NEBRASKA

the empire, have been the cause of the largest | upon its equal right with the European power: number of diplomatic disputes. Their rights to pass upon any proposed increase in Turkis rest primarily upon the capitulations (sec), customs rates. American diplomacy is inwhich are grants made by the Sultans from creasing trade and securing commercial conthe fifteenth century onward, confirming to the cessions. The contract for supplying a water foreign and Christian communities in Turkey system for Muscat was recently awarded to substantial self-government. Americans; the proposal of "The OttomanAmerican Development Company" to build 2,000 miles of railroad in Asia Minor was considered but was not accepted.

The United States, largely on the basis of long-established custom, has insisted upon all the privileges given by the capitulations; and the Ottoman Government has conceded this claim. The enforcement of capitulation rights, however, has led to difficulties. In 1903 the United States demanded that the American schools should receive official legalization and have their property registered in the name of the institution-privileges which France obtained in 1901. Though the justice of this claim was admitted, the necessary decrees were not issued.

The United States next insisted that the rank of its diplomatic representative should be raised from minister to ambassador in order that he might hold personal interviews with the Sultan. After considerable opposition this was conceded by Turkey in 1906. The following year the Sultan granted the American schools the privileges demanded, in return for certain commercial concessions.

Turkish Dependencies.-In Egypt the United States joined with other powers in establish ing the international courts, 1876, to have gen eral jurisdiction over civil and commercial cases between foreigners and natives; it desig nates one of the nine foreign judges of the Court of Appeals in Alexandria. In Morocco, also, it united with eleven European states in making the treaty of Madrid, 1880, which regulated the rights of foreigners in that country; and later signed the Algeciras Convention of 1906 (see), which was ratified by the Senate with the proviso that the United States did not intend "to depart from the traditional American foreign policy."

Roumanians. In the Balkans the only important diplomatic incident has been the protest against the treatment of the Roumanian Jews, who were being forced to migrate to the United States. Secretary Hay appealed to the signatories of the treaty of Berlin, 1878, since this forbade Roumania to discriminate against any of her inhabitants on religious grounds. The protest effected a noticeable improvement in treatment of the Jews.

Persia. With Persia a commercial treaty was made in 1856. In 1911 the United States Government selected five American experts to supervise Persia's financial affairs. The appointees were soon forced by Russian opposition to leave the country.

Consuls. Extraterritorial privileges are ex

Emigrants. The status of Ottoman subjects, naturalized in the United States and then returned to Turkey, has been a long-standing cause of friction. The United States insists upon protecting such persons though, by the law of Turkey, they are still its subjects. No European government makes any similar claim. A naturalization treaty to settle the controversy was signed, 1874, but never ratified. The Turkish Government refuses to permit its subjects, naturalized in the United States since 1869, to return to Turkey; and if found in the country they are frequently expelled. Brigands. To protect Americans from bri-ercised by American consuls in Turkey, Egypt, gands and mobs is part of the duty of United States ministers and consuls. They aided in releasing Miss Stone, captured by Bulgarian revolutionists in 1901; and Perdicaris, kidnapped by Raisuli in Morocco, 1904. Indemnity demanded from Turkey for the loss of life and property of Americans in the massacres of 1895-96 has not (1914) been paid. Commerce.-Commercial interests have been increasingly important the past decade. In 1907 the United States insisted with success

Persia, Morocco, Muscat and Tripoli.

See BALANCE OF POWER; CAPITULATIONS, TURKISH; EXTRATERRITORIALITY.

References: F. E. Hinckley, Am. Consular Jurisdiction in the Orient (1906); J. B. Moore, Am. Diplomacy (1905), 63-72, 191–199, Digest of Int. Law (1906), II, 661-751, III, 616, 620-1, 656, 679–708, V, 584–586, 795-839, VI, 359-367; W. M. Malloy, Treaties and Conventions of the U. S. (1910).

NEBRASKA

GEORGE H. BLAKESLEE.

Early History.-Nebraska existed as a terri- | torial life, Nebraska had five governors: tory from May 30, 1854, to March 1, 1867. Francis Burt of South Carolina who died, Oct. Its original area, extending to the Canadian 18, 1854; Mark W. Izard of Arkansas; Wilfrontier, was curtailed by the creation of Col- liam A. Richardson of Illinois; S. W. Black orado and Dakota, in 1861, and the estab- of Pennsylvania, and Alvin Saunders of Iowa— lishment of Idaho, in 1863. During its terri- the last the only one to establish a residence

NEBRASKA

in the state. The first territorial secretary, | to white males, Congress required as a preThomas B. Cumings became acting governor, liminary to statehood that all racial discrimion the death of Governor Burt and it was under his vigorous leadership that territorial organization actually took place. Two later secretaries, J. Sterling Morton, and A. S. Paddock, both subsequently prominent political leaders, also served as acting governors.

NEBRASKA

power and privileges. The first governor was impeached and convicted for corruption and malfeasance in office. On the whole, however, scandals were not numerous, nor, on the other hand, can it be said there was much progressive legislation. The second period, from 1890 to 1900, was more complex, important, and far more interesting. During these years parties were in a state of constant change, and rarely were all the branches of government in the hands of the same party at the same time. The election of 1890 was a triangular contest The Democrats elected the governor by a vote of 71,331 to 70,187 cast for the Populist candidate, and 68,878 for the Republican nominee. The People's Independent or "Populist" party carried the legislature. In the five biennial elections from 1890 to 1900, the Democrats elected the governor in 1890, the Republicans in 1892, and the "Fusionists" the other three times. The Populists or Fusionists controlled the legislature except during one biennium, 1895-1897. For the four years 1897-1901 all political branches of the state government were in the hands of the Fusionists. The third period is marked by the return to power of the Republicans in the election of 1900; and for eight years they controlled the state, but, with the exception of 1904, by narrow margins. The Democrats won the governorship and the legislature in 1908; lost the governorship, but retained control of the legislature, in the election of 1910; and won the governorship and the lower house of the legislature but lost the upper house, in the election of 1912. Wilson received the electorial vote of the state.

against consolidation of competing lines, or increase of stocks or bonds except under prescribed conditions, and all rate discriminations. Local government may be either county, or mixed township-county as the people of each county shall determine. The state constitution forbids special city charters, but by dividing cities into various classes, as "metropolitan," "first class" (with differing populations), this clause has become a dead letter. The school system is founded on the district as the unit. County superintendents manage the rural schools, but all certificates are granted through the state superintendent's office. The state university and the four normal schools grant certificates, under law. Because of inability to secure another constitutional convention, the legislature has proposed many amendments, but as the constitution requires a majority of all votes cast to carry an amendment, only four had been adopted previous to 1912. The first, in 1886, extended the length of the legislative session from 40 to 60 days with five, instead of three dollars per day, salary; the second, in 1906, provided for an elective railway_commission, consisting of three members. Two amendments were added in 1908: one increased the number of supreme court judges from three to seven, and raised their salaries from $2500 to $4500 per annum; the other provided that the permanent school fund might be invested in other than national or state bonds. The legislature of 1911 proposed five additional amendments, all of which were adopted by the people in the election of 1912. The first provided for the initiative and referendum; the second for a non-partisan board of control for all charitable and penal institutions; the third for biennial elections; the fourth for municipal self-government in cities of 5000 inhabitants and over; and the last that all bills, except executive bills, must be introduced in the first 20 days of the session, and that the salaries of members of the legislature should be $600, for a term of two years. The legislature of 1913 submitted three amendments to be voted on in the general election of 1914: The first widened the taxing power of the legislature, following closely the Wisconisn plan; the second increased the salaries of most of the state officers, for example, rais-nificant, perhaps, were a fairly satisfactory ing the governor's from $2500 to $4500; and the third authorized five-sixths of the jury to bring in a verdict in civil suits.

Parties. Politically the history of the state may be divided into three quite distinct periods. In the first, extending from 1867 to 1890, the Republicans controlled every branch of the state government. On the whole it was an era of political conservatism and industrial development. The railroad influence was pronounced, and as it was a period when railroads were a necessity, the people were willing to extend them aid and, perhaps, grant them undue

Legislation. Inexperience, and the rather heterogeneous character of the Populist legislature, prevented it from realizing in any large way its program of reform; yet it put on the statute books the first Australian ballot law, a corrupt practices act, passed a radical railroad rate bill which the governor vetoed, and made investigations which unearthed considerable corruption in the management of certain public institutions. On the whole, while reform was in the air, it was not until 1907, that radically progressive steps were taken. The Republican legislature of that year enacted a series of remedial measures. The most sig

primary election act, a law against using railroad passes, and a pure food bill. The Democratic legislature of 1909 added a law closing all saloons at eight o'clock; also one providing for physical valuation of railroads. It changed the "closed" to an "open" primary with the result that the liquor question became the dominant one in the campaign of 1910. In spite of this handicap to constructive legislation, several remedial measures of merit were passed. The most important ones were the establishment of a legislative reference bureau; provision for the beginnings of a

NECESSARY AND PROPER-NEGOTIATION OF TREATIES BY THE UNITED STATES

"good roads" campaign; the appointment of a | express powers and reasonably appropriate to board of pardons; an appropriation for the codification of the laws of the state; and finally a return to the "closed" primary which includes careful registration provisions, a vote on presidential candidates, the election of delegates to national conventions and of party committeemen by the people. On account of the clause in the state constitution which forbids the creation of any new offices, a large portion of the business of the modern state, arising from its growth and development, is conducted by deputies, wardens, commissions and commissioners officers unknown to the constitution. There are banking boards, fire and game wardens, oil inspectors, food, health, and labor deputy commissioners, etc., almost without limit. The legislature of 1913 passed a number of important measures, among which may be enumerated the following: a workman's compensation act which seems to satisfy neither side entirely; an up-to-date insurance act; a “blue-sky" law; and made provision for the organization of the board of control, for a minimum wage commission, and for a mediative board in labor disputes. Mother's pensions were also established. A bill against loan-sharks, provision for county-owned telephones, and a maximum rate of twenty-five cents for a ten word telegram within the state, were also put on the statute books. The question of removal of the state university from the city campus to the state farm was submitted to the voters to be decided in the election of 1914.

The population of Nebraska was returned in 1855 as 4494; in 1870, 122,933; in 1880, 452,402; in 1890, 1,058,910—a return padded by at least 100,000; in 1900, 1,066,300; in 1910, 1,192,217.

See KANSAS-NEBRASKA BILL.

References: A. Watkins, Outlines of Nebraska Hist. (1910), Illustrated Hist. of Nebraska, I (1905-1907): A. E. Sheldon, The Nebraska Constitutional Conventions (19071912), History and Stories of Nebraska (1913); Nebraska Historical Society, Transac tions (1885-1907). H. W. CALDWELL.

the legitimate ends which are authorized by the constitutional enumeration; and in determining what means are appropriate, discretion is conferred upon the Federal Government. In determining whether any action of the Federal Government is within its implied powers, the courts have only to consider whether such action is calculated in any appreciable degree to advance the constitutional ends which are authorized in the general enumeration. While there has been a marked tendency toward the enlargement in scope of the powers of the Federal Government by liberal construction to the extent even of some general statements to the effect that all sovereign power not reserved to or authorized to be exercised by the states must by implication rest in the Federal Government, the term necessary and proper has not been authoritatively extended to cover those powers which may be deemed essential to the public welfare as distinguished from those essential in the exercise of the enumerated powers of the government itself. The term seems to be properly used only to designate such powers as must by reasonable implication be presumed to have been intended in the delegation to the Federal Government of sovereignty as to matters as to which national authority is under the general tenor and theory of the Constitution essential. See CONSTRUC TION AND INTERPRETATION; IMPLIED POWERS; MCCULLOCH vs. MARYLAND. References: T. M. Cooley, Principles of Constitutional Law (3d ed., 1898), 105-111; E. McClain, Constitutional Law (1910), 194–196. E. McC.

NEGLIGENCE. The failure to do that which a reasonable man would have done under all the circumstances, or the doing of something which a reasonable and prudent man would not have done under all the circumstances, whereby another person or persons are injured. "Circumstances" as used herein include the situation and knowledge of the parties involved. H. M. B.

NEGOTIATION OF TREATIES BY THE UNITED STATES. Authority.-The treaty

NECESSARY AND PROPER. In determin-making power itself, that is, the authority to ing the implied powers of the Federal Govern- enter into binding international agreements ment, under the accepted theory that it is a with foreign powers is, in the United States, government possessing enumerated and not confided by the Constitution to the President general powers, the term "necessary and prop- and the Senate (Art. II, Sec. ii, ¶ 2). All of er" has been generally used to discriminate the preliminary negotiations leading up to such those powers which are incidental to and by agreements and the drafting of the instru implication included in the expressed powers ments of agreements are, for the most part, described in the Federal Constitution (see in the hands of the President, in whom is vestIMPLIED POWERS). In the use of this term it ed the general control of foreign relations is not to be understood that the powers con- and the conduct of foreign correspondence; ferred by implication are limited to those which functions he of course performs through which are absolutely necessary for the execu- the Secretary of State. This has been the gention of the powers expressly conferred. With-eral constitutional practice. It would seem, in the description are properly included all however, that there are no constitutional reathe means appropriate for the exercise of the sons why the Senate itself should not partici

NEGOTIATION OF TREATIES BY THE UNITED STATES

Senate a treaty which he has submitted to it, or even refuse his final assent to it after it has received the approval of that body (see MINISTERS).

pate in these preliminary negotiations. In- | gone outside of the spheres of discretion asdeed, it was probably the intention of the signed them. There is, however, no constiframers of the Constitution that it should do tutional obligation upon the President to subso, and there have been some instances, es- mit to the Senate for its approval a treaty pecially during the earlier years, in which it that has been agreed to and signed by the comwas done. Practical experience soon showed, missioners appointed for its negotiation. Inhowever, the difficulty of attempting to asso-deed, the President may withdraw from the ciate the Senate in any formal way with the negotiations of treaties, but in fact that body, and especially its committee on foreign relations is usually kept well informed as to the progress of international negotiations; and at times certain of its members have served as commissioners for the settlement of foreign controversies. Thus three of the five commissioners for the negotiation of the treaty of peace with Spain in 1898 were Senators and members of the Senate committee on foreign affairs.

Senate. The power of the Senate to amend a project of a treaty submitted to it by the President is unquestionable, and, indeed, is explicitly declared by the Supreme Court in Haver vs. Yaker (9 Wall. 32). If amended, and then adopted, the President may, in his discretion, give or refuse to it his approval. If he approve it, and the ratification of the other country party to it is secured, it does not need to be again submitted to the Senate, but may be at once promulgated (see RATIFICATION OF TREATIES).

Binding Force.-As a general proposition a nation is not required to know or consider the constitutional system of the other powers with which it has international dealings, each sovereign state being presumed to have the constitutional as well as the actual power to fulfil its international obligations whether these be founded upon specific agreements or upon the general principles of international law. There is, however, one exception to this general principle. This is that both nations must know the location of the treaty-making authority of the government with which it is dealing. It is not, therefore, a just ground of grievance to a foreign power when a projected treaty agreed to between itself and the President of the United States is amended or rejected by the Senate.

Plenipotentiaries.-Whether or not it would be constitutionally possible for the Senate and the President to agree to the appointment of commissioners with the power not only to negotiate but to ratify a treaty, has not been passed upon by the courts, no opportunity for such a judgment having been afforded them. Where, however, as is usual, plenipotentiaries are appointed and instructed generally as to the subjects concerning which they may come to an agreement with the commissioners similarly appointed by another or other states, the United States, as well as those other States, are under strong moral and political obligations to ratify the agreements arrived at; unless, indeed, their commissioners have clearly

Agreements. Finally, with reference to the negotiation of treaties it is to be said that there are many and important kinds of international agreements regarding which practice has sanctioned the doctrine that they do not need to be submitted to the Senate at all. Thus the President as Commander-in-Chief of the Army and Navy may, in times of war, enter into military conventions, and, as chief executive, may, in times of peace, settle controversies, especially those relating to the fundamental claims of American citizens upon foreign powers, without the coöperation or approval of the Senate. So also he may agree to "protocols" (see) and modus vivendi (sce MODUS VIVENDI) without senatorial assistance. And, in addition to the foregoing, the Presi dent has by statute and by general treaties often been given the individual authority to enter into agreements with foreign states with reference to specific matters.

So.

Ancillary Legislation.-Treaties are, by the Constitution, declared to be parts of the supreme law of the land. They, therefore, need no further legislative sanction in order that they may be recognized as law by the courts, and their provisions, so far as self-executory, be applied and enforced. Not infrequently, however, ancillary congressional legislation is required for their enforcement. Thus, especially, appropriations of money may be called for. In such cases it would seem that there is a moral and political obligation upon Congress to act, though it is to be conceded that in case that body refuses or neglects to act, no constitutional means exists for compelling it to do While it is true, therefore, that Congress often has within its power to bring to naught the international agreements negotiated and entered into by the treaty-making branch of the government, it cannot be said that Congress participates in any way in the negotiation and ratification of treaties. For these treaties, even when the necessary ancillary legislation of Congress is refused, still remain as valid agreements between the United States and the foreign states concerned, which the courts will enforce so far as they are able, and which, in all their provisions, bind the United States internationally, and furnish to the other contracting powers full justification for complaint or reprisal, or, in extreme cases, even of war, in so far as they are not or cannot be enforced by the United States. For as has been earlier