necticut Compro mise." views to definite propositions, had brought the convention to "the verge of dissolution," Roger Sherman and Oliver Ells"The Con- worth suggested the famous "Connecticut compromise which proposed that the national principle contended for by the greater states should prevail in the organization of the lower house, and that the federal principle claimed by the smaller states should prevail in the organization of the upper house or senate. The new proposal, which at first met with but little favor, was referred to a committee with Elbridge Gerry as chairman, and on the 5th of July1 the committee reported in favor of the compromise. After eleven days of debate the report was adopted on the 16th of July by a majority of only one vote. The supreme conflict between the two opposing parties in the convention thus happily ended in an arrangement in which the theories of both were allowed to prevail. It was finally agreed that the legislative department of the new government should be divided into two chambers, one of which should be organized upon a federal, the other upon a national basis. As a recognition of the federal principle each state was to be allowed an equal representation in the senate; as a recognition of the national principle the representation of each state in the house of representatives was to be determined by the extent of its population. In the organization of the senate the elective principle of course took the place of hereditary right. Thus modified by republican and federal ideas the English bicameral system, in the form which it had assumed in the several states, passed into the constitution of the United States. The senate organized upon a fed eral, the house upon a national basis. The judiciary department. The most consummate and, with a single exception, the most original work accomplished by the framers of the constitution was in the organization of the federal judiciary. 1 Elliot's Debates, vol. i. p. 226. 8 "The principle of the independ- composition of the house of representatives." De Tocqueville, Democracy in Am., vol. i. p. 148. As to the respective constitutions of the two chambers, see Federalist, Nos. lii. to lxvi. "The work was chiefly done in committee by Ellsworth, Wilson, Randolph, and Rutledge, and the result did not differ essentially from the scheme laid down in the Virginia plan."— The Critical Period, etc., p. 300. Court of States has tory. Section one of article three of the constitution provides that, "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish." The inferior courts contemplated in this section were established by the provisions of the Judiciary Act of 1789.1 The organization of the federal judicial system rests, therefore, in part upon the express provisions of the constitution, and in part upon congressional legislation. The most potent and unique element in the system is its head. The supreme court of Supreme the United States has no prototype in history.2 Judicial tri- the United bunals have existed as component parts of other federal sys- no prototems, but the supreme court of the United States is the only type in hiscourt in history that has ever possessed the power to finally determine the validity of a national law. Such a jurisdiction necessarily arises out of the American system of constitutional limitations upon the legislative power, a system under which all judges, both state and federal, possess the power in their respective spheres to pass upon the validity of every law that can emanate from a state or federal legislature. In the English system such a jurisdiction could not exist for the reason that the English constitution imposes no limitation upon its legislative assembly; there is no "higher law" by which the English courts can test the validity of an act of parliament. The great federal court, thus endowed The guarwith the very highest judicial functions, has from its birth dian of the been the watchful guardian of the national constitution, and tion. its beneficent influence has been steadily displayed not only in checking the encroachments of the federal legislature, but in rendering more harmonious the relations of the states with 1 "That great act was penned. by Oliver Ellsworth, a member of the convention which framed the constitution, and one of the early chief justices of this court. It may be said to reflect the views of the founders of the republic as to the proper relations between the federal and state courts." Mr. Justice Field, in Ex parte Virginia, 100 U. S. p. 325. 2 "The supreme court of the United States... is not only a most interesting but a virtually unique creation of the founders of the constitution." Maine, Popular Govt., p. 217. 3 See above, p. 46, note 3. See, also, Bryce's chapter on "The Courts and the Constitution," Am. Commonwealth, vol. i. pp. 237-254. 4 Austin holds that an act of parlia ment, which violates fundamental principles, though legal and binding, may still be unconstitutional. See Province of Jurisprudence, lect. vi. In this connection I refer with pleasure to an able essay, entitled "The Supreme Court in Politics," read by my distinguished friend, the Hon. H. A. Herbert, before the Alabama State Bar Association in August, 1883. Inferior courts a the English itinerant each other. The jurisprudence which regulates the procedure and moulds the decrees of this high court is English jurisprudence, and in this way it has become a new fountain not only of federal but of English law. The system of inmere repro- ferior federal courts is a substantial reproduction of the Engduction of lish system of itinerant judicature. The national judge goes down into the districts and the circuits to try cases over which the federal jurisdiction extends, with or without juries, according to their character. In law causes, both civil and criminal, the federal courts proceed according to the course of the English customary law, while in equity and admiralty causes they cling with equal tenacity to the general body of English jurisprudence. system. National 8. From a purely scientific point of view the constitution citizenship. of the United States never reached its logical completion until after the adoption of the fourteenth amendment. As heretofore pointed out, the new principle which became the basis of the more perfect union, and which imparted to it its distinctive character, was that the sum of federal power vested in the new constitution should operate not upon states in their corporate capacity, but directly upon individuals. If that principle had been carried, at the time of its adoption, to its logical conclusion, it would then have been settled that the individuals upon whom the new government was to act should be primarily its own citizens.1 Even in such a federal system as the Achaian League, "Every Achaian citizen stood in a direct relation to the federal authority, and was in full strictness a citizen of the league itself, and not merely of one of the cities which composed it." 2 And yet at the time of the adoption of the present constitution the sense of nationality had not sufficiently developed to permit the statement of the ultimate and inevitable conclusion, that every citizen of the Union is primarily a citizen of the United States, and not merely of one of the states which compose them. The one particular in which the first confederation rose above the older Teutonic leagues after which it had been patterned was embodied in the new principle of interstate citizenship 1 No greater logical anomaly can be 2 Freeman, Federal Government, vol imagined than a federal government i. p. 259. acting directly upon individuals, and yet a government without citizens. citizenship. which it originated.1 Section one of article four of the arti- Interstate cles of confederation provided that, "The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states." The substance of that provision was reproduced in section two of article four of the present constitution which provides that, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Beyond that point the framers of the more perfect union were not prepared to go. They did not attempt to do more than establish an interstate citizenship to which they imparted the qualities of uniformity and equality by denying to every state the right to discriminate in favor of its own citizens as against those of any other state. There was no attempt whatever, either in the constitution itself or in any act of congress passed after its adoption, to establish or define citizenship of the United States as such, as a distinct and independent thing from state citizenship. "That the consti- Constitu tution itself has defined citizenship of the United States by to define declaring what persons, born within the several states, shall citizenship or shall not be citizens of the United States will not be pre- United tended. It contains no such declaration." 2 In the absence of any positive assertion by federal authority of any such thing as a primary citizenship of the United States as such, there was really no substantial basis upon which to maintain its existence. If any such thing as a federal or national citizenship existed at all, it was nothing more than a secondary and dependent relation. The better view is that prior to the adoption of the fourteenth amendment a man was a citizen of the United States only by virtue of his citizenship in one of the states composing the Union. In the famous case of The Dred Dred Scott it was held that no state had the power to raise a man of African descent to the rank of a citizen so as to make him a citizen of a state or of the United States. While there 1 "The principle of inter-citizenship infused itself neither into the constitution of the old German empire, nor of Switzerland, nor of Holland." · Bancroft, Hist. of Const., vol. i. p. 118. 2 Mr. Justice Curtis in Dred Scott v. Sandford, 19 Howard, p. 575. See the opinion of the court in this case, p. 406. tion failed of the States. Scott case First sec tion of the Amend ment first defines national citizenship. can be no doubt that the leading motive which led to the adoption of the fourteenth amendment was to reverse the results of the Dred Scott case, and to secure the right of citizenship to the African race, - the fact remains that the first section of the amendment, without making any direct reference to the question of race at all, contains the first positive definition ever given of citizenship of the United States as a primary and substantive thing, independent of state citizenship. The first section of the amendment provides Fourteenth that, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." When, in what Slaughter- are commonly known as the "Slaughter-House Cases," this new provision of the constitution came for the first time before the supreme court of the United States for construction, a far-reaching discussion arose which touched the very foundations of the Union itself.2 After great deliberation the court announced through Mr. Justice Miller a weighty judgment which, while it fully upheld the supremacy of the federal authority within its proper sphere, pointedly recognized the fact that neither the civil war, nor the three amendments in which its political results were embodied, had materially altered the constitutional relations of the state and federal governments to each other. While it was admitted that the amendments had imposed additional limitations upon them, it was held to be clear that there was no intention "to fetter and degrade the state governments by subjecting them to the control of congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character." 3 In this judgment the fact was rec House Cases." 1 "No such definition was previously found in the constitution, nor had any attempt been made to define it by act of congress."- The Slaughter - House Cases, 16 Wallace, p. 72. 2 The profound argument of the Hon. John A. Campbell for the plaintiffs in error attracted scarcely less attention than the judgment of the court itself. 3 The Slaughter House Cases, 16 Wallace, p. 78. |