Front Page Titles (by Subject) Appendix: Note to Chapter 3: ON CONSTITUTIONAL CONVENTIONS - The American Commonwealth, vol. 1
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Appendix: Note to Chapter 3: ON CONSTITUTIONAL CONVENTIONS - Viscount James Bryce, The American Commonwealth, vol. 1 
The American Commonwealth, with an Introduction by Gary L. McDowell, 2 vols (Indianapolis: Liberty Fund, 1995).
Part of: The American Commonwealth, 2 vols.
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Note to Chapter 3
ON CONSTITUTIONAL CONVENTIONS
In America it is always by a convention (i.e., a representative body called together for some occasional or temporary purpose) that a constitution is framed. It was thus that the first constitutions for the thirteen revolting colonies were drawn up and enacted in 1776 and the years following; and as early as 1780 the same plan had suggested itself as the right one for framing a constitution for the whole United States.1 Recognized in the federal Constitution (art. V.) and in the successive constitutions of the several states as the proper method to be employed when a new constitution is to be prepared, or an existing constitution revised throughout, it has now become a regular and familiar part of the machinery of American government, almost a necessary part, because all American legislatures are limited by a fundamental law, and therefore when a fundamental law is to be repealed or largely recast, it is desirable to provide for the purpose a body distinct from the ordinary legislature. Where it is sought only to change the existing fundamental law in a few specified points, the function of proposing these changes to the people for their acceptance may safely be left, and generally is left, to the legislature. Originally a convention was conceived of as a sovereign body, wherein the full powers of the people were vested by popular election. It is now, however, merely an advisory body, which prepares a draft of a new constitution and submits it to the people for their acceptance or rejection.2 And it is not deemed to be sovereign in the sense of possessing the plenary authority of the people, for its powers may be, indeed now invariably are, limited by the statute under which the people elect it.3
Questions relating to the powers of a constitutional convention have several times come before the courts, so that there exists a small body of law as well as a large body of custom and practice regarding the rights and powers of such assemblies. Into this law and practice I do not propose to enter. But it is worth while to indicate certain advantages which have been found to attach to the method of entrusting the preparation of a fundamental instrument of government to a body of men specially chosen for the purpose instead of to the ordinary legislature. The topic suggests interesting comparisons with the experience of France and other European countries in which constitutions have been drafted and enacted by the legislative, which has been sometimes also practically the executive, authority. Nor is it wholly without bearing on problems which have recently arisen in England, where Parliament has found itself, and may find itself again, invited to enact what would be in substance a new constitution for a part of the United Kingdom.
An American constitutional convention, being chosen for the sole purpose of drafting a constitution, and having nothing to do with the ordinary administration of government, no influence or patronage, no power to raise or appropriate revenue, no opportunity of doing jobs for individuals or corporations, is not necessarily elected on party lines or in obedience to party considerations.4 Hence men comparatively indifferent to party are sometimes elected; while those who seek to enter a legislature for the sake of party advancement or the promotion of some gainful object do not generally care to serve in a convention.
When the convention meets, it is not, like a legislature, a body strictly organized by party. A sense of individual independence and freedom may prevail unknown in legislatures. Proposals have therefore a chance of being considered on their merits. A scheme does not necessarily command the support of one set of men nor encounter the hostility of another set because it proceeds from a particular leader or group. And as the ordinary party questions do not come up for decision while its deliberations are going on, men are not thrown back on their usual party affiliations, nor are their passions roused by exciting political issues.
Having no work but constitution-making to consider, a convention is free to bend its whole mind to that work. Debate has less tendency to stray off to irrelevant matters. Business advances because there are no such interruptions as a legislature charged with the ordinary business of government must expect.
Since a convention assembles for one purpose only, and that a purpose specially interesting to thoughtful and public-spirited citizens, and since its duration is short, men who would not care to enter a legislature, men pressed by professional labours, or averse to the “rough and tumble” of politics, a class large in America and increasing in Europe, are glad to serve on it, while mere jobbers or office-seekers find little to attract them in its functions.5 Thus the level of honesty, even more than of ability, is higher in conventions than in legislatures.
The fact that the constitution when drafted has to be submitted to the people, by whose authority it will (if accepted) be enacted, gives to the convention a somewhat larger freedom for proposing what they think best than a legislature, courting or fearing its constituents, commonly allows itself. As the convention vanishes altogether when its work is accomplished, the ordinary motives for popularity hunting are less potent. As it does not legislate but merely proposes, it need not fear to ask the people to enact what may offend certain persons or classes, for the odium, if any, of harassing these classes will rest with the people. And as the people must accept or reject the draft en bloc (unless in the rare case where provision is made for voting on particular points separately), more care is taken in preparing the draft, in seeing that it is free from errors and repugnances, than a legislature capable of repealing or altering in its next session what it now provides, is likely to bestow on the details of its measures.
Those who are familiar with European parliaments may conceive that as a set-off to these advantages there will be a difficulty in getting a number of men not organized by parties to work promptly and efficiently, that a convention will be, so to speak, an amorphous body, that if it has no leaders nor party allegiance it will divide one way today and another way tomorrow, that the abundance of able men will mean an abundance of doctrinaire proposals and a reluctance to subordinate individual prepossessions to practical success. Admitting that such difficulties do sometimes arise, it may be observed that in America men quickly organize themselves for any and every purpose, and that doctrinairism is there so uncommon a fault as to be almost a merit. When a complete new constitution is to be prepared, the balance of convenience is decidedly in favour of giving the work to a convention, for although conventions are sometimes unwise, they are usually composed of far abler men than those who fill the legislatures, and discharge their function with more wisdom as well as with more virtue. But where it is not desired to revise the whole frame of government, the simpler and better plan is to proceed by submitting to the people specific amendments, limited to particular provisions of the existing constitution. This has been latterly the method most generally employed in improving state constitutions. Recently, however, a prescribed number of the citizens have been in six Western states empowered by their constitutions to propose by means of the initiative amendments of the constitution, which are thereupon submitted to popular vote without the intervention either of the legislature or of a convention. (See page 652, Extracts from the Constitution  of Oklahoma.)
The above remarks are of course chiefly based on the history of state conventions, because no national constitutional convention has sat since 1787. But they apply in principle to any constitution-making body.
Note to Chapter 4
WHAT THE FEDERAL CONSTITUTION OWES TO THE CONSTITUTIONS OF THE SEVERAL STATES
The following statement of the provisions of the federal Constitution which have been taken from or modelled upon state constitutions, is extracted from a valuable article by Mr. Alexander Johnston in the New Princeton Review for September 1887:
“That part of the Constitution, which has attracted most notice abroad, is probably its division of Congress into a Senate and a House of Representatives, with the resulting scheme of the Senate as based on the equal representation of the States. It is probably inevitable that the upper or hereditary House in foreign legislative bodies shall disappear in time. And it is not easy to hit on any available substitute; and English writers for example, judging from the difficulty of finding a substitute for the House of Lords, have rated too high the political skill of the Convention in hitting upon so brilliant a success as the Senate. But the success of the Convention was due to the antecedent experience of the States. Excepting Pennsylvania and Vermont, which then gave all legislative powers to one House, and executive powers to a governor and council, all the States had bicameral systems in 1787.1
“The name ‘Senate’ was used for the Upper House in Maryland, Massachusetts, New York, North Carolina, New Hampshire, and South Carolina and Virginia; and the name ‘House of Representatives,’ for the Lower House, was in use in Massachusetts, New Hampshire, and South Carolina, as well as in Pennsylvania and Vermont.
“The rotation, by which one-third of the Senate goes out every two years, was taken from Delaware, where one-third went out each year, New York (one-fourth each year), Pennsylvania (one-third of the council each year), and Virginia (one-fourth each year). The provisions of the whole fifth section of Art. i., the administration of the two Houses, their power to decide the election of their members, make rules and punish their violation, keep a journal, and adjourn from day to day, are in so many state constitutions that no specification is needed for them.
“The provision that money-bills shall originate in the House of Representatives is taken almost word for word from the Constitutions of Massachusetts and New Hampshire, as is the provision, which has never been needed, that the President may adjourn the two Houses when they cannot agree on a time of adjournment. The provision for a message is from the Constitution of New York. All the details of the process of impeachment as adopted by the Convention may be found in the Constitutions of Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina, Vermont, Virginia, even to the provision in the South Carolina system that conviction should follow the vote of two-thirds of the members present. (It should be said, however, that the limitation of sentence in case of conviction to removal from office and disqualification for further office-holding is a new feature.) Even the much-praised process of the veto is taken en bloc from the Massachusetts Constitution of 1780, and the slight changes are so evidently introduced as improvements on the language alone as to show that the substance was copied.
“The adoption of different bases for the two Houses—the House of Representatives representing the States according to population, while the Senate represented them equally—was one of the most important pieces of work which the Convention accomplished as well as the one which it reached most unwillingly. All the States had been experimenting to find different bases for their two Houses. Virginia had come nearest to the appearance of the final result in having her Senate chosen by districts and her representatives by counties; and, as the Union already had its ‘districts’ formed (in the States), one might think that the Convention merely followed Virginia’s experience. But the real process was far different and more circuitous. There were eleven States represented in the Convention, New Hampshire taking New York’s place when the latter withdrew, and Rhode Island sending no delegates. Roughly speaking, five States wanted the ‘Virginia plan’ above stated; five wanted one House as in the Confederation with State equality in it; and one (Connecticut) had a plan of its own to which the other ten States finally acceded. The Connecticut system since 1699, when its legislature was divided into two Houses, had maintained the equality of the towns in the Lower House, while choosing the members of the Upper House from the whole people. In like manner its delegates now proposed that the States should be equally represented in the Senate, while the House of Representatives, chosen from the States in proportion to population, should represent the people numerically. The proposition was renewed again and again for nearly a month until the two main divisions of the Convention, unable to agree, accepted the ‘Connecticut compromise,’ as Bancroft calls it, and the peculiar constitution of the Senate was adopted.
“The President’s office was simply a development of that of the governors of the States. The name itself had been familiar; Delaware, New Hampshire, Pennsylvania, and South Carolina, had used the title of President instead of that of Governor. In all the States the governor was commander-in-chief, except that in Rhode Island he was to have the advice of six assistants, and the major part of the freemen, before entering upon his duties. The President’s pardoning power was drawn from the example of the States; they had granted it to the governors (in some cases with the advice of a council) in all the States except Connecticut, Rhode Island, and Georgia, where it was retained to the legislature, and in South Carolina, where it seems to have been forgotten in the Constitution of 1778, but was given to the governor in 1790. The governor was elected directly by the people in Connecticut, Massachusetts, New York, and Rhode Island, and indirectly by the two Houses in the other eight States; and in this nearly equal division we may, perhaps, find a reason for the Convention’s hesitation to adopt either system, and for its futile attempt to introduce an electoral system, as a compromise. The power given to the Senate of ratifying or rejecting the President’s appointments seems to have been an echo of New York’s council of appointment; the most strenuous and persistent efforts were made to provide a council to share in appointments with the President; the admission of the Senate as a substitute was the furthest concession which the majority would make; and hardly any failure of details caused more heart-burnings than the rejection of this proposed council for appointments.
“The President’s power of filling vacancies, by commissions to expire at the end of the next session of the Senate, is taken in terms from the Constitution of North Carolina.
“Almost every State prescribed a form of oath for its officers; the simple and impressive oath of the President seems to have been taken from that of Pennsylvania, with a suggestion, much improved in language, from the oath of allegiance of the same State. The office of vice-president was evidently suggested by that of the deputy, or lieutenant-governor (in four States the vice-president) of the States. The exact prototype of the office of vice-president is to be found in that of the lieutenant governor of New York. He was to preside in the Senate, without a vote, except in case of a tie, was to succeed the governor, when succession was necessary, and was to be succeeded by the President pro tempore of the Senate.
“The provisions for the recognition of inter-State citizenship, and for the rendition of fugitive slaves and criminals, were a necessity in any such form of government as was contemplated, but were not at all new. They had formed a part of the eighth article of the New England Confederation of 1643. Finally the first ten amendments, which were tacitly taken as a part of the original instrument, are merely a selection from the substance or the spirit of the Bills of Rights which preceded so many of the State constitutions.
“The most solid and excellent work done by the Convention was its statement of the powers of Congress (in § 8 of Art. i.) and its definition of the sphere of the Federal judiciary (in Art. iii.). The results in both of these cases were due, like the powers denied to the States and to the United States (in § § 9 and 10 of Art. i.), to the previous experience of government by the States alone. For eleven years or more (to say nothing of the antecedent colonial experience) the people had been engaged in their State governments in an exhaustive analysis of the powers of government. The failures in regard to some, the successes in regard to others, were all before the Convention for its consideration and guidance.
“Not creative genius, but wise and discreet selection was the proper work of the Convention; and its success was due to the clear perception of the antecedent failures and successes, and to the self-restraint of its members.
“The (presidential) electoral system was almost the only feature of the Constitution not suggested by State experience,2 almost the only feature which was purely artificial, not a natural growth; it was the one which met with least criticism from contemporary opponents of the Constitution and most unreserved praise from the Federalist; and democracy has ridden right over it.”
Note to Chapter 10
EXTRACTS FROM THE RULES OF THE SENATE
A quorum shall consist of a majority of the senators, duly chosen and sworn.
The legislative, the executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book.
When the yeas and nays are ordered, the names of senators shall be called alphabetically; and each senator shall, without debate, declare his assent or dissent to the question, unless excused by the Senate; and no senator shall be permitted to vote after the decision shall have been announced by the presiding officer, but may for sufficient reasons, with unanimous consent, change or withdraw his vote.
When a senator declines to vote on call of his name, he shall be required to assign his reasons therefor, and on his having assigned them, the presiding officer shall submit the question to the Senate, “Shall the senator for the reasons assigned by him, be excused from voting?” which shall be decided without debate.
In the appointment of the standing committees, the Senate, unless otherwise ordered, shall proceed by ballot to appoint severally the chairman of each committee, and then, by one ballot, the other members necessary to complete the same. A majority of the whole number of votes given shall be necessary to the choice of a chairman of a standing committee, but a plurality of votes shall elect the other members thereof. All other committees shall be appointed by ballot, unless otherwise ordered, and a plurality of votes shall appoint.
At the second or any subsequent session of a Congress, the legislative business which remained undetermined at the close of the next preceding session of that Congress shall be resumed and proceeded with in the same manner as if no adjournment of the Senate had taken place.
On a motion made and seconded to close the doors of the Senate, on the discussion of any business which may, in the opinion of a senator, require secrecy, the presiding officer shall direct the galleries to be cleared; and during the discussion of such motion the doors shall remain closed.
When the President of the United States shall meet the Senate in the Senate chamber for the consideration of executive business, he shall have a seat on the right of the presiding officer. When the Senate shall be convened by the President of the United States to any other place, the presiding officer of the Senate and the senators shall attend at the place appointed, with the necessary officers of the Senate.
When acting upon confidential or executive business the Senate chamber shall be cleared of all persons except the secretary, the chief clerk, the principal legislative clerk, the executive clerk, the minute and journal clerk, the sergeant-at-arms, the assistant doorkeeper, and such other officers as the presiding officer shall think necessary, and all such officers shall be sworn to secrecy.
All confidential communications made by the President of the United States to the Senate shall be by the senators and the officers of the Senate kept secret; and all treaties which may be laid before the Senate, and all remarks, votes, and proceedings thereon, shall also be kept secret until the Senate shall, by their resolution, take off the injunction of secrecy, or unless the same shall be considered in open executive session.
Any senator or officer of the Senate who shall disclose the secret or confidential business or proceedings of the Senate shall be liable, if a senator, to suffer expulsion from the body; and if an officer, to dismissal from the service of the Senate, and to punishment for contempt.
On the final question to advise and consent to the ratification of a treaty in the form agreed to, the concurrence of two-thirds of the senators present shall be necessary to determine it in the affirmative; but all other motions and questions upon a treaty shall be decided by a majority vote, except a motion to postpone indefinitely, which shall be decided by a vote of two-thirds.
When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, “Will the Senate advise and consent to this nomination?” Which question shall not be put on the same day on which the nomination is received, nor on the day on which it may be reported by a committee, unless by unanimous consent.
All information communicated or remarks made by a senator, when acting upon nominations, concerning the character or qualifications of the person nominated, also all votes upon any nomination, shall be kept secret. If, however, charges shall be made against a person nominated, the committee may, in its discretion, notify such nominee thereof, but the name of the person making such charges shall not be disclosed. The fact that a nomination has been made, or that it has been confirmed or rejected, shall not be regarded as a secret.
Note (A) to Chapter 16
In England a broad distinction is drawn between public bills and local or private bills. The former class includes measures of general application, altering or adding to the general law of the land. The latter includes measures intended to apply only to some particular place or person, as for instance, bills incorporating railway or gas or water companies or extending the powers of such bodies, bills authorizing municipalities to execute public improvements, as well as estate bills, bills relating to charitable foundations, and (for Ireland) divorce bills.1 Bills of the local and personal class have for many years past been treated differently from public bills. They are brought in, as it is expressed, on petition, and not on motion. Notice is required to be given of such a bill by advertisement nearly three months before the usual date of the meeting of Parliament and copies must be deposited some weeks before the opening of the session. The second reading is usually granted as a matter of course; and after second reading, instead of being, like a public bill, considered in Committee of the Whole House, it goes (if opposed) to a private bill committee consisting (usually) of four members, who take evidence regarding it from the promoters and opponents, and hear counsel argue for and against its preamble and its clauses. In fact, the proceedings on private bills are to some extent of a judicial nature, although of course the committee must have regard to considerations of policy.
Pecuniary claims against the government are in England not raised by way of private bill. They are presented in the courts by a proceeding called a petition of right, the Crown allowing itself to be sued by one of its subjects.
In America no such difference of treatment as the above exists between public and private bills; all are dealt with in substantially the same way by the usual legislative methods. A bill of purely local or personal nature gets its second reading as a matter of course, like a bill of general application, is similarly referred to the appropriate committee (which may hear evidence regarding it, but does not hear counsel), is considered and if necessary amended by the committee, is, if time permits, reported back to the House, and there takes its chance among the jostling crowd of other bills, Fridays, however, being specially set apart for the consideration of private business. There is a calendar of private bills, and those which get a place early upon it have a chance of passing. A great many are unopposed, and can be hurried through “by unanimous consent.”
Private bills are in Congress even more multifarious in their contents, as well as incomparably more numerous, than in England, although they do not include the vast mass of bills for the creation or regulation of various public undertakings within a particular state, since these would fall within the province of the state legislature. They include three classes practically unknown in England, pension bills, which propose to grant a pension to some person (usually a soldier or his widow), bills for satisfying some claim of an individual against the federal government—these, however, have been largely reduced by the creation of the Court of Claims—and bills for dispensing in particular cases with a variety of administrative statutes. Matters which in England would be naturally left to be dealt with at the discretion of the executive are thus assumed by the legislature, which is (for reasons that will appear in later chapters) more anxious to narrow the sphere of the executive than are the ruling legislatures of European countries. I subjoin some instances showing how wide is the range of congressional interference.
IN THE HOUSE OF REPRESENTATIVES
Read twice, referred to the Committee on Invalid Pensions, and ordered to be printed.
Mr. Murch introduced the following bill:
For the relief of James E. Gott
Be it enacted,
Read twice, referred to the Committee on War Claims, and ordered to be printed.
For the relief of the heirs of George W. Hayes
Be it enacted,
That the proper accounting officer of the Treasury be, and he is hereby, directed to pay to the heirs of George W. Hayes, of North Carolina, the sum of four hundred and fifty dollars, for three mules furnished the United States Army in eighteen hundred and sixty-four, for which they hold proper vouchers.
Read twice, referred to the Committee on Commerce, and ordered to be printed.
For the relief of Thomas G. Corbin
Be it enacted, etc.
That the President of the United States be, and is hereby, authorized to restore Thomas G. Corbin, now a captain on the retired list of the Navy, to the active list, and to take rank next after Commodore J. W. A. Nicholson, with restitution, from December twelfth, eighteen hundred and seventy-three, of the difference of pay between that of a commodore on the active list, on “waiting orders” pay, and that of a captain retired on half-pay, to be paid out of any money in the Treasury not otherwise appropriated.
Read twice, referred to the Committee on Ways and Means, and ordered to be printed.
Mr. Robinson introduced the following joint resolution:
Authorizing the remission or refunding of duty on a painted-glass window from London, England, for All Souls’ Church, in Washington, District of Columbia.
Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled.
That the Secretary of the Treasury be, and he is hereby, authorized and directed to remit or refund, as the case may be, the duties paid or accruing upon a painted-glass window from London, England, for All Souls’ Church, in Wasington, District of Columbia, imported, or to be imported into Baltimore, Maryland, or other port.
Note (B) to Chapter 16
“The lobby” is the name given in America to persons, not being members of a legislature, who undertake to influence its members, and thereby to secure the passing of bills. The term includes both those who, since they hang about the chamber, and make a regular profession of working upon members, are called “lobbyists,” and those persons who on any particular occasion may come up to advocate, by argument or solicitation, any particular measure in which they happen to be interested. The name, therefore, does not necessarily impute any improper motive or conduct, though it is commonly used in what Bentham calls a dyslogistic sense.
The causes which have produced lobbying are easily explained. Every legislative body has wide powers of affecting the interests and fortunes of private individuals, both for good and for evil. It entertains in every session some public bills, and of course many more private (i.e., local or personal) bills, which individuals are interested in supporting or resisting. Such, for instance, are public bills imposing customs duties or regulating the manufacture or sale of particular articles (e.g., intoxicants, explosives), and private bills establishing railroad or other companies, or granting public franchises, or (in state legislatures) altering the areas of local government, or varying the taxing or borrowing powers of municipalities. When such bills are before a legislature, the promoters and the opponents naturally seek to represent their respective views, and to enforce them upon the members with whom the decision rests. So far there is nothing wrong, for advocacy of this kind is needed in order to bring the facts fairly before the legislature.
Now both in America and in England it has been found necessary, owing to the multitude of bills and the difficulty of discussing them in a large body, to refer private bills to committees for investigation; and the legislature has in both countries formed the habit of accepting generally, though not invariably, the decisions of a committee upon the bills it has dealt with. America has, however, gone farther than England, for Congress refers all public bills as well as private bills to committees. And whereas in England private bills are dealt with by a semi-judicial procedure, the promoters and opponents appearing by professional agents and barristers, in America no such procedure has been created, either in Congress or in the state legislatures, and private bills are handled much like public ones. Moreover, the range of private bills is wider in America than in England, in respect that they are used to obtain the satisfaction of claims by private persons against the government, (although there exists a federal Court of Claims, and in some states the state permits itself to be sued) whereas in England such claims would either be brought before a law court in the form of a Petition of Right, or, though this rarely happens, be urged upon the executive by a motion made in Parliament.
We see, therefore, that in the United States:
It results from the foregoing state of facts that the efforts of the promoters and opponents of a bill will be concentrated upon the committee to which the bill has been referred; and that when the interests affected are large it will be worth while to employ every possible engine of influence. Such influence can be better applied by those who have skill and a tact matured by experience; for it is no easy matter to know how to handle a committee collectively and its members individually. Accordingly, a class of persons springs up whose profession it is to influence committees for or against bills. There is nothing necessarily illegimate in doing so. As Mr. Spofford remarks:
“What is known as lobbying by no means implies in all cases the use of money to affect legislation. This corruption is frequently wholly absent in cases where the lobby is most industrious, numerous, persistent, and successful. A measure which it is desired to pass into law, for the benefit of certain interests represented, may be urged upon members of the legislative body in every form of influence except the pecuniary one. By casual interviews, by informal conversation, by formal presentation of facts and arguments, by printed appeals in pamphlet form, by newspaper communications and leading articles, by personal introductions from or through men of supposed influence, by dinners, receptions, and other entertainments, by the arts of social life and the charms of feminine attraction, the public man is beset to look favourably upon the measure which interested parties seek to have enacted. It continually happens that new measures or modifications of old ones are agitated in which vast pecuniary interests are involved. The power of the law, which when faithfully administered is supreme, may make or unmake the fortunes of innumerable corporations, business firms, or individuals. Changes in the tariff duties, in the internal revenue taxes, in the banking system, in the mining statutes, in the land laws, in the extension of patents, in the increase of pensions, in the regulation of mail contracts, in the currency of the country, or proposed appropriations for steamship subsidies, for railway legislation, for war damages, and for experiments in multitudes of other fields of legislation equally or more important, come before Congress. It is inevitable that each class of interests liable to be affected should seek its own advantage in the result. When this is done legitimately, by presentation and proof of facts, by testimony, by arguments, by printed or personal appeals to the reason and sense of justice of members, there can be no objection to it.” 1
Just as a plaintiff in a lawsuit may properly employ an attorney and barrister, so a promoter may properly employ a lobbyist. But there is plainly a risk of abuse. In legal proceedings, the judge and jury are bound to take nothing into account except the law and the facts proved in evidence. It would be an obvious breach of duty should a judge decide in favour of a plaintiff because he had dined with or been importuned by him (as in the parable), or received £50 from him. The judge is surrounded by the safeguards, not only of habit but of opinion, which would condemn his conduct and cut short his career were he to yield to any private motive. The attorney and barrister are each of them also members of a recognized profession, and would forfeit its privileges were they to be detected in the attempt to employ underhand influence. No such safeguards surround either the member of a committee or the lobbyist. The former usually comes out of obscurity, and returns to it; the latter does not belong to any disciplined profession. Moreover, the questions which the committee has to decide are not questions of law, nor always questions of fact, but largely questions of policy, on which reasonable men need not agree, and as to which it is often impossible to say that there is a palpably right view or wrong view, because the determining considerations will be estimated differently by different minds.
These dangers in the system of private bill legislation made themselves so manifest in England, especially during the great era of railway construction between 1835 and 1850, as to have led to the adoption of the quasi-judicial procedure described in the Note on Private Bills, and to the erection of parliamentary agents into a regularly constituted profession, bound by professional rules. Public opinion has fortunately established the doctrine that each member of a private bill committee is to be considered as a quasi-judicial person, whose vote neither a brother member nor any outsider may attempt to influence, but who is bound to decide, as far as he can, in a judicial spirit on the footing of the evidence tendered. Of course practice is not up to the level of theory in Parliament any more than elsewhere; still there is little solicitation to members of committees, and an almost complete absence of even the suspicion of corruption.
“In the United States,” says an experienced American publicist, whose opinion I have inquired, “though lobbying is perfectly legitimate in theory, yet the secrecy and want of personal responsibility, the confusion and want of system in the committees, make it rapidly degenerate into a process of intrigue, and fall into the hands of the worst men. It is so disagreeable and humiliating that all men shrink from it, unless those who are stimulated by direct personal interest; and these soon throw away all scruples. The most dangerous men are ex-members, who know how things are to be managed.”
That this unfavourable view is the prevailing one, appears not merely from what one hears in society or reads in the newspapers, though in America one must discount a great deal of what rumour asserts regarding illicit influence, but from the constitutions and statutes of some states, which endeavour to repress it.
What has been said above applies equally to Congress and to the state legislatures, and to some extent also to the municipal councils of the great cities. All legislative bodies which control important pecuniary interests are as sure to have a lobby as an army to have its camp followers. Where the body is, there will the vultures be gathered together. Great and wealthy states, like New York and Pennsylvania, support the largest and most active lobbies. It must, however, be remembered that although no man of good position would like to be called a lobbyist, still such men are often obliged to do the work of lobbying—i.e., they must dance attendance on a committee, and endeavour to influence its members for the sake of getting their measure through. They may have to do this in the interests of the good government of a city, or the reform of a charity, no less than for some private end.
The permanent professional staff of lobbyists at Washington is of course from time to time recruited by persons interested in some particular enterprise, who combine with one, two, or more professionals in trying to push it through. Thus there are at Washington, says Mr. Spofford, “pension lobbyists, tariff lobbyists, steamship subsidy lobbyists, railway lobbyists, Indian ring lobbyists, patent lobbyists, river and harbour lobbyists, mining lobbyists, bank lobbyists, mail-contract lobbyists, war damages lobbyists, back-pay and bounty lobbyists, Isthmus canal lobbyists, public building lobbyists, state claim lobbyists, cotton-tax lobbyists, and French spoliations lobbyists. Of the office-seeking lobbyists at Washington it may be said that their name is legion. There are even artist lobbyists, bent upon wheedling Congress into buying bad paintings and worse sculptures; and too frequently with success. At times in our history there has been a British lobby, with the most genteel accompaniments, devoted to watching legislation affecting the great importing and shipping interests.”
A committee whose action can affect the tariff is of course surrounded by a strong lobby.2 I remember to have heard an anecdote of a quinine manufacturer, who had kept a lawyer as his agent to “take care of” a committee during a whole session, and prevent them from touching the duty on that drug. On the last day of sitting the agent went home, thinking the danger past. As soon as he had gone, the committee suddenly recommended an alteration of the duty, on the impulse of someone who had been watching all the time for his opportunity.
Women were at one time among the most active and successful lobbyists at Washington. Very few are now seen.
Efforts have been made to check the practice of lobbying, both in Congress and in state legislatures. Statutes have been passed severely punishing any person who offers any money or value to any member with a view to influence his vote.3 It has been repeatedly held by the courts that “contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts, arguments, and appeals to reason, as are recognized as proper and legitimate with all public bodies, must be held void.” 4 It has also been suggested that a regular body of attorneys, authorized to act as agents before committees of Congress, should be created. A bill for this purpose was laid before the Senate in January 1875.
Note (A) to Chapter 30
CONSTITUTION OF THE CONFEDERATE STATES, 1861–65
The constitution adopted 11th March 1861 by the slave states which seceded from the Union and formed the short-lived Southern Confederacy, was a reproduction of the federal Constitution of 1788–89, with certain variations, interesting because they show the points in which the states’ rights party thought the federal Constitution defective as inadequately safeguarding the rights of the several states, and because they embody certain other changes which have often been advocated as likely to improve the working of that instrument.
The most important of these variations are the following:
Of these changes, the third and fifth were obvious improvements; and much may be said in favour of the second, fourth, seventh, and eighth. The second was a very slight approximation towards the cabinet system of England.1
I omit the important changes relating to slavery, which was fully protected, because these have only a historical interest.
The working of the Constitution of the Confederate States cannot be fairly judged, because it was conducted under the exigencies of a war, which necessarily gave it a despotic turn. The executive practically got its way. Congress usually sat in secret and “did little beyond register laws prepared by the executive, and debate resolutions for the vigorous conduct of the war. Outside of the ordinary powers conferred by the legislature, the war powers openly or practically exercised by the executive were more sweeping and general than those assumed by President Lincoln.” —(Alexander Johnston in American Cyclopædia of Political Science, Article “Confederate States. ”)
Note (B) to Chapter 30
THE FEDERAL CONSTITUTION OF CANADA
The federal Constitution of the Dominion of Canada is contained in the British North America Act 1867, a statute of the British Parliament (30 Vict. c. 3).1 I note a few of the many points in which it deserves to be compared with that of the United States.
The federal or dominion government is conducted on the so-called “cabinet system” of England, i.e., the ministry sit in Parliament, and hold office at the pleasure of the House of Commons. The governor-general is in the position of an irresponsible and permanent executive similar to that of the Crown in Great Britain, acting on the advice of responsible ministers. He can dissolve Parliament. The Upper House or Senate is composed of 87 persons, nominated for life by the governor-general, i.e., the ministry. The House of Commons has at present 221 members, who are elected for five years. Both senators and members receive salaries. The Senate has little power or influence. The governor-general has a veto but rarely exercises it, and may reserve a bill for the Queen’s pleasure. The judges, not only of the federal or dominion courts, but also of the provinces, are appointed by the Crown, i.e., by the dominion ministry, and hold for good behaviour.
Each of the provinces, at present nine in number, has a legislature of its own, which, however, consists in Ontario, British Columbia, Manitoba, and New Brunswick of one house only, and a Lieutenant-Governor, appointed by the dominion government, with a right of veto on the acts of the legislature, which he seldom exercises. Members of the dominion parliament cannot sit in a provincial legislature.
The governor-general has a right of disallowing, on the advice of his ministers, acts of a provincial legislature, and sometimes (though rarely) exerts it, especially when a legislature is deemed to have exceeded its constitutional competence.
In each of the provinces there is a responsible ministry, working on the cabinet system of England, the lieutenant-governor representing the Crown and acting as a sort of constitutional sovereign.
The distribution of matters within the competence of the dominion parliament and of the provincial legislatures respectively, bears a general resemblance to that existing in the United States; but there is this remarkable distinction, that whereas in the United States, Congress has only the powers actually granted to it, the state legislatures retaining all such powers as have not been taken from them, the dominion Parliament has a general power of legislation, restricted only by the grant of certain specific and exclusive powers to the provincial legislatures (§ § 91–95). Criminal law is reserved for the dominion Parliament; and no province has the right to maintain a military force. Questions as to the constitutionality of a statute, whether of the dominion Parliament or of a provincial legislature, come before the courts in the ordinary way, and if appealed, before the Judicial Committee of the Privy Council in England.
The Constitution of the dominion was never submitted to popular vote, and can be altered only by the British Parliament, except as regards certain points left to its own legislature. It was drafted by a sort of convention in Canada, and enacted en bloc by the British Parliament. There exists no power of amending the provincial constitutions by popular vote similar to that which the peoples of the several states exercise in the United States.
As to the Constitution of the Commonwealth of Australia, drafted in Australia and enacted by the British Parliament in 1900, the reader may refer to the author’s Studies in History and Jurisprudence, where it is described and commented on. The Constitution of the South African Union, enacted in 1909 by the British Parliament at the request of a convention held in South Africa, is more unitary in its character than are those of Canada and Australia.
Note to Chapter 33
THE DARTMOUTH COLLEGE CASE
The famous case of Dartmouth College v. Woodward (4 Wheat. 518), decided in 1818, has been so often brought up in English discussions, that it seems proper to give a short account of it, taken from an authoritative source, an address by Mr. Justice Miller (the senior justice, and one of the most eminent members, of the Supreme Court), delivered before the University of Michigan, June 1887.
“It may well be doubted whether any decision ever delivered by any court has had such a pervading operation and influence in controlling legislation as this. It is founded upon the clause of the Constitution (Art. i. § 10) which declares that no State shall make any law impairing the obligation of contracts.
“Dartmouth College existed as a corporation under a charter granted by the British Crown to its trustees in New Hampshire, in the year 1769. This charter conferred upon them the entire governing power of the college, and among other powers that of filling up all vacancies occurring in their own body, and of removing and appointing tutors. It also declared that the number of trustees should forever consist of twelve and no more.
“After the Revolution, the legislature of New Hampshire passed a law to amend the charter, to improve and enlarge the corporation. It increased the number of trustees to twenty-one, gave the appointment of the additional members to the executive of the State, and created a board of overseers to consist of twenty-five persons, of whom twenty-one were also to be appointed by the executive of New Hampshire. These overseers had power to inspect and control the most important acts of the trustees.
“The Supreme Court, reversing the decision of the Superior Court of New Hampshire, held that the original charter constituted a contract between the Crown, in whom the power was then vested and the trustees of the college, which was impaired by the act of the legislature above referred to. The opinion, to which there was but one dissent, establishes the doctrine that the act of a government, whether it be by a charter of the legislature or of the Crown, which creates a corporation, is a contract between the state and the corporation, and that all the essential franchises, powers, and benefits conferred upon the corporation by the charter become, when accepted by it, contracts within the meaning of the clause of the Constitution referred to.
“The opinion has been of late years much criticised, as including with the class of contracts whose foundation is in the legislative action of the States, many which were not properly intended to be so included by the framers of the Constitution, and it is undoubtedly true that the Supreme Court itself has been compelled of late years to insist in this class of cases upon the existence of an actual contract by the state with the corporation, when relief is sought against subsequent legislation.
“The main feature of the case, namely, that a State can make a contract by legislation, as well as in any other way, and that in no such case shall a subsequent act of the legislature interpose any effectual barrier to its enforcement, where it is enforceable in the ordinary courts of justice, has remained. The result of this principle has been to make void innumerable acts of State legislatures, intended in times of disastrous financial depression and suffering to protect the people from the hardships of a rigid and prompt enforcement of the law in regard to their contracts, and to prevent the States from repealing, abrogating, or avoiding by legislation contracts fairly entered into with other parties.
“This decision has stood from the day it was made to the present hour as a great bulwark against popular effort through State legislation to evade the payment of just debts, the performance of obligatory contracts, and the general repudiation of the rights of creditors.”
As here intimated, the broad doctrine laid down in this case has been of late years considerably qualified and restricted. It has also become the practice for states making contracts by grants to which the principle of this decision could apply, to reserve power to vary or annul them, so as to leave the hands of the state free.
Articles of Confederation, 1781–88
Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.
ARTICLE I. The style of this confederacy shall be, “The United States of America.”
ART. II. Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Congress assembled.
ART. III. The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade or any other pretence whatever.
ART IV. 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; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant; provided, also, that no imposition, duties, or restriction, shall be laid by any State on the property of the United States, or either of them.
If any person guilty of, or charged with, treason, felony, or other high misdemeanour in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up, and removed to the State having jurisdiction of his offence.
Full faith and credit shall be given, in each of these States, to the records, acts, and judicial proceedings of the courts and magistrates of every other State.
ART. V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.
No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years, in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees, or emolument of any kind.
Each State shall maintain its own delegates in any meeting of the States, and while they act as members of the committee of the States.
In determining questions in the United States, in Congress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons from arrests and imprisonments during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.
ART. VI. No State, without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty, with any king, prince, or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.
No States shall lay any imposts or duties which may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Congress assembled, for the defence of such State or its trade; nor shall any body of forces be kept up by any State, in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.
No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Congress assembled, can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and then only against the kingdom or state, and the subjects thereof against which war has been so declared, and under such regulations as shall be established by the United States, in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall determine otherwise.
ART. VII. When land forces are raised by any State for the common defence, all officers of or under the rank of colonel shall be appointed by the legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.
ART. VIII. All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States, in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to, or surveyed for, any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States, in Congress assembled, shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States, within the time agreed upon by the United States, in Congress assembled.
ART. IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the case mentioned in the sixth Article; of sending and receiving ambassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever; of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining finally appeals in all cases of captures; provided that no member of Congress shall be appointed as judge of any of the said courts.
The United States, in Congress assembled, shall also be the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authoriy of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned; provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, “well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection, or hope of reward.” Provided, also, that no State shall be deprived of territory for the benefit of the United States.
All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions, as they may respect such lands, and the States which passed such grants, are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.
The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians not members of any of the States; provided that the legislative right of any State, within its own limits, be not infringed or violated; establishing and regulating post-offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office; appointing all officers of the land forces in the service of the United States, excepting regimental officers; appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States; making rules for the government and regulation of the said land and naval forces, and directing their operations.
The United States, in Congress assembled, shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated “A Committee of the States,” and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction; to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses; to borrow money or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted; to build and equip a navy; to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State, which requisition shall be binding; and thereupon the legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner at the expense of the United States; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled; but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the legislature of such State shall judge that such extra number can not be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled.
The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same, nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled.
The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy; and the yeas and nays of the delegates of each State, on any question, shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request, shall be furnished with transcript of the said journal, except such parts as are above excepted, to lay before the legislatures of the several States.
ART. X. The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States, in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the Articles of Confederation, the voice of nine States, in the Congress of the United States assembled, is requisite.
ART. XI. Canada acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same unless such admission be agreed to by nine States.
ART. XII. All bills of credit emitted, moneys borrowed, and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged.
ART XIII. Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time thereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union, Know ye, that we, the undersigned delegates, by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia, in the State of Pennsylvania, the ninth day of July in the year of our Lord 1778, and in the third year of the Independence of America.
[These Articles were not ratified by all the states until 1st March 1781, when the delegates of Maryland, the latest in ratifying, signed for her.]
Constitution of the United States
Done in Convention by the unanimous consent of the States present,3 the Seventeenth day of September, in the year of our Lord 1787, and of the Independence of the United States of America the Twelfth.
In Witness whereof we have hereunto subscribed our names.
Presidt. and Deputy from Virginia.
New Hampshire —John Langdon, Nicholas Gilman. Massachusetts —Nathaniel Gorham, Rufus King. Connecticut —Wm. Saml. Johnson, Roger Sherman. New York —Alexander Hamilton. New Jersey —Wil. Livingston, Wm. Patterson, David Brearley, Jona. Dayton. Pennsylvania —B. Franklin, Thos. Fitzsimons, Thomas Mifflin, Jared Ingersoll, Robt. Morris, James Wilson, Geo. Clymer, Gouv. Morris. Delaware —Geo. Read, Richard Bassett, Gunning Bedford, Jun., Jaco. Broom, John Dickinson. Maryland —James M’Henry, Dan. Carroll, Dan. Jenifer, of St. Thomas. Virginia —John Blair, James Madison, Jun. North Carolina —Wm. Blount, Hugh Williamson, Rich’d. Dobbs Spaight. South Carolina —J. Rutledge, Charles Pinckney, Charles Cotesworth Pinckney, Pierce Butler. Georgia —William Few, Abr. Baldwin.
Attest: William Jackson, Secretary.
Extracts from the Constitution of the State of Oklahoma1
Adopted in Convention at the City of Guthrie in the Territory of Oklahoma on July 10th, 1907, and ratified by the People on Sept. 17th in the same year.
 Story, Commentaries on the Constitution, § 374.
 The difficulty does not arise with stock or shares even when held in a company outside a state, because all states now tax corporations or companies within their jurisdiction, and the principle is generally (though not universally) adopted, that where stocks in a corporation outside the state have been so taxed, they shall not be again taxed in the hand of the holder of the stock, who may reside within the state. State laws and tax assessors can in each state succeed in reaching the property of the corporation itself.
 “A person, formerly assessor in one of our leading cities, reported that he had made efforts when in office to get this kind of property into the ‘grand list,’ and succeeded during his last two years in finding out and adding over $200,000 of it; but he adds, ‘That may have had something to do with my defeat when election came around.’ ” So in West Virginia when an assessor objecting to a merchant’s declaration threatened to swear the merchant, the latter replied, “If you swear me, I’ll vote against you next time.”
 The six are Massachusetts, New Jersey, New York, Rhode Island, South Carolina, Georgia—all original states. Where the meetings are biennial or quadrennial, the legislature by adjourning sometimes gives itself a second session.
 The members, however, being usually new to the work, are rawer and positively more dangerous when their term includes only one session than they are during the second session in those states which allow two.
 It is found in a private letter of Alexander Hamilton (then only twenty-three years of age) of that year.
 As to Kentucky, see p. 384.
 The state conventions which carried, or rather affected to carry, the seceding slave states out of the Union, acted as sovereign bodies. Their proceedings, however, though clothed with legal forms, were practically revolutionary.
 The questions of practical importance to the states with which a state convention would deal are very often not in issue between the two state parties, seeing that the latter are formed on national lines.
 Many of the men conspicuous in the public life of Massachusetts during the succeeding thirty years first made their mark in the Constitutional Convention of 1853. The draft framed by that convention was, however, rejected by the people. The new constitution for New York, framed by the Convention of 1867, was also lost at the polls. That convention was remarkable as being (according to Judge Jameson) the only one in which the requirement that a delegate must be resident in the district electing him was dispensed with (Constit. Conventions, § 267).
 Georgia, however, had not till 1789 a true second chamber, her constitution of 1777 having merely created an executive council elected by the assembly from among its own members.
Vermont was not one of the thirteen original states, but was a semi-independent commonwealth, not a member of the Confederation of 1781, not represented in the Convention of 1787, and not admitted to the Union till 1791.
 But it is well observed by Mr. J. H. Robinson (Original and Derived Features of the United States Constitution, p. 29) that this system may have been suggested by the Constitution of Maryland (1776), which provided for a choice of the state senators by a body of electors chosen every five years by the people for this purpose. Mr. Robinson rightly disapproves Sir H. Maine’s comparison of the electoral system of the Romano-Germanic Empire.
 The official distinction in the yearly editions of the statutes is into Public General Acts, Public Acts of a local character (which include Provisional Order Acts and Local Acts), and Private Acts. But in ordinary speech, those measures which are brought in at the instance of particular persons for a local purpose are called private.
 Mr. A. R. Spofford (formerly Librarian of Congress) in American Cyclopædia of Political Science, Article “Lobby.”
 The phrase one often hears “there was a strong lobby” (i.e., for or against such and such a bill) denotes that the interests and influences represented were numerous and powerful.
 As to Congress, see § 5450 of Revised Statutes of the United States. The provisions of state statutes are too numerous to mention. See p. 410. Massachusetts endeavoured by statute to regulate her state lobby, by requiring every person promoting a bill to state whom he has employed for the purpose and what he has paid. New York, Missouri, and other states have also passed laws designed to regulate and check lobbying. Some good has been done, but the evils do not seem to have been extirpated.
 Cooley, Constit. Limit., p. 166. He refers to the observations of Justice Chapman, in Frost v. Belmont, 6 Allen, 152:
“Though Committees properly dispense with many of the rules which regulate hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations and exercise secret influences that are kept from the knowledge of the other party. The business of ‘lobby members’ is not to go fairly and openly before the committees and present statements, proofs, and arguments, that the other side has an opportunity to meet and refute if they are wrong, but to go secretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erroneous they may be, and to bring illegitimate influences to bear upon them. If the ‘lobby member’ is selected because of his political or personal influence, it aggravates the wrong. If his business is to unite various interests by means of projects that are called ‘log-rolling,’ it is still worse. The practice of procuring members of the legislature to act under the influence of what they have eaten and drunk at houses of entertainment tends to render those who yield to such influences wholly unfit to act in such cases.”
 A singular combination of the presidential with the cabinet system may be found in the present Constitution of the Hawaiian kingdom, promulgated 7th July 1887, which lasted till the islands were annexed to the United States in 1898. Framed under the influence of American traditions, it kept the cabinet, which consisted of four ministers, out of the legislature but having an irresponsible hereditary monarch, it was obliged to give the legislature the power of dismissing them by a vote of want of confidence. The legislature consisted of two sets of elective members, Nobles (unpaid), and Representatives (paid), who sat and voted together. Two successive legislatures could alter the constitution by certain prescribed majorities: the constitution was therefore a rigid one.
 See also 31 & 35 Vict. c. 28, and 49 & 50 Vict. c. 35.
 The clause included in brackets is amended by the Fourteenth Amendment, 2d section.
 This clause in brackets has been superseded by the Twelfth Amendment.
 Rhode Island was not represented. Several of the delegates had left the Convention before it concluded its labours, and some others who remained refused to sign. In all, 65 delegates had been appointed, 55 attended, 39 signed.
The first ratification was that of Delaware, Dec. 7, 1787; the ninth (bringing the Constitution into force) that of New Hampshire, June 21, 1788; the last, that of Rhode Island, May 29, 1790.
 Amendments I-X inclusive were proposed by Congress to the legislatures of the states, Sept. 25, 1789, and ratified 1789–91.
 Amendt. XI was proposed by Congress, Sept. 5, 1794, and declared to have been ratified by the legislatures of the three-fourths of the states, Jan. 8, 1798.
 Amendt. XII was proposed by Congress, Dec. 12, 1803, and declared to have been ratified, Sept. 25, 1804.
 Amendt. XIII was proposed by Congress, Feb. 1, 1865, and declared to have been ratified by 27 of the 36 states, Dec. 18, 1865.
 Amendt. XIV was proposed by Congress, June 16, 1866, and declared to have been ratified by 30 of the 36 states, July 28, 1868.
 Amendt. XV was proposed by Congress, Feb. 26, 1869, and declared to have been ratified by 29 of the 37 states, March 30, 1870.
 Passed July 1909; proclaimed February 25, 1913.
 Passed May 1912, in lieu of paragraph one, section 3, article I, of the Constitution and so much of paragraph two of the same Section as relates to the filling of vacancies; proclaimed May 31, 1913.
 This constitution is the latest adopted by a new state up to 1910. Attention is specially called to the following provisions given in the extracts quoted, viz., Bill of Rights § § 3, 8, 10–35, 38–42; Sale of intoxicants § 9; Primaries § 47; Initiative and Referendum § § 51–62, 291–92, 415–19, 447–48; Limitations on the power of the legislature (35 restrictions specified) § § 119–36; Corporations § § 205–19, 231–42, 245, 251, 254–57, 260, 422–23; State Debts § 281, 289–93; Power to cities to make their own charters § § 413–14; Homestead and Exemptions § § 304–5; Making void contracts § § 442–43.