Part I. $ 54. Executive power. § 54a. Legislation in the United States. To give effect to this mass of sovereign authorities, the executive power is vested in a President of the United States, chosen by electors appointed in each State in such manner as the legislature thereof may direct. The judicial power extends to all cases in law and equity arising under the constitution, laws, and treaties of the Union, and is vested in a Supreme Court, and such inferior tribunals as Congress may establish. The federal judiciary exercises under this grant of power the authority to examine the laws passed by Congress and the several State legislatures, and, in cases proper for judicial determination, to decide on the constitutional validity of such laws. The judicial power also extends to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects. Mr. Dana considers the language of this clause likely to mislead foreign readers. He denies the existence of any tribunal which has special and direct power to decide questions of constitutional law. The Supreme Court is the court of final resort, from whose decision there is no appeal; but, like all other courts, it only decides the questions of law that litigants bring before it. The American Constitution is a code of positive law; and is, moreover, the law having the highest authority in the Union. Acts of Congress do not correspond to English Acts of Parliament. The latter are supreme; and the only business of an English Court, when an Act comes before it, is to fix upon it the interpretation which the legislature is supposed to have intended. In America, a litigant may appeal to the Supreme Court against an Act of Congress, and the Court may declare whether the Act is constitutional or not. If the Court pronounces an Act to be unconstitutional, it remains on the statute book, but is inoperative, unless the Court at a subsequent time reverses its own decision (u). Story, in his Commentary on the Constitution, says, "In measures (u) Wheaton, by Dana, note 31, p. 79. exclusively of a political, legislative, or executive character, it is plain Chap. II. that, as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. But where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. It is in such cases that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the Courts of the Union. No mode is provided by which any superior tribunal can re-examine what the Supreme Court has itself decided" (x). In 1866, an application was made to the Supreme Court to restrain the President from carrying into effect an Act of Congress alleged to be unconstitutional; but the Court decided that such a proceeding was not within their jurisdiction. In 1895, the Supreme Court decided that the income tax imposed by the Tariff Act of the previous year was unconstitutional, and the amounts already paid under it were refunded. This decision involved a loss to the revenue estimated at 30,000,0007. per annum (y). $ 55. making The treaty-making power is vested exclusively in Treatythe President and Senate; all treaties negotiated with power. foreign States being subject to their ratification. No State of the Union can enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; grant any title of nobility; lay any duties on imports or exports, except such as are necessary to execute its local inspection laws, the produce of which must be paid into the national treasury; and such laws are subject to the revision and control of Congress. Nor can any State, without the consent of Congress, lay any tonnage duty; keep troops or ships of war in time of peace; enter into any agreement or compact with another State or with a foreign power; or engage in war unless actually invaded, or in (z) Story on the Constitution of the United States, vol. i. p. 266 (4th ed.). (y) State of Mississippi v. Johnson, 4 Wallace, 475; Pollock v. Farmer's Loan W. and Trust Co., 158 U. S. Reports, G Part I. § 56. The American union is a supreme federal such imminent danger as does not admit of delay. The Union guarantees to every State a republican form of government, and engages to protect each of them against invasion, and, on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence. It is not within the province of this work to determine how far the internal sovereignty of the respective States government. composing the Union is impaired or modified by these constitutional provisions. But since all those powers, by which the international relations of these States are maintained with foreign States, in peace and in war, are expressly conferred by the constitution on the federal government, whilst the exercise of these powers by the several States is expressly prohibited, it is evident that the external sovereignty of the nation is exclusively vested in the Union. The independence of the respective States, in this respect, is merged in the sovereignty of the federal government, which thus becomes what the German public jurists call a Bundesstaat. § 57. Swiss Confederation. The Swiss Confederation, as remodelled by the federal pact of 1815, consists of a union between the then twenty-two Cantons of Switzerland; the object of which is declared to be the preservation of their freedom, independence, and security against foreign attack, and of domestic order and tranquillity. The several Cantons guarantee to each other their respective constitutions and territorial possessions. The Confederation has a common army and treasury, supported by levies of men and contributions of money, in certain fixed proportions, among the different Cantons. In addition to these contributions, the military expenses of the Confederation are defrayed by duties on the importation of foreign merchandise, collected by the frontier Cantons, according to the tariff established by the Diet, and paid into the common treasury. The Diet consists of one deputy from every Canton, each having one vote, and assembles every year, alternately, at Berne, Zurich, and Lucerne, which are called the directing Cantons (vorort). The Diet has the exclusive power of declaring war, and Chap. II. concluding treaties of peace, alliance, and commerce, with foreign States. A majority of three-fourths of the votes is essential to the validity of these acts; for all other purposes, a majority is sufficient. Each Canton may conclude separate military capitulations and treaties, relating to economical matters and objects of police, with foreign powers; provided they do not contravene the federal pact, nor the constitutional rights of the other Cantons. The Diet provides for the internal and external security of the Confederation; directs the operations, and appoints the commanders of the federal army, and names the ministers deputed to other foreign States. The direction of affairs, when the Diet is not in session, is confided to the directing Canton (vorort), which is empowered to act during the recess. The character of directing Canton alternates every two years, between Zurich, Berne, and Lucerne. The Diet may delegate to the directing Canton, or vorort, special full powers, under extraordinary circumstances, to be exercised when the Diet is not in session; adding, when it thinks fit, federal representatives, to assist the vorort in the direction of the affairs of the Confederation. In case of internal or external danger, each Canton has a right to require the aid of the other Cantons; in which case, notice is to be immediately given to the vorort, in order that the Diet may be assembled, to provide the necessary measures of security (2). of the Swiss with those of Confedera § 58. The compact, by which the sovereign Cantons of Constitution Switzerland are thus united, forms a federal body, Confederawhich, in some respects, resembles the Germanic Con- ticn compared federation, whilst in others it more nearly approximates the Germanic to the American Constitution. Each Canton retains its tion and of original sovereignty unimpaired, for all domestic pur- States. poses, even more completely than the German States; but the power of making war, and of concluding treaties of peace, alliance, and commerce, with foreign States, (2) Martens, Nouveau Recueil, tom. viii. the United Part I. $ 59. Abortive attempts, since 1830, to federal pact change the of 1815. § 59a. Changes in the Swiss Constitution in 1848 and 1874. being exclusively vested in the federal diet, all the foreign relations of the country necessarily fall under the cognizance of that body. In this respect, the present Swiss Confederation differs materially from that which existed before the French Revolution of 1789, which was, in effect, a mere treaty of alliance for the common defence against external hostility, but which did not prevent the several Cantons from making separate treaties with each other, and with foreign powers (a). Since the French Revolution of 1830, various changes have taken place in the local constitutions of the different Cantons, tending to give them a more democratic character; and several attempts have been made to revise the federal pact, so as to give it more of the character of a supreme federal government, or Bundesstaat, in respect to the internal relations of the Confederation. Those attempts have all proved abortive; and Switzerland still remains subject to the federal pact of 1815, except that three of the original Cantons,-Basle, Unterwalden, and Appenzel,-have been dismembered, so as to increase the whole number of Cantons to twenty-five. But as each division of these three original Cantons is entitled to half a vote only in the Diet, the total number of votes still remains twenty-two, as under the original Federal pact (b). In 1848, the Swiss Constitution was remodelled, but the essential principles of the pact of 1815 were maintained. The Cantons retained their sovereignty, except where it was limited by the constitution; they exercised all rights that were not conferred on the Federal Government. All political alliances between the Cantons were forbidden; but they were entitled to enter into conventions among themselves for regulating matters appertaining to legislation, the Administration of Justice, &c., subject to the approval of the Federal authority. The Federal Council represented the Cantons in their relation to foreign States. The rights of declaring war, of making peace, and of entering into treaties were vested, as before, exclusively in the Federal Government. The supreme authority of the Union was vested in a Federal assembly, consisting of two houses (a) Merlin, Répertoire, tit. Ministre Public. (b) Wheaton, Hist. Law of Nations, pp. 494-496. |