natural and inherent attributes of sovereignty possessed by the Government of the United States in its National character, are limited in their exercise, not by constitutional provisions, but by those fundamental principles upon which the Government of the United States, and of its people, is based.

This joint development of the two theories is not only perfectly consistent, but one necessarily grows and expands with the other, and in such development each furnishes to the other mutual support and strength.

37. Views of Ex-President Harrison.*-True it is that Ex-President Harrison, in his recent utterances at Ann Arbor and in the North American Review,' declares that the theory of limitations by fundamental principles is not in accord with American constitutional history; learned as he is, however, in constitutional and international law, for unquestionably Mr. Harrison is one of our leading authorities upon those great branches of jurisprudence, as was evidenced by his remarkable, and in many respects successful, argument before the Venezuelan arbitration tribunal, he evidently overlooks the fact that the doctrine of limitation by fundamental principles has been clearly enunciated and defined by the Supreme Court; in fact that court has made it a part of the doctrine of acquisition of, and sovereignty over, the territories, which Mr. Harrison himself admits has not only been thoroughly, but properly, established as part of the constitutional law of this country. He declares that our forefathers were not content with general and unwritten limitations, but forced into the Constitution written limitations as to the exercise of sovereignty by the ruling powers.2 In *These sections were written prior to the death of Mr. Harrison.

§ 37.

1"The Status of Annexed Territory and of its Free Civilized Inhabitants" by Benjamin Harrison, formerly President of the United States, North American Review, January, 1901, p. 110.

justice and benevolence of the Congress. The man whose protection from wrong rests wholly upon the benevolence of another man or of a Congress, is a slave-a man without rights. Our fathers took security of the governing depart2 For themselves, our fathers, ments they organized; and that, were not content with an assur- notwithstanding the fact that the ance of these great rights that choice of all public officers rested rested wholly upon the sense of with the people. When a man

this, however, so far as he refers to government of territories, he is clearly wrong; the decision of the Supreme Court shows that fundamental, rather than constitutional, limitations are frequently the only check upon congressional action.

Undoubtedly, as the Supreme Court asserted in Murphy vs. Ramsay, complete and unlimited power is repugnant to our institutions; but it also declared in the Mormon Church case, that those limitations in many instances are found, not in the Constitution, but in the fundamental principles upon which our government is established; these two judicial declarations have been repeatedly followed in later decisions of the Supreme, and other courts, of the United States, reference to some of which have been collated in the next chapter.

§ 38. Unsoundness of Mr. Harrison's views.-Mr. Harrison takes a very gloomy view of the results of the doctrine of fundamental principles; in fact, he refers to it somewhat sarcastically as one of the limitations, not by principles of government, but by benevolence; he also seems to feel that the doctrine if accepted, necessarily implies that the only limitations which can be placed upon congressional action are such as may appeal to Congress in its existing mood at the time of the legislation.1

lative or executive powers is an un-American government. And, for one, I do not like to believe that the framers of the National Constitution and of our first State Constitutions were careful only for their own liberties."

But if this doctrine of limitation is to be applied to congressional action in regard to those matters in which the strictly limits the powers of an A government of unlimited legisagent of his own choice, and exacts a bond from him, to secure his faithfulness, he does not occupy strong ground when he insists that another person, who had no part in this selection, shall give the agent full powers without a bond. "If there is anything that is characteristic in American Constitutions, state and national, it is the plan of limiting the powers of all public officers and agencies. You shall do this; you may do this; you shall not do this-is the form that the schedule of powers always takes. This grew out of of ex-Senator Edmunds, No. Am. our experience as English colonies. Rev. Aug., 1901.

3 Murphy vs. Ramsay, U. S. Sup. Ct. 1885, 114 U. S. 15, MATTHEWS, J. 4 Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, BRADLEY, J., And see extract from opinion in § 60, chapter II, post. § 38.

1 This also applies to the article

Federal Government is supreme and national, there is no more danger of proper bounds being exceeded than has ever existed in the past; on this point we have the authority of Chief Justice Marshall and Mr. Justice Story that the doctrine of limitations ab inconvenienti, or the limitation of a general power for fear that the right to exercise it may lead to abuse, will not be considered. The principles of broad construction of the Constitution as to the delegated powers conveyed in general terms must apply with equal, if not stronger force, to those powers which Congress possesses in its capacity as the single mouth-piece of, and the only medium through which, the people of the United States can speak and act as to those matters which they possess and control as a national unit.

§ 39. Fundamental principles and the first ten amendments. The theory of fundamental principles had its inception as early as the framing of the Constitution; to many the adoption of the first ten amendments, commonly known as the Bill of Rights, was wholly unnecessary; there were members of the Constitutional Convention who considered that the enumeration of certain fundamental rights would be dangerous as it might result in the exclusion, and to the derogation, of other rights equally fundamental, but which might possibly be omitted in the enumeration. The first ten amendments, however, were added in order to satisfy the wishes of those who felt that the personal rights of freedom and liberty therein enumerated should be specifically preserved to the people.

It is doubtful, however, if any one in this country considers that his personal rights have any greater protection by reason of the adoption of those amendments, than though they had remained as a part of the fundamental principles, upon which the whole government was based, and unexpressed except as they are embodied in the law of the land and as they have always been recognized by the people and by the courts.

2"A power, given in general | if abused may lead to mischievous terms, is not to be restricted to consequences." 1 Story's Comm. particular cases merely because it on the Coust. § 425, 5th ed. p. 324. may be susceptible of abuse, and

The history of these amendments, as it is contained in Story's Commentaries, will be found in the footnote to this section.1 *

*For the Constitution and Amendments in full see pp. 519, et seq., post.

§ 39.

the rights of conscience should be 1 "Another class of objections inviolable; that excessive bail urged against the Constitution was should not be required, nor cruel founded upon its deficiencies and and unusual punishments inflicted; omissions. It cannot be denied that the people should have a right that some of the objections on this to bear arms; that persons conhead were well taken, and that scientiously scrupulous should not there was a fitness in incorporating be compelled to bear arms; that some provision on the subject into every person should be entitled of the fundamental articles of a free right to petition for the redress of government. There were others, grievances; that search-warrants again, which might fairly enough should not be granted without oath, be left to the legislative discretion nor general warrants at all; that and to the natural influences of soldiers should not be enlisted, exthe popular voice in a republican cept for a short, limited term, and form of government. There were not be quartered in time of peace others, again, so doubtful, both in upon private houses without the principle and policy, that they consent of the owners; that mutiny might properly be excluded from bills should continue in force for any system aiming at permanence two years only; that causes once in its securities as well as its found-tried by a jury should not be reations.

66

"Among the defects which were enumerated, none attracted more attention, or were urged with more zeal, than the want of a distinct bill of rights which should recognize the fundamental principles of a free republican government, and the right of the people to the enjoyment of life, liberty, property, and the pursuit of happiness. It was contended that it was indispensable that express provision should be made for the trial by jury in civil cases, and in criminal cases upon a presentment by a grand jury only; and that all criminal trials should be public, and the party be confronted with the witnesses against him; that freedom of speech and freedom of the press should be secured; that there should be no national religion, and

examinable upon appeal, otherwise than according to the course of the common law; and that the powers not expressly delegated to the general government should be declared to be reserved to the States. In all these particulars the Constitution was obviously defective; and yet, it was contended, they were vital to the public security.

"Besides these, there were other defects relied on, such as the want of a suitable provision for a rotation in office, to prevent persons enjoying it for life; the want of an executive council for the President; the want of a provision limiting the duration of standing armies; the want of a clause securing to the people the enjoyment of the common law; the want of security for proper elections of public officers; the want of a pro

§ 40. Congress compared, as to powers in national matters, with Parliament of Great Britain.—To the author, it seems as though Congress, being the only medium of action hibition of members of Congress | state that they believed that some holding any public offices, and of judges holding any other offices; and finally, the want of drawing a clear and direct line between the powers to be exercised by Congress and by the States.

of the objections to the Constitution existed only in imagination, and that others derived their sole support from an erroneous construction of that instrument. In respect to a bill of rights, it was stated that "Many of these objections found several of the State constitutions their way into the amendments, contained none in form, and yet which, simultaneously with the were not on that account thought ratification, were adopted in many objectionable. That it was not of the State conventions. With the true that the Constitution of the view of carrying into effect popular United States did not, in the true will, and also of disarming the op- sense of the terms, contain a bill ponents of the Constitution of all of rights. It was emphatically reasonable grounds of complaint, found in those clauses which reCongress, at its very first session, spected political rights, the guartook into consideration the amend- anty of republican forms of govments so proposed; and by a suc-ernment, the trial of crimes by jury, cession of supplementary articles the definition of treason, the proprovided, in substance, a bill of hibition against bills of attainder rights and secured by constitutiona! and ex post facto laws and titles of declarations most of the other im- nobility, the trial by impeachment, portant objects thus suggested. and the privilege of the writ of These articles (in all twelve) were habeas corpus. That a general bill submitted by Congress to the States of rights would be improper in a for their ratification, and ten of Constitution of limited powers like them were finally ratified by the that of the United States, and requisite number of States, and thus might even be dangerous, as by became incorporated into the Con- containing exceptions from powers stitution. It is a curious fact, how- not granted it might give rise to ever, that, although the necessity implications of constructive power. of these amendments had been That in a government like ours, urged by the enemies of the Con- founded by the people and manstitution and denied by its friends, aged by the people, and especially they encountered scarcely any in one of limited authority, there other opposition in the state legis- was no necessity of any bill of latures than what was given by the rights; for all powers not granted very party which had raised the were reserved, and even those objections. The friends of the Con- granted might at will be resumed stitution generally supported them or altered by the people. That a upon the ground of a large public bill of rights might be fit in a monpolicy, to quiet jealousies and to archy, where there were struggles disarm resentments. between the crown and the people "It is perhaps due to the latter to about prerogatives and privileges.