FOOTNOTES
[1] Sebohm, English Village Community, Ch. III; Traill, Social England, Vol. I, p. 240; Ashley, English Economic History, Vol. I, p. 17.
[2] Lowell, Governments and Parties in Continental Europe, Vol. I, Ch. I; Lecky, Democracy and Liberty, Vol. I, p. 265.
[3] Work and Wages, p. 398.
[4] Tyler, The Literary History of the American Revolution, Vol. I, p. 300.
[5] Tyler, The Literary History of the American Revolution, Vol. I, p. 301.
[6] Massachusetts, New Hampshire, New Jersey, Pennsylvania and Virginia.
[7] Delaware, Maryland and North Carolina.
[8] Massachusetts, New Hampshire, Pennsylvania and Maryland.
[9] Delaware, New York, New Jersey, North Carolina, South Carolina and Virginia.
[10] Connecticut, Rhode Island, New Jersey, Virginia, North Carolina, South Carolina, Georgia, New York and Delaware.
[11] Massachusetts, New Hampshire, Maryland, Delaware, South Carolina and Pennsylvania.
[12] Massachusetts, New Hampshire, New York, Delaware, Maryland, North Carolina, South Carolina and Virginia.
[13] Macdonald's Select Charters, Vol. I, pp. 94-101.
[14] Schouler's Constitutional Studies, pp. 70-78, Macdonald's Select Charters, Vol. I.
[15] "Who would have thought, ten years ago, that the very men who risked their lives and fortunes in support of republican principles, would now treat them as the fictions of fancy?" M. Smith in the New York Convention held to ratify the Constitution, Elliot's Debates, Second Edition, Vol. II, p. 250.
[16] Simeon E. Baldwin, Modern Political Institutions, pp. 83 and 84.
[17] Critical Period of American History, p. 226.
[18] S.F. Miller, Lectures on the Constitution of the United States, pp. 84-85.
[19] McMaster, With the Fathers, pp. 112-113.
[20] "They [the framers of the Constitution] represented the conservative intelligence of the country very exactly; from this class there is hardly a name, except that of Jay, which could be suggested to complete the list." Article by Alexander Johnston on the Convention of 1787 in Lalor's Cyclopaedia of Pol. Science, Pol. Econ. and U.S. Hist.
[21] Elliot's Debates, Vol. V, p. 557.
[22] Ibid., p. 138.
[23] "By another [rule] the doors were to be shut, and the whole proceedings were to be kept secret; and so far did this rule extend, that we were thereby prevented from corresponding with gentlemen in the different states upon the subjects under our discussion.... So extremely solicitous were they that their proceedings should not transpire, that the members were prohibited even from taking copies of resolutions, on which the Convention were deliberating, or extracts of any kind from the Journals without formally moving for and obtaining permission, by a vote of the Convention for that purpose." Luther Martin's Address to the Maryland House of Delegates. Ibid., Vol. I, p. 345.
"The doors were locked, and an injunction of strict secrecy was put upon everyone. The results of their work were known in the following September, when the draft of the Federal Constitution was published. But just what was said and done in this secret conclave was not revealed until fifty years had passed, and the aged James Madison, the last survivor of those who sat there, had been gathered to his fathers." Fiske, The Critical Period of American History, p. 229. McMaster, With the Fathers, p. 112.
[24] Elliot's Debates, Vol. I, pp. 119-127.
[25] Elliot's Debates, Vol. II, p. 470.
[26] Elliot's Debates, Vol. I, p. 422.
[27] Ibid., p. 450.
[28] Book 5, Ch. I, Part II.
[29] Elliot's Debates, Vol. V, p. 160.
[30] Ibid., p. 137.
[31] Elliot's Debates, Vol. I, p. 450.
[32] Ibid., pp. 421-422.
[33] Ibid., p. 475.
[34] No. 10.
[35] In Massachusetts and New Hampshire the constitutions framed during the Revolutionary period were submitted to popular vote. The Virginia Constitution of 1776 contained the declaration "that, when any government shall have been found inadequate or contrary to these purposes [the purposes enumerated in the Bill of Rights], a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal." The Revolutionary constitution of Pennsylvania contained a similar declaration. Poore, Charters and Constitutions.
[36] Elliot's Debates, Vol. III, pp. 48-50.
[37] Ames, Proposed Amendments to the Constitution of the United States. This book gives a list of the amendments proposed during the first one hundred years of our history under the Constitution. During the fifteen years from 1889 to 1904, four hundred and thirty-five amendments were proposed. These figures are taken from a thesis submitted for the LL. B. degree at the University of Washington by Donald McDonald, A.B.
It is interesting to observe that this is one of the few important features of the Constitution not copied by the Confederate States at the outbreak of the Civil War. The constitution which they adopted provided an easier method of amendment. Any three states could suggest amendments and require Congress to summon a convention of all the states to consider them. To adopt a proposed amendment ratification by legislatures or conventions in two-thirds of the states was necessary.
[38] Political Science and Constitutional Law, Vol. I, p. 151.
[39] The American Commonwealth, Vol. I, Ch. III.
[40] Second Edition, Vol. I, Appendix, Note on Constitutional Conventions.
[41] Fiske, The Critical Period of American History, p. 328.
[42] McMaster, With the Fathers, p. 71.
[43] Elliot's Debates, Vol. I, p. 423.
[44] Woodrow Wilson, Division and Reunion, p. 12.
[45] The vote in Massachusetts was 187 to 168 in favor of ratification; in New York, 30 to 27; in Virginia, 89 to 79.
[46] No. 81.
[47] The American Commonwealth, Vol. I, Ch. XXXII.
[48] Ibid.
[49] Roosevelt in 1904 received less than 56.4 per cent. of the total popular vote.
[50] In 1904 Roosevelt carried thirty-two states—two more than two-thirds.
[51] Poore, Charters and Constitutions.
[52] A. Lawrence Lowell, Essays on Government, p. 40.
[53] The Federalist, No. 78.
[54] "The object of the Act of Parliament was to secure the judges from removal at the mere pleasure of the Crown; but not to render them independent of the action of Parliament." Story, Commentaries on the Constitution, Sec. 1623.
[55] Works (Ford's Edition), Vol. X, p. 38.
[56] Cf. supra p. 21.
[57] The Jeffersonian System, pp. 112-113.
[58] Referring to Hamilton's defence of the judicial veto, Jefferson says "If this opinion be sound, then indeed is our Constitution a complete felo de se. For intending to establish three departments, coördinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation." Ford's Edition of his works, Vol. X, p. 141.
[59] The Federalist, No. 78.
[60] The Federalist, No. 85.
[61] Elliot's Debates, Vol I, p. 421.
[62] Ibid., Vol. V, Appendix No. 5.
[63] Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 165. The reader is referred to this work for a discussion of this and other cases.
[64] The constitutions of Massachusetts, Maryland, New Hampshire, North Carolina and Virginia contained provisions expressly declaring that no power of suspending laws, or the execution of laws, should be exercised unless by the legislature, or by authority derived from it. The Vermont constitution of 1786 also contained a similar provision.
[65] Commonwealth v. Caton, Hopkins and Lamb. Quoted from Coxe, p. 221.
[66] Cooley, Constitutional Limitations, 6th ed., p. 193, n. and Thorpe, A Short Constitutional History of the United States, p. 238.
[67] Quoted in Coxe, Judicial Power and Unconstitutional Legislation, p. 252.
[68] Ibid., p. 263.
[69] Burgess, Pol. Sci. and Const. Law, Vol. II, p. 364.
[70] Elliot's Debates, Vol. I, p. 507.
[71] Ibid., Vol. V, p. 429.
[72] Ibid., Vol. V, pp. 151, 344, 345, 346, 347.
[73] Federalist, No. 78.
[74] Elliot's Debates, Vol. II, p. 196.
[75] Elliot's Debates, Vol. II, p. 489.
[76] Ibid., Vol. III, p. 553.
[77] 3 Dallas.
[78] "'You have made a good Constitution,' said a friend to Gouverneur Morris after the adjournment of the Convention. 'That,' replied Morris, 'depends on how it is construed.'" Gordy, Political Parties in the United States, Vol. I, p. 114. This was clearly understood by the framers of the Constitution and by all the leading Federalists.
[79] Rutledge, Wilson, Blair, Patterson, and Ellsworth.
[80] Jay, Rutledge, Wilson, Blair, Iredell, Johnson, Chase, Ellsworth, Cushing, Washington, and Marshall.
[81] Wilson, Ellsworth, and Marshall.
[83] Alfred Moore.
[84] Elliot's Debates, Vol. III, pp. 324-325.
[85] Political Science and Constitutional Law, Vol. II, p. 365.
[86] Burgess, Political Science and Constitutional Law, Vol. II, p. 365.
[87] Infra, pp. 119-122.
[88] Boutmy, Studies in Constitutional Law, pp. 117-118 (Eng. Trans.).
[89] Referring to the power of the Supreme Court in our scheme of government, Jefferson said "It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation." Works, Vol. X, p. 199.
[90] Lee, Source Book of English History, p. 336.
[91] Commentaries on the Constitution of the United States, sec. 1399; cf. Infra pp. 321-325.
[92] Constitutional History as Seen in American Law, p. 80.
[93] Ibid., p. 258.
[94] For a list of these cases see United States Supreme Court Reports, Vol. 131. Appendix CCXXXV. Banks and Brothers Edition.
[95] Dissenting opinion Inter-State Commerce Commission, v. Alabama Midland Railway Company, 168 United States, 144.
[96] For a discussion of these cases see "The Legal Tender Decisions" by E.J. James, Publications of the American Economic Association, Vol. III.
[97] Report of the Am. Bar Association, 1895, p. 246.
[98] For a discussion of this recent use of the injunction by our Federal Courts see Annual Address of the President of the Georgia Bar Association, John W. Akin, on "Aggressions of the Federal Courts," 1898; W.H. Dunbar, "Government by Injunction," Economic Studies, Vol. III; Stimson, Handbook of Am. Labor Laws.
[99] "We should like to see the law so changed that any man arrested for contempt of court, for an act not performed in the presence of the court and during judicial proceedings, should have a right to demand trial by jury before another and an impartial tribunal. It is not safe, and therefore it is not right, to leave the liberties of the citizens of the United States at the hazard involved in conferring such autocratic power upon judges of varied mental and moral caliber as are conferred by the equity powers which our courts have inherited through English precedents." Editorial in the Outlook, Vol. LXXIV, p. 871.
[100] C.H. Butler, Treaty-Making Power of the United States, Vol. II, p. 347.
[101] Art. III, sec. 2.
[102] The constitutions of Maine (since 1820), Rhode Island (since 1842), Florida (since 1875), and Missouri (constitution of 1865, but omitted in constitution of 1875 and since).
A provision of this kind is also found in the Massachusetts constitution of 1780, from which it was copied in the New Hampshire constitution of 1784. Its purpose in these two constitutions, however, was not to guard against the subsequent exercise of the judicial veto, since the latter was then unknown, but to make the judges of the Supreme Court an advisory body to the legislature.
[103] Democracy and Liberty, Vol. I, p. 9.
[104] Elliot's Debates, Vol. III, p. 218.
[105] Works, Vol. I, p. 29. Cralle's Ed.
[108] Pennsylvania and Georgia had only a single legislative body.
[109] "There was certainly no intention of making the appointment of the Presidential electors subject to popular election. I think it is evident that the framers were anxious to avoid this." Burgess, Political Science and Constitutional Law, Vol. II, p. 219.
According to Fiske, "electors were chosen by the legislature in New Jersey till 1816; in Connecticut till 1820; in New York, Delaware, and Vermont, and with one exception in Georgia, till 1824; in South Carolina till 1868. Massachusetts adopted various plans, and did not finally settle down to an election by the people until 1828." The Critical Period of American History, p. 286.
[110] Elliot's Debates, Vol. I, p. 421.
[111] Madison, Elliot's Debates, Vol. I, p. 450.
[112] Elliot's Debates, Vol. V, p. 158.
[113] Boutmy, Studies in Constitutional Law, p. 91 (Eng. Trans.).
See also Ford, The Rise and Growth of American Politics, p. 254.
[114] Previous to Andrew Johnson's administration but six measures were passed over the President's veto. Up to 1889 the veto power of the President had been exercised four hundred and thirty-three times, and in but twenty-nine instances had it been overridden by the required two-thirds majority in both houses of Congress. Fifteen measures vetoed by Andrew Johnson were passed over his veto—more than in the case of all other Presidents combined. Mason, The Veto Power, p. 214.
[115] Mason, The Veto Power, p. 214.
[116] Elliot's Debates, Vol. V, p. 151. Hamilton's statement, which was made in support of a motion to give the President an absolute veto on acts of Congress, was not correct. William III vetoed no less than four acts of Parliament, and his successor used the veto power for the last time in 1707. Medley, English Constitutional History, p. 315.
[119] Senate in South Carolina and Maryland (constitutions of 1776) exceptions, Infra p. 239.
[120] Constitution, Art. II. Sec. I.
[121] Elliot's Debates, Vol. I, p. 503.
[122] Ibid., p. 494.
[123] For a discussion of this feature of our government see the following chapter.
[124] Under the Articles of Confederation the Congress of the United States was required to "publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy." Art. IX.
[125] The Revolutionary constitutions of New York and Pennsylvania provided that the doors of the legislature should be kept open at all times for the admission of the public except when the welfare of the state should demand secrecy.
[126] Cf. Ford, The Rise and Growth of American Politics, p. 63.
[127] Quoted from Article on Reporting in Encyclopedia Brittanica.
[128] Vol. XIV, p. 62. See also Porritt, The Unreformed House of Commons, Vol. I, pp. 590-596.
[129] Greene, The Provincial Governor, pp. 198-199.
[130] Cooley, Constitutional Limitations, 6th ed., pp. 514-516.
[131] Massachusetts, New Hampshire and Maryland.
[132] Art. V.
[133] Elliot's Debates, Vol. I, p. 181 and Vol. V, p. 132.
[134] Constitutional History of the United States, Vol. I, p. 79.
[135] No. 46.
[136] No. 45.
[137] Von Holst, Vol. I, p. 88.
[138] Ford's Ed. Jefferson's Works, Vol. VII, p. 301.
[139] Works, Vol. I, p. 169.
[140] Works, Vol. I, p. 242.
[141] Sept., 24, 1789. U.S. Statutes at Large, Vol. I.
[142] Woodrow Wilson, Congressional Government, p. 4.
[143] Art. I, Sec. 4.
[144] The states of Maine, Oregon and Vermont still elect their representatives to Congress before the general November election. Maine holds her election on the second Monday in September, Oregon on the first Monday in June and Vermont on the first Tuesday in September next preceding the general November election.
[145] John F. Shafroth, When Congress Should Convene; North Am. Rev., Vol. 164. The writer of this article makes the common but erroneous assumption that the fundamental principle of our government is majority rule. From the standpoint of democracy, however, his argument is unassailable.
[146] A modification of this check on public opinion has been incorporated in the charter of one of our new Western cities. In Spokane, Washington, one-half of the councilmen take their seats immediately after the regular municipal election, and the other half, though elected at the same time, do not enter upon the discharge of their duties until one year later.
[147] Art. I, Sec. 2.
[148] The American Commonwealth, Vol. I, Ch. 15.
[149] The American Commonwealth, Vol. I, Ch. 15.
[150] The Conduct of Business in Congress, North Am. Rev., Vol. CXXVIII, p. 121.
[151] Ibid., p. 122.
[152] For instances of the exercise of this power see Follett, The Speaker of the House of Representatives, Ch. IX.
[153] Senator Hoar's Article.
[154] Boutmy, Studies in Constitutional Law, pp. 98-99.
[155] Ostrogorski, Democracy and the Organization of Political Parties, Vol. I, p. 20.
[156] Federalist, No. 10.
[157] For a discussion of the causes of present-day corruption, see an article by Professor Edward A. Ross in The Independent, July 19, 1906, on "Political Decay: An Interpretation."
[158] In the enabling acts for the admission of Nebraska and Nevada (1864), Colorado (1875), North Dakota, South Dakota, Montana and Washington (1889), and Utah (1896), we find the provision that the state constitution shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.
[159] See Annals of the American Academy of Political and Social Science, Vol. VI, p. 469.
[160] Goodnow, Municipal Home Rule, p. 20.
[161] Municipal Problems, p. 9.
[162] Goodnow, Municipal Home Rule, p. 23.
[163] Goodnow, Municipal Home Rule, pp. 24-26.
[164] Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash.
[165] The employment of the special fund device for municipal ownership purposes has been upheld by the Supreme Court of Washington. See Winston v. Spokane, 12 Wash. 524, and Faulkner v. Seattle, 19 Wash. 320.
[166] Const., Art. I, sec. 2 and Art. II, sec. 1.
[167] Abstract of the Twelfth Census, p. 133.
[168] Constitution of Colorado, Art. X, Sec. 3.
[169] These figures concerning municipally owned waterworks as well as those in the following paragraph relating to electric light plants, are based on the data contained in the Fourteenth Annual Report of the U.S. Commissioner of Labor on Water, Gas and Electric Light Plants.
[170] Water, Gas and Electric Light Plants, 1899.
[171] Abstract of the Twelfth Census, p. 133.
[172] Ibid, p. 28.
[173] Cooley, Constitutional Limitations, 6th ed., p. 282, n.
[174] The Shame of the Cities, p. 5.
[175] Bryce, Vol. I, p. 663.
[176] Willoughby, The Nature of the State, p. 416.
[177] Pol. Sci. and Const. Law, Vol. I, p. 197.
[178] Ford's ed. of The Federalist, Introduction, p. xiii.
[179] Boutmy, Studies in Constitutional Law, p. 155.
[180] Principles of Sociology, Vol. III, p. 525.
[181] In the year 1857 over 37 per cent. of the immigrants arriving in the United States were from Germany, and over 39 per cent. were from Great Britain and Ireland. The bulk of our foreign immigration continued to come from these two countries until about 1886 or 1887. In 1890 these countries together contributed but little more than 47 per cent. of our foreign immigrants, and in 1904 but 17 per cent. Italy, including Sicily and Sardinia, supplied but 6 per cent. of the total number of immigrants in 1886 and 23 per cent. in 1904. The Russian Empire and Finland furnished only 5 per cent. of the total number in 1886 and about 18 per cent. in 1904. In 1886 the immigration from Asiatic countries was insignificant, but in 1904 it had increased to 26,186. See Report of the Commissioner-General of Immigration, 1904.
[182] Art. I, sec. 9.
[183] Federalist, No. 36.
[184] Considerations, on the Power to Incorporate the Bank of North America, Works, Vol. I.
[185] 6 Cranch, 87.
[186] Constitutional Limitations, 6th ed., pp. 335-336, n.
[187] Money and Banking, p. 327. See also Myers, The History of Tammany Hall, pp. 113-116.
[188] "Over and over again our government has been saved from complete breakdown only by an absolute disregard of the Constitution, and most of the very men who framed the compact would have refused to sign it, could they have foreseen its eventual development." Ford's Federalist, Introduction, p. vii.
[189] This was true of Samuel J. Tilden, the Democratic candidate in 1876.
[191] Appendix to the Congressional Globe, 1st sess., 30th Cong., p. 94.
[192] Vol. I, p. 520.
[193] Outlook, Vol. 79, p. 163.
[194] Popular Government, p. 181.
[195] Politics and Administration, p. 9.
[196] This was one of the objects of the Oregon Direct Primary Law, which was enacted by the people of that state upon initiative petition at the general election held June 6, 1904. Under this law the elector seeking nomination for the office of senator or representative in the legislative assembly is expected to sign and file, as part of his petition for nomination, one of the two following statements:
No. 1. "I further state to the people of Oregon as well as to the people of my legislative district, that during my term of office, I will always vote for that candidate for United States Senator in Congress who has received the highest number of the people's votes for that position at the general election next preceding the election of a Senator in Congress, without regard to my individual preference."
No. 2. "During my term of office I shall consider the vote of the people for United States Senator in Congress as nothing more than a recommendation, which I shall be at liberty to wholly disregard if the reason for doing so seems to me to be sufficient."
[197] Pure Sociology, p. 487.
[198] "The art of printing, in the hands of private persons, has, until within a comparatively recent period, been regarded rather as an instrument of mischief, which required the restraining hand of the government, than as a power for good, to be fostered and encouraged.... The government assumed to itself the right to determine what might or might not be published; and censors were appointed without whose permission it was criminal to publish a book or paper upon any subject. Through all the changes of government, this censorship was continued until after the Revolution of 1688, and there are no instances in English history of more cruel and relentless persecution than for the publication of books which now would pass unnoticed by the authorities....
"So late as 1671, Governor Berkeley, of Virginia, expressed his thankfulness that neither free schools nor printing were introduced in the Colony, and his trust that these breeders of disobedience, heresy, and sects, would long be unknown....
"For publishing the laws of one session in Virginia, in 1682, the printer was arrested and put under bonds until the King's pleasure could be known, and the King's pleasure was declared that no printing should be allowed in the Colony. There were not wanting instances of the public burning of books as offenders against good order. Such was the fate of Elliot's book in defense of unmixed principles of popular freedom, and Calef's book against Cotton Mather, which was given to the flames at Cambridge." Cooley, Constitutional Limitations, 6th ed., pp. 513-515.
[199] Aristocracy and Evolution, p. 58.
[200] Ibid. p. 377.
[201] Social Evolution, p. 39.
[202] Aristocracy and Evolution, p. 105.
[203] Ibid p. 218.
[204] Ibid p. 219.
[205] Principles of Biology, Vol. I, p. 469.
[206] Aristocracy and Evolution, p. 105.
[207] Adam Smith, Wealth of Nations, Book I, Ch. 2.
[208] Supra, chapters [XI] and [XII.]
[209] P. 534.