[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.
QUESTIONS ON THE TEXT.
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.
[Illustration]
[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.
QUESTIONS ON THE TEXT.
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.
[Sidenote: The President's message.] The president must from time to time make a report to Congress on the state of affairs in the country and suggest such a line of policy or such special measures as may seem good to him. This report has taken the form of an annual written message. Washington and Adams began their administrations by addressing Congress in a speech, to which Congress replied; but it suited the opposite party to discover in this an imitation of the British practice of opening Parliament with a speech from the sovereign. It was accordingly stigmatized as "monarchical," and Jefferson (though without formally alleging any such reason) set the example, which has been followed ever since, of addressing Congress in a written message.[19] Besides this annual message, the president may at any time send in a special message relating to matters which in his opinion require immediate attention.
[Footnote 19: Jefferson, moreover, was a powerful writer and a poor speaker.]
The effectiveness of a president's message depends of course on the character of the president and the general features of the political situation. That separation between the executive and legislative departments, which is one of the most distinctive features of civil government in the United States, tends to prevent the development of leadership. An English prime minister's policy, so long as he remains in office, must be that of the House of Commons; power and responsibility are concentrated. An able president may virtually direct the policy of his party in Congress, but he often has a majority against him in one house and sometimes in both at once. Thus in dividing power we divide and weaken responsibility. To this point I have already alluded as illustrated in our state governments.[20]
[Footnote 20: The English method, however, would probably not work well in this country, and might prove to be a source of great and complicated dangers. See above, p. 169.]
[Sidenote: Executive departments] [Sidenote: The cabinet] The Constitution made no specific provisions for the creation of executive departments, but left the matter to Congress. At the beginning of Washington's administration three secretaryships were created,—those of state, treasury, and war; and an attorney-general was appointed. Afterward the department of the navy was separated from that of war, the postmaster-general was made a member of the administration, and as lately as 1849 the department of the interior was organized. The heads of these departments are the president's advisers, but they have as a body no recognized legal existence or authority. They hold their meetings in a room at the president's executive mansion, the White House, but no record is kept of their proceedings and the president is not bound to heed their advice. This body has always been called the "Cabinet," after the English usage. It is like the English cabinet in being composed of heads of executive departments and in being, as a body, unknown to the law; in other respects the difference is very great. The English cabinet is the executive committee of the House of Commons, and exercises a guiding and directing influence upon legislation. The position of the president is not at all like that of the prime minister; it is more like that of the English sovereign, though the latter has not nearly so much power as the president; and the American cabinet in some respects resembles the English privy council, though it cannot make ordinances.
[Sidenote: The secretary of state.] The secretary of state ranks first among our cabinet officers. He is often called our prime minister or "premier," but there could not be a more absurd use of language. In order to make an American personage corresponding to the English prime minister we must first go to the House of Representatives, take its committee of ways and means and its committee on appropriations, and unite them into one committee of finance; then we must take the chairman of this committee, give him the power of dissolving the House and ordering a new election, and make him master of all the executive departments, while at the same time we strip from the president all real control over the administration. This exalted finance-chairman would be much like the First Lord of the Treasury, commonly called the prime minister. This illustration shows how wide the divergence has become between our system and that of Great Britain.
Our secretary of state is our minister of foreign affairs, and is the only officer who is authorized to communicate with other governments in the name of the president. He is at the head of the diplomatic and consular service, issuing the instructions to our ministers abroad, and he takes a leading part in the negotiation of treaties. To these ministerial duties he adds some that are more characteristic of his title of secretary. He keeps the national archives, and superintends the publication of laws, treaties, and proclamations; and he is the keeper of the great seal of the United States.
[Sidenote: Diplomatic and consular service.] Our foreign relations are cared for in foreign countries by two distinct classes of officials: ministers and consuls. The former represent the United States government in a diplomatic capacity; the latter have nothing to do with diplomacy or politics, but look after our commercial interests in foreign countries. Consuls exercise a protective care over seamen, and perform various duties for Americans abroad. They can take testimony and administer estates. In some non-Christian countries, such as China, Japan, and Turkey, they have jurisdiction over criminal cases in which Americans are concerned. Formerly our ministers abroad were of only three grades: (1) "envoys extraordinary and ministers plenipotentiary;" (2) "ministers resident;" (3) chargés d'affaires. The first two are accredited by the president to the head of government of the countries to which they are sent; the third are accredited by the secretary of state to the minister of foreign affairs in the countries to which they are sent. We still retain these grades, which correspond to the lower grades of the diplomatic service in European countries. Until lately we had no highest grade answering to that of "ambassador," perhaps because when our diplomatic service was organized the United States did not yet rank among first-rate powers, and could not expect to receive ambassadors. Great powers, like France and Germany, send ambassadors to each other, and envoys to inferior powers, like Denmark or Greece or Guatemala. When we send envoys to the great powers, we rank ourselves along with inferior powers; and diplomatic etiquette as a rule obliges the great powers to send to us the same grade of minister that we send to them. There were found to be some practical inconveniences about this, so that in 1892 the highest grade was adopted and our ministers to Great Britain and France were made ambassadors.
[Sidenote: The secretary of the treasury.] The cabinet officer second in rank and in some respects first in importance is the secretary of the treasury. He conducts the financial business of the government, superintends the collection of revenue, and gives warrants for the payment of moneys from the treasury. He also superintends the coinage, the national banks, the custom-houses, the coast-survey and lighthouse system, the marine hospitals, and life-saving service.[21] He sends reports to Congress, and suggests such measures as seem good to him. Since the Civil War his most weighty business has been the management of the national debt. He is aided by two assistant secretaries, six auditors, a register, a comptroller, a solicitor, a director of the mint, commissioner of internal revenue, chiefs of the bureau of statistics and bureau of engraving and printing, etc. The business of the treasury department is enormous, and no part of our government has been more faithfully administered. Since 1789 the treasury has disbursed more than seven billions of dollars without one serious defalcation. No man directly interested in trade or commerce can be appointed secretary of the treasury, and the department has almost always been managed by "men of small incomes bred either to politics or the legal profession." [22]
[Footnote 21: Many of these details concerning the executive departments are admirably summarized, and with more fullness than comports with the design of the present work, in Thorpe's Government of the People of the United States, pp. 183-193.]
[Footnote 22: Schouler, Hist. of the U.S., vol. i. p. 95.]
[Sidenote: War and navy.] The war and navy departments need no special description here. The former is divided into ten and the latter into eight bureaus. The naval department, among many duties, has charge of the naval observatory at Washington and publishes the nautical almanac.
[Sidenote: Interior.] The department of the interior conducts a vast and various business, as is shown by the designations of its eight bureaus, which deal with public lands, Indian affairs, pensions, patents, education (chiefly in the way of gathering statistics and reporting upon school affairs), agriculture, public documents, and the census. In 1889 the bureau of agriculture was organized as a separate department. The weather bureau forms a branch of the department of agriculture.
[Sidenote: Postmaster-general and attorney-general.] The departments of the postmaster-general and attorney-general need no special description. The latter was organized in 1870 into the department of justice. The attorney-general is the president's legal adviser, and represents the United States in all law-suits to which the United States is a party. He is aided by a solicitor-general and other subordinate offices.
QUESTIONS ON THE TEXT.
1. Speak (1) of the president's share in legislation; (2) of his relation to the executive department, and (3) of the origin of his title.
2. The electoral college:—
a. The method of electing the president a perplexing question. b. The constitution of the electoral college, with illustrations. c. Qualifications for serving as an elector. d. The method of choosing electors. e. The time of choosing electors. f. When and where the electors vote. g. The number and disposition of the certificates of their h. The declaration of the result.
3. What was the method of voting in the electoral college before 1804? Illustrate the working of this method in 1796 and 1800.
4. The amendment of 1804:—
a. The ballots of the electors.
b. The duty of the House if no candidate for the presidency
receives a majority of the electoral votes.
c. The duty of the Senate if no candidate for the vice-presidency
receives a majority of the electoral votes.
d. Illustrations of the working of this amendment in 1825
and 1837.
5. The electoral commission of 1877:—
a. A difficulty not foreseen. b. Conflicting returns in 1877. c. The plan of arbitration adopted.
6. The presidential succession:—
a. The office of vice-president. b. The act of 1791. c. The possibility of a lapse of the presidency. d. The possibility of an unfair political overthrow. e. The act of 1886.
7. Compare the original purpose of the electoral college with the fulfillment of that purpose.
8. Explain the transition from a divided electoral vote in a state to a solid electoral vote.
9. Show how a minority of the people may elect a president. Who have been elected by minorities?
10. What is the advantage of the electoral system over a direct popular vote?
11. Methods of nominating candidates for the presidency and vice-presidency before 1832:—
a. The absence of constitutional and legislative requirements.
b. Presidents not nominated. c. Nominations by congressional caucuses. d. Nominations by state legislatures. e. Nominations by local conventions.
12. Nominations by national conventions in 1832 and since:—
a. The nature of a national convention.
b. The platform.
c. The number of delegates from a state, and their election.
d. The relation of the "primaries" to district, state, and
national conventions.
e. The nature of the primary.
f. Its two duties.
g. The duty of the voter to attend the primaries.
13. The presidency:— a. Qualifications for the office. b. The term of office.
14. Powers and duties of the president:— a. As a commander-in-chief. b. In respect to reprieves and pardons. c. In respect to treaties with foreign powers. d. In respect to the appointment of federal officers. e. In respect to summoning and adjourning Congress. f. In respect to reporting the state of affairs in the country to Congress.
15. The president's message:— a. The course of Washington and Adams. b. The example of Jefferson. c. The effectiveness of the message. d. Power and responsibility in the English system.
e. Power and responsibility in the American system.
16. Executive departments:— a. The departments under Washington. b. Later additions to the departments. c. The "Cabinet." d. The resemblance between the English cabinet and our own. e. The difference between the English cabinet and our own.
17. The secretary of state:— a. Is he a prime minister? b. What would be necessary to make an American personage correspond to an English prime minister? c. What are the ministerial duties of the secretary of state? d. What other duties has he more characteristic of his title?
18. Our diplomatic and consular service:—
a. The distinction between ministers and consuls.
b. Three grades of ministers.
c. The persons to whom the three grades are accredited.
d. The grade of ambassador.
19. The secretary of the treasury:—
a. His rank and importance.
b. His various duties.
c. His chief assistants.
d. The administration of the treasury department since 1789.
20. The duties of the remaining cabinet officers:— a. Of the secretary of war. b. Of the secretary of the navy. c. Of the secretary of the interior. d. Of the postmaster-general. e. Of the attorney-general.
Section 4. The Nation and the States.
We have left our Federal Convention sitting a good while at Philadelphia, while we have thus undertaken to give a coherent account of our national executive organization, which has in great part grown up since 1789 with the growth of the nation. Observe how wisely the Constitution confines itself to a clear sketch of fundamentals, and leaves as much as possible to be developed by circumstances. In this feature lies partly the flexible strength, the adaptableness, of our Federal Constitution. That strength lies partly also in the excellent partition of powers between the federal government and the several states.
[Sidenote: Difference between confederation and federal union.] We have already remarked upon the vastness of the functions retained by the states. At the same time the powers granted to Congress have proved sufficient to bind the states together into a union that is more than a mere confederation. From 1776 to 1789 the United States were a confederation; after 1789 it was a federal nation. The passage from plural to singular was accomplished, although it took some people a good while to realize the fact. The German language has a neat way of distinguishing between a loose confederation and a federal union. It calls the former a Staatenbund and the latter a Bundesstaat. So in English, if we liked, we might call the confederation a Band-of-States and the federal union a Banded-State. There are two points especially in our Constitution which transformed our country from a Band-of-States into a Banded-State.
[Sidenote: Powers granted to Congress.] The first was the creation of a federal House of Representatives, thus securing for Congress the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common welfare of the United States. Other powers are naturally attached to this,—such as the power to borrow money on the credit of the United States; to regulate foreign and domestic commerce; to coin money and fix the standard of weights and measures; to provide for the punishment of counterfeiters; to establish post-offices and post-roads; to issue copyrights and patents; to define and punish felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support an army and navy, and to make rules for the regulation of the land and naval forces; to provide for calling out the militia to suppress insurrections and repel invasions, and to command this militia while actually employed in the service of the United States. The several states, however, train their own militia and appoint the officers. Congress may also establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies. It also exercises exclusive control over the District of Columbia,[23] as the seat of the national government, and over forts, magazines, arsenals, dockyards, and other needful buildings, which it erects within the several states upon land purchased for such purposes with the consent of the state legislature.
[Footnote 23: Ceded to the United States by Maryland and Virginia.]
[Sidenote: The "Elastic Clause."] Congress is also empowered "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof." This may be called the Elastic Clause of the Constitution; it has undergone a good deal of stretching for one purpose and another, and, as we shall presently see, it was a profound disagreement in the interpretation of this clause that after 1789 divided the American people into two great political parties.
[Sidenote: Powers denied to the states.] [Sidenote: Paper currency.] The national authority of Congress is further sharply defined by the express denial of sundry powers to the several states. These we have already enumerated.[24] There was an especial reason for prohibiting the states from issuing bills of credit, or making anything but gold and silver coin a tender in payment of debts. During the years 1785 and 1786 a paper money craze ran through the country; most of the states issued paper notes, and passed laws obliging their citizens to receive them in payment of debts. Now a paper dollar is not money, it is only the government's promise to pay a dollar. As long as you can send it to the treasury and get a gold dollar in exchange, it is worth a dollar. It is this exchangeableness that makes it worth a dollar. When government makes the paper dollar note a "legal tender." i.e., when it refuses to give you the gold dollar and makes you take its note instead, the note soon ceases to be worth a dollar. You would rather have the gold than the note, for the mere fact that government refuses to give the gold shows that it is in financial difficulties. So the note's value is sure to fall, and if the government is in serious difficulty, it falls very far, and as it falls it takes more of it to buy things. Prices go up. There was a time (1864) during our Civil War when a paper dollar was worth only forty cents and a barrel of flour cost $23. But that was nothing to the year 1780, when the paper dollar issued by the Continental Congress was worth only a mill, and flour was sold in Boston for $1,575 a barrel! When the different states tried to make paper money, it made confusion worse confounded, for the states refused to take each other's money, and this helped to lower its value. In some states the value of the paper dollar fell in less than a year to twelve or fifteen cents. At such times there is always great demoralization and suffering, especially among the poorer people; and with all the experience of the past to teach us, it may now be held to be little less than a criminal act for a government, under any circumstances, to make its paper notes a legal tender. The excuse for the Continental Congress was that it was not completely a government and seemed to have no alternative, but there is no doubt that the paper currency damaged the country much more than the arms of the enemy by land or sea. The feeling was so strong about it in the Federal Convention that the prohibition came near being extended to the national government, but the question was unfortunately left undecided.[25]
[Footnote 24: See above, p.175]
[Footnote 25: See my Critical Period of American History, pp. 168-186, 273-276.]
[Sidenote: Powers denied to Congress.] [Sidenote: Bills of attainder.] Some express prohibitions were laid upon the national government. Duties may be laid upon imports but not upon exports; this wise restriction was a special concession to South. Carolina, which feared the effect of an export duty upon rice and indigo. Duties and excises must be uniform throughout the country, and no commercial preference can be shown to one state over another; absolute free trade is the rule between the states. A census must be taken every ten years in order to adjust the representation, and no direct tax can be imposed except according to the census. No money can be drawn from the treasury except "in consequence of appropriations made by law," and accounts must be regularly kept and published. The privilege of the writ of habeas corpus cannot be suspended except "when, in case of rebellion or invasion, the public safety may require it;" and "no bill of attainder, or ex post facto law," can be passed. A bill of attainder is a special legislative act by which a person may be condemned to death, or to outlawry and banishment, without the opportunity of defending himself which he would have in a court of law. "No evidence is necessarily adduced to support it," [26] and in former times, especially in the reign of Henry VIII., it was a formidable engine for perpetrating judicial murders. Bills of attainder long ago ceased to be employed in England, and the process was abolished by statute in 1870.