THE INTENTION AND WISDOM OF THE DIVI-
SION OF LEGISLATIVE POWER BE-

TWEEN CONGRESS AND THE
STATES.

If there is one principle that our forefathers, founding the Constitution, had more at heart than any other, it is personal liberty,-personal liberty as guaranteed by the universal right to equal law, the laws made by their own home representative bodies, administrated in their own home courts, and based on the common law of England; and the common law of England has ever been jealous of all but common law tribunals, wholly rejects any administrative law peculiar to the government as is known in continental countries, and abhors any tribunal, board, or commission, drawing its authority from the Executive, and which, while not a proper court of justice, undertakes to settle judicial questions.

To secure all this, the great principle of the separation

NOTE-This article formed the subject of an address delivered by Mr. Frederic J. Stimson before the Society of the Alumni of the Law Department of the University of Pennsylvania at their annual meeting on Friday, April 10th, 1908, and is published through his courtesy and kind permission.

of the powers of government was adopted and carried to its full extent. In the splendid words of the Massachusetts Bill of Rights:

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men."

The cardinal liberties secured by the Bill of Rights are put forever under the aegis of State legislatures and local common law courts and their independence from the Executive duly secured. And furthermore, we have the State autonomy forever secured by the independent, indestructible State, as well as by the separation of the three powers in both State and nation. And of these cardinal rights, no man may be deprived but by twelve men of his equals in his own country, nor,'in criminal causes, be deprived for one day of his personal liberty, but by a finding of twenty-three of his neighbors that there is probable cause for holding him guilty of crime. The totality of all these principles we will sum up in the convenient phrase "local self-government”,— but remembering that this phrase means much more than administrative government alone.

To show how strong was this feeling, we will read from a few of the earliest State constitutions adopted both before and after the Federal Constitution of 1789; first that of Pennsylvania, September 28, 1776; then in the same year, that of Maryland, November 11, 1776, and North Carolina, November 18, 1776, and of Vermont, 1777.

"That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof."

In the same year is that of Connecticut:

"This Constitution adopted by the people of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the people thereof, independent of any King or Prince whatever. And that this Republic is, and shall forever be and remain, a free, sovereign and independent State, by the name of the State of Connecticut.”

In 1780, we have the constitution of Massachusetts and in 1784 that of New Hampshire.

“The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled"

And for an example of a later constitution, we have that of West Virginia, in 1872.

"The government of the United States is a government of enumerated powers, and all powers not delegated to it nor inhibited to the States are reserved to the States or to the people thereof. Among the powers so reserved by the States is the exclusive regulation of their own internal government and police, and it is the high and solemn duty of the several departinents of government created by this constitution to guard and protect the people of this State from all encroachments upon the rights so reserved."

Solicitude for local courts apart from the centralized courts even of our own government reaches right back to Magna Charta.

(Chapter 17) "Common pleas shall not follow the King's Court, but be held in some certain place."

(Chapter 20) "Fines to be assessed by honest men of the neighborhood."

"The writ called Praecipe shall not in future be issued, so as to cause a freeman to lose his court."

So in the Virginia Bill of Rights, he must be tried by a "jury, of his vicinage," and the Maryland Constitution of 1776 says:

"That the trial of facts where they arise is one of the greatest securities of the lives, liberties and estates of the people."

And this is repeated in the Massachusetts Declaration of Rights and expressly recognized in the Federal constitution, Article 3, Section 2, providing that all trials shall be held in the State where the crime is committed and shall be by a jury; and in the Sixth Amendment the venue is further limited to the district where the crime is committed; and

by the Seventh Amendment the right of trial by jury is preserved also in civil cases and the Federal power is forbidden to retry any cause other than according to the rules of the common law.

And the separation of the powers is shown expressly in ten out of the thirteen of the first constitutions of the original States and is to-day recognized in every single one of the States of the Union with the solitary exception of the State of New York.

But the English principle of local liberty, local parliaments and county courts, and the control by the people at home of their own affairs, became to the thirteen colonies far more important; for instead of a small homogeneous country like England, they had, even in 1776, a country reaching from the sub-Arctic to the torrid zone, from ocean to prairie, with different climates and different institutions, made up of five different races, even if we count Scotch and English and Irish as one, and with at least four mutually hostile religious faiths; with a social system in the South as different from that in the North as black from white; and all the colonies agreeing only on this one thing, to preserve the cardinal liberties of the Bill of Rights. How reconcile these local liberties, this government by the people of their own affairs, with that strong yet far off central government they were about to create in order to regulate their foreign relations and the affairs that they deemed of national concern? Yet the experience of the Revolution showed that such a government was necessary.

It is a familiar truth that this reconcilement of national power with local liberty was their great invention; a strong central government for political, national affairs, working directly on the people, not, as in all previous confederations, on the component States; conjoined with absolute autonomy as to the making and the judging of laws, and the administration of their own affairs at home; also the control by the people of each State of the great money power, of the raising and expending of practically all the taxes, leaving the national government to support itself by indirect taxation only and

the taxes to be imposed upon foreign commerce. I have not time to dwell on this point, which is familiar to all of us; I hasten to consider the actual division made by the founders of the American Republic of all sovereign power between the States and the central government. This is the special subject, I ask you to reconsider to-day; in a day when all things, even constitutional principles a thousand years old, must justify themselves to us anew.

Now if you will draw a sphere to represent the total domain of sovereign power under a constitutional republic, you have at once suggested our first distinction. For our governments, both State and national, must always remain republican and constitutional. They are not meant, as now seems to be thought, only to enforce the will of the majority, but in certain things to protect the minority, as well, and to guarantee forever free government and private rights. There is a vast domain of unlimited, sovereign, autocratic, imperial power, outside of this sphere, that may stand for those powers of conquest and oppression which are outside a" v and may be wielded by an oriental despot or a European eror; but these powers remain outside our constitution. Our forefathers intentionally and forever excluded them, withheld them from any and all governments they were about to create, Federal, State, or both together. Undoubtedly the people can set aside this constitution, and establish, if they like, an empire or an oligarchy; but until they do so, it is treason in any one to attempt it and a breach of the oath of every Federal officeholder, judical or executive.

As the king himself exists but by the law, so the Federal government is the creature of the Constitution. And this after all is really our greatest contribution to the history of humanity; the American people, forming a great nation, a sovereign people, forever denying to themselves and their own government imperial power, limiting it to he republican in form, their own legislatures to a written constitution, and both forever by the rights of each free man.