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See the articles of the first confederation formed in 1778. This constitution was not adopted by all the States until 1781. See also the analysis given of this constitution in "The Federalist" from No. 15 to No. 22, inclusive, and Story's "Commentaries on the Constitution of the United States," pp. 85-115.

Congress made this declaration on February 21, 1787.

It consisted of fifty-five members; Washington, Madison, Hamilton, and the two Morrises were amongst the number.

It was not adopted by the legislative bodies, but representatives were elected by the people for this sole purpose; and the new constitution was discussed at length in each of these assemblies.

See the Amendment to the Federal Constitution; "Federalist," No. 32; Story, p. 711; Kent's "Commentaries," vol. i. p. 364.

It is to be observed that whenever the exclusive right of regulating certain matters is not reserved to Congress by the Constitution, the States may take up the affair until it is brought before the National Assembly. For instance, Congress has the right of making a general law on bankruptcy, which, however, it neglects to do. Each State is then at liberty to make a law for itself. This point has been established by discussion in the law-courts, and may be said to belong more properly to jurisprudence.

The action of this court is indirect, as we shall hereafter show.

It is thus that "The Federalist," No. 45, explains the division of supremacy between the Union and the States: "The powers delegated by the Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the internal order and prosperity of the State." I shall often have occasion to quote "The Federalist" in this work. When the bill which has since become the Constitution of the United States was submitted to the approval of the people, and the discussions were still pending, three men, who had already acquired a portion of that celebrity which they have since enjoyed -John Jay, Hamilton, and Madison -formed an association with the intention of explaining to the nation the advantages of the measure which was proposed. With this view they published a series of articles in the shape of a journal, which now form a complete treatise. They entitled their journal "The Federalist," a name which has been retained in the work. "The Federalist" is an excellent book, which ought to be familiar to the statesmen of all countries, although it especially concerns America.

See Constitution, sect. 8; "Federalist," Nos. 41 and 42; Kent's "Commentaries," vol. i. p. 207; Story, pp. 358-382; Ibid. pp. 409-426.

Several other privileges of the same kind exist, such as that which empowers the Union to legislate on bankruptcy, to grant patents, and other matters in which its intervention is clearly necessary.

Even in these cases its interference is indirect. The Union interferes by means of the tribunals, as will be hereafter shown.

Federal Constitution, sect. 10, art. I.

Constitution, sects. 8, 9, and 10; "Federalist," Nos. 30-36, inclusive, and 41-44; Kent's "Commentaries," vol. i. pp. 207 and 381; Story, pp. 329 and 514.

[In this chapter the author points out the essence of the conflict between the seceding States and the Union which caused the Civil War of 1861.]

Every ten years Congress fixes anew the number of representatives which each State is to furnish. The total number was 69 in 1789, and 240 in 1833. (See "American Almanac," 1834, p. 194.) The Constitution decided that there should not be more than one representative for every 30,000 persons; but no minimum was fixed on. The Congress has not thought fit to augment the number of representatives in proportion to the increase of population. The first Act which was passed on the subject (April 14, 1792: see "Laws of the United States," by Story, vol. i. p. 235) decided that there should be one representative for every 33,000 inhabitants. The last Act, which was passed in 1832, fixes the proportion at one for 48,000. The population represented is composed of all the free men and of three-fifths of the slaves.

[The last Act of apportionment, passed February 2, 1872, fixes the representation at one to 134,684 inhabitants. There are now (1875) 283 members of the lower House of Congress, and 9 for the States at large, making in all 292 members. The old States have of course lost the representatives which the new States have gained. -Translator's Note.]

See "The Federalist," Nos. 52-56, inclusive; Story, pp. 199-314; Constitution of the United States, sects. 2 and 3.

See "The Federalist," Nos. 67-77; Constitution of the United States, art. 2; Story, p. 315, pp. 615-780; Kent's "Commentaries," p. 255.

The Constitution had left it doubtful whether the President was obliged to consult the Senate in the removal as well as in the appointment of Federal officers. "The Federalist" (No. 77) seemed to establish the affirmative; but in 1789 Congress formally decided that, as the President was responsible for his actions, he ought not to be forced to employ agents who had forfeited his esteem. See Kent's "Commentaries, vol. i. p. 289.

This comparison applied to the Constitutional King of France and to the powers he held under the Charter of 1830, till the overthrow of the monarchy in 1848. -Translator's Note.]

The sums annually paid by the State to these officers amount to 200,000,000 fr. ($40,000,000).

This number is extracted from the "National Calendar" for 1833. The "National Calendar" is an American almanac which contains the names of all the Federal officers. It results from this comparison that the King of France has eleven times as many places at his disposal as the President, although the population of France is not much more than double that of the Union.

[I have not the means of ascertaining the number of appointments now at the disposal of the President of the United States, but his patronage and the abuse of it have largely increased since 1833. -Translator's Note, 1875.]

[This, however, may be a great danger. The period during which Mr. Buchanan retained office, after the election of Mr. Lincoln, from November, 1860, to March, 1861, was that which enabled the seceding States of the South to complete their preparations for the Civil War, and the Executive Government was paralyzed. No greater evil could befall a nation. -Translator's Note.]

As many as it sends members to Congress. The number of electors at the election of 1833 was 288. (See "The National Calendar," 1833.)

The electors of the same State assemble, but they transmit to the central government the list of their individual votes, and not the mere result of the vote of the majority.

In this case it is the majority of the States, and not the majority of the members, which decides the question; so that New York has not more influence in the debate than Rhode Island. Thus the citizens of the Union are first consulted as members of one and the same community; and, if they cannot agree, recourse is had to the division of the States, each of which has a separate and independent vote. This is one of the singularities of the Federal Constitution which can only be explained by the jar of conflicting interests.

Jefferson, in 1801, was not elected until the thirty-sixth time of balloting.

General Grant is now (1874) the eighteenth President of the United States.

[Not always. The election of President Lincoln was the signal of civil war. -Translator's Note.]

See chap. VI, entitled "Judicial Power in the United States." This chapter explains the general principles of the American theory of judicial institutions. See also the Federal Constitution, Art. 3. See "The Federalists," Nos. 78-83, inclusive; and a work entitled "Constitutional Law," being a view of the practice and jurisdiction of the courts of the United States, by Thomas Sergeant. See Story, pp. 134, 162, 489, 511, 581, 668; and the organic law of September 24, 1789, in the "Collection of the Laws of the United States," by Story, vol. i. p. 53.

Federal laws are those which most require courts of justice, and those at the same time which have most rarely established them. The reason is that confederations have usually been formed by independent States, which entertained no real intention of obeying the central Government, and which very readily ceded the right of command to the federal executive, and very prudently reserved the right of non-compliance to themselves.

The Union was divided into districts, in each of which a resident Federal judge was appointed, and the court in which he presided was termed a "District Court." Each of the judges of the Supreme Court annually visits a certain portion of the Republic, in order to try the most important causes upon the spot; the court presided over by this magistrate is styled a "Circuit Court." Lastly, all the most serious cases of litigation are brought before the Supreme Court, which holds a solemn session once a year, at which all the judges of the Circuit Courts must attend. The jury was introduced into the Federal Courts in the same manner, and in the same cases, as into the courts of the States.

It will be observed that no analogy exists between the Supreme Court of the United States and the French Cour de Cassation, since the latter only hears appeals on questions of law. The Supreme Court decides upon the evidence of the fact as well as upon the law of the case, whereas the Cour de Cassation does not pronounce a decision of its own, but refers the cause to the arbitration of another tribunal. See the law of September 24, 1789, "Laws of the United States," by Story, vol. i. p. 53.

In order to diminish the number of these suits, it was decided that in a great many Federal causes the courts of the States should be empowered to decide conjointly with those of the Union, the losing party having then a right of appeal to the Supreme Court of the United States. The Supreme Court of Virginia contested the right of the Supreme Court of the United States to judge an appeal from its decisions, but unsuccessfully. See "Kent's Commentaries," vol. i. p. 300, pp. 370 et seq.; Story's "Commentaries," p. 646; and "The Organic Law of the United States," vol. i. p. 35.

The Constitution also says that the Federal courts shall decide "controversies between a State and the citizens of another State." And here a most important question of a constitutional nature arose, which was, whether the jurisdiction given by the Constitution in cases in which a State is a party extended to suits brought against a State as well as by it, or was exclusively confined to the latter. The question was most elaborately considered in the case of Chisholm v. Georgia, and was decided by the majority of the Supreme Court in the affirmative. The decision created general alarm among the States, and an amendment was proposed and ratified by which the power was entirely taken away, so far as it regards suits brought against a State. See Story's "Commentaries," p. 624, or in the large edition Section 1677.

As for instance, all cases of piracy.

This principle was in some measure restricted by the introduction of the several States as independent powers into the Senate, and by allowing them to vote separately in the House of Representatives when the President is elected by that body. But these are exceptions, and the contrary principle is the rule.

It is perfectly clear, says Mr. Story ("Commentaries," p. 503, or in the large edition Section 1379), that any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. He gives in the same place a very long and careful definition of what is understood by a contract in Federal jurisprudence. A grant made by the State to a private individual, and accepted by him, is a contract, and cannot be revoked by any future law. A charter granted by the State to a company is a contract, and equally binding to the State as to the grantee. The clause of the Constitution here referred to insures, therefore, the existence of a great part of acquired rights, but not of all. Property may legally be held, though it may not have passed into the possessor's hands by means of a contract; and its possession is an acquired right, not guaranteed by the Federal Constitution.

A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition Section 1388): "Dartmouth College in New Hampshire had been founded by a charter granted to certain individuals before the American Revolution, and its trustees formed a corporation under this charter. The legislature of New Hampshire had, without the consent of this corporation, passed an act changing the organization of the original provincial charter of the college, and transferring all the rights, privileges, and franchises from the old charter trustees to new trustees appointed under the act. The constitutionality of the act was contested, and, after solemn arguments, it was deliberately held by the Supreme Court that the provincial charter was a contract within the meaning of the Constitution (Art. I. Section 10), and that the emendatory act was utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of private foundation, to be a private eleemosynary institution, endowed by its charter with a capacity to take property unconnected with the Government. Its funds were bestowed upon the faith of the charter, and those funds consisted entirely of private donations. It is true that the uses were in some sense public, that is, for the general benefit, and not for the mere benefit of the corporators; but this did not make the corporation a public corporation. It was a private institution for general charity. It was not distinguishable in principle from a private donation, vested in private trustees, for a public charity, or for a particular purpose of beneficence. And the State itself, if it had bestowed funds upon a charity of the same nature, could not resume those funds."

See Chapter VI. on "Judicial Power in America."

See Kent's "Commentaries," vol. i. p. 387.

The number of States has now risen to 46 (1874), besides the District of Columbia.

At this time Alexander Hamilton, who was one of the principal founders of the Constitution, ventured to express the following sentiments in "The Federalist," No. 71: -

"There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the Legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted as of the true means by which the public happiness may be promoted. The Republican principle demands that the deliberative sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants; by the snares of the ambitious, the avaricious, the desperate; by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure."

This was the case in Greece, when Philip undertook to execute the decree of the Amphictyons; in the Low Countries, where the province of Holland always gave the law; and, in our own time, in the Germanic Confederation, in which Austria and Prussia assume a great degree of influence over the whole country, in the name of the Diet.

Such has always been the situation of the Swiss Confederation, which would have perished ages ago but for the mutual jealousies of its neighbors.

I do not speak of a confederation of small republics, but of a great consolidated Republic.

See the Mexican Constitution of 1824.

This is precisely what occurred in 1862, and the following paragraph describes correctly the feelings and notions of the South. General Lee held that his primary allegiance was due, not to the Union, but to Virginia.

For instance, the Union possesses by the Constitution the right of selling unoccupied lands for its own profit. Supposing that the State of Ohio should claim the same right in behalf of certain territories lying within its boundaries, upon the plea that the Constitution refers to those lands alone which do not belong to the jurisdiction of any particular State, and consequently should choose to dispose of them itself, the litigation would be carried on in the names of the purchasers from the State of Ohio and the purchasers from the Union, and not in the names of Ohio and the Union. But what would become of this legal fiction if the Federal purchaser was confirmed in his right by the courts of the Union, whilst the other competitor was ordered to retain possession by the tribunals of the State of Ohio?

Kent's "Commentaries," vol. i. p. 244. I have selected an example which relates to a time posterior to the promulgation of the present Constitution. If I had gone back to the days of the Confederation, I might have given still more striking instances. The whole nation was at that time in a state of enthusiastic excitement; the Revolution was represented by a man who was the idol of the people; but at that very period Congress had, to say the truth, no resources at all at its disposal. Troops and supplies were perpetually wanting. The best-devised projects failed in the execution, and the Union, which was constantly on the verge of destruction, was saved by the weakness of its enemies far more than by its own strength. [All doubt as to the powers of the Federal Executive was, however, removed by its efforts in the Civil War, and those powers were largely extended.]

[War broke out between the United States and Mexico in 1846, and ended in the conquest of an immense territory, including California.]