NOTES.

NOTE TO CHAPTER II.

CONSTITUTIONAL CASES IN THE SUPREME COURT.

WHEN the foot-note was made to Chapter II. the Editor contemplated the preparation of an elaborate note commenting upon the constitutional cases not cited by Mr. Curtis. Since then he has put into the Appendix a copy of the Constitution with very full Annotations citing every constitutional case, so that there is now no occasion for the proposed note.

NOTE TO CHAPTER III.

THE NOMINATING CONVENTION.

AN irresponsible body, unknown to the Constitution or the laws, the creature of party, and organized by the action of probably not a tenth part of the American people, assembles in one of the large cities; a form of balloting is gone through with, and a name is announced as the only name which one-half of the people are thereafter to think of in connection with the presidency, to be opposed only by one other name which will be selected in the same manner for the other half of the nation to contend for under similar rules of action. Thereupon, instantly, all over the land, the press, which had previously urged with all the force and talent it could command the high political and moral expediency of electing some illustrious statesman, becomes immediately dumb, or passes, with the greatest facility, at once into the service of an inferior candidate. Principles of political conduct, which before were thought to be the highest political virtue, become at once improper to be professed and unworthy of men of honor. Some cannot surrender them, and are silent; others who can do so become boisterous in their praises of what a little while ago they thought or spoke of only with disapprobation. The few who will neither surrender their principles nor bury them in silence are denounced, and the nomenclature borrowed from the "turf," where it describes the reluctance of a beast under whip and spur, is employed to designate them as "bolters."

In the meantime nothing known to the law of the country has happened. The election by which the people are to choose the chief magistrate is not to take place for several months. An interval, in which opinion ought to be as free

as the very air, in which inquiry, deliberation, sober reflection, ought to be everywhere sedulously guarded by all men, is filled with a savage praise and dispraise of two opposing candidates. The people, although nominally free to choose where they will, have suddenly become restricted in their choice to two individnals as absolutely as if the law of the land had ordained the limitation, and the whole political power of one-half of society is put forth, with an enormous tyranny, to fasten the restriction beyond the possibility of removal. What brings all this about?

To whatever else it is due, it is not due to the Constitution of the country. The wise framers of the institutions under which we live contemplated no such state of things, designed no such operation of the work of their hands, imagined no such results of the provisions which they framed.

The Constitution, it is little to say, could never have been established by them if it had been foreseen that such a state of things was to be its result. With infinite pains and far-seeing wisdom they devised a system for the appointment of a chief executive magistrate of the Union which they believed was morally certain to secure, from time to time, the election of some person eminently fitted for the station, and therefore possessing the real confidence of the people. But their system, framed with so much care, has been deflected from its purpose.

We have wandered so far from the principles of the Constitution that perhaps it will occasion some surprise when I state, in the first place, that the Constitution does not contemplate or intend that the president shall be conclusively designated by a popular vote. Yet it is strictly true. There is no proposition in reference to the Constitution more clear and indisputable. In all the discussions which attended its formation and adoption, the great effort may be traced to frame a system by which the president should be appointed without being absolutely designated by a popular vote. Project after project was brought forward in the Federal Convention, all of them differing from each other, but all designed as substitutes for a direct appointment by the people. At one time it was proposed that the national executive should be appointed by the national legislature; at another, by the legislatures of the states; and still another project was that of electors to be appointed by the state legislatures or the state executives.

At length, after the most laborious and careful consideration, the plan was adopted of "electors," to be chosen by the people of the different states according to the ratio of their representation in Congress. These officers were designed to be real electors. They were interposed between the popular vote and the actual choice, with the intent that they should make that choice; that they, as individuals, vested with the power of election, should exercise a real choice of their own, upon high public motives, without positive instruction, pledge, or obligation. They were to be chosen for this sole purpose, and having discharged their function, their political existence was to cease. Such is the provision of the Constitution.

Its purpose was twofold. First it was intended by it to secure a body of electors, whose moderate and sound judgment might be relied upon, to prevent the government from falling into the hands of men of great personal popularity,

acquired by means of military distinction, wealth, or influence, or through any other distinction not accompanied by high qualifications for the executive office. It does not seem to have been the intention of the framers of the Constitution that the sense of the people should not operate in the election. On the contrary, it is manifest that the sense of the people was intended to be regarded by the electors. But it is equally certain, both from the provision itself and from all the discussions which attended its adoption, that the electors were to exercise a real choice, to weigh the sense of the people, but not to be controlled by it if a sound judgment of the public good required them to disregard it. The electors were to be the agents of the people in choosing a president, but not to be their agents for the inevitable selection of a particular individual.

The other great leading object of this provision was to avoid conferring the appointment of the president upon any previously existing body of men who might be managed, corrupted, or influenced in favor of a particular candidate. Except for this reason, the president might as well have been chosen by the state legislatures, or by either branch of Congress, as by a separate body appointed for the express purpose. But observe how careful the Constitution has been to avoid the operation of all influence upon the electors: They are to be chosen in separate states; they are to meet and vote, not in one college for the whole Union, upon which influence might be exerted, but in their respective states.

In the whole history of governments there is no parallel to this institution, by which a nation might confer its chief executive power along with its highest personal confidence. To this point the framers of the Constitution directed their efforts. They believed that a body of electors proceeding fresh from the people, clothed with this single trust, and defended from every open assault, would be impartial, pure, fearless, wise. They believed that an honest people would select honest agents for this duty, and that thus a great popular election for the supreme office might be made to work out a result which the world had never seen. Let it be given, they said, to the most worthy. They knew that the value of their system of government would depend chiefly upon their success in incorporating this principle into the process by which its executive was to be selected. They knew that this principle was not only republican, but that without it a republic is the merest fallacy with which social man can delude himself. They knew that a suffrage nearly universal must lie at the basis of this great office. They sought, therefore, to give to that suffrage such an operation as would forever keep before the popular mind the cardinal principle that capacity must be the great qualification. No mere popularity, no feat of arms, no temporary expediency, was to be the ruling influence. High talent, statesmanship, character tried in the walks of public life which lead to the arts of civil government-these and these alone, they fondly believed, would be secured for the people by the provisions which they devised.

But their wise and careful institutions have been entirely defeated of their purpose. The electors have become mere machines, living automata, meeting solely to register the previous decrees of a political party. They exercise no choice, no judgment, no volition of their own. They come into official existence pledged to vote for a particular candidate, and are dishonored if they fail to do it. In some states they are appointed by a vote of the majority of the people, and in some a plurality only determines the candidate for whom they are to vote,

while a majority of votes is cast against him. The constitutional function of the electors is therefore wholly gone-lost, it may be, irretrievably.

Let us now turn and see how it has fared with the people. The candidate for whom the electors are now expected and required to vote is not only designated before they have assembled, but he is practically designated by a body of persons wholly irresponsible, and instituted by a small minority of the whole people. Whence does a party convention derive its authority? Certainly not from the law. The law knows no such body. Certainly not from the people in any proper sense. It derives its authority and its existence from the active portion of a party who choose to get together and institute it. Now, although the social usages and customs of a portion of the people, larger or smaller, can do nothing to alter or abrogate the provisions of their fundamental law, they may, if acquiesced in, produce such a departure from the observance of those provisions as virtually to set the law aside altogether. In the present case these party conventions have fully accomplished this result. Notwithstanding their total want of all authority, notwithstanding the notorious fact that only a small portion of the people participate in their formation, we need not dwell on their immense social power. We see it and feel it everywhere around us. The whole political machinery of society bends beneath their sway. To break away from their dictation requires a moral effort that few men like to make. The patronage of a government, which annually disburses hundreds of millions of money, is set up as the prize for the successful party, and stimulates the activity and the zeal of thousands of partisans throughout the land. Party spirit, the enormous power of association, the influence of political principles believed by individuals to be of great consequence, all combine to force the nation into a position where it can do nothing but accept one of two candidates, previously designated by bodies notoriously open to influence, possessed of no authority, acting under the influence of excited passions and unscrupulous leaders wholly irresponsible for their conduct. The Constitution is not designed that the people should conclusively determine who was to be the president. It intended that the sense of the people should operate through the electors, but not conclusively, and not at all in the way of positive, binding instruction. But for a long course of years, ever since the time of Mr. Jefferson, the American people have been gradually led to put a practical construction upon the Constitution, which has made the popular vote conclusive upon the electors, and perhaps the true function of the electors can never be restored. But this is not all; for while the people have accepted this control over the electors, they have at the same time lost all freedom of choice in casting the popular vote.

That they have lost it is beyond all question. The present theory is that the election is popular. It is not popular if by that is meant that the people, or a majority of them, express their preferences by their votes. They have no opportunity for such an expression. They are just as much debarred of all proper freedom of choice as if a foreign army, able to overrun the country, were to land upon our coast and say, "Choose one of two men whom we present to you." The people do not choose the president; they determine which of two candidates shall be president, and that is all.

So that whether we take the strict constitutional theory that the sense of the

people shall operate through the electors but not be conclusive, or whether we take the practical construction by which the people have accepted the theory that makes their votes conclusive, in neither case, as things are now managed, is the real sense of the people permitted to govern. Two candidates are placed before them. They must vote for one or the other, or their votes, as they are told, will be thrown away, and yet all the while they may know and feel that neither of them is fit for the station, and that some other person is so pre-eminently fit for it that they would "coin their hearts and drop their blood for drachmas" to place him in the office.

Need I stop to describe how we have been brought to this position? We are all aware that after Washington's, Adams's, and Jefferson's time, until the conventions were resorted to, the nominations of candidates for the presidency were made by caucuses of members of Congress at Washington. This method was no better and no worse than the mode of nominating by conventions, which followed it about sixty years ago. Both of them have the same vicious principle; both involve the country in the "limited choice" between two persons only, and both tend necessarily, and in proportion to their success, to deprive the electors and the people of their constitutional rights. Both of them enable a few designing politicians, who have an object to gain by elevating a particular man to the presidency, to impose that individual upon the voters of a party, and through the machinery of party to place him in office. The people meanwhile, and the constitutional agents of the people, are entirely powerless in the matter.*

NOTE TO CHAPTER VII.

TARIFF FOR REVENUE ONLY.

THIS question being in the domain of party politics rather than in that of constitutional history, the note suggested at p. 190 is omitted. Whether protection to manufacturers should be the direct object of a tariff, or whether it should be incident thereto appear to be matters of mere verbal dispute. Every tariff is for revenue; and every tariff is intended to be so laid as to protect rather than to injure. If a tariff were laid for protection only, it would find no constitutional warrant. Whether or not a given tariff discriminates unfairly in favor of one class at the expense of the others is a question for the law-making power to decide; and self-interest and party spirit will largely determine the conduct of legislators upon that question.

* The evolution of the Nominating Convention is well described in Ch. LXIX. of Bryce's American Commonwealth, Vol. II., lxix., 114.

See also Jameson's Constitutional Convention; also Nominating Convention by Alexander Johnston, Lalor's Political Cyclopædia, Vol. II., 1039.