HISTORY price for the comparable kind, quality, and size lect their own check-weighman to inspect the of coals in the locality where the same is pro- weighing or measuring of coal.

duced: Provided further, That any such coal A labor board is created, consisting of three producer who has filed with the National Bitu- members, to be appointed by the President mMmous Coal Commission his acceptance ol the and assigned to the Department of Labor. who acts in compliance with the provisions of Upon | this board IS conferred authority to such code, shall be entitled to a drawback in the 2djudicate disputes arising under the proform of a credit upon the amount of such tax visions just stated, and to determine whether

code provided for in section 4 of this Act, and i ; ;

payable hereunder, equivalent to 90 per centum or not an organization of employees had been

of the amount of such tax, to be allowed and promoted, or is controlled or dominated by deducted therefrom at the time settlement there- an employer in its organization, management,

for is required, in such manner as’shall be pre- policy, or election of representatives. The scribed by the Commissioner of Internal Rev- board “may order a code member to meet

CRUG. the representatives of its employees for the Section 4 provides that the commission purpose of collective bargaining.” shall formulate the elaborate provisions con- Subdivision (g) of Part III provides: tained therein into a working agreement to “Whenever the maximum daily and weekly be known as the Bituminous Coal Code. These pours of labor are agreed upon in any contract provisions require the organization of twenty- or contracts negotiated betwecn the producers of three coal districts, each with a district board more than two-thirds the annual national tonthe membership of which is to be determined nage production for the preceding calendar year

in a manner pointed out by the act... . and the representatives of more than one-half of Without repeating the long and involved the mine workers employed, such maximum hours provisions with regard to the fixing of mini- of labor shall be accepted by all the code memmum prices, it is enough to say that the act bers. The wage agreement or agreements negoconfers the power to fix the minimum price of Hated by collective bargaining mh any district . or group of two or more districts, between repcoal at each and every coal mine in the United resentatives of producers of more than two-thirds States, with such price variations as the board of the annual tonnage production of such dismay deem necessary and proper. There is also trict or each of such districts in a contracting a provision authorizing the commission, when group during the preceding calendar year, and

deemed necessary in the public interest, to rcpresentatives of the majority of the mine establish maximum prices in order to protect. workers thercin, shall be filed with the Labor the consumer against unreasonably high prices. Board and shall be accepted as the m’nimum All sales and contracts for the sale of coal Wases for the various classifications of labor by

. . . the code opcrating are subject to the codemembers prices provided for wentin

. group of districts.” .. such . distr.ct or

and in effect when such sales and contracts are

made. Various unfair methods of competition The questions involved will be considered

are defined and forbidden. under the folowing heads:

The labor provisions of the code, found in 1. The right of stockholders to maintain Part III of the same section, require that in — suits of this character.

order to effectuate the purposes of the act the 2. Whether the suits were prematurely district boards and code members shall accept —_ brought.

specified conditions contained in the code, 3. Whether the exaction of 15 per centum

among whick are the following: on the sale price of coal at the mine Is a tax Employees to be given the right to organize or a penalty.

and bargain collectively, through representa- 4. The purposes of the act as set forth in tives of their own choosing, free from inter- §1, and the authority vested in Congress by ference, restraint, or coercion of employers or the Constitution to effectuate them.

their agents in respect of their concerted 5. Whether the labor provisions of the act

activities. can be upheld as an exercise of the power to Such employees to have the right of peace- regulate interstate commerce.

able assemblage for the discussion of the 6. Whether subdivision (g) of Part IZI of principles of collective bargaining and to se- the Code, is an unlawful delegation of power.

: CARTER v. Carter Coat Co. Er. AL. $27 ' 7, The constitutionality of the price-fixing public, owners, producers, and employees, provisions, and the question of severability— and the right of the public to constant and that is to say, whether, if either the group of adequate supplies at reasonable prices, relabor provisions or the group of price-fixing quire regulation of the industry as the act provisions be found constitutionally invalid, provides. These affirmations—and the further

the other can stand as separable. .. . ones that the production and distribution of

Third. The co-called excise tax of 15 per such coal “directly affect interstate comcentum on the sale price of coal at the mine, merce,” because of which and of the waste or, in the case of captive coal the fair market of the national coal resources and other value, with its drawback al‘owance of 134% circumstances, the regulation is necessary for

is clearly not a tax but a penalty... . the protection of such commerce—do not It is very clear that the “excise tax” is not constitute an exertion of the will of Congress imposed for revenue but exacted as a penalty which is legislation, but a recital of considerato compel compliance with the regulatory tions which in the opinion of that body existed

provisons of the act. The whole purpose of and justified the expression of its will in the the exaction is to coerce what is called an present act. Nevertheless, this preamble may agreemcent—which, of course, it is not, for it not be disregarded. On the contrary it 1s imlacks the essential element of consent. One portant, because it makes clear, except for who does a thing in order to avoid a monetary the pure assumption that the conditions depenalty does not agree; he yields to com- scribed “directly” affect interstate commerce. pu'sion precisely the same as though he did so that the powers which Congress undertook

to avoid a term in jail... . to exercise are not specific but of the most

But it is not necessary to pursue the matter general character—namely, to protect the further. That the “tax” is in fact a penalty general public interest and health and comis not seriously in dispute. The position of fort of the people, to conserve privatelythe government, as we understand it, is that owned coal, maintain just relations between the validity of the exaction does not rest upon producers and employees and others, and the taxing power but upon the power of promote the gencral welfare, by controling Congress to regulate interstate commerce; and nation-wide production and distribution of that if the act in respect of the labor and coal. These, it may be conceded, are objects p:ice-fixing provisions be not upheld, the “tax” of great worth; but are they ends, the attain-

must fall with them. With that position we ment of which has been committed by the agree and confine our consideration accord- Constitution to the federal government? This

ingly. is a vital question; for nothing is more certain Fourth. Certain recitals contained inthe act than that beneficient aims, however great or

plainly suggest that its makers were of opinion _ well directed, can never serve in lieu of conthat its constitutionality could be sustained _ stitutional power.

under some general federal power, thought to The ruling and firmly established principle exist, apart from the specific grants of the is that the powers which the general governConstitution. The fallacy of that view will be ment may exercise are only those specifically

apparent when we recall fundamental prin- enumerated in the Constitution, and such ciples which, although hitherto o‘ten expressed implied powers as are necessary and proper in varying forms of words, will bear repeti- to carry into effect the enumerated powers.

tion whenever their accuracy scems to be Whether the end sought to be attained by an challenged. The recitals to which we refer act of Congress is legitimate is wholly a matter are contained in § 1! (which is simply a pre- of constitutional power and not at all of amble to the act), and, among others, are to _ legislative discretion. Legislative congressional

the effect that the distribution of bituminous discretion begins with the choice of means coal is of national interest, affecting the and ends with the adoption of methods and

health and comfort of the people and the details to carry the delegated powers into general welfare of the nation; that thiscircum- effect. The distinction between these two stance, together with the necessity of main- things—power and discretion—is not only taining just and rational relations between the very plain but very important. For while the

528 DOCUMENTS OF AMERICAN HISTORY powers are rigidly limited to the enumera- express terms of the several grants or the imtions of the Constitution, the means which plications necessarily to be drawn therefrom.

may be employed to carry the powers into It is no longer open to question that the effect are not restricted, save that they must general government, unlike the states, Hambe appropriate, plainly adapted to the end, mer v. Dagenhart, 247 U.S. 251, 275, posand not prohibited by, but consistent with, the sesses no inherent power in respect of the letter and spirit of the Constitution. Thus, internal affairs of the states; and emphatically

it may be said that to a constitutional end not with regard to legislation. The question many ways are open; but to an end not within in respect of the inherent power of that gov-

the terms of the Constitution, all ways are ernment as to the external affairs of the

closed. nation and in the field of international law is a

The proposition, often advanced and as wholly different matter which it is not necesoften discredited, that the power of the fed- sary now to consider. eral government inherently extends to pur- The determination of the Framers Convenposes affecting the nation as a whole with _ tion and the ratifying conventions to preserve which the states severally cannot deal or complete and unimpaired state self-governcannot adequately deal, and the related no- ment in all matters not committed to the tion that Congress, entirely apart from those general government is one of the plainest facts powers delegated by the Constitution, may which emerges from the history of their deenact laws to promote the general welfare, liberations. . . . Every journey to a forbidhave never been accepted but always defi- den end begins with the first step; and the

nitely rejected by this court... . danger of such a step by the federal governThe general rule with regard to the respec- ment in the direction of taking over the powers

tive powers of the national and the state of the states is that the end of the journey governments under the Constitution, is not may find the states so despoiled of their in doubt. The states were before the Con- powers, or—what may amount to the same stitution; and, consequently, their legislative thing—so relieved of the responsibilities powers antedated the Constitution. Those who _ which possession of the powers necessarily en-

framed and those who adopted that instru- joins, as to reduce them to little more than ment méant to carve from the general mass geographical subdivisions of the national of legislative powers, then possessed by the domain. It is safe to say that if, when the states, only such portions as it was thought Constitution was under consideration, it had wise to confer upon the federal government; been thought that any such danger lurked and in order that there should be no uncer- behind its plain words, it would never have tainty in respect of what was taken and what been ratified. . . . was left, the national powers of legislation We have set forth, perhaps at unnecessary were not aggregated but enumerated—with length, the foregoing principles, because it the result that what was not embraced by the seemed necessary to do so in order to demon-

enumeration remained vested in the states strate that the general purposes which the without change or impairment. ... While act recites, and which, therefore, unless the the states are not sovereign in the true sense recitals be disregarded, Congress undertook of that term, but only quwasi-sovereign, yet to achieve, are beyond the power of Congress

in respect of all powers reserved to them except so far, and only so far, as they may they are supreme—‘“as independent of the be realized by an exercise of some specific general government as that government within power granted by the Constitution. Proceedits sphere is independent of the States.” The ing by a process of elimination, which it is

Collector v. Day, 11 Wall. 113, 124. And not necessary to follow in detail, we shall since every addition to the national legislative find no grant of power which authorizes Con-

power to some extent detracts from or in- gress to legislate in respect of these general vades the power of the states, it is of vital purposes unless it be found in the commerce moment that, in order to preserve the fixed clause—and this we now consider. balance intended by the Constitution, the Fifth. Since the validity of the act depends powers of the general government be not so. upon whether it as a regulation of interstate

extended as to embrace any not within.the commerce, the nature and extent of the

CARTER V. CARTER Coat Co. Et. AL. 529 power conferred upon Congress by the com- of employer and employee, which in all promerce clause becomes the determinative ques- ducing occupations is purely local in char-

tion in this branch of the case... . We first acter. Extraction of coal from the mine is inquire, then— What is commerce? The term, the aim and the completed result of local as this court many times has said, is one of activities. Commerce in the coal mined is not extensive import. No all-embracing definition brought into being by force of these activi-

has ever been formulated. The question is ties, but by negotiations, agreements, and to be approached both affirmatively and nega- circumstances entirely apart from production. tively—that is to say, from the points of view Mining brings the subject matter of commerce as to what it includes and what it excludes. into existence. Commerce disposes of it.

In Veazie et al. v. Moor, 14 How. 568, this A consideration of the foregoing, and of court, after saying that the phrase could never many cases which might be added to those

be applied to transactions wholly internal, already cited, renders inescapable the consignificantly added: “Nor can it be properly clusion that the effect of the labor provisions concluded, that, because the products of of the act, including those in respect of minidomestic enterprise in agriculture or manu- mum wages wage agreements, collective barfactures, or in the arts, may ultimately be- gaining, and the Labor Board and its powers, come the subjects of foreign commerce, that primarily falls upon production and not upon the control of the means or the encourage- commerce; and confirms the further resultments by which enterprise is fostered and pro- ing conclusion that production is a purely tected, is legitimately within the import of the local activity. It follows that none of these phase foreign commerce, or fairly implied in essential antecedents of production constIany investiture of the power to regulate such tutes a transaction in or forms any part of commerce. A pretension as far reaching as_ interstate commerce. Everything which moves this, would extend to contracts between citi- in interstate commerce has had a local origin. zen and citizen of the same State, would con- Without local production somewhere, inter-

trol the pursuits of the planter, the grazier, state commerce, as now carried on, would the manufacturer, the mechanic, the immense _ practically disappear. Nevertheless, the local operations of the collieries and mines and fur- character of mining, of manufacturing and

naces of the country; for there is not one of of crop growing is a fact, and remains a fact, these avocations, the results of which may whatever may be done with the products. . . . not become the subjects of foreign commerce, But §1 (the preamble) of the act now and be borne either by turnpikes, canals, or under review declares that all production and railroads, from point to point within the sev- distribution of bituminous coal “bear upon eral States, towards an ultimate destination, and directly affect its interstate commerce”;

like the one above mentioned... .”... and that regulation thereof is imperative for

That commodities produced or manufac- the protection of such commerce. The contured within a state are intended to be sold tention of the government is that the labor or transported outside the state does not ren- provisions of the act may be sustained in that der their production or manufacture subject view.

to federal regulation under the commerce That the production of every commodity

clause. ... intended for interstate sale and transportaWe have seen that the word “commerce” tion has some effect upon interstate comis the equivalent of the phrase “intercourse merce may be, if it has not already been, for the purposes of trade.” Plainly, the inci- freely granted; and we are brought to the dents leading up to and culminating in the final and decisive inquiry, whether here that mining of coal do not constitute such inter-. effect is direct, as the “preamble” recites, or course. The employment of men, the fixing indirect. The distinction is not formal, but of their wages, hours of labor and working — substantial in the highest degree, as we pointed

conditions, the bargaining in respect to these out in the Schechter case, supra, p. 546, e¢ things—whether carried on separately or col- seg. ... lectively—each and all constitute intercourse Whether the effect of a given activity or for,the purposes of production, not of trade. condition is direct or indirect is not always The latter is a thing apart from the relation easy to determine. The word “direct” implies

530 DOCUMENTS OF AMERICAN HIsrorRy that the activity or condition invoked or An increase in the greatness of the effect adds blamed shall operate proximately—not medi- to its importance. It does not alter its charately, remotely, or collaterally—to produce acter. the effect. It connotes the absence of an ef- The government’s contentions in defense of ficient intervening agency or condition. And the labor provisions are really disposed of the extent of the effect bears no logical rela- adversely by our decision in the Schechter tion to its character. The distinction between case, supra. The only perceptible difference a direct and an indirect effect turns, not upon between that case and this is that in the the magnitude of either the cause or the effect, Schechter case, the federal power was asserted

but entirely upon the manner in which the with respect to commodities which had come effect has been brought about. If the produc- to rest after their interstate transportation; tion by one man of a single ton of coal in- while here, the case deals with commodities tended for interstate sale and shipment, and at rest before interstate commerce has begun. actually so sold and shipped, affects inter- That difference is without significance. .. . state commerce indirectly, the effect does not A reading of the entire opinion makes clear, become direct by multiplying the tonnage, or what we now declare, that the want of power increasing the number of men employed, or on the part of the federal government is the adding to the expense or complexities of the same whether the wages, hours of service, and business, or by all combined. It is quite true working conditions, and the bargaining about that rules of law are sometimes qualified by them, are related to production before interconsiderations of degree, as the government state commerce has begun, or to sale and argues. But the matter of degree has no bear- distribution after it has ended. ing upon the question here, since that question Sixth. That the act, whatever it may be in is not— What is the extent of the local activity form, in fact is compulsory clearly ap-

or condition, or the extent of the effect pro- pears... . duced upon interstate commerce? but— What Seventh. Finally, we are brought to the

is the relation between the activity or condi- price-fixing provisions of the code. The neces-

tion and the effect? sity of considering the question of their con-

Much stress is put upon the evils which _ stitutionality will depend upon whether they come from the struggle between employers are separable from the labor provisions so and emp*oyees over the matter of wages, work- that they can stand independently. Section ing conditions, the right of collective bargain- 15 of the act provides:

ing, etc., and the resulting strikes, curtailment , .

and irregularity of production and effect on it any provision of this Act, or the appli-

. oe es . cation thereof to any person or circumstances,

prices; and it is insisted that interstate com- is held invalid, the remainder of the Act and the merce is greatly affected thereby. But, in ad- application of such provis:ons to other persons dition to what has just been said, the con- of circumstances shall not be affected thereby.” clusive answer is that the evils are all local

evils over which the federal government has In the absence of such a provision, the no legislative control. The relation of employer presumption is that the legislature intends and employee is a local relation. At common an act to be effective as an entirety—that is law, it is one of the domestic relations. The to say, the rule is against the multilation of a wages are paid for the doing of local work. statute; and if any provision be unconstituWorking conditions are obviously local con- tional, the presumption is that the remaining ditions. The employees are not engaged in or _ provisions fall with it. The effect of the statute

about commerce, but exclusively in produc- is to reverse this presumption in favor of ing a commodity. And the controversies and __inseparability, and create the opposite one of

evils, which it is the object of the act to separability. Under the non-statutory rule, regulate and minimize, are local controversies the burden is upon the supporter of the legis-

and evils affecting local work undertaken to lation to show the separability of the proaccomplish that local result. Such effect as visions involved. Under the statutory rule, they may have upon commerce, however ex- the burden is shifted to the assailant to show tensive it may be, is secondary and indirect. their inseparability. But under either rule, the

CARTER V. CARTER Coat Co. Et. AL. $31 determination, in the end, is reached by apply- _ latter, therefore, carries down with it the ing the same test—namely, What was the in- former.

tent of the lawmakers? ... The price-fixing provisions of the code are The primary contemplation of the act is thus disposed of without coming to the quesstabilization of the industry through the regu- tion of their constitutionality; but neither lation of labor and the regulation of prices; this disposition of the matter, nor anything for, since both were adopted, we must con- we have said, is to be taken as indicating clude that both were thought essential. The that the court is of opinion that these proregulations of labor on the one hand and visions, if separately enacted, could be sus-

prices on the other furnish mutual aid and tained... . support; and their associated force—not one The decrees must be reversed and the causes or the other but both combined—was deemed remanded for further consideration in conby Congress to be necessary to achieve the end formity with this opinion.

sought. The statutory mandate for a code It is so ordered.

upheld by two legs at once suggests the im-

probability that Congress would have assented Mr. Justice Carpozo, dissenting.

to a code supported by only one. My conclusions compendiously stated are This seems plain enough; for Congress must _ these:

have been conscious of the fact that elimina- (a) Part II of the statute sets up a valid tion of the labor frovisions from the act system of price-fixing as applied to transacwould seriously impair, if not destroy, the tions in interstate commerce and to those force and usefulness of the price provisions. in intrastate commerce where interstate comThe interdependence of wages and prices is merce is directly or intimately affected. The manifest. Approximately two-thirds of the prevailing opinion holds noth.ng to the concost of producing a ton of coal is represented trary. by wages. Fair prices necessarily depend upon (b) Part II, wito is system of price-fixing, the cost of production; and since wages con- is separable from Part III, which contains stitute so large a proportion of the cost, prices the provisions as to labor considered and cannot be fixed with any proper relation to condemned in the opinion of the court.

cost without taking into consideration this (c) Part II being valid, the complainants major element. If one of them becomes un- are under a duty to come in under the code, certain, uncertainty with respect to the other and are subject to a penalty if they persist

necessarily ensues... . in a refusal... .

Thus wages, hours of labor, and working First: I am satisfied that the Act is within conditions are to be so adjusted as to effectu- the power of the central government in so

ate the purposes of the act; and prices are far as it provides for minimum and maxito be so regulated as to stabilize wages, work- mum prices upon sales of bituminous coal in ing conditions, and hours of labor which have _ the transactions of interstate commerce and been or are to be fixed under the labor pro- in those of intrastate commerce where inter-

visions. The two are so woven together as to state commerce is directly or intimately render the probability plain enough that uni- affected. Whether it is valid also in other proform prices, in the opinion of Congress, could visions that have been considered and con-

not be fairly fixed or effectively regulated, demned in the opinion of the court, I do not without also regulating these elements of labor find it necessary to determine at this time. which enter so largely into the cost of pro- Silence must not be taken as importing acqul-

duction. escence. Much would have to be written if The conclusion is unavoidable that the the subject, even as thus restricted were to price-fixing provisions of the code are so te explored through all its implications, his-

related to and dependent upon the labor pro- torical and economic as well as strictly legal. visions aS conditions, considerations or com- The fact that the prevailing opinion leaves

pensations, as to make it clearly probable the price provisions open for consideration that the latter being held bad, the former in the future makes it appropriate to forego would not have been passed. The fall of the a fullness of elaboration that might other-

532 DOCUMENTS OF AMERICAN History wise be necessary. As a system of price fixing meet the needs of the occasion. But a great the Act is challenged upon three grounds: (1) principle of constitutional law is not susceptibecause the governance of prices is not within ble of comprehensive statement in an adjec-

the commerce clause; (2) because it is a tive. The underlying thought is merely this, denial of due process forbidden by the Fifth that “the law is not indifferent to consideraAmendment; and (3) because the standards tions of degree.” It cannot be indifferent to for administrative action are indefinite, with them without an expansion of the commerce the result that there has been an unlawful clause that would absorb or imperil the re-

delegation of legislative power. served powers of the states. At times, as in (1) With reference to the first objection, the case cited, the waves of causation will the obvious and sufficient answer is, so far as have radiated so far that their undulatory the Act is directed to interstate transactions, motion, if discernible at all, will be too faint that sales made in such conditions constitute or obscure, too broken by cross-currents, to interstate commerce, and do not merely “af- be heeded by the law. In such circumstances fect” it. To regulate the price for such trans- the holding is not directed at prices or wages

actions is to regulate commerce itself, and considered in the abstract, but at prices or not alone its antecedent conditions or its ulti- wages in particular conditions. The relation mate consequences. The very act of sale is may be tenuous or the opposite according to

limited and governed. Prices in interstate the facts. Always the setting of the facts is transactions may not be regulated by the to be viewed if one would know the closeness states. They must therefore be subject to the of the tie. Perhaps, if one group of adjectives power of the nation unless they are to be _ is to be chosen in preference to another, “intiwithdrawn altogether from the governmental mate” and “remote” wil! be found to be as supervision. If such a vacuum were permitted, good as any. At all events, “direct” and “‘inmany a public evil incidental to interstate direct,” even if accepted as sufficient, must transactions would be left without a remedy. not be read too narrowly. The power is as

This does not mean, of course, that prices broad as the need that evokes it... . may be fixed for abritrary reasons or in an Within rulings the most orthodox, the prices arbitrary way. The commerce power of the for intrastate sales of coal have so inescapable nation is subject to the requirement of due a relation to those for interstate sales that a process like the police power of the states. system of regulation for transactions of the Heed must be given to similar considerations _ one class is necessary to give adequate protec-

of social benefit or detriment in marking the tion to the system of regulation adopted for division between reason and oppression. The’ the other... . evidence is overwhelmingly that Congress did What has been said in this regard is said not ignore those considerations in the adop- with added certitude when complainants’ busition of this Act. What is to be said in that ness is considered in the light of the statistics regard may conveniently be postponed to the exhibited in the several records. In No. 636, part of the opinion dealing with the Fifth the Carter case, the complainant has admitted

Amendment. that “‘sustantially all” (over 974%) of the

Regulation of prices being an exercise of sales of the Carter Company are made in inthe commerce power in respect of interstate terstate commerce. In No. 649 the percentages transactions, the question remains whether it of intrastate sales are, for one of the comcomes within that power as applied to intra- plaining companies, twenty-five per cent, for

state sales where interstate prices are directly another one per cent, and for most of the or intimately affected. Mining and agricul- others two per cent or four. The Carter Comture and manufacture are not interstate com- _— pany has its mines in West Virginia; the mines

merce considered by themselves, yet their of the other companies are located in Kenrelation to that commerce may be such that __tucky. In each of those states, moreover, coal for the protection of the one there is need to from other regions is purchased in large quanti-

regulate the other. Sometimes it is said that ties, and is thus brought into competition the relation must be “direct” to bring that with the coal locally produced. Plainly, it is power into play. In many circumstances such impossible to say either from the statute ita description will be sufficiently precise to self or from any figures laid before us that

Tue REPUBLICAN PLATFORM OF 1936 533 interstate sales will not be prejudicially af- ing the passage of this Act the country was fected in West Virginia and Kentucky if in- threatened once more with a strike of ominous trastate prices are maintained on a lower proportions. The plight of the industry was

level... . not merely a menace to owners and to mine (2) The commerce clause being accepted workers: it was and had long been a menace as a sufficient source of power, the next in- to the public, deeply concerned in a steady quiry must be whether the power has been and uniform supply of a fuel so vital to the

exercised consistently with the Fifth Amend- national economy. . .

ment. In the pursuit of that inquiry, Nebdia Congress was not condemned to inaction v. New York, lays down the applicable prin- in the face of price wars and wage wars so ciple. There a statute of New York prescrib- pregnant with disaster. Commerce had been ing a minimum price for milk was upheld choked and burdened; its normal flow had against the objection that price fixing was for- been diverted from one state to another; there bidden by the Fourteenth Amendment. We _ had been bankruptcy and waste and ruin alike found it a sufficient reason to uphold the for capital and for labor. The liberty protected challenged system that “the conditions or by the Fifth Amendment does not include the

practices. in an industry make unrestricted right to persist in this anarchic riot... . competition an inadequate safeguard of the The free competition so often figured as a consumer’s interests, produce waste harmful social goods imports order and moderation to the public, threaten ullimately to cut off and a decent regard for the welfare of the the supply of a commodity needed by the group. There is testimony in these records, public, or portend the destruction of the testimony even by the assailants of the statute,

industry itself.” that only through a system of regulated prices

All this may be said, and with equal, if not can the industry be stabilized and set upon greater force, of the conditions and practices the road of orderly and peaceful progress. If in the bituminous coal industry, not only at further facts are looked for, they are narrated the enactment of this statute in August, 1935, in the findings as well as in congressional rebut for many years before. Overproduction ports and a mass of public records. After makwas at a point where free competition had ing every allowance for difference of opinion been degraded into anarchy. Prices had been as to the most efficient cure, the student of cut so low that profit had become impossible the subject is confronted with the indisputable for all except a lucky handful. Wages came truth that there were ills to be corrected, and down along with prices and with profits. There ills that had a direct relation to the maintewere strikes, at times nation-wide in extent, nance of commerce among the states without at other times spreading over broad areas and friction or diversion. An evil existing, and

many mines, with the accompaniment of also the power to correct it, the law-makers violence and bloodshed and misery and bitter were at liberty to use their own discretion in feeling. The sordid tale is unfolded in many _ the selection of the means.

a document and treatise. During the twenty- (3) Finally, and in answer to the third three years between 1913 and 1935, there objection to the statute in its price-fixing were nineteen investigations or hearings by provisions, there has been no excessive delegaCongress or by specially created commissions tion of legislative power. .. .

with reference to conditions in the coal mines. I am authorized to state that Mr. Justice The hope of betterment was faint unless the BRANDEIS and Mr. Justice STONE join in this industry could be subjected to the compulsion opinion. of a code. In the weeks immediately preced-

508. THE REPUBLICAN PLATFORM OF 1936 June 11, 1936 (Proceedings of the 21st Republican National Convention, p. 136) The Republican National Convention met in Col. Frank Knox of Illinois to the ViceCleveland, Ohio, June 9, 1936, nominated Gov. Presidency, and adopted a platform whose theme A. F. Landon of Kansas to the Presidency and was expressed in its opening words. The cam-

534 DOCUMENTS OF AMERICAN HISTORY paign that followed was bitter but scarcely with our foreign competitors, flooding exciting. In the November election the Repub- our markets with foreign commodities.

van sats andl solled a tend eee ott ans It has coerced and intimidated voters by See, Alfred M. Landon, America ‘at the Cross- withholding rel lef from those opposing its

roads; D. Dumond, Roosevelt to Roosevelt; tyrannical policies. C. A. and M. R. Beard, America in Midpassage, 1t has destroyed the morale of many of our

people and made them dependent upon America is in peril. The welfare of Ameri- Government. can men and women and the future of our Appeals to passion and class prejudice have youth are at stake. We dedicate ourselves replaced reason and tolerance.

to the preservation of their political liberty, ;

their individual opportunity and their char- Toa free people these actions are insufferable. acter as free citizens, which today for the his campaign cannot be waged on the tradifirst time are threatened by Government it- tional differences between the Republican and

self. Democratic parties. The responsibility of this For three long years the New Deal Ad- election transcends all previous political diministration has dishonored American tradi- Visions. We invite all Americans, irrespective tions and flagrantly betrayed the pledges upon Ff Party, to join us in defense of American

which the Democratic Party sought and re- ‘SUtutions.

ceived publ:< support. CONSTITUTIONAL GOVERNMENT AND [FREE The powers of Congress have been usurped ENTERPRISE

by the President. WE PLEDGE OURSELVES:

The integrity and authority of the Supreme 1. To maintain the American system of con-

Court have been flouted. stitutional and local self government, and

The rights and liberties of American citizens to resist all attempts to impair the au- ,

have been violated. thority of the Supreme Court of the United

Regulated monopoly has displaced free enter- States, the final protector of the rights of

prise. our citizens against the arbitrary encroach-

The New Deal Administration constantly ments of the legislative and executive

seeks to usurp the rights reserved to the branches of Government. There can be no

States and to the people. individual liberty without an independent

It has insisted on the passage of laws con- judiciary.

trary to the Constitution. 2. To preserve the American system of free

It has intimidated witnesses and interfered enterprise, private competition, and equal-

with the right of petition. ity of opportunity, and to seek its con-

It has dishonored our country by repudiating stant betterment in the interests of all. its most sacred obligations.

It has been guilty of frightful waste and REEMPLOYMENT extravagance, using public funds for parti- The only permanent solution of the unemp!oy-

san political purposes. ment problem is the absorption of the unem-

It has promoted investigations to harass and ployed by industry and agriculture. To that intimidate American citizens, at the same end, we advocate: time denying investigations into its own Removal! of restricitons on production.

improper erpenditures. Abandonment of all New Deal policies that

It has created a vast multitude of new offices, raise production costs, increase the cost of

filled them with its favorites, set up a living, and thereby restrict buying, reduce centralized bureaucracy, and sent out volume and prevent reemployment. swarms of inspectors to harass our people. Encouragement instead of hindrance to It had bred fear and hesitation in commerce _ legitimate business. and industry, thus discouraging new enter- Withdrawal of Government from competi-

prises, preventing employment and pro- tion with private payrolls.

longing the depression. Elimination of unnecessary and hampering

It secretly has made tariff agreements regulations.

THe REPUBLICAN PLATFORM OF 1936 $35 Adoption of such policies as wi!l furnish a practical measures for meeting the probchance for individual enterprise, industrial lems of unemp!oyment insurance.

expansion, and the restoraticn of jobs. The unemployment insurance and old

age annuity sections of the present Social

RELIEF Security Act are unworkable and deny

The necessities of life must be provided for benefits to about two-thirds of our adult the needy, and hope must be restored pending population, including professional men and

' recovery. The administration of relief is a women and all those engaged in agriculmajor failure of the New Deal. It has been ture and domestic service, and the self faithless to those who most deserve our sym- employed, while imposing heavy tax burpathy. To end confusion, partisanship, waste dens upon all. The so-called reserve fund

and incompetence, estimated at forty-seven billion dollars for old age insurance is no reserve at all, WE PLEDGE: because the fund will contain nothing but 1. The return of responsibility for relief ad- the Government’s promise to pay, while the ministration to non-political local agencies taxes collected in the gu:se of premiums

familiar with community problems. will be wasted by the Government in reck2. Federal grants-in-aid to the States and less and extravagant political schemes. Territories while the need exists, upon compliance with these conditions: (a) a LABOR fair proportion of the total relief burden The welfare of labor res‘s upon increased to be provided from the revenues of States production and the prevention of exploitaand local governments; (b) all engaged in tion. We pledge ourselves to: relief administration to be selected on the Protect the right of labor to organize and basis of merit and fitness; (c) adequate to bargain collectively through representatives provision to be made for the encourage- of its own choosing without interference from ment of those persons who are trying to any source.

become self-supporting. Prevent governmental job holders from 3. Undertaking of Federal public works only exercising autocratic powers over labor.

on their merits and separate from the ad- Support the adoption of State laws and

ministration of relief. interstate compacts to abolish sweatshops and 4. A prompt determination of the facts con- child lakor, and to protect women and chil-

cerning relief and unemployment. dren with respect to maximum hours, miniwages and working conditions. We beSECURITY lieve that thismumcan be done within the

Real security will be possible only when our Constitution as it now stands. productive capacity is sufficient to furnish a decent standard of living for a'l American AGRICULTURE families and to provide a surplus for future The farm problem is an economic and social,

needs and contingencies. For the attainment not a partisan problem, and we propose to

of that u:timate objective, we look to the treat it accordingly. .. . energy, self-reliance and character of our Our paramount object is to protect and peop!e, and to our system of free enterprise. foster the family type of farm, traditional in Society has an obligation to promote the American life, and to promote policies which security of the people, by affording some meas-__ will bring about an adjustment of agriculur2 of protection against involuntary unem- ture to meet the needs of domestic and foreign ployment and dependency in old age. The markets. As an emergency measure, during New Deal policies, while purporting to pro- the agricultural depression, Federal benefit vide social security, have, in fact, endangered payments or grants-in-aid when administered

it. within the means of the Federal Government We propose a system of o:d age secur- are consistent with a balanced budzet.

ity, ...

We propose to encourage adoption by WE PROPOSE:

the States and Territories of honest and 1. To facilitate economical production and

536 DOCUMENTS OF AMERICAN HISTORY increased consumption on a basis of abun- surpluses, the payment of reasonable

dance instead of scarcity. benefits upon the domestically consumed

2. A national land-use program, including portion of such crops in order to make the acquisition of abandoned and non- the tariff effective. These payments are productive farm lands by voluntary sale to be limited to the production level of or lease, subject to approval of the legis- the family-type farm.

lative and executive branches of the States 11. To encourage and further develop co-

concerned, and the devotion of such land operative marketing. ] to appropriate public use, such as water- 12. To furnish Government assistance in dis-

shed protection and flood prevention, re- posing of surpluses in foreign trade by forestation, recreation, and conservation bargaining for foreign markets selectively

of wild life. by countries both as to exports and im-

3. That an agricultural policy be pursued for ports. We strenuously oppose so-called the protection and restoration of the land reciprocal treaties which trade off the resources, designed to bring about such American farmer. a balance between soil-building and soil- 13. To give every reasonable assistance to depleting crops as will permanently in- producers in areas suffering from temposure productivity, with reasonable bene- rary disaster, so that they may regain and fits to cooperating farmers on family-type maintain a self-supporting status.

farms, but so regulated as to eliminate | the New Deal’s destructive policy towards TARIFF

the dairy and live-stock industries. Nearly sixty per cent of all imports into the 4. To extend experimental aid to farmers United States are now free of duty. The other developing new crops suited to our soil forty per cent of imports compete directly

and climate. with the product of our industry. We would

5. To promote the industrial use of farm keep on the free list all products not grown

products by applied science. or produced in the United States in com-

6. To protect the American farmer against mercial quantites. As to all commodities that the importation of all livestock, dairy, commercially compete with our farms, our and agricultural products, substitutes forests, our mines, our fisheries, our oil wells, therefor, and derivatives therefrom, which our labor and our industries, sufficient pro-

will depress American farm prices. tection should be maintained at all times to 7. To provide effective quarantine against defend the American farmer and the Ameriimported livestock, dairy and other farm can wage earner from the destructive comproducts from countries which do not petition emanating from the subsidies of for-

impose health and sanitary regulations eign Governments and the imports from fully equal to those required of our own low-wage and depreciated-currency coun-

producers. tries.

8. To provide for ample farm credit at rates We will repeal the present Reciprocal Trade

as low as those enjoyed by other in- Agreement law. :.. dustries, including commodity and live- We will restore the principle of the flexible stock loans, and preference in land loans tariff in order to meet changing economic to the farmer acquiring or refinancing a conditions here and abroad and broaden by

farm as a home. careful definition the powers of the Tariff

9. To provide for decentralized, non-parti- Commission in order to extend this policy san control of the Farm Credit Adminis- along non-partisan lines. tration and the election by National Farm We will adjust tariffs with a view to proLoan Associations of at least one-half of | moting international trade, the stabilization each Board of Directors of the Federal of currencies, and the attainment of a proper Land Banks, and thereby remove these in- balance between agriculture and industry.

stitutions from politics. We condemn the secret negotiation of 10. To provide, in the case of agricultural reciprocal trade treaties without public hearproducts of which there are exportable ing or legislative approval.

Tuer REPUBLICAN PLATFORM OF 1936 537 MONOPOLIES WE PLEDGE OURSELVES TO: A private monopoly is indefensible and in- Stop the folly of uncontrolled spending. tolerable. It menaces and, if continued, will Balance the budget—not by increasing utterly destroy constitutional government and taxes but by cutting expenditures, drastically

the liberty of the citizen. and immediately.

We favor the vigorous enforcement of the Revise the Federal tax system and co-

criminal laws, as well as the civil laws, against ordinate it with State and local tax systems.

monopolies and trusts and their officials, and Use the taxing power for raising revenue we demand the enactment of such additional and not for punitive or political purposes. legislation as is necessary to make it impos- M sible for private monopoly to exist in the ONEY AND BANKING

United States. We advocate a sound currency to be preserved

We will employ the full powers of the Gov- ¢ all hazards. ernment to the end that monopoly shall be The first requisite to a sound and stable cureliminated and that free enterprise shall be Tency 1s a balanced budget. .

fully restored and maintained. , We oppose further devaluation of the dolar.

REGULATION oF BUSINESS We will restore to the Congress the authority lodged with it by the Constitution to

We recognize the existence of a field within coin money and regulate the value thereof by which governmental regulation is desirable repealing all the laws delegating this authority and salutary. The authority to regulate should to the Executive.

be vested in an independent tribunal acting We will cooperate with other countries under clear and specific laws establishing defi- toward stabilization of currencies as soon as nite standards. Their determinations on law we can do so with due regard for our national and facts should be sudject to review by the interests and as soon as other nations have Courts. We favor Federal regulation, within sufficient stability to justify such action. the Constitution, of the marketing of securities to protect investors. We favor also Fed- FOREIGN AFFAIRS

eral regulation of the interstate activities of | We pledge ourselves to promote and main-

public utilities. tain peace by all honorable means not leading to foreign alliances or political commitments.

Crvit SERVICE Obedient to the traditional foreign policy of Under the New Deal, official authority has America and to the repeatedly expressed will been given to inexperienced and incompetent of the American people, we pledge that Amerpersons. The Civil Service has been sacrificed ica shall not become a member of the League

to create a national political machine. As a " Nations nor of the World C ourt nor shall result the Federal Government has never ‘m™erica take on any entangling alliances in presented such a picture of confusion and foreign affairs.

inefficiency. We shall promote, as the best means of We pledge ourselves to the merit system, °°CU™™8 and maintaining peace by the pacific

virtually destroyed by New Deal spoilsmen. settlement of disputes, the great cause of in-

It should be restored, improved and ex- ternational arbitration through the establish-

tended... . ment of free, independent tribunals, which shall determine such disputes in accordance GoverNMENT FINANCE with law, equity and justice. The New Deal Administration has been char- NATIONAL DEFENSE

acterized by shameful waste and general fi- We favor an army and navy, including air nancial irresponsibility. It has piled deficit forces, adequate for our National Defense. upon deficit. It threatens national bankruptcy We will cooperate with other nations in and the destruction through inflation of in- the limitation of armaments and control of surance policies and savings bank deposits. traffic in arms.

538 DOCUMENTS OF AMERICAN IIJIsTorRy

BILL oF RIGHTS CONCLUSION We pledge ourselves to preserve. protect and We assume the obligations and duties imdefend, against all intimidation and threat, posed upon Government by modern condifreedom of religion, speech, press and radio; tions. We affirm our unalterable conviction and the right of assembly and petition and that, in the future as in the past, the fate of immunity from unreasonable searches and the nation will depend, not so much on the

seizures. wisdom and power of Government, as on the

We offer the abiding security of a govern- character and virtue, self-reliance, industry ment of laws as against the autocratic perils and thrift of the people and on their willing-

of a government of men. ness to meet the responsibilities essential to the preservation of a free society. |

FURTHERMORE Finally, as our party affirmed in its first 1. We favor the construction by the Federal platform in 1856: “Believing that the spirit Government of head-water storage basins of our institutions as well as the Constitution to prevent floods, subject to the approval of our country guarantees liberty of conscience of the legislative and executive branches and equality of rights among our citizens, we of the government of the States whose lands oppose all legislation tending to impair them,”

are concerned... . and “we invite the affiliation and cooperation 5. We shall use every effort to collect the war of the men of all parties, however differing debt due us from foreign countries amount- from _us in other respects, in support of the ing to $12,000,000,000—one-third of our principles herein declared.” national debt. No effort has been made by The acceptance of the nomination tendered the present administration even to reopen by this Convention carries with it, aS a matter

negotiations. of private honor and public faith, an under-

6. We are opposed to legislation which dis- taking by each candidate to be true to the criminates against women in Federal and principles and program herein set forth. State employment.

509. TIE DEMOCRATIC PLATFORM OF 1936

June 25,1936 © (Proceedings of the Democratic National Convention, 1936, p. 192) The Democratic National Convent’on met in spirit; and that three years of Democratic Philadelpiia June 23, 1936, renominated Presi- leadership have put it back on the road to dent Roosevelt and Vice-President Garner, and restored health and prosperity. adopted a platform reaffirming the New Deal. — vg old this truth to be self-evident—that In the ensuing election Mr. Roosevelt carried twelve years of Republican surrender of the 46 states, polled 523 electoral and 27,751,612 dictatorship of a privileged few have been be found in his Public Papers and Addresses, SUPPlanted by a Democratic leadership which Vol. V. See also, D. Dumond, Roosevelt to Roose- has returned the people themselves to the velt; C. A. and M. R. Beard, America in M.d- place of authority, and has revived in them

popular votes. Roosevelt’s campaign speeches can :

passage. new faith and restored the hope which they had almost lost.

THE DEMOCRATIC PLATFORM We hold this truth to be self-evident—that Adopted by the Democratic Party, in Con- this three-year recovery in all the basic values

vention, at Philadelphia, June, 1936 of life and the reestablishment of the AmeriWe hold this truth to be self-evident—that can way of living has been brought about the test of a representative government is its by humanizing the poticies of the Federal Govability to promote the safety and happiness ernment as they affect the personal, financial,

of the people. industrial and agricultural well-being of the We hold this truth to be self-evident—that American people.

twelve years of Republican leadership left We hold this truth to be self-evident—that our nation sorely stricken in body, mind and government in a modern civilization has cer-

Ture DEMOCRATIC PLATFORM OF 1936 539 tain inescapable obligations to its citizens, promote plans for rural electrification and for

among which are: cheap power by means of the yardstick (1) Protection of the family and the method. home.

(2) Establishment of a democracy of HOUSING

opportunity for all the people. (6) We maintain that our people are en-

(3) Aid to those overtaken by disaster. titled to decent, adequate housing at a price These obligations, neglected through twelve which they can afford. In the last three years years of the old leadership, have once more the Federal Government, having saved more been recognized by American Government. than two million homes .rom foreclosure, has Under the new leadership they will never be taken the first steps in our history to provide

neglected. decent housing for people of meagre incomes. We believe every encouragement should be

FoR THE PROTECTION OF THE FAMILY given to the building of new homes by private

AND THE Home enterprise; and that the Government should

oo, steadily extend its housing program toward the goal of adequate housing for those forced

SAVINGS AND INVESTMENT through economic necessities to live in un(2) We have safeguarded the thrift of our healthy and slum conditions. citizens by restraining those who would gambie

with other people’s savings, by requiring truth VETERANS in the sale of securities; by putting the brakes (7) We shall continue just treatment of our upon the use of credit for speculation; by war veterans and their dependents. outlawing the manipulation of prices in stock

and commodity markets; by curbing the over- For THE ESTABLISHMENT OF A weening power and unholy practices of utility DEmocrACy OF OPPORTUNITY holding companies; by insuring fifty million

banks accounts. AGRICULTURE We have taken the farmers off the road to OLD AGE AND SOCIAL SECURITY ruin.

(3) We have built foundations for the We have kept our pledge to agriculture to security of those who are faced with the use all available means to raise farm income hazards of unemployment and old age; for towards its pre-war purchasing power... . the orphaned, the crippled and the blind. On By Federal legislation we have reduced the the foundation of the Social Security Act we farmer’s indebtedness and doubled his net in-

are determined to erect a structure of eco- come. In cooperation with the States and nomic security for all our people, making through the farmers’ own committees, we are sure that this benefit shall keep step with the restoring the fertility of his land and checkever-increasing capacity of America to pro- ing the erosion of his soil. We are bringing vide a high standard of living for all its citi- electricity and good roads to his home.

Zens. We shall continue to improve the soil conservation and domestic allotment program CONSUMER with payments to farmers... .

(4) We will act to secure to the consumer We recognize the gravity of the evils of fair value, honest sales and a decreased spread farm tenancy, and we pledge the full coopera-

between the price he pays and the price the tion of the Government in the refinancing of

producer receives. farm indebtedness at the lowest possible rates of interest and over a long term of years.

RURAL ELECTRIFICATION We favor the production of all the market (5) This administration has fostered power will absorb, both at home and abroad, plus rate yardsticks in the Tennessee Valley and a reserve supply sufficient to insure fair prices in several other parts of the nation. As a re- to consumers; we favor judicious commodity sult electricity has been made available to the loans on seasonal surpluses; and we favor aspeople at a lower rate. We will continue to sistance within Federal authority to enable

540 DocUMENTS OF AMERICAN HisToRY farmers to adjust and balance production the producer, the exploiter of the consumer, with demand, at a fair profit to the farmers. and the enemy of the independent operator. We favor encouragement of sound, practi- This is a problem challenging the unceasing

cal farm cooperatives. effort of untrammeled public officials in every By the purchase and retirement of ten mil- branch of the Government. We pledge vigor-

lion acres of sub-marginal land, and assist- ously and fearlessly to enforce the criminal ance to those attempting to eke out an exist- and civil provisions of the existing anti-trust ence upon it, we have made a good beginning _ laws, and to the extent that their effectiveness toward proper land use and rural rehabilita- has been weakened by new corporate devices

tion. or judicial construction, we propose by law

The farmer has been returned to the road _ to restore their efficacy in stamping out moto freedom and prosperity. We will keep him _nopolistic practices and the concentration of

on that road. economic power... .

LABOR UNEMPLOYMENT We have given the army of America’s in- We believe that unemployment is a national dustrial workers something more substantia] problem, and that it is an inescapable obliga-

than the Republicans’ dinner pail full of tional way. . . . Where business fails to suppromises. We have increased the worker’s ply such employment, we believe that work at pay and shortened his hours; we have under- prevailing wages should be provided in cotaken to put an end to the sweated labor of operation with State and local governments his wife and children; we have written into on useful public projects, to the end that the the law of the land his right to collective bar- national wealth may be increased, the skill gaining and self-organization free from the in- and energy of the worker may be utilized, his terference of employers; we have provided morale maintained, and the unemployed asFederal machinery for the peaceful scttle- sured the opportunity to earn the necessities

ment of labor disputes. of life.

. ar THE CONSTITUTION

We will continue to protect the worker

and we will guard his rights, both as wage-

earner and consumer, in the production and The Republican platform proposes to meet consumption of all commodities, including ™4ny pressing national problems solely by ac-

coal and water power and other natural- on of the separate States. We know that

resource products... . drought, dust storms, floods, minimum wages, maximum hours, child labor and working con-

BUSINESS ditions in industry, monopolistic and unfair

business practices cannot be adequately hanWe have taken the American business man qieq exclusively by 48 separate State legislaout of the red. We have say ed his bank and tures, 48 separate State administrations and

given It a sounder foundation ; we have ex- 48 separate State courts. Transactions and tended credit; we have lowered interest rates; tivities which inevit ably overflow State we have undertaken to free him from the rav- boundaries call for both State and Federal

ages of cut-throat competition. .. . treatment.

We have sought and will continue to seek

YOUTH to meet these problems through legislation

We have aided youth to stay in school; within the Constitution. given them constructive occupation; opened If these problems cannot be effectively

the door to opportunity which twelve years of solved by legislation within the Constitution,

Republican neglect had closed. . . . we shall seek such clarifying amendment as will assure to the legislatures of the several MONOPOLY AND CONCENTRATION OF States and to the Congress of the United

ECONOMIC POWER States, each within its proper jurisdiction, the Monopolies and the concentration of eco- power to enact those laws which the State nomic power, the creation of Republican rule and Federal legislatures, within their respecand privilege, continue to be the master of _ tive spheres, shall find necessary in order ade-

THe DEMOCRATIC PLATFORM OF 1936 541 quately to regulate commerce, protect public FOREIGN POLICY health and safety and safeguard economic se- In our relationship with other nations, this curity. Thus we propose to maintain the letter Government will continue to extend the pol-

she E . f na-

and spirit of the Constitution. icy of the Good Neighbor. We reaffirm our

THE MERIT SYSTEM IN GOVERNMENT PPDENET. tnd declare. that disputes be.

orate ee cftchenee: wre nledee the and tween nations should be settled by peaceful

> "means. We shall continue to observe a true

mediate extension of the merit system through neutrality in the disputes of others; to be the classified civil service—which was first prepared, resolutely to resist aggression

established ant restorer Meee etnng against ourselves; to work for peace and to AUSPICES—LO all NON-PONcy- 5 P take the profits out of war; to guard against

in We nee hoct ta ae ‘ce law all being drawn, by political commitments, intercontin . - nositions- which because at the national banking or private trading, into any ; war which may develop anywhere. emergency, have been exempt from its opera- We shall continue to foster the increase in

tion. our foreign trade which has been achieved by CIVIL LIBERTIES this administration; to seek by muta agree-

We shall continue to guard the freedom of ment the lowering © those tan arriers;

. . quotas and embargoes whichassembly have been raised speech, press, radio, religion and ; ;in; ; we aour against our exports of agricultural and which Constitution guarantees; with , ; . ; _ dustrial products; butprivileges continuetoas, in the past equal to all and special none rights to give adequate protection to our farmers and manufacturers against unfair competition GOVERNMENT FINANCE or the dumping on our shores of commodities The Administration has stopped deflation, and goods produced abroad by cheap labor or restored values and enabled business to go Subsidized by foreign governments. ahead with confidence.

When national income shrinks, government Tue Issur

income is imperilled. In reviving national in- The issue in this election is plain. The come, we have fortified government finance. American people are called upon to choose We have raised the public credit to a position between a Republican administration that has of unsurpassed security. The interest rate on and would again regiment them in the service Government bonds has been reduced to the’ of privileged groups and a Democratic adlowest point in twenty-eight years. The same ministration dedicated to the establishment Government bonds which in 1932 sold under of equal economic opportunity for all our

eighty-three are now selling over 104. people.

We approve the objective of a permanently We have faith in the destiny of our nation. sound currency so stabilized as to prevent the We are sufficiently endowed with natural reformer wide fluctuations in value which in- sources and with productive capacity to projured in turn producers, debtors, and prop- vide for all a quality of life that meets the erty owners on the one hand, and wage-_— standards of real Americanism. earners and creditors on the other, a currency Dedicated to a government of liberal Amerwhich will permit full utilization of the coun- ican principles, we are determined to oppose

yseresourees. assert in thatthe tony we have despotism of Communism and soundest We currency world. the equally, menace the of concealed Facism. We are determined to reduce the expenses We hold this final truth to be self-evident—

of a aa retrencament, aoefrm thatness the of vinglenean and the happiandBovemment, recovery programs thus reflect our the peopleSecunty of the United States of determination to achieve a balanced budget America can be perpetuated only under the and the reduction of the national debt at the democratic government as conceived by the

earliest possible moment. founders of our nation.

542 DOCUMENTS OF AMERICAN II1stTory 510. UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. 299 U. S. 304 1936

Appeal from the D’strict Court of the U. S. for “Sec. 2. Whoever sells any arms or munithe Southern District of New York. This case tions of war in violation of section 1 shall, involved the question of the delcgation of powe.S on conviction, be punished by a fine not exin the realm of forcign affairs, and furnished the ceeding $10,000 or by imprisonment not ex-

occasion for an illuminating d’ssertation on the ding t both.”

nature of the American Union. The facts of the ‘CCC™8 TWO years, OF One .

case are set forth in the decision. See W. E. The President's proclamation, after recitBinkley, The Powers of the President; Q. Wright, 498 the terms of the Joint Resolution, deThe Control of American Foreign Relations; E.S, _ Clares:

Corwin, The President’s Control of Foreign Re- “Now, therefore, I Franklin D. Roosevelt,

lations. President of the United States of America, acting under and by virtue of the authority

SUTHERLAND, J. On January 27, 1936, an in- conferred in me by the said joint resolution dictment was returned in the court below, the of Congress, do hereby declare and proclaim

first count of which charges that appellees, that I have found that the prohibition of the beginning with the 29th day of May, 1934, sale of arms and munitions of war in the conspired to sell in the United States certain United States to those countries now enarms of war, namely fifteen machine guns, to gaged in armed conflict in the Chaco may

Bolivia, a country then engaged in armed contribute to the reestablishment of peace conflict in the Chaco, in violation of the Joint between those countries, and that I have conResolution of Congress approved May 28, sulted with the governments of other Amer1934, and the provisions of a proclamation ican Republics and have been assured of the

issued on the same day by the President of cooperation of such governments as I have the United States pursuant to authority con- deemed necessary as contemplated by the said ferred by Sec. 1 of the resolution. In pursu- joint resolution; and I do hereby admonish

ance of the conspiracy, the commission of !l citizens of the United States and every certain overt acts was alleged, details of person to abstain from every violation of which need not be stated. The Joint Resolu- the provisions of the joint resolution above

tion follows: set forth, hereby made applicable to Bolivia

“Resolved by the Senate and House of Rep- and Paraguay, and I do hereby warn them resentatives of the United States of America that all violations of such provisions will be in Congress assembled, That if the President rigorously prosecuted. . . . finds that the prohibition of the sale of arms On November 14, 1935, this proclamation and munitions of war in the United States to was revoked in the following termns: .. . those countries now engaged in armed con- Appellees severally demurred to the first flict in the Chaco may contribute to the re- count of the indictment on the grounds (1) establishment of peace between those coun- that it did not charge facts sufficient to show

tries, and if after consultation with the the commission by appellees of any offense governments of other American Republics and against any law of the United States; ... with their cooperation, as well as that of such The court below sustained the demurrers other governments as he may deem necessary, upon the first point, ... The government he makes proclamation to that effect, it shall appealed to this court under the provisions be unlawful to sell, except under such limita- of the Criminal Appeals Act of March 2,

tions and exceptions as the President pre- 1907.... scribes, any arms or munitions or war in any First. It is contended that by the Joint Resplace in the United States to the countries olution, the going into effect and continued now engaged in that armed conflict, or to any operation of the resolution was conditioned person, company, or association acting in the (a) upon the President’s judgment as to its interest of either country, until otherwise or- beneficial effect ‘:pon the reestablishment of dered by the President or by Congress. peace between the countries engaged in armed

UNITED STATES V. CuRTISS-WRIGHT Exporg Corp. 543 conflict in the Chaco; (b) upon the making powers then possessed by the states such porof a proclamation, which was left to his un- tions as it was thought desirable to vest in the

fettered discretion, thus constituting an at- federal government, leaving those not intempted substitution of the President's will cluded in the enumeration still in the States. for that of Congress; (c) upon the making of Carter v. Carter Coal Co., 298 U. S. 238, 294.

a proclamation putting an end to the ‘opera- That this doctrine applies only to powers tion of the resolution, which again was left which the states had, is self evident. And to the President’s unfettered discretion; and since the states severally never possessed (d) further, that the extent of its operation in international powers, such powers could not particular cases was subject to limitation and have been carved from the mass of state exception by the President, controlled by no powers but obviously were transmitted to the standard. In each of these particulars, appel- United States from some other source. Durlees urge that Congress abdicated its essential ing the colonial period, those powers were functions and delegated them to the Execu- possessed exclusively by and were entirely

tive. under the control of the Crown. By the DeclaWhether, if the Joint Resolution had re- ration o* Independence, “the Representalated solely to internal affairs it would be _ tives of the United States of America” deopen to the challenge that it constituted an clared the United (not the several) Co‘onies unlawful delegation of legislative power to to be free and independent states, and as the Executive, we find it unnecessary to de- such to have “full Power to levy War, contermine. The whole aim of the reso'ution is clude Peace, contract Alliances, establish to affect a situation entirely external to the Commerce and to do or applicable, deems recondition, otherwise whenever to place in the goodPresident wie.

working order, to the extent to which funds such purchase or Naan to be necessary

are made available therefor, or contracts are in the interests of the defense of the United

authorized from time to time by the Con- States. gress, or both, any defense article for any Section 9 such government, or to procure any or all The President may, from time to time, such services by private contract. promulgate such rules and regulations as may (4) To communicate to any such govern- be necessary and proper to carry out any of ment any defense information, pertaining to the provisions of this Act; and he may exerany defense article furnished to such govern- cise any power or authority conferred on him ment under paragraph (2) of this subsection. by this Act through such department, agency,

(5) To release for export any defense or officer as he shall direct.

636 DOCUMENTS OF AMERICAN HISTORY 539. THE ATLANTIC CHARTER August 14, 1941

(White House News Release) In a dramatic meeting off Newfoundland, Presi- collaboration between all nations in the ecodent Roosevelt and Winston Churchill formulated nomic field with the object of securing, for

this statement of common war aims. all, improved labor standards, economic adThe President of the United States of | vancement and social security:

America and the Prime Minister, Mr. Sixth, after the final destruction of the Churchill, representing His Majesty’s Gov- Nazi tyranny, they hope to see established a ernment in the United Kingdom, being met peace which will afford to all nations the together, deem it right to make known cer- means of dwelling in safety within their own tain common principles in the national pol- boundaries, and which will afford assurance icles of their respective countries on which that all the men in all the lands may live out they base their hopes for a better future for their lives in freedom from fear and want;

the world. Seventh, such a peace should enable all men First, their countries seek no aggrandize- to traverse the high seas and oceans without ment, territorial or other; hindrance; Second, they desire to see no territorial Eighth, they believe that all of the nations changes that do not accord with the freely of the world, for’ realistic as well as spiritual expressed wishes of the peoples concerned; reasons must come to the abandonment of the Third, they respect the right of all peoples use of force. Since no future peace can be to choose the form of government under maintained if land, sea or air armaments con-

which they will live; and they wish to see tinue to be employed by nations which sovereign rights and self government restored threaten, or may threaten, aggression outside to those who have been forcibly deprived of of their frontiers, they believe, pending the

them ; establishment of a wider and permanent

Fourth, they will endeavor, with due re- system of general security, that the disarmspect for their existing obligations, to further ament of such nations is essential. They will the enjoyment by all States, great or small, likewise aid and encourage all other pracvictor or vanquished, of access, on equal ticable measures which will lighten for peaceterms, to the trade and to the raw materials loving peoples the crushing burden of armaof the world which are needed for their eco- ments.

nomic prosperity ; FRANKLIN D. ROOSEVELT Fifth, they desire to bring about the fullest WINSTON S. CHURCHILL 540. PRESIDENT ROOSEVELT’S MESSAGE ASKING FOR WAR AGAINST JAPAN December 8, 1941 (White House News Release)

The day after the attack on Pearl Harbor, Presi- of America was suddenly and deliberately dent Roosevelt appeared before Congress and attacked by naval and air forces of the Emasked for a declaration of war against Japan. pire of Japan. Congress responded that same afternoon, without The United States was at peace with that

a dissenting vote. nation and, at the solicitation of Japan, was Yesterday, December 7, 1941—a date © still in conversation with its Government and which will live in infamy—the United States its Emperor looking toward the maintenance

PRESIDENT ROOSEVELT’S BROADCAST 637 of peace in the Pacific. Indeed, one hour offensive extending throughout the Pacific after Japanese air squadrons had commenced area. The facts of yesterday speak for thembombing in Oahu, the Japanese Ambassador selves. The people of the United States have to the United States and his colleague de- already formed their opinions and well under-

livered to the Secretary of State a formal stand the implications to the very life and reply to a recent American message. While safety of our nation. this reply stated that it seemed useless to As Commander-in-Chief of the Army and continue the existing diplomatic negotiations, Navy, I have directed that all measures be it contained no threat or hint of war or armed taken for our defense.

attack. Always will we remember the character of It will be recorded that the distance of the onslaught against us.

Hawaii from Japan makes it obvious that the No matter how long it may take us to overattack was deliberately planned many days come this premeditated invasion, the Ameror even weeks ago. During the intervening ican people in their righteous might will win time the Japanese Government has delib- through to absolute victory.

erately sought to deceive the United States I believe I interpret the will of the Conby false statements and expressions of hope’ gress and of the people when I assert that

for continued peace. we will not only defend ourselves to the utterThe attack yesterday on the Hawaiian most but will make very certain that this

Islands has caused severe damage to Amer- form of treachery shall never endanger us ican naval and military forces. Very many again. American lives have been lost. In addition Hostilities exist. There is no blinking at the American ships have been reported torpedoed fact that our people, our territory and our on the high seas between San Francisco and _ interests are in grave danger.

Honolulu. With confidence in our armed forces— Yesterday the Japanese Government also with the unbounded determination of our

Jaunched an attack against Malaya. Last night people—we will gain the inevitable triumph Japanese forces attacked Hong Kong. Last —so help us God.

night Japanese forces attacked Guam. Last I ask that the Congress declare that since night Japanese forces attacked the Philippine the unprovoked and dastardly attack by Islands. Last night the Japanese attacked Japan on Sunday, December seventh, a state Wake Island. This morning the Japanese of war has existed between the United States

attacked Midway Island. and the Japanese Empire.

Japan has, therefore, undertaken a surprise )

541. PRESIDENT ROOSEVELT’S BROADCAST ON THE WAR WITH JAPAN December 9, 1941 ‘(White House News Release) The day following our declaration of war against human race. Their challenge has now been

ae ocr iat ae aang Maton @ fang atthe United Statesviolated of America, The . anese nave treacnerously the

cuck of the Axis powers, and of our preparation | ongstanding peace between us. Many American soldiers and sailors have been killed by

enemy action. American ships have been TO THE CONGRESS OF THE UNITED STATES: sunk, American airplanes have been de-

The sudden criminal attacks perpetrated stroyed. by the Japanese in the Pacific provide the The Congress and the people of the United climax of a decade of international immoral- States have accepted that challenge. Toity. Powerful and resourceful gangsters have gether with other free peoples, we are now banded together to make war upon the whole _ fighting to maintain our right to live among

638 DOCUMENTS OF AMERICAN HISTORY our world neighbors in freedom and in com- good news, the defeats and the victories—

mon decency, without fear of assault. the changing fortunes of war. I have prepared the full record of our past So far, the news has all been bad. We have relations with Japan, and it will be submitted suffered a serious set-back in Hawaii. Our to the Congress. It begins with the visit of forces in the Philippines, which include the

Commodore Perry to Japan eighty-cight brave people of that Commonwealth, are years ago. It ends with the visit of two Japa- taking punishment, but are defending themnese emissaries to the Secretary of State last selves vigorously. The reports from Guam Sunday, an hour after Japanese forces had and Wake and Midway Islands are still conloosed their bombs and machine guns against fused, but we must be prepared for the an-

our flag, our forces and our citizens. nouncement that all these three outposts I can say with utmost confidence that no have been seized. Americans today or a thousand years hence, The casualty lists of these first few days will necd feel anything but pride in our patience undoubtedly be large. I deeply feel the anxand our efforts through all the years toward iety of all families of the men in our armed achieving a peace in the Pacific which would forces and the relatives of people in cities be fair and honorable to every nation, large which have been bombed. I can only give or small. And no honest person, today or a them my solemn promise that they will get thousand years hence, will be able to sup- news just as quickly as possible. press a sense of indignation and horror at the This Government will put its trust in the treachery committed by the military dictators stamina of the American people, and will of Japan, under the very shadow of the flag give the facts to the public just as soon as two of peace borne by their special envoys in our conditions have been fulfilled: first, that the

midst. information has been definitely and officially The course that Japan has followed for the confirmed; and, second, that the release of past ten years in Asia has paralleled the the information at the time it is received will course of Hitler and Mussolini in Europe and not prove valuable to the enemy directly or Africa. Today it has become far more than a_ indirectly... . parallel. It is collaboration so well calculated Now a word about the recent past—and

that all the continents of the world, and all the future. A year and a half has elasped the oceans, are now considered by the Axis since the fall of France, when the whole

strategists as one gigantic battlefield. world first realized the mechanized might In 1931, Japan invaded Manchukuo— _ which the Axis nations had been building up

without warning. In 1935, Italy invaded for so many years. America has used that Ethiopia—without warning. In 1938, Hitler year and a half to great advantage. Knowing occupied Austria—without warning. In 1939, that the attack might reach us in all too short

Hitler invaded Czecho-Slovakia—without a time, we immediately began greatly to inwarning. Later in 1939, Hitler invaded Po- crease our industrial strength and our capacland—without warning. In 1940, Hitler in- ity to meet the demands of modern warfare. vaded Norway, Denmark, the Netherlands, Precious months were gained by sending Belgium and Luxembourg—without warning. vast quantities of our war material to the na-

In 1940, Italy attacked France and later tions of the world still able to resist Axis Greece—without warning. In 1941, the Axis aggression. Our policy rested on the fundaPowers attacked Yugoslavia and Greece and mental truth that the defense of any country they dominated the Balkans—without warn- resisting Hitler or Japan was in the long run ing. In 1941, Hitler invaded Russia—without the defense of our own country. That policy warning. And now Japan has attacked Ma- has been justified. It has given us time, inlaya and Thailand—and the United States— valuable time, to build our American assem-

without warning. It is all of one pattern. bly lines of production. We are now in this war. We are all in it— Assembly lines are now in operation. all the way. Every single man, woman and Others are being rushed to completion. A child is a partner in the most tremendous steady stream of tanks and planes, of guns undertaking of our American history. We and ships, of shells and equipment—that is must share together the bad news and the what these eighteen months have given us.

PRESIDENT ROOSEVELT’S BROADCAST 639 But it is all only a beginning of what still brutality, wherever they exist, must be abhas to be donc. We must be set to facealong solutely and finally broken. war against crafty and powerful bandits. The In my message to the Congress yesterday attack at Pearl Harbor can be repeated at any I said that we “will make very certain that one of many points in both oceans and along this form of treachery shall never endanger both our coast lines and against all the rest us again.” In order to achieve that certainty,

of the Hemisphere. we must begin the great task that is belore It will not only be a long war, it will bea us by abandoning once and for all the illusion hard war. That is the basis on which we now that we can ever again isolate ourselves from

lay all our plans. That is the yardstick by the rest of humanity. .

which we measure what we shall need and In these past few years—and, most vio-

demand: money, materials, doubled and ently, in the past three days—we have quadrupled production—ever-increasing. The Ilcarned a terrible lesson. It 1s our obligation

production must be not only for our own [0 OUT dead—it 1s our sacred obligation to army and navy and air forces. It must re- their children and our children—that we inforce the other armies and navies and air must never forget what we lave learned. And forces fighting the Nazis and the war lords of what we have learned is this: |

Japan throughout the Americas and the There is no such thing as security for any

world. ... nation—or any individual—ain a world ruled On the road ahead there lies hard work— by the principles of gangsterism. There 1S NO

gruelling work—day and night, every hour such thing as impregnable defense against and every minute. I was about to add that powerful AGETESSOTs who sneak up in the dark

ahead there lies sacrifice for all of us. But nd strike without warning. We have learned it is not correct to use that word. The United that our ocean-girt hemisphere is not imStates does not consider it a sacrifice to do une from severe attack—that we cannot all one can, to give one’s best to our nation, measure our safety in terms of miles on any

when the nation is fighting for its existence ™4p any more.

and its future life. It is not a sacrifice for any We may acknowledge that our enemies man, old or young, to be in the Army or the have performed a brilliant feat of deception, Navy of the United States. Rather is it a perfectly timed and executed with great skill. privilege. It is not a sacrifice for the indus- It was a thoroughly dishonorable deed, but trialist or the wage-earner, the farmer or the WE must face the fact that modern warfare shopkeeper, the trainman or the doctor, to 4° conducted in the Nazi manner is a dirty pay more taxes, to buy more bonds, to forego business. We don't like it—we didn L want extra profits, to work longer or harder at the 0 get in it—but we are in It and we re going task for which he is best fitted. Rather is it to fight it with everything we've got. a privilege. It is not a sacrifice to do without Ido not think any American has any doubt many things to which we are accustomed if of our ability to administer proper punishthe national defense calls for doing with- ment to the perpetrators of these crimes.

out... . Your government knows that for weeks I am sure that the people in every part of Germany has been telling Japan that if Japan

the nation are prepared in their individual did not attack the United states, Japan living to win this war. I am sure they will wou’ not Spare in dividing Or spoils with cheerfully help to pay a large part of its iccq by Germany that if she came in she financial cost while it goes on. Tam sure they oui receive the complete and perpetual will cheerfully give up those material things control of the whole of the Pacific area—and they are asked to give up. Iam sure that they ipnat means not only the Far East, not only

will retain all those great spiritual things 4) of the Islands in the Pacific, but also a without which we cannot win through. stranglehold on the west coast of North, CenI repeat that the United States can accept tral and South America. no result save victory, final and complete. Not We also know that Germany and Japan only must the shame of Japanese treachery are conducting their military and naval operabe wiped out, but the sources of international tions in accordance with a joint plan. That

6040 DocUMENTS OF AMERICAN HISTORY plan considers all peoples and nations which publics of the Americas into the same cateare not helping the Axis powers gs common = gory of enemies. The people of our sister enemies of each and every one of the Axis Republics of this Hemisphere can be hon-

powers. ored by that fact. That is their simple and obvious grand The true goal we seek is far above and

Strategy. That is why the American people beyond the ugly field of battle. When we must realize that 1t can be matched only with resort to force, as now we must, we are de-

similar grand strategy. We must realize for termined that this force shall be directed example that Japanese successes against the toward ultimate good as well as against imUnited States in the Pacific are helpful to mediate evil. We Americans are not destroyGerman operations in Libya; that any Ger- ers—we are builders. man success against the Caucasus is inevit- We are now in the midst of a war, not for ably an assistance to Japan in her operations conquest, not for vengeance, but for a world

against the Dutch East Indies; that a Ger- in which this nation, and all that this nation man attack against Algiers or Morocco opens — represents, will be safe for our children. We

the way to a German attack against South expect to eliminate the danger from Japan,

America and the Canal. but it would serve us ill if we accomplished On the other side of the picture, we must that and found that the rest of the world learn to know that gucrilla warfare against was dominated by Hitler and Mussolini. the Germans in, let us say, Serbia or Norway, We are going to win the war and we are helps us; that a successful Russian offensive going to win the peace that follows. against the Germans helps us; and that Brit- And in the difficult hours of this day—and ish successes on land or sea in any part of | through dark days that may be yet to come—

the world strengthens our hands. we will know that the vast majority of the Remember always that Germany and Italy, members of the human race are on our side. regardless of any formal declaration of war, Many of them are fighting with us. All of consider themselves at war with the United them are praying for us. For, in representing States at this moment just as much as they our cause, we represent theirs as well—our consider themselves at war with Britain and hope and their hope for liberty under God. Russia. And Germany puts all the other Re-

: INDEX

(The references in this index are to document numbers, not pages.)

Abandonment of gold standard, 481 Association, 57

A.B.C. conference, mediation protocol, 396 Assumption of state debts, Virginia resolutions,

Ableman v. Booth, 188 92 Abolition of slave trade, 111; in D.C., 174;

yes . . t Co., 431

427 ‘AC ) . 6 ° © rs ow) +} Pd ..>J:’’’

slavery, 222 ) Bail D 1 Furni

Abolitionist propaganda, S.C. resolutions on, 151 Baken 7 opinion 08 ure ©o., 45 Abrams v. USS., dissenting opinion of Holmes, Balzac y Porto Rico AAG Bank, Act of 1864, 231

Abrogation of Platt Amendment, 491 Bank nil Tackson’s veto 147

aSar of Ve Havana, 83° Bank, Hamilton on constitutionality, Us oo, son on constitutionality, 94 93; JefferAdams, J. Q., nationalism of, 130; message on Bank, removal of deposits from, 148

Ad, anama @oneness 131 Bayard and Wife v. Singleton, 89

amson «XCt, , Berlin Decree, 112

Adkins v. Children’s hospital, 451 Billings, J., opinion, 326

Administration of J ustice Act, 49 Bill of Rights, Massachusetts, 70; Virginia, 67 Agricultural Act, legislation in first Wilson ad- Black, J., dissent, 518; opinion, 529

Ae eache ae “ 1933, 477 Black Code, Mississippi, 246; Louisiana, 247

Albane , U, ay invitation Act, to Pan-American 305 y oFPlan Union, of Blaine, | Bland-Allison 299; vcto byCongress, Hayes, 300; Albemarle Co., Va., resolutions, 52 Cleveland’s recommendation, 311 Aldrich Commission, recommendations, 381 Blatchford, J., opinion, 319

ien and Sedition Acts, 101 496

Anon Act, 101 | Bonus bill, Madison’s veto, 116; of 1935, veto Alien Enemies Act, 101 Boss rule in New York, E. Root on, 406

Alliance, Treaty of with France, 69 Boston non-importation agrcement, 46 Altgeld-Cleveland controversy, 334 Boston Port Act, 49; Pennsylvania resolutions American Anti-Imperialist League Platform, 351 50; New York city resolutions, 51

. c iv) ‘ ’

American Anti-Slavery Society, Constitution, 150 Bradley J., dissenting, 282; 0 inion 292 American Federation of Labor, Constitution, 473 Braintree Massachusetts . tructions 37

American Insurance Co. v. Canter, 134 Brandeis J dissenting 47 Amen ae lara In’s, 230: h Brewer, J., opinions, 319, 336, 366

ae ” 48 mation, Lincoln's, ; John- — British Constitution and fundamental law, 44

Anna a convention. 83Brook BritishFarm, Ordersconstitution, in Council, 112 pous convention, 162 Annexation, Texas, 165, 166; Oregon, 166; Santo Brown, J., opinions, 344, 352

Domingo, 279; Hawaii, 330, 331, 348 Brown. John last speech 189 Anti- Imperialist League Platform, 351 Bryan-Chamorro convention 398

sentiments, 150 "é . , was ” ;375;vention, 383; Clayton, 403 Buck v. Bell, 463 )

Antiemdunction bill, 474 Bryan, W. J., silver letter, 338; cross of gold nti-slavery society, constitution, declaration of speech, 342; resolutions Dem. national con

~“°?

Anti-trust Acts, Sherman, 320; rule of reason, Buchanan Pree arbitration | ed » 401

Anti-war Treaty, 1934, 492 Bunting y Oregon 421

Apology Gencral Grant, 296 Burr Jefferson’s message, ppeal ofof independent democrats, 179conspiracy, Butler, Gen., “contrabands,” 207110

Archangel expedition, 428 °

Arizona Enabling Act, veto, 378

Army, command of, Act, 264 Cabot, letters patent to, 4

Arthur, on Indian problem, 304 Cambridge agreement, 13; platform, 21 Articles of Confederation, 72 Canada, continental congress address to, 60; reci-

Ashwander v. TVA, 480 procity, 377

Associated Press v. NLRB, 502 Canadian Reciprocal Trade Agreement, 506 641

642 INDEX Canadian reciprocity, Taft on, 377 Concord, Mass., demands constitutional conven-

Canning, G., letter to R. Rush, 126 tion, 68

Cardozo, J., opinions, 504, 505; dissent, 507 Confederate States of America, Constitution, 201

Caroline affair, 156 Confederation; articles of, 72

Carter v. Carter Coal Co., 507 Connecticut, Fundamental Orders, 16

Caucus, Tennessee protest, 128 Connecticut Gen. Life Ins. Co. v. Johnson, 518

in S.C., 297 ference, 370

Chamberlain, Gov., on restoration of white rule Conservation, T. Roosevelt’s message, 369; con-

Chambers v. Florida, 529 Constitutional convention, Concord demands, 68

Champion v. Ames, 359 Constitutional Union Party Platform, 191

Charles River Bridge v. Warren Bridge, 155 Constitution of Confederate States of America, Charlottesville, Va., F. D. Roosevelt speech, 531 201 Chase, C. J., appeal of independent Democrats, Constitution of the United States, 87; objections

179; opinions, 259, 277, 278 to, 88

Cherokee Nation v. Georgia, 140 Continental Congress, Virginia instructions to,

319 Canada, 60

Chicago, Milwaukee & St. Paul R.R. v. Minn., 53; Resolves, 56; Association, 57; Address to

Child Labor Act, 430 Contract labor law, 233

China, immigration treaty, 306; exclusion act, Coolidge, Pres., Message on intervention in Nica-

307; Open Door, 350; Root-Takahira agree- ragua, 460; veto McNary-Haugen Bill, 462

ment, 372; treaty of arbitration, 401 Cotton textile code, 485

Chisholm v. Georgia, 95 Coxey’s program, 332

Churches, social creed of, 371 Craig v. Missouri, 137

239 war, 206

Citizens Savings & Loan Assoc. v. Topeka, 286 “Crime of 773,” 285 City Point conference, report by Admiral Porter, Crittenden-Johnson, resolutions on objects of Civil Rights Act, 1866, 252; veto of, 253; 1875, Crittenden, peace resolutions, 196

291; cases, 292 Cross of Gold speech, Bryan’s, 342

Civil Rights Cases, 292 Cuba, resolutions for independence of, 347; Platt Civil Service Reform, Pendleton Act, 308; Hatch Amendment, 360; abrogation, 491

Act, 525 Cumberland Road Bill, veto, 125

Clay, Raleigh Letter, 164; Resolutions of 1850, Cushing, C. J., opinion, 71 174

Clayton Act, 403 Dartmouth College v. Woodward, 119

Clayton-Bulwer Treaty, 177 Davis J., opinion, 256

Cleveland, Pres., recommendation for repeal of Davis, Jefferson, Message to Confederate ConBland-Allison Act, 311; pension legislation, gress, 203; inaugural, 213; last Message to peo312; tariff message of 1887, 317; silver letter, ple of Confederacy, 240

322; on repeal of Sherman Act, 327; with- Dawes act, 315 drawal of Hawaii Treaty, 331; controversy Day, J., opinions, 413, 441 with Altgeld, 334; appeal for gold guarantee Dayton-Goose Creek R.R. Co. v. U'S., 440 on bonds, 337; Venezuela controversy, 340 Debs, U.S. v. Debs, 335; in re, 336

Cohens v. Virginia, 123 Declaration and Resolves, first Continental Con-

Coinage act, “crime of ’73,” 285 gress, 56 Collector v. Day, 282 Declaration of American Principles, 521

Columbia, S.C., burning of, 241 Declaration of Independence, 66 Columbus, privileges and prerogatives, 1 Declaration of Panama, 526

Command of Army act, 264 Declaration of War with Germany, Wilson’s Commercial warfare, 1806-1810, 112 speech, 418

Commonwealth v. Caton, 73 Declaratory Act, 41

295 De Léme letter, 345

Commonwealth v. Hamilton Manufacturing Co., De Jonge v. Oregon, 511

Commonwealth v. Hunt, 160 Democratic (Breckenridge faction) Platform, Compensated Emancipation, messages of Lincoln, 1860, 194

211 Democratic Party Platform, 1860, 193; 1868, Compromise of 1850, 174 533 Concentration of wealth, Pujo Committee report, Dies Committee Report, 528 Compromise, Missouri, 121 274; 1896, 343; 1932, 475; 1936, 509; 1940, 388; Commission on Industrial Relations re- Disarmament, Roosevelt’s message, 477

port, 407 Dix, Dorothea, Memorial, 163

INDEX 643 Dollar Diplomacy, Extract from Taft’s Message, Gold Guarantce, Clevcland’s appeal, 337; Gold

386; Wilson’s repudiation, 390 Standard Act, 353; abandonment of gold

Douglas, J., opinion, 530 standard, 481

Douglas, debates with Lincoln, 187 Gore-McLemore Resolution, 408

Douglas, Mrs., Trial, 178 Granger Movement, 287 Drago Doctrine, 358 250; first inaugural, 276; appeal for annexaDownes v. Bidwell, 352 Grant, Pres., Observations on condition in South,

- Dred Scott v. Sandford, 185 tion of Santo Domingo, 279; on resumption Duplex Printing Co. v. Deering, 445 of specie payments, 288; apology, 296 Graves v. New York, 520

Economic Conditions of the South, 517 _ Gray, J., opinion, 309 Education and National Welfare, H. Mann on, Great Britain, Treaty of 1783, 74; Jay, 98;

173 Rush-Bagot, 117; Webstcr-Ashburton, 161;

Emancipation, compensated, 211; proclamation, Oregon, 169; Clayton-Bulwer, 177; Washing-

222; resolutions of Illinois Legislature, 223 ton, 281; Fur-sealing, 329; Hay-Pauncefote, Embargo Act, 112 355 Emergency Agricultural Act, 476 Grecley, H., “Prayer of Twenty Millions,” 219

Emergency Railroad Transportation Act, 480 Green v. Frazier, 441 Encyclical Letter Quod Apostolici Muneris, 301 Grosjean v. Am. Press Co., 499

Espionage Act, 425 Guadalupe-Hidalgo, Treaty, 171

Ex parte Garland, 258

Ex parte Merryman, 209 Haiti, Treaty of control, 410 Ex parte Milligan, 256 Hamilton, A., plan of union, 86; Opinion on

Ex parte Yarbrough, 293 Bank, 93

Hammer v. Dagenhart, 413

Federal Trade Commission Act, 402 Hampton Roads Conference, 237 First Reconstruction Act, 260; veto, 261 Hands off the Western Hemisphere, address by

Fletcher v. Peck, 113 F. D. Roosevelt, 523

Florida Treaty, 120 Hanover Co., Va., Memorial, 79

Floyd Co., Georgia, resolutions on secession, 190 Harlan, J., opinions, 319, 359, 363, 368, 375

Force Bill, nullification, 146 Harrison, Pres. B., Message on annexation of

Foreign mediation, resolution against, 225 Hawaii, 330

Four-power Treaty, 448 Hartford Convention, Report, 115

Fourteen Points, Wilson’s address, 423; Ameri- Hatch Act, 316 can interpretation, 423; Allies accept, 423 Hatch Civil Service Reform Act, 525 Fourteenth Amendment, 272; act to enforce, 273 Hawaii, annexation, Harrison on, 330; Cleve-

Fourth Reconstruction Act, 270 land, 331; joint resolution of, 348 France, Treaty of Alliance with, 69 Hay-Pauncefote Treaty, 355

Freedmen’s Bureau Bill, 245; veto, 251 Hay, J., Open Door Letters, 350 Fremont, J. C., Proclamation on Slaves, 208 Hayes, Pres., Veto of Bland-Allison Act, 300;

French in Mexico, 1862-1866, 226 veto army appropriation act, 303

Frontier Grievances, Pennsylvania, 34 Helvering v. Davis, 505

Fugitive Slave Act, 1850, 175 Helvering v. Gerhardt, 519 Fuller, C. J., opinions, 333, 339; dissenting, 352 Herndon v. Lowry, 513

Fur-sealing controversy, 329 High-school] law, Massachusetts, 133 Hitler, Adolf, 524

Galloway, Plan of Union, 55 Holden v. Hardy, 344 Garland, ex parte, 258 Holmes, J., dissenting, 363, 364, 368, 413, 427, Garrison, W. L., Liberator, 149; Declaration of 451, 456, 458, 459; opinions, 426, 437, 463, 464 Sentiments, 150 Home Building & Loan Assoc. v. Blaisdell, 494

Gentlemen’s Agreement on Japanese immigra- Homestead Act, 214

tion, 367 Hooker, Gen., Lincoln’s letter to, 224

466 399

George, Henry, Single-tax Platform, 313 Hoover, Pres., Rugged Individualism speech, 468;

Georgia Platform, 175 veto of Muscle Shoals bill, 470

Germany, Treaty of peace with, 442; arbitration, Houston East & West Texas R.R. Co. v. US,

Gettysburg Address, 228 Hughes, C. J., opinions, 399, 480, 482, 486, 494,

Gibbons v. Ogden, 129 501, 511; dissent, 497

Gitlow v. New York, 456 Hull, Sec. Cordell, 534 Gold Clause Cases, 482 Humphrey’s Executor v. U.S., 498

644 INDEX linois, Legislature of, on emancipation, 223 Kansas-Nebraska Act, 180 Immigration, literacy test, Taft’s veto, 387; Wil- Kellogg Peace Pact, 467

son’s veto, 404 Kent, Chancellor, on Universal Suffrage, 124

Immigration, S.C., efforts to encourage, 257; Kentucky Resolutions of 1798, 102; of 1799, 103; ‘Chinese, 306, 307; Japanese, 367; laws of 1917 replies to, 104

and 1921, 422; Act of 1924, 453 Knights of Labor, Preamble and constitution, Impeachment of President Johnson, 269 298 Income Tax decision, 333 Ku Klux Klan, Organization and principles, 271 Independence, instructions for, from Malden, Mass., 63; resolutions for, 65; declaration of, Labor, American Federation of, Taft on injunc-

66 tion in, 273; Knights of, 298; Constitution,

Independence of Cuba, resolutions, 347 473; Act of 1935, 500 Independence of Philippines, 484 La Follette, progressive republican league, 1911,

Independency in colonial Mass., 24 376; Platform of 1924, 454

Independent Democrats, appeal of, 179 Land, resolution of Congress, 1780, 75; Vir-

Independent Treasury Act, 170 ginia cession, 76; ordinance of 1785, 78; Act of Indians, Jackson’s Message on removal, 142; 1800, 105; Act of 1820, 122; act of 1841, 157; Arthur on Indian problem, 304; Dawes Act, Homestead Act, 214; Powell’s Report on, 302

315 Lansing-Ishii agreement, 420

In re Debs, 336 44 In re Jacobs, 310 League of Nations, Wilson exposition of, 435;

Industrial Workers of the World, Preamble, 434 Law, Fundamental, and the British Constitution,

Inter Caetera, Papal Bull, 2 defeat of, 436 Interstate Commerce Act, 318 Lee, Gen., Farewell to Army, 242 Intolerable Acts, 49 Legal Tender Cases, 280 “Invisible Government,” E. Root on, 406 Lever Act, 419

Lexington, Battle of, 59 Leyden Agreement, 10

Jackson, Pres., Veto of Maysville Road Bill, Liberal Republican Party Platform, .872, 283 138; removal of southern Indians, 142; procla- Liberator, 149 mation to S.C. on nullification, 144; Veto of | Lima Declaration, 521 bank bill, 147; removal of public deposits, Lincoln, Pres., House Divided Speech, 186; De-

148; on specie circular, 154 bates with Douglas, 187; first inaugural, 202;

Jacobs, in re, 310 Message to Congress, 1861, 205; compensated

Japan, Immigration from, Gentlemen’s Agree- emancipation, 211; lettcr to Greeley, 219; letment, 367; Root-Takahira Agreement, 372; ter to Manchester workingmen, 221; emanci-

Lansing-Ishii Agreement, 420; note to, Dec. pation proclamation, 222; Ictter to Gen.

1938, 522 Hooker, 224; Gettysburg Address, 228; letter Jay Treaty, 98 to Johnson on reconstruction of Tenn., 229; Jefferson, Pres., Va., Statute of Religious Liberty, plan of reconstruction, 230; proclamation on 80; constitutionality of bank, 94; Kentucky Wade-Davis bill, 235; second inaugural, 238; Resolutions, 102; first inaugural, 106; on im- terms of peace, 239; last public address, 244 portance of New Orleans, 107; on Burr con- Literacy test for immigrants, Vetoes, 387, 404

spiracy, 110 Lochner v. New York, 364

Johnson, Pres., Amnesty proclamation, 248; Lodge Corollary to Monroe Doctrine, 385 proclamation for provisional government of | London merchants, petition of 1766, 40; petition S.C., 249; freedmen’s bureau veto, 251; Veto for reconciliation, 58 civil rights Act, 253; on restoration of southern Lord, J., opinion, 295 states, 255; Veto first reconstruction act, 261; Lottery Case (Champion v. Ames), 359 Veto tenure of office act, 263; Veto second re- Louisiana, Jefferson on importance of, 107; cesconstruction act, 266; impeachment, 269; rec- sion, 108; black codes, 247

ommendation on public debt, 275 Lusitania, first note, 405

Johnson Act, 490 Lyceums, Constitution of, 136 Johnston, Gen., Surrender of, 243

Joint Committee on Reconstruction, report, Macon’s Bill No. 2, 112

254 Madison, Pres., War message, 114; Veto of

Jones & Laughlin case, 501 Bonus Bill, 116

Judiciary Act of 1789, 91 Malden, Mass., Instructions for Independence, 63 Judiciary, reform, 1937, 515 Manchester Workingmen, address to Lincoln,

Julliard v. Greenman, 309 220; Lincoln’s reply, 221

INDEX 645 Mann, H., on education, 173 Nashville Convention, resolution, 176

Marbury v. Madison, 109 National Bank Act, 231

Marcy, W. L., on Spoils of victory, 139 National Emergency Council, Report, 517 Marshall, C. J., opinions, 109, 113, 118, 119, 123, National Labor Relations Act, 500

129, 134, 137, 140, 141 National Labor Relations Board v. Jones &

Martin v. Mott, 132 Laughlin, 501

Maryland, charter, 15; Toleration Act, 22 National Progressive Republican League, princiMassachusetts, school law of 1642, 19; colonial ples, 376 independency, 24; school law of 1647, 20; Cir- National Prohibition, 432; cases, 433 cular Letter, 45; Government Act, 49; Bill of | National Recovery Act, 484 Rights, 70; High School Law, 133; Personal National Union Party Platform, 232

Liberty Act, 182 Nationalism of Pres. J. Q. Adams, 130 Mayflower Compact, 11 Naturalization Act, 101

Maysville Road Bill, Jackson’s veto, 138 Naval Limitation Treaty, 447 McClellan, Gen., letter to Lincoln, 217 Navigation Act, 1660, 23; 1696, 27; 1733, 30

M’Culloch v. Maryland, 118 Nebbia v. New York, 495 McKenna, J., opinion, 421 Nelson, J., opinion, 282

speech, 354 Act, 375

McKinley, Pres., War message, 346; reciprocity Nelson, Sen., Report of Bill to amend Anti-Trust

McNary-Haugen bill, 461; Veto, 462 Neutrality, Washington’s proclamation, 96; ap-

McReynolds, J., opinion, 455 peal by Wilson, 400; Act of 1934, 490; Act Mecklenburg Co., Resolutions, 64 of 1937, 514; Act of 1939, 527

Mediation Protocol of A.B.C. Conference, 396 New England Confederation, 18

Mediation, Resolutions against foreign, 225 New Hampshire, Resolutions on Va. and Ky. Mexico, Polk’s Message on war, 168; Treaty of Resolutions, 104 1848, 171; French in, 226; Wilson’s Message New Jerscy (or Paterson) Plan, 85

tion, 396 test, 227

on, 393; Tampico incident, 395; A.B.C. media- | New Jerscy, Peace resolutions, 227; soldiers’ pro-

Milan decree, 112 New Order in the Far East, 522

Miller, J., opinion, 284, 286, 293, 314 New Orleans, Jefferson on Importance of, 107

Milligan, ex parte, 256 New State Ice Co. v. Liebmann, 472 Miner v. Happerscett, 290 New York, charter to patroons, 14

Minnesota Moratorium case, 494 New York City, Resolutions on Boston Port Mississippi, resolutions on secession, 197; black Act, 513; secession of, 200

code, 246 New York Sons of Liberty, Resolutions on tea, 48

Mississippi v. Johnson, 259 Nicaragua, Bryan-Chamorro Convention, 398; Missouri Compromise, 121; resolution for ad- Am. intervention, 460 mission, Constitution, Enabling Act, 121 Nine-power Treaty, 449

Missouri v. Holland, 437 Nixon v. Herndon, 464

Mobile Address, Wilson’s, 394 Non-importation agreement, Boston, 46; Vir-

Molasses Act, 30 ginla, 54 Money and Credit, Report of Pujo Committee, Non-intercourse Act, 112

388 Norman v. B. & O.R.R. Co., 482

Monroe Doctrine, English background, 126; an- Norris-La Guardia Bill, 474

nounced, 127; Polk’s reassertion of, 167; North Carolina, Regulators, 47 French in Mexico, 226; Roosevelt Corollary, Northampton Co., Va., Stamp Act resolution, 39 362; Lodge Corollary, 385; Wilson interpreta- | Northern Sccurities Co. v. USS., 363

tion, 394; Stimson doctrine, 469; reaffirma- Northwest Ordinance, 82

tion, 1940, 534 Nullification, Ky. and Va. Resolutions, 102, 103;

Monroe, Pres., Veto of Cumberland Road Bill, Hartford Convention, 115; S.C. Ordinance,

125 1832, 143; Jackson’s proclamation, 144; S.C. tee, 471 Morrill Act, 216 Ocala Demands, 324

Mooney-Billings Case, conclusions of commit- Reply to Jackson, 145; of Force Bill, 146

Muller v. Oregon, 366 Open Door in China, 350; Root-Takahira Agree-

Munn v. Illinois, 294 ment, 372; Lansing-Ishii Agreement, 420; reMuscle Shoals Bill, Hoover’s Veto, 470; passed, affirmation, 522

479 Oregon, Polk on, 166; treaty, 169

Mussolini, Benito, appeal to, 524 Ostend Manifesto, 181

Myers v. U.S., 459 Olis, J., Speech against writs of assistance, 32

646 INDEX Pacific Railway Act, 215 Privileges granted to Columbus, 1; to Patroons,

Panama Congress, 131 14

Panama, Declaration of, 526 Proclamation of Rebellion, 62; Washington’s

Panama, Treaty with on canal, 361; Wilson toll Neutrality, 96

message, 397 Proclamation of 1763, 33

Pan-American Conference, Lima, 521; Havana, Progressive Party Platform, 384

535 Prohibition, national, 432; cases, 433

Pan-Americanism, Blaine’s invitation, 305 Providence, Plantation Agreement, 17 Papal Bull Inter Caetera, 2; Encyclical Letter, Public lands, see Lands

301 Pujo Committee, Report, 388

Paterson (or New Jersey) Plan, 85 Purchase of Alaska, 268 Patroons, Charter of Freedom, 14

Payne-Aldrich Tariff, Taft’s defense, 374 Quartering Act, 1765, 42

Peace Pact, Kellogg, 467 Quebec Act, 49

“Peace without Victory,” Wilson’s speech, 416 Quock Walker Case, 71

Peckham, J., opinion, 368 Quod Apostolici Muneris, Encyclical letter, 301 Pendleton Act, 308 Pennsylvania, concessions to, 25; charter of priv- Railroad Acts, Pacific, 215; 1918, 424; 1920, 438:

ileges, 29; frontier grievances, 34; resolutions Emergency, 1933, 480

on Boston Port Act, 50 Railroad Commission of Wis. v. C.B. & O.R.R., Penn, W., Plan of Union, 28 439 Pension legislation, Cleveland on, 312 Railroad Rates, Judicial Review, 1889-1897, 319

People v. Fisher, 159 Railroad Retirement Board v. Alton, 497 People v. Williams, 365 Raleigh, Sir W., charter, 5

Perry v. U.S., 482 Raleigh Letter, Clay’s, 164

Personal Liberty Act, Mass., 182 Rambouillet Decree, 112

Philippines, Organic Act, 1916, 412; Independ- Randolph Plan of Union, 84

ence Act, 1934, 489 Reagan v. Farmers’ Loan & Trust Co., 319

Pierce v. Society of the Sister, 455 Rebellion, Proclamation of, 62

Pinckney Treaty, 99 Reciprocal Trade Agreement, 506

Pitney, J., opinion, 445 Reciprocity, McKinley’s speech, 354; Canadian,

Plantation Agreement, Providence, 17 Taft on, 377

Platforms, party, Georgia, 1850, 175; American Recognition of Soviet Russia, 488 Party, 1856, 183; Constitutional Union Party, Reconciliation, Petition for, by London Mer1860, 191; Republican, 1860, 192; Democratic, chants, 58 1860, 193; Democratic (Breckenridge) 1860, Reconstruction, Tennessee, 229; Lincoln’s Plan, 194; National Union, 1864, 232; Democratic, 230; Wade-Davis Plan, 234; Johnson’s Am1868, 274; Libcral Republican, 1872, 283; nesty Proclamation, 248; Johnson’s ProclamaSingle-tax, 1886, 313; Ocala, 1890, 324; Popu- tion, 249; Report of Joint Committee, 254; list, 1892, 325; Republican, 1896, 341; Demo- Johnson’s message on, 255; first Act, 260, Veto, cratic, 1896, 343; La Follette’s progressive Re- 261; second Act, 265, Veto, 266; third Act, publican League, 1911, 376; Socialist, 1912, 267; fourth Act, 270; Freedmen’s Bureau Bill, 382; Progressive, 1912, 384; La Follette, 1924, 245, Veto, 251; Civil Rights Act, 252, Veto, 454; Democratic, 1932, 475; 1936, 509; 1940, 253; Civil Rights Act of 1875, 291; Fourteenth

533; Republican, 1936, 508; 1940, 532 Amendment, 272; Act to Enforce Fourteenth Platt Amendment, 360; abrogation of, 491 Amendment, 273; Ku Klux Klan, 271; con-

Polk, Pres., message on Texas and Oregon, 166; stitutionality: ex parte Garland, 258; Missisreassertion of Monroe Doctrine, 167; message sippi v. Johnson, 259; Texas v. White, 278;

on war with Mexico, 168 Milligan case, 256; Civil Rights Cases, 292

Pollock v. Farmers’ Loan & Trust Co., 333 Reform of Federal Judiciary, 515

Pope, Gen., Address to Army, 218 Regulators, N.C., petition of, 47

325 Va., 79; Virginia statute, 80

Populist Party, Ocala demands, 324; platform, Religious Liberty, Memorial from Hanover Co., Porter, Admiral, Report on City Point Confer- Republican Party Platform, 1860, 192; 1896, 341;

ence, 239 1936, 508; 1940, 532 302 mendations, 288; resumption, 289 Pre-emption Act of 1841, 157 Revenue Act, Townshend, 43

Powell, Maj., Report on Arid lands of west, Resumption of specie payments, Grant’s recom-

Presbyterian Memoiial, 1776, 79 Rhode Island, plantation agreement, 17; reply to

Prigg v. Pennsylvania, 158 Va. and Ky. Resolutions, 104

INDEX 647 “Riders,” Hayes’s Veto of Army Appropriation Social Security Acts, 503

Act, 303 Socialist Party Platform, 382

Roberts, J., opinions, 478, 495, 497, 502, 513 Soldiers’ bonus bill, veto, 496 Roosevelt, Pres. F. D., First inaugural, 476; rec- South, Economic conditions, 517 ognition of Russia, 488; veto of bonus bill, South, Grant’s observations on, 250

496; address on judicial reform, 515; Pan- South Carolina, protest against tariff of 1828, American day address, 523; appeals for. peace, 135; ordinance of nullification, 143; Jackson’s

524; Charlottesville address, 531 proclamation to, 144; reply to Jackson, 145;

Roosevelt, Pres. T., message on trusts, 1901, 356; nullification of Force Bill, 146; on abolitionist corollary to Monroe Doctrine, 362; “Gentle- propaganda, 151; ordinance of secession, 198;

men’s agreement,” 367; conservation, 369; causes of secession, 199; provisional governcandidacy in 1912, 379; New nationalism ment, 249; immigration bill, 257; restoration

speech, 380 . of white rule, 297; Tillmanism in, 323

Root, E., On invisible government, 406 Spain, Pinckney Treaty, 99; Florida Treaty, 120;

Root-Takahira Agreement, 372 Treaty of Paris, 1898, 349

“Rule of Reason,” 1897-1911, 375; 530 Specie Circular, 153; Jackson’s message, 154

Rush-Bagot Agreement, 117 Specie Payments, resumption, 288, 289 Russia, recognition of, 488 “Spoils of Victory,” Marcy’s speech, 139

Stamp Act, 35; Virginia Resolution, 36; Con-

Sanford, J., opinion, 456 gress, 38; Northampton Co. Resolutions, 39 San Francisco, Committee of Vigilantes, 184 Standard Oil Co. v. U.S., 375

279 Stimson doctrine, 469

Santo Domingo, Grant’s message on annexation, Steward Machine Co. v. Davis, 504

Savage, C. J., opinion, 159 Stone, J., opinions, 478, 519, 520

Schechter v. U.S., 486 Story, J., opinions, 132, 158

Schenck v. U.S., 426 Strong, J., opinion, 280

Secession, Floyd Co., resolutions on, 190; Bu- Suffrage, Chancellor Kent on, 124; Woman’s, chanan’s message on, 195; Mississippi reso- 172, 290 lutions, 197; S.C. ordinance, 198; S.C. declara- Sumner, C., Resolution on theory of secession, tion of causes, 199; F. Wood’s recommenda- 212 tion, 200; Lincoln’s Message on, 205; Sumner’s Sussex affair, Wilson’s message, 409

resolutions on, 212 Sutherland, J., opinions, 451, 458, 472, 498, 499,

Second Reconstruction Act, 265; Veto, 266 : 507, 510

Sedition Act, 101 Swanson Resolutions, 457 Seneca Falls, Declaration and resolutions, 172 Seward, W., Plan to avert civil war, 204; letters

on French in Mexico, 226 Taft, C. J., opinions, 431, 439, 440, 444, 446,

Shaw, C. J., opinion, 160 450, 459; dissenting, 451 Shays’s Rebellion, 81 Taft, Pres., Message on injunction, 373; defense Shell Manifesto, 323 of Payne-Aldrich tariff, 374; Message on Anti-

Sheppard-Towner Act, 443 trust Act, 375; Canadian reciprocity, 377; Veto

Sherman Anti-trust Act, 320; interpretation of, of Arizona Act, 378; on Dollar Diplomacy,

by rule of reason, 375, 530 386; Veto of literacy test, 387

Sherman Silver-purchase Act, 321; Cleveland on Tallmadge Amendment to Missouri Bill, 121

repeal of, 328 Tampico incident, Wilson’s message, 395

Sherman, W. T., on burning of Columbia, $.C., Taney, C. J., opinions, 155, 185, 188, 209

241; surrender of Johnston to, 2 !3 Tariff, S.C., protest against, 1828, 135; nullifica-

Shreveport case, 399 tion of, 1832, 145; Cleveland’s message, 1887, Silver, “Crime of ’73,” 285; Bland-Allison Act, 317; Taft’s defense of Payne-Aldrich, 374; re299, Veto, 300; Cleveland’s recommendation, vision under Wilson, 391; lobby, 392 311; Sherman Act, 321; Cleveland on repeal Taylor amendment to Missouri Bill, 121

of, 328; appeal of silver democrats, 338 Taylor Grazing Act, 493

Single-tax Platform, 313 Teapot Dome, Resolution on, 452 Slaughter-house cases, 284 Tea, Resolutions on, 48 Slavery, earliest protest, 26; abolitionist propa- Tennessee, protest against caucus, 128; recon-

ganda on, 151; emancipation, 221, 222 struction of, 229

Slave Trade, abolition of, 1807, 111; abolition Tennessee Valley Act, 479

of in D.C., 174 Tenure of Office Act, 262; Veto, 263

Smyth v. Ames, 319 Texas and New Mexico Act, 174

Social creed of the churches, 371 Texas, declaration of independence, 152; annexa-

648 . INDEX tion, Clay’s Raleigh letter, 164; joint resolu- tions, 36; Northampton Co. Resolutions, 39;

tion, 165; Polk’s message on, 166 Albemarle Co. Resolutions, 52; instructions to

Texas v. White, 278 Continental Congress, 53; non-importation Texas White Primary Case, 464 agreement, 54; bill of rights, 67; cession of Third Reconstruction Act, 267 western lands, 76; memorial of Hanover Co., Thomas Amendment to Missouri Bill, 121 79; statute of religious liberty, 80; plan of

Tillmanism in $.C., 323 union, 84; resolutions on assumption, 92; resoToleration Act, Maryland, 22 lutions of 1798, 102

Tordesillas Treaty, 3 Volstead Act, 432

Townshend Revenue Act, 43

Transportation Act of 1920, 438 Wabash Case, 314 Treaties, Tordesillas, 1494, 3; France, 1778, 69; Wade-Davis Bill, 234; Lincoln’s proclamation

Great Britain, 1783, 74; Jay, 1794, 98; Pinck- 235; manifesto, 236

ney, 1795, 99; Louisiana, 1803, 108; Rush- Wagner Housing Act, 516 Bagot, 1818, 117; Florida, 1819, 120; Webster- Waite, C. J., opinions, 290, 294 Ashburton, 1842, 161; Oregon, 1846, 169; Washington, Pres., First inaugural, 90; proclama-

Guadalupe-Hidalgo, 1848, 171; Clayton- tion of neutrality, 96; proclamation on WhisBulwer, 1850, 177; Alaska, 1867, 268; Wash- key rebellion, 97; farewell address, 100 ington, 1871, 281; Chinese Immigration, 1880, Washington, Treaty of, 281 306; Fur-sealing, 1892, 329; Hawaii, 1893, 330; Webster-Ashburton Treaty, 161 Spain, 1898, 349; Hay-Pauncefote, 1901, 355; West Coast Hotel Co. v. Parrish, 512 Panama, 1903, 361; Bryan-Chamorro, 1914, Western lands, Government for, 77

398; China, 1914, 401; Haiti, 1916, 410; Western lands. Virginia cession, 76; see also Germany, 1921, 442; Naval-limitation, 1922, Lands 447; Four-power, 1921, 448; Nine-power, 1922, Whiskey Rebcllion, proclamation, 97 449; Germany, 1928, 466; Kellogg, 1928, 467; White, C. J., opinions, 375, 415

Cuba, 1903, 360, 1934, 491; Anti-war, 1934, Wilson, J., opinion, 95

492 ; Canadian, 506 Wilson, President, First inaugural, 389; RepudiaTruax v. Corrigan, 444 tion of Dollar Diplomacy, 390; on tariff revi-

Trusts, Roosevelt message on, 356; see also sion, 391; denunciation of tariff lobby, 392; on

Anti-trust Mexican relations, 393; Mobile address, 394;

Tyson v. Banton, 458 Tampico incident, 395; Panama Canal tolls, ; 397; appeal for neutrality, 400; Veto of literacy “Ulysses,” case of, 487 test for immigrants, 404; first Lusitania note, Union, Penn’s plan, 28; Albany plan, 31; Gallo- 405; reply to Gore-McLemore resolutions, 408; way’s plan, 55; Randolph, 84; Paterson, 85; on Sussex affair, 409; on agricultural legisla-

Hamilton, 86 a tion, 411; “peace without victory,” 416; Dec-

United States, Constitution, 87 laration of War, 418; Fourtcen Points, 423; United States Housing Act, 516 appeal to voters, 429; exposition of League of

U.S. v. Butler, 478 Nations, 435

US. v. Curtiss-Wright, 510 Wilson v. New, 415

U.S. v. Debs et al., 335 Wolff Packing Co. v. Kansas Court of Industrial

US. v. E. C. Knight Co., 339 Relations, 450

US. v. Socony-Vacuum Oil Co., 530 W.C.T.U., Declaration of principles, 357 U.S. v. Trans-Missouri Freight Assoc., 375 Woman’s rights, Seneca Falls Convention, 172

US. v. “Ulysses,” 487 Wood, Mayor, Recommendation for secession of U.S. v. Workingmen’s Amalgamated Council, 326 New York City, 200

Utah Act, 1850, 174 Woods, J., opinion, 335

_ Worcester v. Georgia, 141

Van Buren, Pres., Message on Caroline affair, 156 World Court, Resolutions and Protocol, 457

Van Devanter, J., opinion, 433 Writs of Assistance, Otis’s speech, 32 Vanzetti, N., Last statement in court, 465 Wythe, J., opinion, 73

Veazie Bank v. Fenno, 277 Venezuela boundary, Cleveland’s message, 340

Vigilantes committee, San Francisco, 184 Yarbrough, ex parte, 293 Virginia, first charter, 6; second charter, 7; third charter, 8; ordinance, 9; Stamp Act Resolu- Zimmermann Note, 417