Civil Government in the United States Considered with - Some Reference to Its Origins
by John Fiske
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[Footnote 1: See above, p. 172.]

[Sidenote: Germs of the idea of a written constitution.] [Sidenote: Our indebtedness to the Romans.] [Sidenote: Mediaeval charters.] The germs of the written constitution existed a great while ago. Perhaps it would not be easy to say just when they began to exist. It was formerly supposed by such profound thinkers as Locke and such persuasive writers as Rousseau, that when the first men came together to live in civil society, they made a sort of contract with one another as to what laws they would have, what beliefs they would entertain, what customs they would sanction, and so forth. This theory of the Social Contract was once famous, and exerted a notable influence on political history, and it is still interesting in the same way that spinning-wheels and wooden frigates and powdered wigs are interesting; but we now know that men lived in civil society, with complicated laws and customs and creeds, for many thousand years before the notion had ever entered anybody's head that things could be regulated by contract. That notion we owe chiefly to the ancient Romans, and it took them several centuries to comprehend the idea and put it into practice. We owe them a debt of gratitude for it. The custom of regulating business and politics and the affairs of life generally by voluntary but binding agreements is something without which we moderns would not think life worth living. It was after the Roman world—that is to say, Christendom, for in the Middle Ages the two terms were synonymous—had become thoroughly familiar with the idea of contract, that the practice grew up of granting written charters to towns, or monasteries, or other corporate bodies. The charter of a mediaeval town was a kind of written contract by which the town obtained certain specified immunities or privileges from the sovereign or from a great feudal lord, in exchange for some specified service which often took the form of a money payment. It was common enough for a town to buy liberty for hard cash, just as a man might buy a farm. The word charter originally meant simply a paper or written document, and it was often applied to deeds for the transfer of real estate. In contracts of such importance papers or parchment documents were drawn up and carefully preserved as irrefragable evidences of the transaction. And so, in quite significant phrase the towns zealously guarded their charters as the "title-deeds of their liberties."

[Sidenote: The "Great Charter" (1215).] After a while the word charter was applied in England to a particular document which specified certain important concessions forcibly wrung by the people from a most unwilling sovereign. This document was called Magna Charta, or the "Great Charter," signed at Runnymede, June 15, 1215, by John, king of England. After the king had signed it and gone away to his room, he rolled in a mad fury on the floor, screaming curses, and gnawing sticks and straw in the impotence of his, wrath.[2] Perhaps it would be straining words to call a transaction in which the consent was so one-sided a "contract," but the idea of Magna Charta was derived from that of the town charters with which people were already familiar. Thus a charter came to mean "a grant made by the sovereign either to the whole people or to a portion of them, securing to them the enjoyment of certain rights." Now in legal usage a charter differs from a constitution in this, that the former is granted by the sovereign, while the latter is established by the people themselves: both are the fundamental law of the land.[3] a The distinction is admirably expressed, but in history it is not always easy to make it. Magna Charta was in form a grant by the sovereign, but it was really drawn up by the barons, who in a certain sense represented the English people; and established by the people after a long struggle which was only in its first stages in John's time. To some extent it partook of the nature of a written constitution.

[Footnote 2: Green, Hist. of the English People, vol. i. p. 248.]

[Footnote 3: Bouvier, Law Dictionary, 12th ed., vol. i. p. 259.]

[Sidenote: The "Bill of Rights" (1689).] Let us now observe what happened early in 1689, after James II had fled from England. On January 28th parliament declared the throne vacant. Parliament then drew up the "Declaration of Rights," a document very similar in purport to the first eight amendments to our Federal Constitution, and on the 13th of February the two houses offered the crown to William and Mary on condition of their accepting this declaration of the "true, ancient, and indubitable rights of the people of this realm." The crown having been accepted on these terms, parliament in the following December enacted the famous "Bill of Rights," which simply put their previous declaration into the form of a declaratory statute. The Bill of Rights was not—even in form—a grant from a sovereign; it was an instrument framed by the representatives of the people, and without promising to respect it William and Mary could no more have mounted the throne than a president of the United States could be inducted into office if he were to refuse to take the prescribed oath of allegiance to the Federal Constitution. The Bill of Rights was therefore, strictly speaking, a piece of written constitution; it was a constitution as far as it went.

[Sidenote: Foreshadowing of the American idea by Sir Harry Vane (1656).] The seventeenth century, the age when the builders of American commonwealths were coming from England, was especially notable in England for two things. One was the rapid growth of modern commercial occupations and habits, the other was the temporary overthrow of monarchy, soon followed by the final subjection of the crown to parliament. Accordingly the sphere of contract and the sphere of popular sovereignty were enlarged in men's minds, and the notion of a written constitution first began to find expression. The "Instrument of Government" which in 1653 created the protectorate of Oliver Cromwell was substantially a written constitution, but it emanated from a questionable authority and was not ratified. It was drawn up by a council of army officers; and "it broke down because the first parliament summoned under it refused to acknowledge its binding force." [4] The dissolution of this parliament accordingly left Oliver absolute dictator. In 1656, when it seemed so necessary to decide what sort of government the dictatorship of Cromwell was to prepare the way for, Sir Harry Vane proposed that a national convention should be called for drawing up a written constitution.[5] The way in which he stated his case showed that he had in him a prophetic foreshadowing of the American idea as it was realized in 1787. But Vane's ideas were too far in advance of his age to be realized then in England. Older ideas, to which men were more accustomed, determined the course of events there, and it was left for Americans to create a government by means of a written constitution. And when American statesmen did so, they did it without any reference to Sir Harry Vane. His relation to the subject has been discovered only in later days, but I mention him here in illustration of the way in which great institutions grow. They take shape when they express the opinions and wishes of a multitude of persons; but it often happens that one or two men of remarkable foresight had thought of them long beforehand.

[Footnote 4: Gardiner, Constitutional Documents of the Puritan Revolution, p. lx.]

[Footnote 5: See Hosmer's Young Sir Henry Vane, pp. 432-444,—one of the best books ever written for the reader who wishes to understand the state of mind among the English people in the crisis when they laid the foundations of the United States.]

[Sidenote: The Mayflower compact(1620).] In America the first attempts at written constitutions were in the fullest sense made by the people, and not through representatives but directly. In the Mayflower's cabin, before the Pilgrims had landed on Plymouth rock, they subscribed their names to a compact in which they agreed to constitute themselves into a "body politic," and to enact such laws as might be deemed best for the colony they were about to establish; and they promised "all due submission and obedience" to such laws. Such a compact is of course too vague to be called a constitution. Properly speaking, a written constitution is a document which defines the character and powers of the government to which its framers are willing to entrust themselves. Almost any kind of civil government might have been framed under the Mayflower compact, but the document is none the less interesting as an indication of the temper of the men who subscribed their names to it.

[Sidenote: The "Fundamental Orders of Connecticut" (1639).] The first written constitution known to history was that by which the republic of Connecticut was organized in 1639. At first the affairs of the Connecticut settlements had been directed by a commission appointed by the General Court of Massachusetts, but on the 14th of January, 1639, all the freemen of the three river towns—Windsor, Hartford, and Wethersfield—assembled at Hartford, and drew up a written constitution, consisting of eleven articles, in which the frame of government then and there adopted was distinctly described. This document, known as the "Fundamental Orders of Connecticut", created the government under which the people of Connecticut lived for nearly two centuries before they deemed it necessary to amend it. The charter granted to Connecticut by Charles II. in 1662 was simply a royal recognition of the government actually in operation since the adoption of the Fundamental Orders.

[Sidenote: Germinal development of the colonial charter toward the modern state constitution.] In those colonies which had charters these documents served, to a certain extent, the purposes of a written constitution. They limited the legislative powers of the colonial assemblies. The question sometimes came up as to whether some statute made by the assembly was not in excess of the powers conferred by the charter. This question usually arose in connection with some particular law case, and thus came before the courts for settlement,—first before the courts of the colony; afterwards it might sometimes be carried on appeal before the Privy Council in England. If the court decided that the statute was in transgression of the charter, the statute was thereby annulled.[6] The colonial legislature, therefore, was not a supreme body, even within the colony; its authority was restricted by the terms of the charter. Thus the Americans, for more than a century before the Revolution, were familiarized with the idea of a legislature as a representative body acting within certain limits prescribed by a written document. They had no knowledge or experience of a supreme legislative body, such as the House of Commons has become since the founders of American states left England. At the time of the Revolution, when the several states framed new governments, they simply put a written constitution into the position of supremacy formerly occupied by the charter. Instead of a document expressed in terms of a royal grant, they adopted a document expressed in terms of a popular edict. To this the legislature must conform; and people were already somewhat familiar with the method of testing the constitutionality of a law by getting the matter brought before the courts. The mental habit thus generated was probably more important than any other single circumstance in enabling our Federal Union to be formed. Without it, indeed, it would have been impossible to form a durable union.

[Footnote 6: Bryce, American Commonwealth, vol. i. pp. 243, 415.]

[Sidenote: Abnormal development of the state constitution, encroaching upon the province of the legislature.] [Sidenote: The Swiss "Referendum" 196] Before pursuing this subject, we may observe that American state constitutions have altered very much in character since the first part of the present century. The earlier constitutions were confined to a general outline of the organization of the government. They did not undertake to make the laws, but to prescribe the conditions under which laws might be made and executed. Recent state constitutions enter more and more boldly upon the general work of legislation. For example, in some states they specify what kinds of property shall be exempt from seizure for debt, they make regulations as to railroad freight-charges, they prescribe sundry details of practice in the courts, or they forbid the sale of intoxicating liquors. Until recently such subjects would have been left to the legislatures, no one would have thought of putting them into a constitution. The motive in so doing is a wish to put certain laws into such a shape that it will be difficult to repeal them. What a legislature sees fit to enact this year it may see fit to repeal next year. But amending a state constitution is a slow and cumbrous process. An amendment may be originated in the legislature, where it must secure more than a mere majority—perhaps a three fifths or two thirds vote—in order to pass; in some states it must be adopted by two successive legislatures, perhaps by two thirds of one and three fourths of the next; in some states not more than one amendment can be brought before the same legislature; in some it is provided that amendments must not be submitted to the people oftener than once in five years; and so on. After the amendment has at length made its way through the legislature, it must be ratified by a vote of the people at the next general election. Another way to get a constitution amended is to call a convention for that purpose. In order to call a convention, it is usually necessary to obtain a two thirds vote in the legislature; but in some states the legislature is required at stated intervals to submit to the people the question of holding such a convention, as in New Hampshire every seven years; in Iowa, every ten years; in Michigan, every sixteen years; in New York, Ohio, Maryland, and Virginia, every twenty years.[7] A convention is a representative body elected by the people to meet at some specified time and place for some specified purpose, and its existence ends with the accomplishment of that purpose. It is in this occasional character that the convention differs from an ordinary legislative assembly. With such elaborate checks against hasty action, it is to be presumed that if a law can be once embodied in a state constitution, it will be likely to have some permanence. Moreover, a direct vote by the people gives a weightier sanction to a law than a vote in the legislature. There is also, no doubt, a disposition to distrust legislatures and in some measure do their work for them by direct popular enactment. For such reasons some recent state constitutions have come almost to resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares this kind of popular legislation with the Swiss practice known as the Referendum; in most of the Swiss cantons an important act of the legislature does not acquire the force of law until it has been referred to the people and voted on by them. "The objections to the, referendum," says Mr. Wilson, "are, of course, that it assumes a discriminating judgment and a fullness of information on the part of the people touching questions of public policy which they do not often possess, and that it lowers the sense of responsibility on the part of legislators." [8] Another serious objection to our recent practice is that it tends to confuse the very valuable distinction between a constitution and a body of statutes, to necessitate a frequent revision of constitutions, and to increase the cumbrousness of law-making. It would, however, be premature at the present time to pronounce confidently upon a practice of such recent origin. It is clear that its tendency is extremely democratic, and that it implies a high standard of general intelligence and independence among the people. If the evils of the practice are found to outweigh its benefits, it will doubtless fall into disfavour.

[Footnote 7: See Henry Hitchcock's admirable monograph, American State Constitutions, p. 19.]

[Footnote 8: Wilson. The State, p. 490.]

QUESTIONS ON THE TEXT. What is to be said with regard to the following topics?

I. A power above the legislature:—

a. The constitution. b. The relation of the courts to laws that violate the constitution. c. The importance of this relation. d. The American origin of the written constitution.

2. The germs of the idea of a written constitution:—

a. The theory of a "social contract." b. The objection to this theory. c. Roman origin of the idea of contract.

3. Mediaeval charters:—

a. The charter of a town. b. The word charter. c. Magna Charta. d. The difference between a charter and a constitution. e. The form of Magna Charta as contrasted with its essential nature.

4. Documents somewhat resembling written constitutions:—

a. The Declaration of Rights. b. The Bill of Rights.

5. The foreshadowing of the American idea of written constitutions:—

a. Two conditions especially notable in England in the seventeenth century. b. The influence of these conditions on popular views of government. c. The "Instrument of Government." d. Sir Harry Vane's proposition. e. Why allude to Vane's scheme when nothing came of it?

6. Early suggestions of written constitutions in America:—

a. The compact on the Mayflower. b. Wherein the compact fell short of a written constitution. c. The "Fundamental Orders of Connecticut."

7. The development of the colonial charter into a written constitution:—

a. The limitation of the powers of colonial assemblies. b. The decision of questions relating to the transgression of a charter by a colonial legislature. c. The colonial assembly as contrasted with the House of Commons. d. The difference between the written constitution and the charter for which it was substituted. e. The readiness of the people to adopt written constitutions.

8. The extensive development of the written constitution in some states:—

a. The simplicity of the earlier constitutions. b. Illustrations of the legislative tendencies of later constitutions. c. The motive for such extension of a constitution. d. The difficulty of amending a constitution. e. The legislative method of amendment. f. The convention method of amendment. g. The presumed advantage of embodying laws in the constitution. h. A comparison with the Swiss Referendum. i. Objections to the Swiss Referendum. j. Other objections to the practice of putting laws into the constitution.


1. Do you belong to any society that has a constitution? Has the society rules apart from the constitution? Which may be changed the more readily? Why not put all the rules into the constitution?

2. Read the constitution of your state in part or in full. Give some account of its principal divisions, of the topics it deals with, and its magnitude or fullness. Are there any amendments? If so, mention two or three, and give the reasons for their adoption. Is there any declaration of rights in it? If so, what are some of the rights declared, and whose are they said to be?

3. Where is the original of your state constitution kept? What sort of looking document do you suppose it to be? Where would you look for a copy of it? If a question arises in any court about the interpretation of the constitution, must the original be produced to settle the wording of the document?

4. Has any effort been made in your state to put into the constitution matters that have previously been subjects of legislative action? If so, give an account of the effort, and the public attitude towards it.

5. Which is preferable,—a constitution that commands the approval of the people as a whole or that which has the support of a dominant political party only?

6. Suppose it is your personal conviction that a law is unconstitutional, may you disregard it? What consequences might ensue from such disregard?

7. May people honestly and amicably differ about the interpretation of the constitution or of a law, in a particular case? If important interests are dependent on the interpretation, how can the true one be found out? Does a lawyer's opinion settle the interpretation? What value has such an opinion? Where must people go for authoritative and final interpretations of the laws? Can they get such interpretations by simply asking for them?

8. The constitution of New Hampshire provides that when the governor cannot discharge the duties of his office, the president of the senate shall assume them. During the severe sickness of a governor recently, the president of the senate hesitated to act in his stead; it was not clear that the situation was grave enough to warrant such a course. Accordingly the attorney-general of the state brought an action against the president of the senate for not doing his duty; the court considered the situation, decided against the president of the senate, and ordered him to become acting governor. Why was this suit necessary? Was it conducted in a hostile spirit? Wherein did the decision help the state? Wherein did it help the defendant? Wherein may it possibly prove helpful in the future history of the state?

9. Mention particular things that the governor, the legislature, and the judiciary of your state have done or may do. Then find the section or clause or wording in your state constitution that gives authority for each of these things. For example, read the particular part that authorizes your legislature:—

a. To incorporate a city. b. To compel children to attend school. c. To buy uniforms for a regiment of soldiers. d. To establish a death penalty. e. To send a committee abroad to study a system of waterworks.

10. Trace the authority of a school-teacher, a policeman, a selectman, a mayor, or of any public officer, back to some part of your constitution.

11. Mention any parts of your constitution that seem general and somewhat indefinite, and that admit, therefore, of much freedom in interpretation.

12. Show how the people are, in one aspect, subordinate to the constitution; in another, superior to it.


Written Constitutions.—Very little has been written or published with reference to the history of the development of the idea of a written constitution. The student will find some suggestive hints in Hannis Taylor's Origin and Growth of the English Constitution, vol. i, Boston, 1889. See Henry Hitchcock's American State Constitutions; a Study of their Growth, N.Y., 1887, a learned and valuable essay. See also J.H.U. Studies, I., xi., Alexander Johnston, The Genesis of a New England State (Connecticut); III., ix.-x., Horace Davis, American Constitutions; also Preston's Documents Illustrative of American History, 1606-1863, N.Y., 1886; Stubbs, Select Charters and other Illustrations of English Constitutional History, Oxford, 1870; Gardiner's Constitutional Documents of the Puritan Revolution, Oxford, 1888.



Section 1. Origin of the Federal Union.

Having now sketched the origin and nature of written constitutions, we are prepared to understand how by means of such a document the government of our Federal Union was called into existence. We have already described so much of the civil government in operation in the United States that this account can be made much more concise than if we had started at the top instead of the bottom and begun to portray our national government before saying a word about states and counties and towns. Bit by bit the general theory of American self-government has already been set before the reader. We have now to observe, in conclusion, what a magnificent piece of constructive work has been performed in accordance with that general theory. We have to observe the building up of a vast empire out of strictly self-governing elements.

[Sidenote: English institutions in all the colonies.] There was always one important circumstance in favour of the union of the thirteen American colonies into a federal nation. The inhabitants were all substantially one people. It is true that in some of the colonies there were a good many persons not of English ancestry, but the English type absorbed and assimilated everything else.

All spoke the English language, all had English institutions. Except the development of the written constitution, every bit of civil government described in the preceding pages came to America directly from England, and not a bit of it from any other country, unless by being first filtered through England. Our institutions were as English as our speech. It was therefore comparatively easy for people in one colony to understand people in another, not only as to their words but as to their political ideas. Moreover, during the first half of the eighteenth century, the common danger from the aggressive French enemy on the north and west went far toward awakening in the thirteen colonies a common interest. And after the French enemy had been removed, the assertion by parliament of its alleged right to tax the Americans threatened all the thirteen legislatures at once, and thus in fact drove the colonies into a kind of federal union.

[Sidenote: The New England confederacy (1643-84).] [Sidenote: Albany Congress(1754).] [Sidenote: Stamp Act Congress (1765).] Confederations among states have generally owed their origin, in the first instance, to military necessities. The earliest league in America, among white people at least, was the confederacy of New England colonies formed in 1643, chiefly for defence against the Indians. It was finally dissolved amid the troubles of 1684, when the first government of Massachusetts was overthrown. Along the Atlantic coast the northern and the southern colonies were for some time distinct groups, separated by the unsettled portion of the central zone. The settlement of Pennsylvania, beginning in 1681, filled this gap and made the colonies continuous from the French frontier of Canada to the Spanish frontier of Florida. The danger from France began to be clearly apprehended after 1689, and in 1698 one of the earliest plans of union was proposed by William Penn. In 1754, just as the final struggle with France was about to begin, there came Franklin's famous plan for a permanent federal union; and this plan was laid before a congress assembled at Albany for renewing the alliances with the Six Nations.[1] Only seven colonies were represented in this congress. Observe the word "congress." If it had been a legislative body it would more likely have been called a "parliament." But of course it was nothing of the sort. It was a diplomatic body, composed of delegates representing state governments, like European congresses,—like the Congress of Berlin, for example, which tried to adjust the Eastern Question in 1878. Eleven years after the Albany Congress, upon the news that parliament had passed the Stamp Act, a congress of nine colonies assembled at New York in October, 1765, to take action thereon.

[Footnote 1: Franklin's plan was afterward submitted to the several legislatures of the colonies, and was everywhere rejected because the need for union was nowhere strongly felt by the people.]

[Sidenote: Committees of Correspondence (1772-75).] Nine years elapsed without another congress. Meanwhile the political excitement, with occasional lulls, went on increasing, and some sort of cooperation between the colonial governments became habitual. In 1768, after parliament had passed the Townshend revenue acts, there was no congress, but Massachusetts sent a circular letter to the other colonies, inviting them to cooperate in measures of resistance, and the other colonies responded favourably. In 1772, as we have seen, committees of correspondence between the towns of Massachusetts acted as a sort of provisional government for the commonwealth. In 1773 Dabney Carr, of Virginia, enlarged upon this idea, and committees of correspondence were forthwith instituted between the several colonies. Thus the habit of acting in concert began to be formed. In 1774, after parliament had passed an act overthrowing the government of Massachusetts, along with other offensive measures, a congress assembled in September at Philadelphia, the city most centrally situated as well as the largest. If the remonstrances adopted at this congress had been heeded by the British government, and peace had followed, this congress would probably have been as temporary an affair as its predecessors; people would probably have waited until overtaken by some other emergency. But inasmuch as war followed, the congress assembled again in May, 1775, and thereafter became practically a permanent institution until it died of old age with the year 1788.

[Sidenote: Continental Congress (1774-1789).] This congress was called "continental" to distinguish it from the "provincial congresses" held in several of the colonies at about the same time. The thirteen colonies were indeed but a narrow strip on the edge of a vast and in large part unexplored continent, but the word "continental" was convenient for distinguishing between the whole confederacy and its several members.

[Sidenote: The several states were never at any time sovereign states.] [Sidenote: The Articles of Confederation] The Continental Congress began to exercise a certain amount of directive authority from the time of its first meeting in 1774. Such authority as it had arose simply from the fact that it represented an agreement on the part of the several governments to pursue a certain line of policy. It was a diplomatic and executive, but scarcely yet a legislative body. Nevertheless it was the visible symbol of a kind of union between the states. There never was a time when any one of the original states exercised singly the full powers of sovereignty. Not one of them was ever a small sovereign state like Denmark or Portugal. As they acted together under the common direction of the British government in 1759, the year of Quebec, so they acted together under the common direction of that revolutionary body, the Continental Congress, in 1775, the year of Bunker Hill. In that year a "continental army" was organized in the name of the "United Colonies." In the following year, when independence was declared, it was done by the concerted action of all the colonies; and at the same time a committee was appointed by Congress to draw up a written constitution. This constitution, known as the "Articles or Confederation," was submitted to Congress in the autumn of 1777, and was sent to the several states to be ratified. A unanimous ratification was necessary, and it was not until March 1781, that unanimity was secured and the articles adopted.

Meanwhile the Revolutionary War had advanced into its last stages, having been carried on from the outset under the general direction of the Continental Congress. When reading about this period of our history, the student must be careful not to be misled by the name "congress" into reasoning as if there were any resemblance whatever between that body and the congress which was created by our Federal Constitution. The Continental Congress was not the parent of our Federal Congress; the former died without offspring, and the latter had a very different origin, as we shall soon see. The former simply bequeathed to the latter a name, that was all.

[Sidenote: Nature and powers of the Continental Congress] The Continental Congress was an assembly of delegates from the thirteen states, which from 1774 to 1783 held its sessions at Philadelphia.[2] It owned no federal property, not even the house in which it assembled, and after it had been turned out of doors by a mob of drunken soldiers in June, 1783, it flitted about from place to place, sitting now at Trenton, now at Annapolis, and finally at New York.[3] Each state sent to it as many delegates as it chose, though after the adoption of the articles no state could send less than two or more than seven. Each state had one vote, and it took nine votes, or two thirds of the whole, to carry any measure of importance. One of the delegates was chosen president or chairman of the congress, and this position was one of great dignity and considerable influence, but it was not essentially different from the position, of any of the other delegates. There were no distinct executive officers. Important executive matters were at first assigned to committees, such as the Finance Committee and the Board of War, though at the most trying time the finance committee was a committee of one, in the person of Robert Morris, who was commonly called the Financier. The work of the finance committee was chiefly trying to solve the problem of paying bills without spending money, for there was seldom any money to spend. Congress could not tax the people or recruit the army. When it wanted money or troops, it could only ask the state governments for them; and generally it got from a fifth to a fourth part of the troops needed, but of money a far smaller proportion. Sometimes it borrowed money from Holland or France, but often its only resource was to issue paper promises to pay, or the so-called Continental paper money. There were no federal courts,[4] nor marshals to execute federal decrees. Congress might issue orders, but it had no means of compelling obedience.

[Footnote 2: Except for a few days in December, 1776, when it fled to Baltimore; and again from September, 1777, to June, 1778, when Philadelphia was in possession of the British; during that interval Congress held its meetings at York in Pennsylvania.]

[Footnote 3: See my Critical Period of American History, pp. 112, 271, 306]

[Footnote 5: Except the "Court of Appeals in Cases of Capture," for an admirable account of which see Jameson's Essays in the Constitutional History of the United States, pp. 1-45.]

[Sidenote: It was not fully endowed with sovereignty.] The Continental Congress was therefore not in the full sense a sovereign body. A government is not really a government until it can impose taxes and thus command the money needful for keeping it in existence. Nevertheless the Congress exercised some of the most indisputable functions of sovereignty. "It declared the independence of the United States; it contracted an offensive and defensive alliance with France; it raised and organized a Continental army; it borrowed large sums of money, and pledged what the lenders understood to be the national credit for their repayment; it issued an inconvertible paper currency, granted letters of marque, and built a navy." [6] Finally it ratified a treaty of peace with Great Britain. So that the Congress was really, in many respects, and in the eyes of the world at large, a sovereign body. Time soon showed that the continued exercise of such powers was not compatible with the absence of the power to tax the people. In truth the situation of the Continental Congress was an illogical situation. In the effort of throwing off the sovereignty of Great Britain, the people of these states were constructing a federal union faster than they realized. Their theory of the situation did not keep pace with the facts, and their first attempt to embody their theory, in the Articles of Confederation, was not unnaturally a failure.

[Footnote 6: Critical Period, p. 93.]

[Sidenote: Decline of the Continental Congress.] At first the powers of the Congress were vague. They were what are called "implied war powers;" that is to say, the Congress had a war with Great Britain on its hands, and must be supposed to have power to do whatever was necessary to bring the war to a successful conclusion. At first, too, when it had only begun to issue paper money, there was a momentary feeling of prosperity. Military success added to its appearance of strength, and the reputation of the Congress reached its high water mark early in 1778, after the capture of Burgoyne's army and the making of the alliance with France. After that time, with the weary prolonging of the war, the increase of the public debt, and the collapse of the paper currency, its reputation steadily declined. There was also much work to be done in reorganizing the state governments, and this kept at home in the state legislatures many of the ablest men who would otherwise have been sent to the Congress. Thus in point of intellectual capacity the latter body was distinctly inferior in 1783 to what it had been when first assembled nine years earlier.

[Sidenote: Anarchical tendencies.] The arrival of peace did not help the Congress, but made matters worse. When the absolute necessity of presenting a united front to the common enemy was removed, the weakness of the union was shown in many ways that were alarming. The sentiment of union was weak. In spite of the community in language and institutions, which was so favourable to union, the people of the several states had many local prejudices which tended to destroy the union in its infancy. A man was quicker to remember that he was a New Yorker or a Massachusetts man than that he was an American and a citizen of the United States. Neighbouring states levied custom-house duties against one another, or refused to admit into their markets each other's produce, or had quarrels about boundaries which went to the verge of war. Things grew worse every year until by the autumn of 1786, when the Congress was quite bankrupt and most of the states nearly so, when threats of secession were heard both in New England and in the South, when there were riots in several states and Massachusetts was engaged in suppressing armed rebellion, when people in Europe were beginning to ask whether we were more likely to be seized upon by France or reconquered piecemeal by Great Britain, it came to be thought necessary to make some kind of a change.

[Sidenote: The Federal Convention (1787).]

Men were most unwillingly brought to this conclusion, because they were used to their state assemblies and not afraid of them, but they were afraid of increasing the powers of any government superior to the states, lest they should thus create an unmanageable tyranny. They believed that even anarchy, though a dreadful evil, is not so dreadful as despotism, and for this view there is much to be said. After no end of trouble a convention was at length got together at Philadelphia in May, 1787, and after four months of work with closed doors, it was able to offer to the country the new Federal Constitution. Both in its character and in the work which It did, this Federal Convention, over which Washington presided, and of which Franklin, Madison, and Hamilton were members, was one of the most remarkable deliberative bodies known to history.

We have seen that the fundamental weakness of the Continental Congress lay in the fact that it could not tax the people. Hence although it could for a time exert other high functions of sovereignty, it could only do so while money was supplied to it from other sources than taxation; from contributions made by the states in answer to its "requisitions," from foreign loans, and from a paper currency. But such resources could not last long. It was like a man's trying to live upon his own promissory notes and upon gifts and unsecured loans from his friends. When the supply of money was exhausted, the Congress soon found that it could no longer comport itself as a sovereign power; it could not preserve order at home, and the situation abroad may be illustrated by the fact that George III. kept garrisons in several of our northwestern frontier towns and would not send a minister to the United States. This example shows that, among the sovereign powers of a government, the power of taxation is the fundamental one upon which all the others depend. Nothing can go on without money.

But the people of the several states would never consent to grant the power of taxation, to such a body as the Continental Congress, in which they were not represented. The Congress was not a legislature, but a diplomatic body; it did not represent the people, but the state governments; and a large state like Pennsylvania had no more weight in it than a little state like Delaware. If there was to be any central assembly for the whole union, endowed with the power of taxation, it must be an assembly representing the American people just as the assembly of a single state represented the people of the state.

As soon as this point became clear, it was seen to be necessary to throw the Articles of Confederation overboard, and construct a new national government. As was said above, our Federal Congress is not descended from the Continental Congress. Its parentage is to be sought in the state legislatures. Our federal government was constructed after the general model of the state governments, with some points copied from British usages, and some points that were original and new.


1. What are the reasons for reserving the Constitution of the United States for the concluding chapter?

2. Circumstances that favoured union of the colonies:—

a. The origin of their inhabitants. b. All the details of their civil government. c. The ease with which they understood one another. d. Their common dangers, two in particular.

3. Earlier unions among the colonies:—

a. The New England Confederacy,—its time, purpose, and duration. b. The French danger, and plans to meet it. c. The Albany Congress,—its nature and immediate purpose. d. The Stamp Act Congress.

4. Committees of correspondence:—

a. The circular letter of Massachusetts in 1768. b. Town committees of correspondence in Massachusetts in 1772. c. Colonial committees of correspondence in 1773. d. The habit established through these committees.

5. The Continental Congress:—

a. The immediate causes that led to it. b. How it might have been temporary. c. How it became permanent. d. Its date, place of meeting, and duration. e. Why "continental" as distinguished from "provincial?" f. The nature and extent of its authority. g. The states represented in it never fully sovereign.

6. Give an account of the "Articles of Confederation."

7. Distinguish between the Continental Congress and the Federal.

8. The powers of the Continental Congress:— a. Its homelessness and wandering. b. Its delegates and their voting power. c. Its presiding officer. d. Its management of executive matters. e. The finance committee and its problems. f. The raising of money. g. The compelling of obedience.

9. The Continental Congress not a sovereign body:—

a. The nature of real government. b. Some functions of sovereignty exercised by the Congress. c. The situation illogical.

10. Explain the "implied war powers" of the Congress.

11. When was the Congress at the height of its reputation, and why?

12. Explain the decline in its reputation from 1778 to 1783.

13. The alarming weakness of the union after 1783:—

a. The effect of peace upon the union. b. Local prejudices. c. State antagonisms. d. The gloomy outlook in 1786.

14. The Federal Convention in 1787:—

a. The reluctance to make the change that was felt to be needed. b. Some facts about the Convention. c. The character of its delegates. d. The fundamental weakness of the Continental Congress. e. The fundamental power of a strong government. f. The objection to granting the power of taxation to the Continental Congress. g. The sort of assembly demanded for exercising the taxing power. h. The model on which the federal government was built.

Section 2. The Federal Congress.

[Sidenote: The House of Representatives.] The federal House of Representatives is descended, through the state houses of representatives, from the colonial assemblies. It is an assembly representing the whole population of the country as if it were all in one great state. It is composed of members chosen every other year by the people of the states. Persons in any state who are qualified to vote for state representatives are qualified to vote for federal representatives. This arrangement left the power of regulating the suffrage in the hands of the several states, where it still remains, save for the restriction imposed in 1870 for the protection of the southern freedmen. A candidate for election to the House of Representatives must be twenty-five years old, must have been seven years a citizen of the United States, and must be an inhabitant of the state in which he is chosen.

[Sidenote: The three fifths compromise.] As the Federal Congress is a taxing body, representatives and direct taxes are apportioned among the several states according to the same rule, that is, according to population. At this point a difficulty arose in the Convention as to whether slaves should be counted as population. If they were to be counted, the relative weight of the slave states in all matters of national legislation would be much increased. The northern states thought, with reason, that it would be unduly increased. The difficulty was adjusted by a compromise according to which five slaves were to be reckoned as three persons. Since the abolition of slavery this provision has become obsolete, but until 1860 it was a very important factor in American history.[7]

In the federal House of Representatives the great states of course have much more weight than the small states. In 1790 the four largest states had 32 representatives, while the other nine had only 33. The largest state, Virginia, had 10 representatives to 1 from Delaware. These disparities have increased. In 1880, out of thirty-eight states the nine largest had a majority of the house, and the largest state, New York, had 34 representatives to 1 from Delaware.

[Footnote 7: See my Critical Period, pp. 257-262.]

[Sidenote: The Connecticut compromise] This feature of the House of Representatives caused the smaller states in the Convention to oppose the whole scheme of constructing a new government. They were determined that great and small states should have equal weight in Congress. Their steadfast opposition threatened to ruin everything, when fortunately a method of compromise was discovered. It was intended that the national legislature, in imitation of the state legislatures, should have an upper house or senate; and at first the advocates of a strong national government proposed that the senate also should represent population, thus differing from the lower house only in the way in which we have seen that it generally differed in the several states. But it happened that in the state of Connecticut the custom was peculiar. There it had always been the custom to elect the governor and upper house by a majority vote of the whole people, while for each township there was an equality of representation In the lower house. The Connecticut delegates in the Convention, therefore, being familiar with a legislature in which the two houses were composed on different principles, suggested a compromise. Let the House of Representatives, they said, represent the people, and let the Senate represent the states; let all the states, great and small, be represented equally in the federal Senate. Such was the famous "Connecticut Compromise." Without it the Convention would probably have broken up without accomplishing anything. When it was adopted, half the work of making the new government was done, for the small states, having had their fears thus allayed by the assurance that they were to be equally represented in the Senate, no longer opposed the work but cooperated in it most zealously.

[Sidenote: The Senate] Thus it came to pass that the upper house of our national legislature is composed of two senators from each state. As they represent the state, they are chosen by its legislature and not by the people; but when they have taken their seats in the senate they do not vote by states, like the delegates in the Continental Congress. On the contrary each senator has one vote, and the two senators from the same state may, and often do, vote on opposite sides.

In accordance with the notion that an upper house should be somewhat less democratic than a lower house, the term of office for senators was made longer than for representatives. The tendency is to make the Senate respond more slowly to changes in popular sentiment, and this is often an advantage. Popular opinion is often very wrong at particular moments, but with time it is apt to correct its mistakes. We are usually in more danger of suffering from hasty legislation than from tardy legislation. Senators are chosen for a term of six years, and one third of the number of terms expire every second year, so that, while the whole Senate may be renewed by the lapse of six years, there is never a "new Senate." The Senate has thus a continuous existence and a permanent organization; whereas each House of Representatives expires at the end of its two years' term, and is succeeded by a "new House," which requires to be organized by electing its officers, etc., before proceeding to business. A candidate for the senatorship must have reached the age of thirty, must have been nine years a citizen of the United States, and must be an inhabitant of the state which he represents.

The constitution leaves the times, places, and manner of holding elections for senators and representatives to be prescribed in each state by its own legislature; but it gives to Congress the power to alter such regulations, except as to the place of choosing senators.

Here we see a vestige of the original theory according to which the Senate was to be peculiarly the home of state rights.

[Sidenote: Electoral districts.] [Sidenote: "Gerrymandering."] In the composition of the House of Representatives the state legislatures play a very important part. For the purposes of the election a state is divided into districts corresponding to the number of representatives the state is entitled to send to Congress. These electoral districts are marked out by the legislature, and the division is apt to be made by the preponderating party with an unfairness that is at once shameful and ridiculous. The aim, of course, is so to lay out the districts as to secure in the greatest possible number of them a majority for the party which conducts the operation. This is done sometimes by throwing the greatest possible number of hostile voters into a district which is anyhow certain to be hostile, sometimes by adding to a district where parties are equally divided some place in which the majority of friendly voters is sufficient to turn the scale. There is a district in Mississippi (the so-called Shoe String district) 250 miles long by 30 broad, and another in Pennsylvania resembling a dumb-bell.... In Missouri a district has been contrived longer, if measured along its windings, than the state itself, into which as large a number as possible of the negro voters have been thrown.[8] This trick is called "gerrymandering," from Elbridge Gerry, of Massachusetts, who was vice-president of the United States from 1813 to 1817. It seems to have been first devised in 1788 by the enemies of the Federal Constitution in Virginia, in order to prevent the election of James Madison to the first Congress, and fortunately it was unsuccessful.[9] It was introduced some years afterward into Massachusetts. In 1812, while Gerry was governor of that state, the Republican legislature redistributed the districts in such wise that the shapes of the towns forming a single district in Essex county gave to the district a somewhat dragon-like contour. This was indicated upon a map of Massachusetts which Benjamin Russell, an ardent Federalist and editor of the "Centinel," hung up over the desk in his office. The celebrated painter, Gilbert Stuart, coming into the office one day and observing the uncouth figure, added with his pencil a head, wings, and claws, and exclaimed, "That will do for a salamander!" "Better say a Gerrymander!" growled the editor; and the outlandish, name, thus duly coined, soon came into general currency.

[Footnote 8: Tyler's Patrick Henry, p. 313.]

[Footnote 9: Winsor's Memorial History of Boston, vol. iii. p. 212; see also Bryce, loc. cit. The word is sometimes incorrectly pronounced "jerrymander." Mr. Winsor observes that the back line of the creature's body forms a profile caricature of Gerry's face, with the nose at Middleton.]

[Sidenote: The election their at large.] When after an increase in its number of representatives the state has failed to redistribute its districts, the additional member or members are voted for upon a general state ticket, and are called "representatives at large." In Maine, where the census of 1880 had reduced the number of representatives and there was some delay in the redistribution, Congress allowed the State in 1882 to elect all its representatives upon a general ticket. The advantage of the district system is that the candidates are likely to be better known by neighbours, but the election at large is perhaps more likely to secure able men.[10] It is the American custom to nominate only residents of the district as candidates for the House of Representatives. A citizen of Albany, for example, would not be nominated for the district in which Buffalo is situated. In the British practice, on the other hand, if an eminent man cannot get a nomination in his own county or borough, there is nothing to prevent his standing for any other county or borough. This system seems more favourable to the independence of the legislator than our system. Some of its advantages are obtained by the election at large.

[Footnote 10: The difference is similar to the difference between the French scrutin d'arrondissement and scrutin de liste.]

[Sidenote: Time of assembling.] Congress must assemble at least once in every year, and the constitution appoints the first Monday in December for the time of meeting; but Congress can, if worth while, enact a law changing the time. The established custom is to hold the election for representatives upon the same day as the election for president, the Tuesday after the first Monday in November. As the period of the new administration does not begin until the fourth day of the following March, the new House of Representatives does not assemble until the December following that date, unless the new president should at some earlier moment summon an extra session of Congress. It thus happens that ordinarily the representatives of the nation do not meet for more than a year after their election; and as their business is at least to give legislative expression to the popular opinion which elected them, the delay is in this instance regarded by many persons as inconvenient and injudicious.

Each house is judge of the elections, qualifications, and returns of its own members; determines its own rules of procedure, and may punish its members for disorderly behaviour, or by a two thirds vote expel a member. Absent members may be compelled under penalties to attend. Each house is required to keep a journal of its proceedings and at proper intervals to publish it, except such parts as for reasons of public policy had better be kept secret. At the request of one fifth of the members present, the yeas and nays must be entered on the journal. During the session of Congress neither house may, without consent of the other, adjourn for more than three days, or to any other place than that in which Congress is sitting.

[Sidenote: Privileges of members.] Senators and representatives receive a salary fixed by law, and as they are federal functionaries they are paid from the federal treasury. In all cases, except treason or felony or breach of the peace, they are privileged from arrest during their attendance in Congress, as also while on their way to it and while returning home; "and for any speech or debate in either house they shall not be questioned in any other place." These provisions are reminiscences of the evil days when the king strove to interfere, by fair means or foul, with free speech in parliament; and they are important enough to be incorporated in the supreme law of the land. No person can at the same time hold any civil office under the United States government and be a member of either house of Congress.

[Sidenote: The Speaker.] The vice-president is the presiding officer of the Senate, with power to vote only in case of a tie. The House of Representatives elects its presiding officer, who is called the Speaker. In the early history of the House of Commons, its presiding officer was naturally enough its spokesman. He could speak for it in addressing the crown. Henry of Keighley thus addressed the crown in 1301, and there were other instances during that century, until in 1376 the title of Speaker was definitely given to Sir Thomas Hungerford, and from that date the list is unbroken. The title was given to the presiding officers of the American colonial assemblies, and thence it passed on to the state and federal legislatures. The Speaker presides over the debates, puts the question, and decides points of order. He also appoints the committees of the House of Representatives, and as the initiatory work in our legislation is now so largely done by the committees, this makes him the most powerful officer of the government except the President.

[Sidenote: Impeachment in England] The provisions for impeachment of public officers are copied from the custom in England. Since the fourteenth century the House of Commons has occasionally exercised the power of impeaching the king's ministers and other high public officers, and although the power was not used during the sixteenth century it was afterward revived and conclusively established. In 1701 it was enacted that the royal pardon could not be pleaded against an impeachment, and this act finally secured the responsibility of the king's ministers to Parliament. An impeachment is a kind of accusation or indictment brought against a public officer by the House of Commons. The court in which the case is tried is the House of Lords, and the ordinary rules of judicial procedure are followed. The regular president of the House of Lords is the Lord Chancellor, who is the highest judicial officer in the kingdom. A simple majority vote secures conviction, and then it is left for the House of Commons to say whether judgment shall be pronounced or not.

[Sidenote: Impeachment in the United States.] In the United States the House of Representatives has the sole power of impeachment, and the Senate has the sole power to try all impeachments. When the president of the United States is tried, the chief-justice must preside. As a precaution against the use of impeachment for party purposes, a two thirds vote is required for conviction; and this precaution proved effectual (fortunately, as most persons now admit) in the famous case of President Johnson in 1868. In case of conviction the judgment cannot extend further than "to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit under the United States;" but the person convicted is liable afterward to be tried and punished by the ordinary process of law.

[Sidenote: Veto power of the president] The provisions of the Constitution for legislation are admirably simple. All bills for raising revenue must originate in the lower house, but the upper house may propose or concur with amendments, as on other bills. This provision was inherited from Parliament, through the colonial legislatures. After a bill has passed both houses it must be sent to the president for approval. If he approves it, he signs it; if not, he returns it to the house in which it originated, with a written statement of his objections, and this statement must be entered in full upon the journal of the house. The bill is then reconsidered, and if it obtains a two thirds vote, it is sent, together with the objections, to the other house. If it there likewise obtains a two thirds vote, it becomes a law, in spite of the objections. Otherwise it fails. If the president keeps a bill longer than ten days (Sundays excepted) without signing it, it becomes a law without his signature; unless Congress adjourns before the expiration of the ten days, in which case it fails to become a law, just as if it had been vetoed. This method of vetoing a bill just before the expiration of a Congress, by keeping it in one's pocket, so to speak, was dubbed a "pocket veto," and was first employed by President Jackson in 1829. The president's veto power is a qualified form of that which formerly belonged to the English sovereign but has now, as already observed, become practically obsolete. As a means of guarding the country against unwise legislation, it has proved to be one of the most valuable features of our Federal Constitution. In bad hands it cannot do much harm, it can only delay for a short time a needed law. But when properly used it can save the country from, laws that if once enacted would sow seeds of disaster very hard to eradicate; and it has repeatedly done so. A single man will often act intelligently where a group of men act foolishly, and, as already observed, he is apt to have a keener sense of responsibility.


What is to be said with regard to the following topics?

1. The House of Representatives:—

a. Its relation to the people. b. The term of service. c. Qualifications of those who may vote for representatives. d. Qualifications for membership. e. The three fifths compromise.

2. The Connecticut Compromise.

a. The powers of the different states in the House. b. Opposition to the scheme of a new government. c. What the advocates of a strong government wanted the Senate to represent. d. A peculiar Connecticut system. e. The suggestion of the Connecticut delegates. f. The effect of the compromise.

3. The Senate:—

a. The number of senators. b. The method of electing senators. c. The voting of senators. d. The term of service. e. The maintenance of a continuous existence. f. A comparison with the House in respect to nearness to the people. g. Qualifications for membership.

4. Elections for senators and representatives:—

a. Times, places, and manner of holding elections. b. The power of Congress over state regulations. c. Electoral districts. d. The temptation to unfairness in laying out electoral districts. e. Illustrations of unfair divisions. f. "Gerrymandering." g. Representatives at large. h. The advantage of the district system. i. The British system and its advantage.

5. The assembling of Congress:—

a. The time of assembling. b. The interval between a member's election and the beginning of his service. c. The disadvantage of this long interval.

6. What is the duty of each house in respect (1) to its membership, (2) its rules, (3) its records, and (4) its adjournment.

7. Give an account (1) of the pay of a congressman, (2) of his freedom from arrest, (3) of his responsibility for words spoken in debate, and (4) of his right to hold other office.

8. Tell (1) who preside in Congress, (2) how the name speaker originated, (3) what the speaker's duties are, and (4) what his power in the government is.

9. Impeachment of public officers:—

a. Old English usage. b. The conduct of an impeachment trial in England. c. The conduct of an impeachment trial in the United States. d. The penalty in case of conviction.

10. The provisions of the Constitution for legislation:—

a. Bills for raising revenue. b. How a bill becomes a law. c. The president's veto power. d. Passage of a bill over the president's veto. e. The "pocket veto." f. The veto power in England. g. The value of the veto power.

Section 3. The Federal Executive.

[Sidenote: The title of "President."] In signing or vetoing bills passed by Congress the president shares in legislation, and is virtually a third house. In his other capacities he is the chief executive officer of the Federal Union; and inasmuch as he appoints the other great executive officers, he is really the head of the executive department, not—like the governor of a state—a mere member of it. His title of "President" is probably an inheritance from the presidents of the Continental Congress. In Franklin's plan of union, in 1754, the head of the executive department was called "Governor General," but that title had an unpleasant sound to American ears. Our great-grandfathers liked "president" better, somewhat as the Romans, in the eighth century of their city, preferred "imperator" to "rex." Then, as it served to distinguish widely between the head of the Union and the heads of the states, it soon fell into disuse in the state governments, and thus "president" has come to be a much grander title than "governor," just as "emperor" has come to be a grander title than "king." [11]

[Footnote 11: See above p. 163.]

[Sidenote: The electoral college.] There was no question which perplexed the Federal Convention more than the question as to the best method of electing the president. There was a general distrust of popular election for an office so exalted. At one time the Convention decided to have the president elected by Congress, but there was a grave objection to this; it would be likely to destroy his independence, and make him the tool of Congress. Finally the device of an electoral college was adopted. Each state is entitled to a number of electors equal to the number of its representatives in Congress, plus two, the number of its senators. Thus to-day Delaware, with 1 representative, has 3 electors; Missouri, with 14 representatives, has 16 electors; New York, with 34 representatives, has 36 electors. No federal senator or representative, or any person holding civil office under the United States, can serve as an elector. Each state may appoint or choose its electors in such manner as it sees fit; at first they were more often than otherwise chosen by the legislatures, now they are always elected by the people. The day of election must be the same in all the states.

By an act of Congress passed in 1792 it is required to be within 34 days preceding the first Wednesday in December. A subsequent act in 1845 appointed the Tuesday following the first Monday in November as election day.

By the act of 1792 the electors chosen in each state are required to assemble on the first Wednesday in December at some place in the state which is designated by the legislature. Before this date the governor of the state must cause a certified list of the names of the electors to be made out in triplicate and delivered to the electors. Having met together they vote for president and vice-president, make out a sealed certificate of their vote in triplicate, and attach to each copy a copy of the certified list of their names. One copy must be delivered by a messenger to the president of the Senate at the federal capital before the first Wednesday in January; the second is sent to the same officer through the mail; the third is to be deposited with the federal judge of the district in which the electors meet. If by the first Wednesday in January the certificate has not been received at the federal capital, the secretary of state is to send a messenger to the district judge and obtain the copy deposited with him. The interval of a month was allowed to get the returns in, for those were not the days of railroad and telegraph. The messengers were allowed twenty-five cents a mile, and were subject to a fine of a thousand dollars for neglect of duty. On the second Wednesday in February, Congress is required to be in session, and the votes received are counted and the result declared.[12]

[Footnote 12: See note on p. 278.]

[Sidenote: The twelfth amendment (1804).] At first the electoral votes did not state whether the candidates named in them were candidates for the presidency or for the vice-presidency. Each elector simply wrote down two names, only one of which could be the name of a citizen of his own state. In the official count the candidate who had the largest number of votes, provided they were a majority of the whole number, was declared president, and the candidate who had the next to the largest number was declared vice-president. The natural result of this was seen in the first contested election in 1796, which made Adams president, and his antagonist vice-president. In the next election in 1800 it gave to Jefferson and his colleague Burr exactly the same number of votes. In such a case the House of Representatives must elect, and such intrigues followed for the purpose of defeating Jefferson that the country was brought to the verge of civil war. It thus became necessary to change the method. By the twelfth amendment to the constitution, declared in force in 1804, the present method was adopted. The electors make separate ballots for president and for vice-president. In the official count the votes for president are first inspected. If no candidate has a majority, then the House of Representatives must immediately choose the president from the three names highest on the list. In this choice the house votes by states, each state having one vote; a quorum for this purpose must consist of at least one member from two thirds of the states, and a majority of all the states is necessary for a choice. Then if no candidate for the vice-presidency has a majority, the Senate makes its choice from the two names highest on the list; a quorum for the purpose consists of two thirds of the whole number of senators, and a majority of the whole number is necessary to a choice. Since this amendment was made there has been one instance of an election of the president by the House of Representatives,—that of John Quincy Adams in 1825; and there has been one instance of an election of the vice-president by the Senate,—that of Richard Mentor Johnson in 1837.

[Sidenote: The electoral commission (1877).] One serious difficulty was not yet foreseen and provided for—that of deciding between two conflicting returns sent in by two hostile sets of electors in the same state, each list being certified by one of two rival governors claiming authority in the same state. Such a case occurred in 1877, when Florida, Louisiana, and South Carolina were the scene of struggles between rival governments. Ballots for Tilden and ballots for Hayes were sent in at the same time from these states, and in the absence of any recognized means of determining which ballots to count, the two parties in Congress submitted the result to arbitration. An "electoral commission" was created for the occasion, composed of five senators, five representatives, and five judges of the supreme court; and this body decided what votes were to be counted. It was a clumsy expedient, but infinitely preferable to civil war. The question of conflicting returns has at length been set at rest by the act of 1887, which provides that no electoral votes can be rejected in counting except by the concurrent action of the two houses of Congress.

[Sidenote: Presidential succession.] The devolution of the presidential office in case of the president's death has also been made the subject of legislative change and amendment. The office of vice-president was created chiefly for the purpose of meeting such an emergency. Upon the accession of the vice-president to the presidency, the Senate would proceed to elect its own president pro tempore. An act of 1791 provided that in case of the death, resignation or disability of both president and vice-president, the succession should devolve first upon the president pro tempore of the Senate and then upon the speaker of the House of Representatives, until the disability should be removed or a new election be held. But supposing a newly elected president to die and be succeeded by the vice-president before the assembling of the newly elected Congress; then there would be no president pro tempore of the Senate and no speaker of the House of Representatives, and thus the death of one person might cause the presidency to lapse. Moreover the presiding officers of the two houses of Congress might be members of the party defeated in the last presidential election; indeed, this is often the case. Sound policy and fair dealing require that a victorious party shall not be turned out because of the death of the president and vice-president. Accordingly an act of 1886 provided that in such an event the succession should devolve upon the members of the cabinet in the following order: secretary of state, secretary of the treasury, secretary of war, attorney-general, postmaster-general, secretary of the navy, secretary of the interior. This would seem to be ample provision against a lapse.

[Sidenote: Original purpose of the electoral college not fulfilled.] To return to the electoral college: it was devised as a safeguard against popular excitement. It was supposed that the electors in their December meeting would calmly discuss the merits of the ablest men in the country and make an intelligent selection for the presidency. The electors were to use their own judgment, and it was not necessary that all the electors chosen in one state should vote for the same candidate. The people on election day were not supposed to be voting for a president but for presidential electors. This theory was never realized. The two elections of Washington, in 1788 and 1792, were unanimous. In the second contested election, that of 1800, the electors simply registered the result of the popular vote, and it has been so ever since. Immediately after the popular election, a whole month before the meeting of the electoral college, we know who is to be the next president. There is no law to prevent an elector from voting for a different pair of candidates from those at the head of the party ticket, but the custom has become as binding as a statute. The elector is chosen to vote for specified candidates, and he must do so.

[Sidenote: Electors formerly chosen in many states by districts; now usually on a general ticket.] On the other hand, it was not until long after 1800 that all the electoral votes of the same state were necessarily given to the same pair of candidates. It was customary in many states to choose the electors by districts. A state entitled to ten electors would choose eight of them in its eight congressional districts, and there were various ways of choosing the other two. In some of the districts one party would have a majority, in others the other, and so the electoral vote of the state would be divided between two pairs of candidates. After 1830 it became customary to choose the electors upon a general ticket, and thus the electoral vote became solid in each state.[13]

[Footnote 13: In 1860 the vote of New Jersey was divided between Lincoln and Douglas, but that was because the names of three of the seven Douglas electors were upon two different tickets, and thus got a majority of votes while the other four fell short. In 1892 the state of Michigan chose its electors by districts.]

[Sidenote: Minority presidents.] [Sidenote: Advantages of the electoral system.] This system, of course, increases the chances of electing presidents who have received a minority of the popular vote. A candidate may carry one state by an immense majority and thus gain 6 or 8 electoral votes; he may come within a few hundred of carrying another state and thus lose 36 electoral votes. Or a small third party may divert some thousands of votes from the principal candidate without affecting the electoral vote of the state. Since Washington's second term we have had twenty-three contested elections,[14] and in nine of these the elected president has failed to receive a majority of the popular vote; Adams in 1824 (elected by the House of Representatives), Polk in 1844, Taylor in 1848, Buchanan in 1856, Lincoln in 1860, Hayes in 1876, Garfield in 1880, Cleveland in 1884, Harrison in 1888. This has suggested more or less vague speculation as to the advisableness of changing the method of electing the president. It has been suggested that it would be well to abolish the electoral college, and resort to a direct popular vote, without reference to state lines. Such a method would be open to one serious objection. In a closely contested election on the present method the result may remain doubtful for three or four days, while a narrow majority of a few hundred votes in some great state is being ascertained by careful counting. It was so in 1884. This period of doubt is sure to be a period of intense and dangerous excitement. In an election without reference to states, the result would more often be doubtful, and it would be sometimes necessary to count every vote in every little out-of-the-way corner of the country before the question could be settled. The occasions for dispute would be multiplied a hundred fold, with most demoralizing effect. Our present method is doubtless clumsy, but the solidity of the electoral colleges is a safeguard, and as all parties understand the system it is in the long run as fair for one as for another.

[Footnote 14: All have been contested, except Monroe's re-election in 1820, when there was no opposing candidate.]

[Sidenote: Nomination of candidates by congressional caucus (1800-24).] The Constitution says nothing about the method of nominating candidates for the presidency, neither has it been made the subject of legislation. It has been determined by convenience. It was not necessary to nominate Washington, and the candidacies of Adams and Jefferson were also matters of general understanding. In 1800 the Republican and Federalist members of Congress respectively held secret meetings or caucuses, chiefly for the purpose of agreeing upon candidates for the vice-presidency and making some plans for the canvass. It became customary to nominate candidates in such congressional caucuses, but there was much hostile comment upon the system as undemocratic. Sometimes the "favourite son" of a state was nominated by the legislature, but as the means of travel improved, the nominating convention came to be preferred. In 1824 there were four candidates for the presidency,—Adams, Jackson, Clay, and Crawford. Adams was nominated by the legislatures of most of the New England states; Clay by the legislature of Kentucky, followed by the legislatures of Missouri, Ohio, Illinois, and Louisiana; Crawford by the legislature of Virginia; and Jackson by a mass convention of the people of Blount County in Tennessee, followed by local conventions in many other states. The congressional caucus met and nominated Crawford, but this endorsement did not help him,[15] and this method was no longer tried. In 1832 for the first time the candidates were all nominated in national conventions.

[Footnote 15: Stanwood, History of Presidential Elections, pp. 80-83.]

[Sidenote: Nomination conventions.] [Sidenote: The "primary."] These conventions, as fully developed, are representative bodies chosen for the specific purpose of nominating candidates and making those declarations of principle and policy known as "platforms." Each state is allowed twice as many delegates as it has electoral votes. The delegates are chosen by local conventions in their several states, viz., two for each congressional district by the party convention of that district, and four for the whole state (called delegates-at-large) by the state convention. As each convention is composed of delegates from primaries, it is the composition of the primaries which determines that of the local conventions, and it is the composition of the local conventions which determines that of the national.[16] The "primary" is the smallest nominating convention. It stands in somewhat the same relation to the national convention as the relation of a township or ward to the whole United States. A primary is a little caucus of all the voters of one party who live within the bounds of the township or ward. It differs in composition from the town-meeting in that all its members belong to one party. It has two duties: one is to nominate candidates for the local offices of the township or ward; the other is to choose delegates to the county or district convention. The primary, as its name indicates, is a primary and not a representative assembly. The party voters in a township or ward are usually not too numerous to meet together, and all ought to attend such meetings, though in practice too many people stay away. By the representative system, through various grades of convention, the wishes and character of these countless little primaries are at length expressed in the wishes and character of the national party convention, and candidates for the presidency and vice-presidency are nominated.

[Footnote 16: Bryce, American Commonwealth, vol. ii. p. 145; see also p. 52.]

[Sidenote: Qualifications for the presidency.] The qualifications for the two offices are of course the same. Foreign-born citizens are not eligible, though this restriction did not include such as were citizens of the United States at the time when the Constitution was adopted. The candidate must have reached the age of thirty-five, and must have been fourteen years a resident of the United States.

[Sidenote: The term of office] The president's term of office is four years. The Constitution says nothing about his re-election, and there is no written law to prevent his being re-elected a dozen times. But Washington, after serving two terms, refused to accept the office a third time. Jefferson in 1808 was "earnestly besought by many and influential bodies of citizens to become a candidate for a third term;" [17] and had he consented there is scarcely a doubt that he would have been elected. His refusal established a custom which has never been infringed, though there were persons in 1876 and again in 1880 who wished to secure a third term for Grant.

[Footnote 17: Morse's Jefferson, p. 318.]

[Sidenote: Powers and duties of the President] The president is commander-in-chief of the military and naval forces of the United States, and of the militia of the several states when actually engaged in the service of the United States; and he has the royal prerogative of granting reprieves and pardons for offences against the United States, except in cases of impeachment.[18]

[Footnote 18: See above, p. 221.]

He can make treaties with foreign powers, but they must be confirmed by a two thirds vote of the Senate. He appoints ministers to foreign countries, consuls, and the greater federal officers, such as the heads of executive departments and judges of the Supreme Court, and all these appointments are subject to confirmation by the Senate. He also appoints a vast number of inferior officers, such as postmasters and revenue collectors, without the participation of the Senate. When vacancies occur during the recess of the Senate, he may fill them by granting commissions to expire at the end of the next session. He commissions all federal officers. He receives foreign ministers. He may summon either or both houses of Congress to an extra session, and if the two houses disagree with regard to the time of adjournment, he may adjourn them to such time as he thinks best, but of course not beyond the day fixed for the beginning of the next regular session.

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