SECTION I: HISTORY AND CONSTITUTION (cont.)
Part 5. The Struggle for National Government: 1777-89
88. The fact that the Continental Congress was really a revolutionary body, not limited in its powers by any fundamental law imposed by the underlying popular sovereignty, but answering most closely to the British parliament, has already been noted (§ 64). This state of affairs was repugnant to all the instincts and prejudices of the American people, and of the delegates who represented them. Just at the time of the Declaration of Independence Congress set about preparing a "form of confederation." Which should express exactly the relative powers of the State and national Governments. Its work was finished November 15, 1777, and recommended to the States for adoption. Unluckily, before the work had been finished, the State legislatures had succeeded in establishing their power to appoint and recall at pleasure the delegates to Congress, so that Congress had come to be the mere creature of the State legislatures. The "Articles of Confederation," adopted in 1777, were thus calculated for the meridian of the State legislatures which were to pass upon them. The new government was to be merely "a firm league of friendship" between sovereign States, which were to retain every power not "expressly" delegated to Congress; there was to be but one house of Congress, in which each State was to have an equal vote, with no national executive or judiciary; and Congress, while keeping the power to borrow money, was to have no power to levy taxes, or to provide in any way for payment of the money borrowed only to make recommendations to the States or requisition on the States, which they pledged their public faith to obey. The States were forbidden to make treaties, war, peace, to grant titles of nobility, to keep vessels of war or soldiers, or to lay imposts which should conflict with treaties already proposed to France or Spain. Important measures required the votes of nine of the thirteen States, and amendments the votes of all. Congress had hardly more than an advisory power at the best. It had no power to prevent or punish offences against its own laws, or even to perform effectively the duties enjoined upon it by the Articles of Confederation. It alone could declare war, but it had no power to compel the enlistment, arming, or support of an army. It alone could fix the needed amount of revenue, but the taxes could only be collected by the States at their own pleasure. It alone could decide disputes between the States, but it had no power to compel either disputant to respect or obey its decisions. It alone could make treaties with foreign nations, but it had no power to prevent individuals States from violating them. Even commerce, foreign and domestic, was to be regulated entirely by the States, and it was not long before State selfishness began to show itself in the regulation of duties on imports. In everything the States were to be sovereign, and their creature, the Federal Government, was to have only strength enough to bind the States into nominal unity, and only life enough to assure it of its own practical impotence.
89. Most of the States signed the Articles at once; New Jersey, Delaware, and Maryland held out against ratifying them for from two to four years. The secret of their resistance was in the claims to the western territory already mentioned (§§ 34,86). The three recalcitrant States had always had fixed western boundaries, and had no legal claim to a share in the western territory; the Articles, while providing for the decision of disputes between individuals States, were careful to provide also that "no State shall be deprived of territory for the benefit of the United States"; and this meant that those States whose charters carried them to the Pacific Ocean, while admitting the national authority to limit their claims by the Mississippi river, were to divide up the western territory among them. New Jersey and Delaware gave up the struggle in 1778 and 1779; but Maryland would not and did not yield until her claims were satisfied.
90. Dr. H. B. Adams has shown that the whole question of real nationality for the United States was bound up in this western territory; that even a "league government" could not continue long to govern a great and growing territory like this without developing into a real national government, even without a change of strict law; and that the Maryland leaders were working under a complete consciousness of these facts. It is creditable, however, to the change which the struggle for union had wrought in the people that it was not until very late in this struggle that Virginia, the most omnivorous western claimant, proposed to have the Articles go into effect without Maryland, and still more creditable that her proposal hardly received notice from the other States. They were already conscious that the thirteen were really one.
91. The solution of the difficulty was found in 1780. The western boundary of the State of New York had always been very much in the air. Her main claim to her present extensive territory lay in the assertions that the western part had once belonged to the Six Nations of Indians, and that the Dutch, conquering the Six Nations, the English, conquering the Dutch, and New York, conquering the English, had succeeded to these rights. But the Six Nations had exercised an undefined suzerainty over all the Indian tribes from Tennessee to Michilimackinac, covering all the territory in dispute. New York proposed, if Congress would confirm her present western boundary, to transfer to Congress her western claims by conquest, superior to any mere charter claims; and Congress approved the offer as "expressly calculated to accelerate the federal alliance." On March 1, 1781, the New York delegates formally completed the deed of transfer to the United States; on the same day the Maryland delegates signed the Articles; and by this action of the last State the Articles of Confederation came into force as the first attempt to frame a national government.
92. The long struggle had given time for careful consideration of the Articles. Marylands persistent criticism had prepared men to find defects in them. Conventions of New England States, pamphlets, and private correspondence had found flaws in the new plan of government; but a public trial of it was a necessary preliminary to getting rid of it. The efforts of the individual States to maintain the war, the disposition of each State to magnify its own share in the result, the popular jealousy of a superior power, transferred now from parliament to the central Government, and inflamed by the politicians who saw their quickest road to dignity in the State governments, were enough to ensure the Articles some lease of life. A real national government had to be extorted through the "grinding necessities of a reluctant people."
93. Congress and its committees had already begun to declare that it was impossible to carry on a government efficiently under the Articles. Its expostulations were to be continued for several years before they were heard. In the meantime it did not neglect the great subject which concerned the essence of nationality the western territory. Virginia had made a first offer to cede her claims, but it was not accepted. A committee of Congress now made a report (1782) maintaining the validity of the rights which New York had transferred to Congress; and in the year Virginia made an acceptable offer. Her deed was accepted (march 1, 1784); the other claimant States followed; and Congress, which was not authorized by the Articles to hold or govern territory, became the sovereign of a tract of some 430,000 square miles, nearly equal to the areas of France, Spain, and Portugal combined, covering all the country between the Atlantic tier of States and the Mississippi river, from the British possessions nearly to the Gulf of Mexico.
94. In this territory Congress had now on its hands the same question of colonial government in which the British parliament had so signally failed. The manner in which Congress dealt with it has made the United States the country that it is. The leading feature of its plan was the erection, as rapidly as possible, of States, similar in powers to the original States. The power of Congress over the territories was to be theoretically absolute, but it was to be exerted in encouraging the development of thorough selg0government, and in granting it as fast as the settlers should become capable of exercising it. Copied in succeeding Acts for the organization of Territories, and still controlling the spirit of such Acts, the Ordinance of 1787 (July 13, 1787) is the foundation of almost everything which makes the modern American system peculiar.
95. The preliminary plan of Congress was reported by a committee (April 23, 1784) of which Jefferson was chairman. It provided for the erection of seventeen States, north and south of the Ohio, with some odd names, as Sylvania, Assenisipia, Metropotamia, Polypotamia, and Pelisipia. These States were for ever to be a part of the United States, and to have republican governments, and the Ordinance creating them was to be a compact between the Federal Government and each State, unalterable unless by mutual consent. "After the year 1800 there shall be neither slavery nor involuntary servitude any of the said States, other than in the punishment of crimes whereof of the party shall have been duly convicted." This provision, which represented Jeffersons feeling on the subject, was lost for want of seven States in its favor.
96. The final plan of 1787 was reported by a committee of which Nathan Dane, of Massachusetts, was chairman. The prohibition of slavery was made perpetual, and a fugitive slave clause was added (§ 124). The Ordinance covered only the territory north of the Ohio, and provided for not less than three nor more than five States. Ohio, Indiana, Illinois, Michigan, and Wisconsin have been the resultant States. The inhabitants were to be secured in the equal division of real and personal property of interstates to the next of kin in equal degree. At first Congress was to appoint the governor, secretary, judges, and militia generals, and the governor and judges were to make laws subject to the veto of Congress. When the population reached 5000 the inhabitants were to have an assembly of their own, to consist of the governor, a legislative council of five, selected by Congress from ten nominations by the lower house, and a lower house of representatives of one delegate for every 500 inhabitants. This assembly was to choose a delegate to sit, but not to vote, in Congress =, and was to make laws not repugnant to "the articles of fundamental compact," which were as follows: - the new States or Territories were to maintain freedom of worship, the benefits of the writ of habeas corpus trial by jury, proportionate representation, bail, moderate fines and punishments, and the preservation of liberty, property, and private contracts; they were to encourage public education and keep faith with the Indians; they were to remain for ever a part of the United States; and they were not to interfere with the disposal of the soil by the United States, or to tax the lands of the United States, or to tax any citizen of the United States for the use of the Mississippi or St Lawrence rivers. These articles were to be unalterable unless by mutual consent of a State and the United States. The transformation of the Territory, with its quite limited government, into a State, with all the powers of an original State, was promised by Congress as soon as the population should reach 60,000.
97. The constitution, which was adopted almost immediately afterwards, provided merely that :Congress shall have power to dispose of, and make allneedful rules and regulations respecting, the territory or other properly belonging to the United States," and that "new States may be admitted by the Congress into the Union." Opinions have varied as to the force of the Ordinance of 1787. The Southern school of writers have naturally been inclined to consisted it ultra vires and void; and they adduce the fact that the new Congress under the constitution thought it necessary to re-enact the Ordinance. The opposite school have inclined to hold the Ordinance as still in force. Even as to the territorial provision of the constitution, opinions have varied. The Dred Scott decision held that it applied only to the territory then in possession of the United States, and that territory subsequently acquired, by conquest or purchase, was not to governed by Congress with absolute power, but subject to constitutional limitations.
98. In the interval of the settlement of the territorial question, the affairs of the "league of friendship" known as the United States had been going from bad to worse, culminating in 1786. The public debt amounted in 1783 to about £42,000,000, of which £8,000,000 was owed abroad in Holland, France, and Spain. Congress had no power to levy taxes for the payment of interest or principal; it could only make requisition on the States. In the four years ending in 1786 requisitions had been made for £10,000,000, and the receipts from them had amounted to but one-fourth of what had been called for. Even the interest on the debt was falling into arrears, and the first installment of the principal fell due in 1787. To pay this, and subsequent annual installments £1,000,000, was quite impossible. Robert Morris, the financier of the revolution, resigned in 1783, "rather than be the minister of injustice," hoping thus to force upon the States the necessity of granting taxing powers to Congress. Washington, on retiring from the command-in-chief, wrote a circular letter to the governors of all the States, urging the necessity of granting to Congress some power to provide a national revenue. Congress (April 18, 1783) appealed to the States for power to levy specific duties on certain enumerated articles, and 5 per cent. on others. It was believed that with these duties and the requisitions, which were not to be met by internal taxation, £2,500,000 per annum could be raised. Some of the States ratified the proposal; others ratified it with modification; others rejected it, or changed their votes; and it never received the necessary ratification of all the States. The obedience to the requisitions grew more lax. Some of the States paid them; others pleaded poverty, and allowed more or less of them to run into arrears; others offered to pay in their own depreciated paper currency; and others indignantly refused to pay in any currency until the delinquent States should pay all their obligations. In 1786 a committee of Congress reported that any further reliance on requisitions would be "dishonorable to the understandings of those who entertain such confidence."
99. In the States the case was even worse. Some them had been seduced into issuing paper currency in such profusion that they were almost bankrupt. Great Britain, in the treaty of peace, had recognized the independence of the individual States, naming them in order; and her Government followed the same system in all its intercourse with its late colonies. Its restrictive system was maintained, and the States, vying with each other for commerce, could adopt no system of counteracting measures. Every possible burden was thus shifted to American commerce; and Congress could do nothing, for, though it asked for the power to regulate commerce for fifteen years, the States refused it. The decisions of the various State courts began to conflict, and there was no power to reconcile them or to prevent the consequences of the divergence. Several States, towards the end of this period, began to prepare or adopt systems of protection of domestic productions or manufactures, aimed at preventing competition by neighboring States. The Tennessee settlers were in insurrection against the authority of North Carolina; and the Kentucky settlers were apparently disposed to cut loose from Virginia, if not from the United States. Poverty, with the rigid execution of process for debt, drove the farmers of western Massachusetts into an insurrection which the State had much difficulty in suppressing; and Congress was so incompetent to aid Massachusetts that it was driven to the expedient of imagining an Indian war in that direction, in order to transfer troops thither. Congress itself was in danger of disappearance from the scene. The necessity for the votes of nine of the thirteen States for the passage of important measures made the absence of a States delegation quite as effective as a negative vote. In order to save the expense of a delegation, the States began to neglect the election of them, unless they had some object to obtain by their attendance. It was necessary for Congress to make repeated and urgent appeals in order to obtain a quorum for the ratification of the treaty of peace with Great Britain. In 1784 Congress even broke up in disgust, and the French minister reported to his Government- "The is now in America no general government,-neither Congress, nor president, nor head of any one administrative department." Everywhere there were symptoms of a dissolution of the Union.
100. Congress was evidently incompetent to frame a new plan of national government; its members were too dependent on their States, and would be recalled if they took part in framing anything stronger than the Articles. The idea of a convention of the States, independent of Congress, was in the minds and mouths of many; Thomas Paine had suggested it as long ago as his Common Sense pamphlet: "Let a continental conference be held, to frame a continental charter, drawing the line of business and jurisdiction between members of Congress and members of assembly." To a people as fond of law and the forms of law as the Americans there was a difficulty in the way. The Articles had provided that no change should be made in them but by the assent of every State legislature. If the work of such a convention was to be subject to this rule, its success would be no greater than that of Congress; if its plan was to be put into force on the ratification of less than the whole number of States, the step would be more or less revolutionary. In the end the latter course was taken, though not until every other expedient had failed; but the act of taking it showed the underlying consciousness that union, independence, and nationality were now inextricably complicated, and that the thirteen had become one in some senses.
101. The country drifted into a convention by a round-about way. The navigation of Chesapeake Bay needed regulation; and the States of Maryland and Virginia, having plenary power in the matter, appointed delegates to arrange such rules. The delegates met (1785) at Washingtons house, Mount Vernon; and Maryland, in adopting their report, proposed a meeting of commissioners from all the States to frame commercial regulations for the whole. Virginia acceded at once, and named Annapolis, in Maryland, as the place. The convention met (1786), but only five States were represented, and their delegates adjourned, after recommending another convention at Philadelphia in May 1787.
102. Congress had failed in its last resort a proposal that the States should grant it the impost power alone; New Yorks veto had put an end to this last hope. Confessing its helplessness, Congress approved he call for a second convention; twelve of the States (all but Rhode Island) chose delegates; and the convention met at Philadelphia (May 14, 1787), with an abler body of men than had been seen in Congress since the first two Continental Congresses. Among others, Virginia sent Washington, Madison, Edmund Randolph, George Mason (p. 789), and George Wythe; Pennsylvania Franklin, Robert and Gouverneur Morris, and James Wilson; Massachusetts Rufus King, Gerry, and Strong; Connecticut William S. Johnson, Sherman, and Ellsworth; New York Hamilton; New Jersey Paterson; and South Carolina the two Pinckneys (p. 790) and Rutledge. With hardly an exception the fifty-five delegates were clear-headed, moderate men, with positive views of their own and firm purpose, but with a willingness t compromise.
103. Washington was chosen to preside, and the convention began the formation of a new constitution, instead of proposing changes in the old one. Two parties were formed at once. The Virginia delegates offered a plan, proposing a Congress of two house, having power to legislate on national subjects, and to compel the States to fulfill their obligations. This is often spoken of as a "national plan," but very improperly. It was a "large State" plan, proposed by those States which had or hoped for a large population. It meant to base representation in both houses on population, so that the large States could control both of them, and it left the appointment of the president or other executive and the Federal judges to Congress, - so that the whole administration of the new government would fall under large-State control. On behalf of the "small States" Paterson of New jersey brought in another plan. It continued the old Confederation, with its single house and equal State vote, but added the power to regulate commerce and raise a revenue, and to compel the States to obey requisition. The State representation was fortunate. New Hampshires delegates did not attend until after those of New York (then classes as a small State) had retired from the convention in anger at its evident drift towards the "large-State" plan. The large States had a general majority of six to five, but the constant dropping off of one or more votes, on minor features, from their side to that of the small States prevented the hasty adoption of any radical measures. Nevertheless, the final collision could not be evaded; the basis of the two plans was in the question of one or two houses, of equal or proportionate State votes, of large-State supremacy or of State equality. In July the large States began to show a disposition to force their plan through, and the small States began to threaten a concerted withdrawal from the convention.
104. The Connecticut delegates, from their first appearance in the convention, had favored a compromise. They had been trained under the New England system, in which the assemblies were made up of two houses, one representing the people of the whole State, according to population, and the other giving an equal representation to the towns. They proposed that the new Congress should be made up of two houses, one representing the States in proportion to their population, the other giving an equal vote to each State. At a dead-lock, the convention referred the proposition to a committee, and it reported in favor of the Connecticut compromise. Connecticut had been voting in the large-State list, and the votes of her delegates could not be spared from their slender majority; now another of the large State, North Carolina, came over to Connecticuts proposal, and it as adopted. Thus the first great struggle of the convention resulted in a compromise, which took shape in the peculiar feature of the constitution, the senate.
105. The little States were still anxious, in every new question, to throw as much power as possible into the hands of their special representative, the senate; and that body thus obtained its power to act as executive council as a restraint on the president in appointments and treaties. This was the only survival of the first alignment of parties; but new divisions arose on almost every proposal introduced. The election of the president was given at various times to Congress and to electors chosen by the State legislatures; and the final mode of choice, by electros chosen by the States, was settled only two weeks before the end of the convention, the office of vice-president coming in with it. The opponents and supporters of the slave trade compromised by agreeing not to prohibit it for twenty years. Another compromise included three-fifths of the slaves in enumerating population for representation. This was the provision which gave the slave-holders abnormal power as the number of slaves increased; for a district in the "black belt" of the South, while three-fifths of its slaves were enumerated, really gave representation to its few whites only.
106. Any explanation of the system introduced by the constitution must start with the historical fact that, while the national government was practically suspended, from 1776 until 1789, the only power to which political privileges had been given by the people was the States, and that the State legislature were, when the convention met, politically omnipotent, with the exception of the few limitations imposed on them by the early State constitutions, which were not all so searching or severe as those of more recent years. The general rule, then, is that the Federal Government has only the powers granted to it by the Federal constitution, while the State has all governmental powers not forbidden to it by the State or the Federal constitution. But the phrase defining the Federal Governments power is no longer "expressly granted," as in the Articles of Confederation, but merely "granted," so that powers necessary to the execution of granted powers belong to the Federal Government, even though not directly named in the constitution. This question of the interpretation, or "construction," of the constitution is at the bottom of real national politics in the United States; the minimizing parties have sought to hold the federal Government to a strict construction of granted powers, while their opponents have sought to widen those powers by a broad construction of them. The strict construction parties, when they have come into power, have regularly adopted the practice of their opponents, so that construction has pretty steadily broadened; the power to "regulate commerce between the States" is now interpreted so as to include the power of Congress to regulate the fares and contracts of railways engaged in inter-State commerce (§ 327), which would have been deemed preposterous in 1787.
107. Popular sovereignty, then, is the basis of the American system. But it does not, as does the English system, choose its legislative body and leave unlimited powers to it. It makes its "constitution" the permanent medium of its orders or prohibitions to all branches of the Federal Government and to many branches of the State Governments: they must do what the constitution directs and leave undone what it forbids. The people, therefore, are continually laying their commands on their Governments; and they have instituted a system of Federal courts to ensure obedience to their commands. An English court must obey the Act of Parliament; the American court is bound and sworn to obey the constitution first, and the Act of Congress or of the State legislature only so far as it is warranted by the constitution. But the American court does not deal directly with the Act in question; it deals with individuals who have a suit before it. One of these individuals relies on an Act of Congress or of a State legislature; the Act thus comes before the court for examination; and it supports the Act or disregards it as "unconstitutional," or in violation of the constitution. If the court is one of high rank or reputation, or one to which a decision may be appealed, as the United States Supreme Court, other courts follow the precedent, and the law falls to the ground. The court does not come into direct conflict with the legislative body; and, where a decision would be apt to produce such a conflict, the practice has been for the court to regard the matter as a "political question" and refuse to consider it.
108. The preamble states that "we, the people of the United States," establish and ordain the constitution. Events have shown that it was the people of the whole United States that established the constitution, but the people of 1787 seem to have inclined to the belief that it was the people of each State for itself. This belief was never changed in the South; and in 1861 the people of that section believed that the ordinances of secession were merely a repeal of the enacting clause by the power which had passed it, the people of the State.
109. The original constitution was in seven articles. The first related to the organization and powers of Congress, which consists of a senate and house of representatives. Representatives are to be inhabitants of the State for which they are chosen, to be twenty five years old at least, and are to served two years. Each house of representatives thus lasts for two years, and this period is usually known as a Congress"; the fiftieth Congress will expire March 4, 1889, having completed the first century of the constitution. Representatives are assigned to the States in proportion to population, and this fact forced the provision for a decennial census, the first appearance of such a provision in modern national history. The first census was taken in 1790. apportionment of representatives from 1883 until 1893 is governed by the census of 1880; by Act of Congress the number 154,325 is the divisor into a States population which fixes the number of the States representatives, the whole number of representatives being 325, with eight delegates from the Territories, having seats the right to debate but not to vote. The house elects its speaker and other officers, and has the power of impeachment.
110. The legislature of each State elects two senators, to serve for six years; and no State can ever be deprived of its equal share of representative except by its own consent. The senators are divided into three classes, the term of one class expiring every two years. Six years are therefore necessary to completely change the composition of the senate, and it is considered a continuous body. Senators are to be at least thirty years old, and must be inhabitants of the States from which they are chosen and citizens of the United States for a least nine years previous to their election. The vice-president presides over the senate, having no vote unless in case of an equal division. Bu the legislative provision (continuing until 1887) that the death or disability of the president officer pro tempore of the senate made that officer one of great possible importance, and the vice-president regularly retired just before the end of a session, so that a pro tempore officer might be selected (§ 117).
111. All officers of the United States are open to impeachment by the house of representatives the impeachment to be tried by the senate, and the penalty to be no more than removal and disqualification to serve further under the United Sates. When the president is tried, the chief justice of the Supreme Court presides.
112. The members of both houses are privileged from arrest and from being questioned elsewhere for words spoken in debate. Each house passes on the election of its own members; but an Act of Congress may control the Act of the State legislature as to time, place, and manner of elections, except as to the place of choosing senators, in which the legislature remains supreme. Congress has exercised the power by passing a general election law. The two houses cannot adjourn to another place, or for more than three days, unless by common consent. Their members paid by the United States, and must not be office-holders or receive any office created or increased in pay during their term of service in Congress.
113. When a bill passes both houses it goes to the president. If he signs it becomes law. If he holds it without signing for ten days (Sundays excepted) it becomes law, unless the final adjournment of Congress comes in the ten days. All bills passed in the last ten days of a Congress are therefore at the mercy of the president: he can prevent them from becoming laws by simply retaining them. If the president decides to veto a bill he returns it, with a statement of his objections, to the house in which it originated. It can then only become law by the vote of two-thirds of both houses.
114. The powers of Congress are fully stated. The first is to "lay and collect taxes, duties, imposts, and excises, [in order] to pay the debts and provide for the common defence and general welfare of the United States." The words in brackets are not in the original, but they are included in construction by all respectable authorities, as essential to its meaning; any other construction would give Congress absolute power over whatever it thought to be for "the common defence or general welfare." Duties, &c., are to be uniform throughout the United States. Other powers are-to borrow money; to regulate foreign and domestic commerce; to make rules for naturalization, and bankruptcy laws; to coin money, regulate the value of foreign coins, and fix the standard of weights and measure; to punish the counterfeiting of Federal securities and current coin; to establish post-office and post-roads; to establish patent and copyright systems; to establish courts inferior to the supreme court; to punish offences on the high seas or against international law; to declare war, grant letters of marque and reprisal, and made rules for captures; to raise and support armies, no appropriation to be for more than two years; to provide and maintain a navy; to make articles of war; to use the militia of the States in executing Federal laws, suppressing insurrections, and repelling invasions; to provide for organizing, arming, and disciplining this militia, leaving the States to appoint the officers and carry out the system; to establish a national capital or Federal district (the District of Columbia, containing the city of Washington), and to exercise exclusive powers of legislation over it, and over sites for forts, dockyards, &c., bought by permission of the States; and finally, "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States or in any department or office thereof." This last power has been the subject of most debate. It was urged that, unless an Act of Congress was strictly "necessary" for the execution of one of the granted powers, it was invalid. The Supreme Court has held that the Act need not be "absolutely necessary," or even "very necessary," that it is enough if it is "necessary." As the decision of the necessity is with the legislative body, the word opens a wide sweep for construction; but it has always furnished a barricade which the opponents of a bill have often found yet strong.
115. The real sovereignty which made the constitution shows itself a double series of prohibitions-on the Federal Government and on the States. The Federal Government shall not suspend the privilege of the writ of habeas corpus except in case of rebellion or invasion, when the public safety requires it. Since the Civil War the Supreme Court has decided that the writ itself can never he suspended while the courts are open, that the Federal Government may suspend the privilege of the writ as to classes of persons directly interested in the war, but that the writ is still to issue and the court to decide whether the applicant comes within the excepted classes or not. Congress must not pass any bill of attainder or ex facto law, tax exports, give commercial preference to the ports of one State over those of another, lay direct taxes except in proportion to census population, or grant any title of nobility. Money is to be taken from the treasury only in consequence of appropriations made by law. And no person in the service of the United States may accept any gift or title from a foreign power without consent of Congress.
116. The States are absolutely forbidden to make treaties of any kind, to grant letters of marque and reprisal, to coin money, to emit bills of credit, to make anything but silver a legal tender, to grant any title of nobility, to pass any bill of attainder, ex post facto, law, or law impairing the obligation of contracts. If follows from the last clause that States cannot pass bankruptcy laws. The States are forbidden, except by consent of Congress, to lay any duties on imports or exports, except inspection charges, to be paid into the Federal treasury; to lay any tonnage duties; to keep troops (a word which does not cover militia) or ships in peace; to make any agreement with another State or with a foreign power; or to engage in war unless actually invade.
117. The president is to be a native citizen, at least thirty-five years old, and at least fourteen years a resident within the United States. He is paid by the United States; and his salary is not to be increased or diminished by Congress during his term; the Act must apply to the successors of the president who signs the Act. He is sworn to execute his office faithfully, and to "preserve, protect, and defend the constitution of the United States." In case of his death, resignation, or inability (by impeachment or otherwise) the vice-president succeeds him; and, in case of the inability of both, the members of the cabinet succeed in a prescribed order, according to the Presidential Succession Act of 1886. The president has the veto power already described, sends messages to Congress on the state of the Union or on special subjects, convenes either house or both on extraordinary occasions, receives foreign envoys, commissions officers of the United States, and oversees the execution of the laws passed by Congress. He makes treaties; but no treaty is valid unless passed by the senate by a two-thirds vote of those present. He appoints ministers and consuls, judges, and all other officers whose appointment Congress has not vested in other officers; but presidential appointments must be confirmed by the senate, thought he president may make temporary appointments during the recess of the senate, to hold until the end of their next session. He is commander-in-chief of the army and navy, and has power of pardon or reprieve for offences against Federal laws, except in case in impeachment. And he may call upon heads of departments for an opinion in writing on any subject relating to his department.
118. The last clause has evolved the "cabinet," a term not known in the constitution. When Congress has by law organized a department, its leading officer is called its secretary. There are now (1887) seven departments, - those of state, of the treasury, of war, of the navy, of the post-office, of the interior, and of justice; and departments of agriculture and of labor have been proposed. The secretaries are selected by the president are confirmed by the senate, but are not responsible to any one but the president. Nor is he bound by their individual opinions, or even by an unanimous opinion from one of their periodical meetings. They are his advisers only.
119. The people have no direct voice in the choice of president and vice-president: they choose electros, each State having as many electros as it has senators and representatives together; and the electros choose the president and vice-president, meeting at their State capitals for that purpose, and sending separate certificates of their choice of president and of vice-president to the presiding officer of the senate at Washington. The electors are to be chosen in such manner as the legislature of each State shall direct; and this plenary power of the legislatures was the source of the unhappy disputed election of 1876-77. By Acts of Congress, the electors are to be chosen on the Tuesday after the first Monday of November; they meet in their States and vote on the first Wednesday of December; and Congress meets on the second Wednesday of February to witness the counting of the electoral votes. The electors are legally State officers; and the action of their States in regard to them was evidently intended to be final. Until 1887 Congress refused to provide for necessary proof of the States action, and claimed the power to provide from time to time for emergencies. Such emergencies were constantly occurring ; and Congress, which was meant to be merely a witness of the count by the presiding officer of the senate, had seized, before 1876, a general supervisory power over the electors and their votes. This illegitimate function of Congress broke down in 1876-77, for several Southern States sent different sets of certificates; the two houses of Congress were controlled by opposite parties, and could agree on nothing; and an extra-constitutional machine, the "electoral commission," was improvised to tide over the difficulty. Now provision is made by the Electoral Count Act of 1887 for the States certification of its votes; and the certificate which comes in legal form is not to be rejected but by a vote of both houses. If there is no majority of electoral votes for any person for vice-president, the senate, by a majority of its members, chooses from the two names highest on the list. If there is no majority of electoral votes for any person for vice-president, the senate, by a majority of its members, chooses from the two names highest on the list. If there is no majority for president, the house of representatives chooses one from the three names highest on the list, each State having one vote.
120. The electors were meant to exercise a perfect freedom of choice, and there are instances in early years of electors voting for personal friends of the opposite party. It was originally provided that each elector was to name two persons, without specifying which was to be president or vice-president. When the votes were counted, the highest name on the list, if it had a majority of all the votes, obtained the presidency, and the next highest became vice-president. It has been said that the convention cut out the office of president according to the measure of George Washington, and there was no difficulty while he served: each elector cast one of his votes for Washington, and he was chosen unanimously; the struggle was for the second office. When he went out of office in 1796 the parties began to name candidates in advance for the two offices; the electors began to feel bound to vote for their party candidates; and the individuality of the electors disappeared at once. It the election of 1800 the electors of the successful party voted together like a well-drilled army, and the result was that the two candidates of the successful party had an equal vote. The defeated party controlled the house of representatives, and their efforts to choose Burr president instead of Jefferson exasperated the Democrats and sealed the fate of the old system. An amendment to the constitution was adopted in 1804, changing the method of the electors in voting, so that each should vote separately for the two offices and thus prevent any tie vote from this cause.
121. The constitution provides for one Supreme court, having original jurisdiction in cases affecting foreign ministers and consuls, and those to which a State shall be a party, and appellate jurisdiction from such subordinate courts as Congress should from time to time establish. All judges were to hold office during good behavior (§ 237), and their salaries were not to be diminished during their continuance in office. Criminal trials were to be by jury, except in impeachments, and were to be held within the State in which the offence had been committed, or in places assigned by law for the trial of offence committed outside the jurisdiction of any State. The whole jurisdiction of Federal courts, covering both the original and the appellate jurisdiction of the Supreme Court, was clearly stated. Federal courts were to deal with all cases in law or equity arising under the constitution or the laws or treaties made under it; with all cases affecting public ministers and consuls, or admiralty or maritime law; with suits by or against the United States; and with suits by one State against another, by a State against citizens of another State, by a citizen of one State against a citizen of another, by a citizen of a State against citizens of his own State when the question was one of a grant of land from different States, by a or its citizens against foreigners, or by a foreigner against an American. As the section first stood, it was open to the construction of giving the power to the citizen of one State to sue another State, and the Supreme Court so construed it in 1793-94. The States at once took the alarm; and the 11th amendment, forbidding suit against a State under this section except by another State, was ratified in 1798.
122. As soon as the new Government was organized in 1789, a Judiciary Act was passed, organizing the whole system of inferior Federal courts. Subsequent development has not changed the essential nature of this first Act. The Supreme Court now consists of a chief justice and eight associate justices; there are nine circuit courts, each consisting of a Supreme Court justice and a circuit judge; and fifty-six district courts, each with a district judge. Each circuit comprises several States; and the Supreme Court justices, in addition to their circuit work, meet in bank annually at Washington. The districts cover each a State or a part of a State. Appeal lies from the district to the circuit court when the matter involved is of a value greater than $500, and from the circuit to the Supreme Court when $5000 or more is involved. There are also Territorial courts, but these are under the absolute power of Congress over the Territories, and are not covered by the constitutional provisions as to courts. Consular courts, held abroad, fall under the treaty power.
123. The Constitutions leading difference from the Confederation is that it gives the national Government power over individuals. The Federal courts are the principal agent in securing this essential power; without them, the constitution might easily have been as dismal a failure as the Confederation. It has also been a most important agent in securing to the national Government its supremacy over the States. From this point of view the most important provision of the constitution is the grant of jurisdiction to Federal courts in cases involving the construction of the constitution or of laws or treaties made under it. The 25th section of the Judiciary Act permitted any Supreme Court justice to grant a writ of error to a State court in a case in which the constitutionality of a Federal law or treaty had been denied, or in which a State law objected to as in violation of the Federal constitution had been maintained. In such cases, the defeated party had the right to carry the "Federal question" to the Federal courts. It was not until 1816 that the Federal courts undertook to exercise this power; it raised a storm of opposition, but it was maintained, and has made the constitution what it professed to be "the supreme law of the land." As a subsidiary feature in the judiciary system, treason was restricted to the act of levying war against the United States, or of adhering to their enemies, giving them aid and comfort; the evidence of it to confession in open court, or to the testimony of two witnesses to an overt act; and any forfeiture in the punishment to a life effect only. The States, however, have always asserted their power to punish for treason against them individually. It has never been fully maintained in practice; but the theory had its effect in the secession period.
124. The States were bound to give credit to the public records of other States, to accord citizenship to the citizen of others States, to return criminals fleeing from other States, and to return "persons held to service or labor" under the laws of another State. This last was the "fugitive slave" provision of the constitution, which became so important after 1850 (§ 228).
125. The Federal Government was to guarantee a republican form of government to each of the States, and to protect each of them against invasion, or, on application of the legislature or governor, against domestic violence. The "guarantee clause" really substituted State rights under the guarantee of the Federal Government for the notion of State sovereignty under the guarantee of the State itself. A still stronger case of this was in the 5th article of the constitution, stating the manner of amendment . The convention of 1787, it must be borne in mind, was working under a system of government which provided expressly the it was not be altered in the least unless by consent of all the States. The constitution provided that it was to go into force, so far as ratifying States were concerned, as soon as nine of the thirteen States should ratify it, and that any future amendment, when passed by two-thirds of both houses and ratified by the legislatures or conventions of three-fourths of the States, should become of two-thirds of the States, a new convention, like that which framed the constitution, might take the place of the two houses of Congress in proposing amendments. A system under which a State submits its whole future destiny to an unlimited power of decision in three-fourths of its associate States can hardly be called one of State sovereignty.
126. The debts of the Confederation, and its engagements, were made binding on the new Government; the constitution, and laws and treaties to be mad under it, were declared to be "the supreme law of the land", judges of State courts were to be bound thereby, "anything in the constitution or laws of any State to the contrary notwithstanding"; all the legislative, executive, and judicial officers of the United States and of each and every State were to be bound by oath or affirmation to support the constitution of the United States; but religious tests were forbidden.
127.The amendments were adopted so soon after the ratification of the constitution that they may fairly be considered a part of the original instrument. They were due to a general desire that a "bill of rights" of some kind should be added to it; but they did not alter any of the articles of the constitution. They forbade any establishment of religion by Congress, or any abridgment of freedom of worship, of the press, or of speech, or of the popular right to assemble and petition the Government for redress of grievances; the billeting of soldiers; unreasonable searches or seizures, or general warrants; trials for infamous crimes except through a grand jurys action; subjecting a person for the same offence to be twice put in jeopardy of life or limb; compelling him to witness against himself in criminal cases; the taking of life, liberty, or property without due process of law or without compensation for property,; and the demand of excessive bail, or the imposition of excessive fines or of cruel or unusual punishments. They asserted the right of the people to keep and bear arms, to a jury trial from the vicinage in criminal cases or in cases involving more than $20, to a copy of the indictment, to the testimony against the prisoner, to compulsory process on his behalf, and to counsel for him. And they stated expressly the general principle already given, that the Federal Government is restricted to granted powers, while those not mentioned are reserved "to the States respectively or to the people."
128. The omission of the word "thereof" after the clause last mentioned seems significant. The system of the United States is almost the only national system, in active and successful operation, as to which the exact location of the sovereignty is still a mooted question. The contention of the Calhoun school-that the separate States were sovereign before and after the adoption of the constitution, that each State adopted it by its own power, maintained it by its own power, and could put an end to it by its own power, that the Union was purely voluntary, and that the whole people, or the people of all the other States, had no right to maintain or enforce the union against any State-has been ended by the Civil War. But that did not decide the location of the sovereignty. The prevalent opinion is still that first formulated by Madison:- that the States were sovereign before 1789; that they then gave up a part of their sovereignty to the Federal Government; that the Union and the constitution were the work of the States, not of the whole people; and that reserved powers are reserved to the people of the States, not to the whole people. The use of this bald phrase "reserved to the people," not to the people of the several States, in the 10th amendment, seems to argue an underlying consciousness, even in 1789, that the whole people of the United States was already a political power quite distinct from the States, or the people the States; and the tendency of later opinion is in this direction. It must be admitted that the whole people has never acted in a single capacity; but the restriction to State lines seems to be a self-imposed limitation by the national people, which it might remove, as in 1789, if an emergency should make it necessary. The Civil War amendments are considered below (§ 305-309).
129. By whatever sovereignty the constitution was framed and imposed, it was meant only as a scheme in outline, to be filled up afterwards, and from time to time, by legislation. The idea is most plainly carried out in the Federal justiciary; the constitution only directs that there shall be a Supreme Court, and marks out the general jurisdiction of all the courts, leaving Congress, under the restriction of the presidents veto power, to build up the system of courts which shall best carry out the design of the constitution. But the same idea is visible in every department, and it has carried the constitution safety through a century which has radically altered every other civilized government. It has combined elasticity with the limitations necessary to make democratic government successful over a vast territory, having infinitely diverse interests, and needing, more than almost anything else, positive opportunities for sober second thought by the people. A sudden revolution of popular though or feeling is enough to change the house of representatives from top to bottom; it must continue for several years before it can make a radical change in the senate, and for years longer before it can carry this change through the judiciary, which holds for life; and all these changes must take place before the full effects upon the laws constitution are accomplished. But the minor changes which are essential to an accommodation with the growth and development of a great nation are reached in the meantime easily and naturally in the course of legislation, to which the skeleton outline of the constitution lends itself kindly. The members of the convention of 1787 showed their wisdom most plainly in not trying to do too much; if they had done more they would have done far less.
130. The convention adjourned 17th September 1787, having adopted the constitution. Its last step was a resolution that the constitution be sent to the Congress of the Confederation, with the recommendation that it be submitted to conventions elected by the people of each State for ratification or rejection; that, if nine States should ratify it, Congress should appoint days for the popular election of electors, for the choice of president and vice-president by the electors, and for the meeting of senators and representatives to be chosen under the new plan of government; and that then the new Congress and president should "without delay, proceed to execute this constitution." Congress, having received the report of the convention, resolved that it be sent to the several legislatures, to be submitted to conventions; and this was all the approval the constitution ever received from Congress. Both Congress and the convention were careful not to open the dangerous question, How was a government which was not to be changed but by the legislatures of all the States to be entirely supplanted by a different system through the approval of conventions in three-fourths of them? They left such questions to be opened, if at all, in the less public forum of the legislatures.
131. Before the end of the year Delaware, Pennsylvania, and New Jersey had ratified; and Georgia, Connecticut, and Massachusetts followed during the first two months of 1788. Thus far the only strong opposition had been in Massachusetts, a "large State." In it the struggle began between Federalists and Antifederalists, between the friends and the opponents of the constitution, with its introduction of a strong Federal power; and it raged in the conventions, legislatures, newspapers, and pamphlets. The best of the last was The Federalist, written mainly by Hamilton, with the assistance of Madison and Jay, explaining the new constitution and defending it. As it was written before the constitution went into force, it speaks much for the ability of its writers that it has passed into a standard text-book of American constitutional law.
132. The seventh and eights States Maryland and South Carolina-ratified in April and May 1788; and, while the conventions of Virginia and New York were still wrangling over the great question, the ninth State, New Hampshire, ratified, and the constitution passed out of theory into fact. This left the other States in an unpleasant position. The Antifederalists of the Virginia and New York conventions offered conditional ratifications of all sorts, but the Federalists stubbornly refused to consider them, and at last, by very slender majorities, these two States ratified. North Carolina refused to ratify the constitution, and Rhode Island refused even to consider it (§ 145). Congress named the first Wednesday of January 1789 as the day for the choice of electros, the first Wednesday in February for the choice of president and vice-president, and the first Wednesday in March for the inauguration of the new Government at New York city. The last date fell on the 4th of March, which has been the limit of each presidents term since that time.
133. When the votes of the electors were counted before Congress, it was found that Washington had been unanimously elected president, and that John Adams, standing next on the list, was vice-president. Long before the inauguration the Congress of the Confederation had expired of mere inanition; its attendance simply ran down until (October 21, 1788) its record ceased, and the United States got on without any national Government for nearly six months. The struggle for nationality had been successful, and the old order faded out of existence.
134. The first census (1790) followed so closely upon the inauguration f the constitution that the country may fairly be said to have had a population of nearly four millions in 1789. something over half a million of these were slaves, of African birth or blood. Slavery of this sort had taken root in all the colonies, its original establishment being everywhere by custom, not by law. When the custom had been sufficiently established statutes came in to regulate a relation already existing. Indented servants came only for a term of years, and then were free. Slaves were not voluntary immigrants: they had come as chattels, not as persons, and had no standing in law, and the law fastened their condition on their children. But it is not true, as the Dred Scott decision held long afterwards (§ 249), that the belief that slaves were chattels simply, things not persons, held good at the time of the adoption of the constitution. Times had changed somewhat. The peculiar language of the constitution itself, describing slaves as "persons held to service or labor, under the laws of any State," puts the general feeling exactly: they were persons from whom the laws of some of the States withheld personal rights for the time. in accordance with this feeling most of the Northern States were on the high road towards abolition of slavery. Vermont had never allowed it. In Massachusetts it was swept out by a summary court decision that it was irreconcilable with the new State constitution. Other States soon began systems of gradual abolition, which finally extinguished slavery north of Virginia, but so gradually that there were still 18 apprentices for life in New Jersey in 1860, the last remnants of the former slave system. In the new States north of the Ohio slavery was prohibited by the Ordinance of 1787 (§ 96), and the prohibition was maintained in spite of many attempts to get rid of it and introduce slavery.
135. The sentiment of thinking men in the South was exactly the same, or in some cases more bitter from their personal entanglement with the system. Jeffersons language as to slavery is irreconcilable with the chattel notion; no abolitionist agitators ever used warmer language than he as to the evils of slavery; and the expression, "our brethren," used by him of the slaves, is conclusive. Washington, mason, and other Southern men were as warm against slavery as Jefferson, and societies for the abolition of slavery were very common in the South. No thinking man could face with equanimity the future problem of holding a separate race of millions in slavery. Like most slave laws, the laws of the Southern States were harsh: rights were almost absolutely withheld from the slave, and punishments of the severest kind were legal; but the execution of the system was milder than its legal possibilities might lead one to imagine. The country was as yet so completely agricultural, and agriculture felt so few of the effects of large production and foreign commerce, that Southern slavery kept all the patriarchal features possible to such a system.
136. Indeed, the whole country was almost exclusively agricultural, and, in spite of every effort to encourage manufactures by State bounties and colonial protection, they formed the meagrest element in the national production. Connecticut, which now teems with manufactures. Was just beginning the production of tinware and clocks; Rhode Island and Massachusetts were just beginning to work in cotton from models of jennies and Arkwright machinery surreptitiously obtained from England after several failures and in evasion of penal Acts of parliament; and other States, beyond local manufactures of paper, glass, and iron, were almost entirely agricultural, or were engaged in industries directly dependent on agriculture. Commerce was dependent on agriculture for exports; and manufactured imports were enough to drown out every other form of industry.
137. There were but four cities in the United States having a population of more than 10,000, - Philadelphia (42,000), New York (33,000), Boston (18,000), and Baltimore (13,000). The population of the city of New York and its dependencies is now more than half as large as that of the whole United States in 1789; the State of New York or of Pennsylvania has now more inhabitants than the United States in 1790; and the new States of Ohio and Illinois, which had hardly any white inhabitants in 1789, do not fall far behind. Imports have swollen from $23,000,000 to $650,000,000, exports from $20,000,000 to $700,000,000, since 1790. The revenues of the new Government in 1790 were $4,000,00; they have now grown to $300,000,000 or more. The expenditures of the Government excluding interest on the public debt, were but $1,000,000 in 1790, where now they are $200,000,000 or upwards per annum. It is not easy for the modern American to realize the poverty an weakness of his country at the inauguration of the new system of government, however he may realize the simplicity of the daily life of its people. Even the few large cities were but larger collections of the wooden houses, with few comforts, which composed the villages; the only advantage of their inhabitants over those of the villages was in the closer proximity to their neighbors; and but a little over 3 percent of the population had this advantage, against about 25 per cent in 1880.
138. Outside the cities communication was slow. One stage a week was enough for the connection between the great cities; and communication elsewhere depended on private conveyance. The great rivers by which the continent is penetrated in every direction were with difficulty ascended by sailing vessels or boats; and the real measure of communication was thus the daily speed of a man or a horse on roads bad beyond present conception. The western settlements were just beginning to make the question more serious. Enterprising land companies were the moving force which had impelled the passage of the Ordinance of 1787; and the first column of their settlers was pouring into Ohio and forming connection with their predecessors in Kentucky and Tennessee. Marieta and Cincinnati (at first a Government fort, and named after the society of the Cincinnati) had been founded. But the intending settlers were obliged to make the journey down the Ohio river from Pittsburgh in bullet-proof flat-boats, for protection against the Indians, and the return trip depended on the use of oars. For more than twenty years these flat-boats were the chief mean of river commerce in the west; and, in the longer trip, as to New Orleans, the boats were generally broken up at the end and sold for lumber, the crew making the trip home on foot or on horseback. John Fitch and others were already experimenting on what was soon to be the steamboat (§ 167), but the statesman of 1789, looking at the task of keeping under one Government a country of such distances, with such difficulties of communication, may be pardoned for having felt anxiety as to the future. To almost all thinking men of the time the constitution was an experiment, and the unity of the new nation a subject for very serious doubt.
139. The comparative isolation of the people everywhere, the lack of books, the poverty of the schools and newspapers, were all influences which worked strongly against any pronounced literary development. Poems, essays, and paintings were feeble imitations of European models; history was annalistic, if anything; and the drama hardly existed. In two points the Americans were strong, and had done good work. Such men as Jonathan Edwards had excellent in various departments of theology, and American preaching had reached a high degree of quality and influence; and, in the line of politics, the American state-papers rank among the very best of their kind. Having a very clear perception of their political purposes, and having been restricted in study and reading to the great masters of pure and vigorous English, and particularly to the English translators of the Bible, the American leaders came to their work with an English style which could hardly have been improved. The writings of Franklin, Washington, the Adamses, Hamilton, Jefferson, Madison, Jay, and others show the secret of their strength in every page. Much the same reasons, with the influences of democracy, brought oratory, as represented by Patrick Henry, Fisher Ames, John Randolph, and others, to a point not very far below the mark afterwards reached by Daniel Webster. The effect of these facts on the subsequent development of the country is not often estimated at its full value. All through an immigration of every language and dialect under heaven the English language has been protected in its supremacy by the necessity of going back to the "fathers of the republic" for the first, and often the complete, statement of principles in every great political struggle, social problem, or lawsuit.
140. The cession of the "north-west territory" by Virginia and New York had been followed up by similar cessions by Massachusetts (1785), Connecticut (1786), and South Carolina (1787). North Carolina did not cede Tennessee until late in 1789, nor Georgia her western claims until 1802. Settlement in all these regions was hardly advanced beyond what it had been at the outbreak of the revolution. The centers of western settlement, in Tennessee and Kentucky, had merely become more firmly established, and a new one, in Ohio, had just been begun. The whole western limits of settlement of the old thirteen States had moved much nearer their present boundaries; and the acquisition of the western title, with the liberal policy of organization and government which had been begun, was to have its first clear effects during the first decade of the new Government. Almost the only obstacle to its earlier success had been the doubts as to the attitude which the Spanish authorities, at New Orleans and Madrid, would take towards the new settlements. They had already asserted a claim that the Mississippi was an exclusively Spanish stream from its mouth up to the Yazoo, and that no American boat should be allowed to sail on it. To the western settler the Alleghanies and bad roads were enough to cut him off from any other way to a market than down the Mississippi; and it was not easy to restrain him from a forcible defiance of the Spanish claim. The Northern States were willing to allow the Spanish claim in return for a commercial treaty; the Southern States and the western settlers protested angrily; and once more the spectre of dissolution appeared not to be laid again until the new Government had made a treaty with Spain in 1795, securing common navigation of the Mississippi.
141. All contemporary authorities agree that a marked change had come over the people since 1775, and few of them seem to think the change one for the better. Many attribute it to the looseness of manners and morals introduced by the French and British soldiers; others to the general effects of war; a few, Tories all, to the demoralizing effects of rebellion. The successful establishment of nationality would be enough to explain most of it; and if we remember that the new nation had secured its title to a vast western territory, of unknown but rich capacities, which it was now moving to reduce to possession by emigration, it would seem far more strange if the social conditions had not been somewhat disturbed.
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