union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation, except through revolution or through consent of the states.

"Considered, therefore, as transactions under the Constitution, the ordinance of secession adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation of law. The obligations of the state as a member of the Union, and of every citizen of the state as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the state did not cease to be a state, nor her citizens to be citizens of the Union. If this were otherwise, the state must have become foreign and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion, therefore, is that Texas continued to be a state, and a state of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the national government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

"But in order to the exercise by a state of the right to sue in this court, there needs to be a state government competent to represent the state in its relations with the national government, so far at least as the institution and prosecution of a suit is concerned. And it is by no means a logical conclusion from the premises which we have endeavored to establish that the government relations of Texas to the Union remain unaltered. Obligations often remain unimpaired while relations are greatly changed. The obligations of allegiance to the state and of obedience to her laws, subject to the Constitution of the United States, are binding upon all citizens, whether faithful or unfaithful to them; but the relations which subsist while these obligations are performed are essentially different from those which arise when they are disregarded and set at naught. And the same must necessarily be true of the obligations and relations of states and citizens to the Union. No one has been bold enough to contend that while

Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation waging war upon the United States, senators chosen by her legislature or representatives elected by her citizens were entitled to seats in Congress, or that any suit instituted in her name could be entertained in this court. All admit that during this condition of civil war, the rights of the state as a member, and of her people as citizens, of the Union were suspended. The government and the citizens of the state, refusing to recognize their constitutional obligations, assumed the character of enemies and incurred the consequences of rebellion.

"These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the state with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the national government. The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every state in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a state, and for the time excludes the national authority from its limits, seems to be a necessary complement of the former. Of this the case of Texas furnishes a striking illustration. When the war closed there was no government in the state except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief functionaries left the state. Many of the subordinate officials followed their example. Legal responsibilities were annulled or greatly impaired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magistrates and supplied more directly the needful restraints."

NOTE.-The manuscript of Mr. Curtis for this chapter abruptly ends at this point. The editor will make an elaborate note in the Appendix concerning the other cases upon which Mr. Curtis intended to comment.-J. C. C.

CHAPTER III.

NECESSITY OF ORGANIC LAWS TO SUPPLY THE MACHINERY OF THE NEW GOVERNMENT.-MODE OF CHOOSING THE PRESIDENT.-HIS CONSTITUTIONAL FUNCTIONS.-COUNTING THE ELECTORAL VOTE.THE ELECTORAL SYSTEM PROSTRATED BY THE NOMINATING CON

VENTIONS.

In all our constitutional history there is no more important study than that which is to be made by examining the process of unfolding and applying the Constitution as it came to the hands of the first Congress by the enactment of the organic laws that were to put it into operation, and the establishment of the first precedents that were to determine its meaning. Along with the interpretations that were given to it by the legislative department, this study should also embrace those which were acted upon by the executive. In short, the amount of constitutional construction settled during the administration of Washington, and before the era of judicial interpretations had really begun, is so considerable and instructive that a large space must be here given to its examination. The first legislative interpretations derive their importance from the fact that they were settled immediately after the discussions which had attended the adoption of the Constitution, and from the further fact that ten of the members of the first House of Representatives had been members of the convention which framed it, and two of the members of the first Senate had also been members of that body.' The first Congress ex

The members of the first House of Representatives who had been members of the Federal Convention were: Nicholas Gilman, of New Hampshire; Elbridge Gerry, of Massachusetts; Roger Sherman, of Connecticut; George Clymer and Thomas Fitzsimmons, of Peunsylvania; Daniel Carroll, of Maryland; James Madison, Jr., of Virginia; Hugh Williamson, of North Carolina; and Abraham Baldwin, of Georgia. All of them had signed the Constitution excepting Mr. Gerry. Pierce Butler, of South Carolina, and William Few, of Georgia, were the two mem

tended from the 4th of March, 1789, until the 3d of March, 1791, in three sessions: the first session being from March 4, 1789, to September 29, 1789; the second from January 4, 1790, to August 12, 1790; and the third from December 6, 1790, to March 3, 1791. The first and the second sessions were held at the city of New York, and the third was held at Philadelphia. A bare enumeration of some of the topics that were acted upon by this Congress will evince the number and character of the constitutional interpretations which were then adopted by the legislative department.

First, then, the determination of the oaths of office necessary to be taken in the organization of the new government, the ascertainment of the persons who had been elected to the offices of president and vice-president, and the framing of the executive departments demanded immediate attention.

As revenue was essential to the operation of the new government, the modes in which its taxing power was to be exercised came at once into consideration. The distribution and exercise of the judicial power by the establishment of courts other than the Supreme Court, distinction of the irrespective jurisdictions, the enactment of process, and the other machinery of justice were alike needful for the completion of the system required by the general provisions and mandates of the Constitution. The management of the public debt, which the Constitution had made as valid against the United States under the new provision as under the Confederation; the creation of a land office; the exercise of the coinage power by the establishment of a mint; the creation of a bank; the organization of the militia; the determination of a mode of filling the office of president when there should be a vacancy and no vice-president to succeed; and the final settlement of the government - all this and a great deal more that was done by this Congress involved the first practical application of the Constitution, in the transition from the old to

bers of the first Senate who had been members of the Federal Convention, and had signed the Constitution. The Senate sat with closed doors until the second session of the third Congress, both in legislative and executive sessions, excepting on one occasion-the contested election of Mr. Gallatin as a senator from Pennsylvania. Consequently there are but very meagre accounts of the Senate's proceedings prior to the second session of the third Congress.-J. C. C.

the new state of things. Finally, it devolved upon this Congress to formulate and propose some of the Amendments of the Constitution which, although not made conditions precedent by the ratifying states, had been earnestly pressed upon its consideration by most of them. Before a description is given of the first precedent established in 1789 for the ascertainment of the person who was to fill the chief executive office, it will be well to make an historical review of the design of the electoral system in the appointment of a chief-magistrate.

When it had been settled in the convention of the states in 1787 that the new government must have an executive head, to consist of a single person, the question of how he was to be appointed did not involve, in the same way as in the case of the legislative department, the consideration of the "federal" or the "national" principle. The appointment of the chief executive officer directly or indirectly by the people of the United States, or by the legislatures or the governors of the states, or by the Congress, would be consistent with a union of the states as political corporations, or with a union formed by the whole people of the United States, or with one in which both of these ideas were to be united; so that upon the executive department there did not arise the same contest between the friends and opponents of the national principle that arose with respect to the representation in the legislative body. But the great latitude of choice as to the mode of appointing or choosing an elective chief-magistrate, and the duration and tenure of so great an office, brought out the widest diversities of opinion. It is interesting to note the development of the complete conception of this office, as it grew to its full proportions-proportions which at length made it equal in power to many monarchies, and in some respects made it greater than the power of some constitutional kings. Perhaps there is no part of our Constitution which is better entitled to the praise of success than the mode in which an executive office of such great power was made an elective office and made consistent with republican government. But from the first germs of the conception of such an office to the time when it became formed and rounded in all the proportions in which we know it, there was an interval filled with many plans, many conflicts of opinion, many wise and necessary adjustments.