"rights and liberties" should be exercised and preserved; a practical modus vivendi. They preceded the Constitution and are paramount to it, and no interpretation or construction of the Constitution is sound which clearly harms or lessens those pre-existing rights and liberties of its makers. Whether an act be done under the National or the State government, the particular department in whose sphere it is, necessarily must have the inherent right to accomplish such acts as are within the customary scope of the department, either with or without any specific grant of power. The executive executes, the judiciary judges, the legislature legislates, each in a manner and to an extent commensurate with its proper functions, except in case of some express prohibition or limitation in the Constitution. This thought was expressed by the United States Supreme Court in the Legal Tender Cases, where Justice BRADLEY said: "To many purposes the United States are to be considered as one undivided, independent nation, as possessed of all the rights and powers and properties By Joseph Culbertson Clayton in "The American by the law of nations incident to such. Whenever an Lawyer." Mr. Jameson, in his valuable book on "Constitutional Conventions," has some apt definitions: "The written Constitution is simply a law ordained by the nation or people instituting and organizing the government. "The unwritten Constitution is the real or actual Constitution of the people as a State or sovereign community, and constituting them such or such a State. "It is providential; not made by the nation, but born with it. The written Constitution is made and ordained by the sovereign power, and presupposes that power as already existing." The sovereign power of the United States was born at the instant that the nation proclaimed that the United Colonies were free and independent States, and at that instant the new nation had the power necessarily inherent in nationality to formulate a written Constitution, as well as to exercise all the powers of government needful to its growth and preservation, and particularly all those governmental powers exercised by the people as colonists under the crown. Mackintosh defines a Constitution thus: "By the Constitution of a State I mean the body of those written or unwritten fundamental laws which regulate the most important rights of the higher magistrates and the most essential privileges of the subject." The liberties and rights of the people do not flow from the written Constitution as their source. That instrument was established by the people as an approximate measure of the modes in which those object occurs to the direction of which no particular State is competent, the management of it must of necessity belong to the United States in Congress assembled. There are many objects of this extended nature." The "true Constitution," that which actually controls the government functions of our nation, is the creature of a long and continuous evolution. It really is a developed, not a written Constitution. The written instrument, of course, is constant except as to amendments. Mr. Andrews, in his "American Law," said with great force: “The enumerated powers of Congress to effectuate objects committed to it is supplemented by the power and duty to effectuate the aggregate powers of the nation. "In the eighth section of Article I it is declared that Congress shall have power to make all laws which shall be necessary and proper for carrying into effect the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. "As a government it was invested with all the attributes of sovereignty. It is expressly declared in Article VI that the Constitution and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land (Legal Tender Cases, 12 Wall.)." from the "expressed," then they also are a sort of expressed powers; for unless some expression had been made no implication could be drawn. A better classification is to include the express and the implied as in the same category of manifest powers, and to style the other great and necessary powers as inherent powers-the powers that must inhere in mere nationality. Chapter XIV of Andrews' closes with this just thought: "American Law" "The inherent powers, and perhaps it may be said the natural duties and obligations of the people as a nation, are as thoroughly established and well recognized to-day as was that which was called the 'implied powers' prior to the civil war." describe as a complete body of free natural persons, united together for their common benefit; as having an understanding and a will; as deliberating and resolving and acting; as possessed of interests which it ought to manage; as enjoying rights which it ought to maintain; and as lying under obligations which it ought to perform. To this moral person we assign, by way of eminence, the dignified appellation of State." Wilson also left with us these words of golden wisdom and of solemn warning, containing a trenchant statement of his doctrine: "The people of the United States must be considered attentively in two very different views—as forming one nation, great and united, and as forming, at the same time, a number of separate States, to that nation subordinate, but independent as to their own interior government. This very important distinction must be continually before our eyes. If it be properly observed, everything will appear regular and proportioned; if it be neglected, endless con The earliest statesman (and the greatest) who thoroughly understood the need of a complete nationality for our Union, together with complete municipality for the States, was the mighty James Wilson. And in our national Constitution he found those relative powers to exist. Nothing better can be said than what he said in fusion and intricacy will unavoidably ensue." the following extracts: "There is not in the whole science of politics a more solid or more important maxim than thisthat of all governments, those are the best which, by the natural effect of their Constitutions, are frequently renewed or drawn back to their first principles." Before the adoption of the Constitution Wilson said: "I view the States as made for the people as well as by them, and not the people as made for the States; the people, therefore, have a right, while enjoying the undeniable powers of society, to form either a general government or State governments, in what manner they please, or to accommodate them to one another; and by this means preserve them all. This, I say, is the inherent and unalienable right of the people." Elsewhere he asserted: "Whenever an object occurs to the direction of which no particular State is competent, the management of it must, of necessity, belong to the United States in Congress assembled." At another time he wrote in a holographic letter to George Washington: "The most intricate and the most delicate questions in our national jurisprudence will arise in running the line between the authority of the national government and that of the several States. . It is probable that neither vacancies not interferences will be found between the limits of the two jurisdictions which together compose, or ought to compose, only one uniform comprehensive system of government and laws." Still again he declared: "Whatever object of government is confined in its Then, after quoting from the Declaration of Inde- operation and effects within the bounds of a particupendence as an authority, he declared: State sovereignty, as it is called, is far from being able to support its weight. Nothing less than the authority of the people could either support it or give it efficacy. . . My position is, sir, that in this country the supreme, absolute and uncontrollable power resides in the people at large; that they have vested certain proportions of this power in the State governments; but that the fee simple continues, resides, and remains with the body of the people." Again he asserted that the people when they form themselves into a nation or State in their collective capacity constitute a moral person. He thus forcibly expressed it: "In free States the people form an artificial person or body politic, the highest and noblest that can be known. They form that moral person which I lar State should be considered as belonging to the gov ernment of that State; whatever object of government extends in its operation or effect beyond the bounds of a particular State should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty; because in its application room must be allowed for great discretionary latitude of construction of the principle. "In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances in which the application of the principle ought to take place has been attempted with much industry and care. It is only in mathematical science that a line can be de scribed with mathematical precision. But I flatter myself that upon the strictest investigation the enumeration will be found to be safe and unexceptionable; and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature. The thought which was crystalized into the General Welfare clause of the Constitution he expressed thus in the Pennsylvania råtifying convention: "I make these observations with a design to prove and illustrate this great and important truth—that in our decisions on the work of the late convention we should not limit our views and regards to the State of Pennsylvania. The aim of the convention was to form a system of good and efficient government on the more extensive scale of the United States. In this, as in every other instance, the work should be judged with the same spirit with which it was performed. A principle of duty as well as of candor demands this. "When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence which they before enjoyed as States. The principles which directed in the former case what part of the natural liberty of the man ought to be given up and what part ought to be retained will give similar directions in the latter case. The States should resign to the national government that part, and that part only, of their political liberty which, placed in that government, will produce more good to the whole than if it had remained in the several States. While they resign this part of their political liberty they retain the free and generous exercise of all their other faculties as States, so far as it is compatible with the welfare of the general and superintending confederacy." At another time, several years after the adoption of the Constitution, in his lectures on law while a Justice of the Supreme Court of the United States, he addressed himself to the same theme in these words: "Will it not be allowed-will it not be urgedwill it not be properly urged that the interest of the whole world should never be sacrificed to that of a part, nor the interest of a greater part to that of a part which is smaller? Will it not be allowed-will it not be urged—that to think or act in a contrary manner would it be improper and unwise? Why should not the same reasoning and the same conduct be allowed-why should they not be urged (for they may be urged with equal propriety) in favor of the interests of the Union, or of the greater part of the Union, compared with those of a single member of which that Union is composed?" At the same time and place he asserted: "But it will be seldom, if ever, necessary that the interest of a single State should be sacrificed to that of the United States. The laws and the government and policy of the Union operate universally and not partially; for the accomplishment of general and not of local purposes. On the other hand, the laws and government and policy of a particular State, compared with the Union, operate partially and not universally; for the accomplishment of purposes which are local and not general. If, then, on any subject a difference should take place between the sentiments and designs and plans of the national government and those of the government of a single State, on whose side are justice and general utility likely to be found? It is to be presumed that they will be found on the side of the national government. That government is animated and directed by a representation of the whole Union; the government of a single State is animated and directed by a representation of only a part, inconsiderable when compared with the whole. Is it not more reasonable, as well as more patriotic, that the interests of every part should be governed, since they will be embraced, by the counsels of the whole than that the interests of the whole should be governed, since they will not be embraced, by the counsels of a part?" At about the same time, in his lecture on "The Powers of Congress," he declared: "It is an object of the national government to 'form a more perfect union.' On this principle Congress is empowered to regulate commerce among the several States. "Once more, at this time, the national government intended to promote the general welfare.' was "The powers of Congress are, indeed, enumerated, but it was intended that those powers, thus enumerated, should be effectual and not nugatory. In conformity to this consistent mode of thinking and acting, Congress has power to make all laws which shall be necessary and proper for carrying into execution every power vested by the Constitution in the government of the United States or in any of its offices or departments." To the Andrews edition of the "Works of James Wilson," and to Lucien H. Alexander, who has lately published in the Greenbag an admirable biography of Wilson, this writer is much indebted. Those of us who are familiar with the constitutional conventions and their current history know that the chief thought of the conventionists was to establish a powerful nation, with the amplest powers of national sovereignty. And it was not until the peculiar craftiness of Jefferson and his school devised it as a political issue against the national party that there arose the schisms of "strict constructionists," who sought to minimize nationality and to magnify statehood. Their course was really a con spiracy against the nation, and great was their success in holding control of the government and of popular thought. This they succeeded in doing until they pushed their theory to its logical end-secession. This was too much to stand. And the wager of battle not alone shot to death secession, but finally established nationality on the lines as foreshadowed by Wilson, and as now presented by this writer. Under the views expressed in this series of six articles justification can be found for many acts of statesmanship in our past history which were not expressly authorized by the written Constitution, but which were not prohibited. Among them may be named the Louisiana Purchase. Marshall deduced authority for this act from the express power to make treaties. Jefferson found no "authority" and sought for an enabling act. Nowhere was there express power to acquire territory. Jefferson's act was a great one in the field of true statesmanship. As an act of national sovereignty, for self-protection and self-development, it was justifiable under the inherent power of a nation. No need for ingenious implications or stretching of narrow specific clauses of grant. inherent power of nationality, and therefore constitutional unless expressly prohibited. But there are no prohibitions in the written Constitution against the exercise of any national power required for a national exigency. There are many specific prohibitions against the States; none against the United States except by the doubtful Tenth Amendment and by certain implications as to non-conflict with clear powers of the States, and except the provision that every State shall have the same senatorial represen tation. The national power to regulate railways and all means of interstate transportation is, generally, deduced from the commerce clause of the Constitution. It was universally conceded that a chief motive for making the Constitution of 1878 was to establish a national government for the regulation of interstate and foreign commerce. And as to no feature was there such perfect agreement of all sections of the nation. But the national power over transportation does not rest solely upon the commerce clause. The clause which, in express words, declares that, "The Congress shall have the power to establish commerce clause broad enough to cover post-offices" and post-roads which are wholly within a State. The power to establish "post-offices "-that is, of fices to receive and distribute mails-necessarily carries with it the right to supply the post-office with everything needed for its efficiency, such as clerks, roads, vehicles and other means. But for greater caution the specification of "post-roads" is added. There was no express power in the words of the post-offices and post-roads," is an extension of the written Constitution for any of these acts: The Emancipation Proclamation; the Monroe Doctrine; the suppression of habeas corpus in non-rebellious States; the Pacific Railway grants and charters; the Alabama and other arbitrations; the Venezuela incident; the Legal Tender Acts; the acquisition of the Philippines; the Pure Food Bill; the Railway Regulation Bill, etc. More or less ingenious and sound implications from expressed grants have been held to warrant all the above-named acts. But beyond any doubt and without any use of ingenuity each and all of them clearly are justifiable upon the application of the clear doctrine of the inherent powers inseparable from our national sovereignty. The interpretations and implied powers deduced by construction of the commerce clause and their extension to cover the railway and food bills; the same kind of construction and deduction under the war clause to justify suspension of habeas corpus and the Emancipation Proclamation; under the money clause and the war clause to warrant legal tender notes; under the war clause and the treaty clause to acquire Louisiana and the Philippines, to declare the Monroe Under this power when the post-road is made to and from the post-offices, the power to make the road effective, and at as small cost as consists with good service, is necessarily implied. The naked road and the empty office are useless until equipped and put into effective operation. A road so built and confined solely to the use of carrying mails would be of too great expense; the same equipment originally needed to carry the mail could also carry persons and freight. It would seem, therefore, that if Congress should establish such a road, primarily for postal purposes, it might utilize that road for purposes transportation and thus reduce the cost of the postal service. of The road and its equipment having been ouilt and Doctrine and to make the Venezuela incident, and to operated under this specific power, there seems to be engage in the Alabama and other arbitrations-all of these great acts rested upon constructions of certain clauses which required to be interpreted by ingenious and subtle thought to meet grave national exigencies. And arguments on the other side also were weighty. A far simpler course would have been to ask one question as to each of the grave acts: Is it required by the true interests of the nation to do this thing? If yea, then do it as an act of necessity under the no sound reason why its use should be restricted to Some recent expressions concerning the post-road clause of the Constitution convey the idea that the extension of its application to transportation is shall, Cooley and Andrews have presented most of the novel. The Pacific Railroad Acts and the action of Cleveland and Olney in the Chicago riots, when the national government protected and enforced the transportation of mails, was chiefly under the specific authority of this clause. In the constitutional convention of 1787 the postoffice and post-road clause and the commerce clause were agreed upon without dissent. Those who insist upon a "strict" interpretation of the Constitution should find ample powers in these two clauses for substantially every act suggested by President Roosevelt for the regulation and protection of transportation. In addition to such authority, those who agree with what some have called the "Clayton Doctrine" of the "True Constitution," set forth in this series of articles, find plenary power in the nation and its national government to do every thing needful for the general welfare of the whole people that cannot be done by the States as States; and this power they hold to inhere necessarily in a national government resting upon the Constitution in its duel nature of a written and unwritten fundamental law, which asserts, defends and maintains a real and fully efficient national sovereignty. great truths. Perhaps the writer may have combined and extended into a single conception a just idea of the True Constitution of the Twentieth century. : 0: Lord Chancellor Erskine. BY THE HON. R. ERSKINE. In turning over some family papers recently I came upon several which seemed to throw an added light upon the public life of my distinguished ancestor, the first Lord Erskine. At one time I had serious thoughts of compiling a biography of the great advocate; but maturer reflection convinced me that such could not be undertaken, at least upon the basis of such materials as I then possessed. Lord Erskine's life was a full one, and, besides being strenuous in a sense passing strenuousness, even in these robustious days; it presents the added difficulty of being a compound quantity. Thomas Erskine was almost as much a politician as he was a lawyer; besides, he was, socially, persona grata, which further compliIn the preface to this series-December number-cates the business. I regret to say, too, that I lacked, it was said: "There are so many things which, for the general welfare of the whole people ought to be under uniform control, and which cannot be controlled by States or municipalities, that lawful ways must be found to place that control under national laws. There should be no hiatus between national and State powers. "National laws for the regulation or control of railways, insurance companies, and for the formation of manufacturing and business corporations, and for a uniform marriage and divorce law, and other purposes, are among the present needs. The writer believes that a just application of his conception of the "True Constitution" will in the near future find adequate "sound interprelations and write upon the statute-books of the nation every law needed to meet every national exigency. In closing this brief series, the writer expresses gratification and thanks that so many competent and independent thinkers of high standing have expressed their approval-more or less strongly. To the majority his conception has been "radical," "revolutionary," ""novel." Nevertheless, it is only through those who think independently, those who do not over-worship "precedent," that any "betterment" comes. For the conception presented by the writer he cannot claim much of originality other than of mere treatment; Wilson, pre-eminently, Hamilton, Mar have always lacked, and, in all human probability, shall continue to want that measure of political sympathy which is requisite to the proper understanding of my proposed "subject," and of the times in which he lived. I suppose it is possible to speak one's mind nowadays about Whigs and Whiggery without being accused, like Dr. Johnson, of using needlessly offensive language in regard thereto; since we have it on the authority of an eminent statesman recently deceased that we are all Socialists now. Still, Whiggism is a branch of political faith which, in my humble opinion, is peculiarly unattractive; and though, no doubt, Whiggism was a jovial creed in many respects in those far-off days, and one to which young men of parts and promise readily attached themselves; yet, regarding it in the cold light of history, I confess its essential disabilities and drawbacks seem insurmountable. At all events, they would appear to be so to a person of the writer's temperament. |