64

lican government in France, see L. Rosenthal's "America and France; the influence of the United States on France in the XVIIIth century," (1882); also G. Guéroult's "Le centenaire de 1789," (1889); A. Lebon's "Das Staatsrecht der französischen Republik," (1886); S. Kaiser's Französische Verfassungsgeschichte von 1789-1852;" also G. Merrill's article, "The French republic," Harper's Magazine, March, 1881, v. 62, p. 573-82; and I. N. Ford's article, "" Constitutional tendencies in France," International Review, May, 1881, v. 10, p. 468-76; also the article "Boulanger's American constitution," The Nation, Feb. 21, 1889, v. 48, p. 155-56.

[For further references on France, see Monthly Reference Lists, Jan., 1881, v. 1, p. 1.]

A twenty years' summary of governmental development in Japan is found in the article, "Recent changes in Japan," by K. Mitsukuri, International Review," May, 1881, v. 10, p. 477-94. On the adoption of constitutional government in Japan, (Feb. 11, 1889), see the pamphlet "The constitution of the Empire of Japan," issued by Johns Hopkins University, (1889), containing addresses by Judge Thomas M. Cooley and others. The text of the constitution is printed at p. 9-24. See also "An outline of the Japanese constitution," by K. Kaneko, in the Atlantic Monthly, Feb. 1890, v. 65, p. 187-92.

On the circumstances under which the Brazilian adoption of constitutional government took place, by the proclamation of “ The United States of Brazil," Nov. 15, 1889, see the letter by J. C. Rodrigues in The Nation, Dec. 19, 1889, v. 49, P. 494-95. On the conditions immediately preceding the event, see "Le Brésil en 1889," by De Santa Anna Nery, (1889).

The new and revised edition of Bryce's "American commonwealth," issued in March, 1890, recalls anew the conditions of contrast between the forms of constitutional government in the United States and those elsewhere.

APPENDIX.

CONSTITUTIONAL INTERPRETATION SINCE THE CIVIL WAR, AFFECTING THE QUESTION OF NATIONAL OR STATE SUPREMACY.

A selection from decisions of the United States Supreme Court, (including also 'dissenting” and “concurring” opinions of justices of the court), from 1865 to 1889.

INTRODUCTION.

MR. BRYCE in his recent luminous comments on our constitution and government has well remarked: "The constitution of the United States is so concise and general in its terms, that even had America been as slowly moving a country as China, many questions must have arisen on the interpretation of the fundamental law which would have modified its aspect. But America has been the most swiftly expanding of all countries. Hence the questions that have presented themselves have often related to matters which the framers of the constitution could not have contemplated. Wiser than Justinian before them or Napoleon after them, they foresaw that their work would need to be elucidated by judicial commentary. But they were far from conjecturing the enormous strain to which some of their expressions would be subjected in the effort to apply them to new facts.*

It is needless to say that few periods in the first century of the government have supplied so enormous a“ strain” to the expressions of the constitution as the period immediately after the Civil War, during which the judicial constructions herein cited have been promulgated. One cannot, however, trace the course of this interpretation at the hands of the high-minded jurists who have occupied the bench of the Supreme Court, as cited below, without feeling that, in the presence of as powerful tendencies to wrest the meaning of the instrument as will probably ever again occur, there has been, on the whole,—and taking it for longer periods than a single decade,—no essential subversion of the constitution in the direction, either of extreme centralized power, or, on the other hand, of extreme particularist doctrines. In the nature of things, there is to be expected a somewhat persistent oscillation between constructions which

*Bryce's "American commonwealth," v. 1, p. 364.

appear, for the time, to emphasize one extreme, and constructions emphasizing the other extreme, but this is a tendency which is as surely self-corrective as is the oscillation of the pendulum.

The language of Justice Miller, of the Supreme Court, on this point, in one of his decisions,* which, indeed, he has taken occasion to reiterate in a recent address,† is worthy of note. He says: "But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between state and federal power; and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the constitution or any of its parts."

In the selections here made from the language of the court, as contained in the successive volumes of Reports, the greater part of them comprise the "decisions proper; yet in several noteworthy instances "opinions" other than the decisions, whether "concurring" in part only, or altogether dissenting," have been cited. The citation of language of so formal and technical exactness, apart from its connection in the text, is always attended with some hazard, and no reader, therefore, should fail to lose sight of the fundamental purpose of the present citations; namely, to bring about a more general study of the text itself, as given in full in the Reports.

The arrangement of the cases is chronological, though it is not until 1882, (U. S. Reports 108), that the reports themselves contain the exact dates of the decisions, (month and day). The citations are made in the commonly received form, ("4 Wall. 109;” referring to page 109 of the 4th volume of Wallace's Reports, and "130 U. S. 222" to the 222d page of the 130th volume, "United States" Reports); the title of the case, and the name of the justice writing the decision being also given in each instance.

1866. JUSTICE DAVIS. Case, Ex parte Milligan; from Circuit Court, [Indiana]. "The importance of the question " [whether a writ of habeas corpus ought to have been issued]"involves the very framework of the government and the fundamental principles of American liberty." "An armed rebellion

was raging and the public safety required that the privilege of this writ should

*Slaughter House cases, 16 Wall. 82.

court."

+ Address of Justice Miller, at Ann Arbor, Mich., June 29, 1887, on "The supreme Printed in his pamphlet, "The constitution and the supreme court of the United States of America," (1887), p. 64.

At pages 30-31 of the 1881 edition of Economic Tract No. 2 of this series, simply the citations occur, (without any portion of the text), for the greater portion of these cases down to 1879. It has here, however, seemed desirable to quote the language itself.

be suspended"; [but not that a citizen should be tried by a military tribunal]. "The Constitution is a law for rulers and people, equally in war and in peace." "No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." [4 Wall. 109, 115, 120-21.]

Compare, however, the Dissenting opinion of Chief-justice Chase, with whom were Justices Wayne, Swayne, and Miller, in same case.

[Under the Constitution there may be]" military government superseding as far as may be deemed expedient, the local law," "with the express or implied sanction of Congress." [4 Wall. 142.]

1867. JUSTICE FIELD. Case of Cummings v. the State of Missouri; from Missouri Supreme Court.

"We admit the propositions of the counsel of Missouri that the States which existed previous to the adoption of the Federal Constitution possessed originally all the attributes of sovereignty; that they still retain those attributes, except as they have been surrendered by the formation of the Constitution and the amendments thereto; that the new States, upon their admission into the Union, became invested with equal rights, and were thereafter subject only to similar restrictions." [Justices Swayne, Davis, and Miller, with Chief-justice Chase, dissented.] [4 Wall. 318-319.]

1869. CHIEF JUSTICE CHASE, Case of Lane County v. Oregon; from Oregon Supreme Court.

"The people of the United States constitute one nation, under one government; and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence." "Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union, by substituting a national government, acting with ample power, directly upon the citizens, instead of the Confederate government, which acted, with powers greatly restricted, only upon the States." Yet to the States "nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison," (Federalist, no. 45):-" The Federal and State governments are

in fact but different agents and trustees of the people, constituted with different powers, and designated for different purposes.' The power of taxation was "exercised by the Colonies, and when the Colonies became States, both before and after the formation of the Confederation, it was exercised by the new governments." Congress did not intend "to restrain the exercise of this power in the manner shown by the statutes of Oregon." [7 Wall. 76, 78.]

1869. CHIEF-JUSTICE CHASE. Case of Texas v. White et al.

[We should consider] "what is the correct idea of a state, apart from any union or confederation with other states." "The primary conception is that of a people or community. The people, whether organized under a regular government, or united by looser and less definite relations, constitute the state.". . . "In the Constitution, the term state most frequently expresses the combined idea of people, territory, and government." .. [In 1861, by the ordinance of secession, Texas declared itself] "absolved from all allegiance to the United States or the government thereof." Did the state cease to be a member of the Union?" "The union of the states never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction, from the Articles of Confederation." . . . "By these the Union was solemnly declared to be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained, to form a more perfect union.'" "Considered, therefore, as transactions under the Constitution, the ordinance of secession was absolutely null. The state did not cease to be a state, nor her citizens to be citizens of the Union." "Texas continued to be a state, and a state of the Union, notwithstanding the transactions" [above referred to]. [Justices Grier, Swayne, and Miller dissented.] [7 Wall. 720, 721, 722, 724-725, 726.]

1871. JUSTICE Strong.

Case of Knox v. Lee, etc. [Legal tender cases.]

'No single power is the ultimate end for which the Constitution was adopted. It may in a very proper sense be treated as a means for the accomplishment of a subordinate object." . . [Its subordinate objects, however,] "are instruments for the paramount object, which was to establish a government, sovereign within its sphere, with capability of self-preservation." [Justices Clifford and Field, with Chief-justice Chase, dissented.] [12 Wall. 532-33.]