the fathers of this republic. The foundation was: a number of States organized into one Federal Union. But the thirteen States which went to make up the original miniature model have since expanded into thirty-eight States and ten Territories. Now, how shall we preserve the federative principle, which is the basis of our republic, and at the same time keep this colossus of States manageable? I see no other practical mode than that just suggested, of a division of the one Union of the United States into, say, five sub-Unions, with a common congress, judiciary, and executive for each. Having achieved this problem, we can readily, in the course of time, organize all the States of North and South America into similar Unions, with locally independent congresses, judiciaries, and executives, and unite them with ours into one government, an American government. In course of time again, the same phenomenon will exhibit itself in the other continents of the world, and realize the same end. Then, and only then, can we say that the prophecy of Christ, which Tennyson has so aptly worldlified, has been fulfilled, and that, in spite of scoffers, there has arisen into life a "Confederation of the World." Now, the radical changes I suggest in the departments of our federative government are somewhat as follows: I. The organization of the executive power should be remodelled so as to do away with those four-yearly presidential elections, that keep perennially alive political partisan excitement. If the Union as it exists at present is subdivided into, say, five sub-Unions, each one electing its own president, congress, and judiciary, then those five presidents would choose, at every congressional session, a president for the whole Union out of their number, and those four-yearly excitements would disappear. Then, next, the executive power should be so curtailed as to make elective as many as possible of the offices now filled by appointment. I may instance the offices of postmasters and revenue-collectors. In this way the executive would become again what the founders of the Constitution intended him to be: the chief executive of the law-making power of Congress; whereas under the present state of things he is simply a figure-head, so far as the welfare of the people is concerned, and useful only as the head of his party, whose leaders he can reward by the gift of Federal offices. II. The organization of the legislative power should be remodelled so as to change an elected member of Congress, from being a mere re ceiver of bribes, into an active political representative of his constituents. This also can be most readily effected by a division of the whole Union into, say, five sub-Unions, each of which will have a separate congress. The members of these five congresses, when meeting together, would constitute the great Congress of the whole United States. As a matter of course, it is of importance that this Congress, while representing every local section of the country, should also be as small in numbers as practicable. In regard to the lower house this is easily enough attainable. But a greater difficulty arises when we approach the Senate. No country on the earth ever had such a Senate as that called into being by the Constitution of the United States. Two senators from each State, no matter how geographically large or populously filled that State may be! Little Rhode Island on a par with gigantic Texas; populous New York on an equality with Nebraska! Now, this whole anomaly would be swept away at once by the subdivision of the Union into the five Unions proposed by me; for then each of the five sub-Unions might choose by general election a specified number of senators, without regard to the number of States represented, or to geographical extent. III. The reconstruction of the whole judiciary system of the United States. The Supreme Court of the United States, being at present no longer able to transact the business devolving upon it under the Federal Constitution and laws, a portion of the original and appellate jurisdiction of this court should be vested in another court. Hence the new Constitution should, above all, provide for what I may call an Interstate National Court, to remove all jurisdiction from the present Supreme Court of the United States over Federal constitutional questions, controversies between States, and between citizens of the United States and any State, or the Federal government, and all questions of conflict between State and Federal constitutions. This jurisdiction should be appellate only, except in controversies between States, and on writs of mandamus, quo warranto, prohibition, etc., in which the jurisdiction should be original. This new Interstate National Court might be composed of twentyfive judges, five to be taken from each of the sub-Unions of the United States. The present Supreme Court of the United States, instead of nine justices, ought to have at least twenty-one, the senior justice being chief justice. The circuit judges should also be increased to the number of at least twenty-one, and the circuits should be increased to the same number. Each one of the Supreme Court justices should hold court with his circuit judge and the District Court judges for two months in each year. Four supreme justices and four circuit judges should hold an intermediate appellate court for two months at the capital of each one of the five sub-Unions of the United States, to hear and determine all appeals, quo warranto, certiorari, mandamus, etc., with appeals in certain cases to the Supreme Court of the United States, or to the Interstate National Court, as the case may be. The Supreme Court should hold its sessions for six months in each year at the Federal capital city, as an appellate tribunal; and there should be five chambers, for different members of the court to hold five courts for the more speedy hearing and decision of cases. The justices might be allotted to different court-rooms, thus: Room number one, with three justices for hearing cases in admiralty; room number two, with five justices for hearing cases in equity; room number three, with three justices for hearing cases of revenue, preemption, and mining claims; room number four, with three justices for hearing patent-right and copyright cases; room number five, with seven justices for hearing all other cases not hereinbefore allotted to the other rooms. All cases decided in these several rooms might be certified to the twenty-one justices sitting in banc, on demand of either party. At the request of one-third of the justices in either one of said five rooms, any case therein decided might be referred to the whole court of twenty-one justices, sitting in banc, for a more full examination and final decision, subject to a writ of error to the Interstate. National Court in all cases where said court has appellate jurisdiction. The details of this plan can be easily framed, and the jurisdictions will embrace all persons in the republic who are aliens or citizens of the States. Each State, as well as the Federal government, should be subject to an action at the suit of any citizen, or alien, or corporation, or State, for any just claim or cause of action whatever. would, moreover, urge that the salaries of the judiciary be increased so as, at any rate, to be fairly equal to salaries received by other I officers or the government. The Supreme Court of the United States is certainly as high and august a power as that of the executive. Why, then should it not be paid as well? Far better to pay judges a fair salary, and provide a proper pension for them in their old age, than expose them to temptation by curtailing their salaries. CHAPTER V. THE NECESSITY OF A CODIFICATION OF LAWS. When, in the original introduction of "Liberty and Law," I announced my intention of applying the same fundamental principles established in that work in a subsequent work on State, National, and International Codes and Constitutions, I had in view an independent and more extensive book. But the present second edition of this work gives me a chance to say in a condensed form what I wished to say on those subjects, a form which may be more acceptable to the general reader than an extensive work on codification. I shall therefore proceed to sketch the outlines of such a system of codification as may be applied to the Federal, State, and departmental forms of government that will be peculiar to the United States under its new Constitution. The advantages which would accrue from such a codification, if systematically effected, will be apparent at once to every lawyer and judge. Its vast political importance cannot be readily seen, and would probably be realized fully only after it had been in operation for some time. The first thing to be done after the completion and adoption of the codes would be to abolish altogether, in every part of the land, that unknown quantity called Common Law, of which no citizen who is not a lawyer can possibly know much, since it is not printed in one book, but fragmentally scattered through several thousand volumes, and of which lawyers and judges know very little more than laymen, as is shown by the fact that they are always at loggerheads with each other as to what this common law is, whenever a case calls for its application. It is of this common-law system that the English laureate says: "So Leolin went; and as we task ourselves That wilderness of single instances Through which a few, by wit or fortune led, May beat a pathway out to wealth and fame.". And forty years' practice of law in courts of every degree in the United States authorizes me, I think, to say, that the poet has not in the least exaggerated the "codeless myriad of precedent" that constitutes the common law of England. At the very beginning of our government, the States that had been British colonies, and had not yet had time to make codes of their own during the struggle or after the close of the Revolution, may have acted prudently in continuing this system; but there is surely no reason why it should be retained now. Not only that it is unknown and inaccessible to the citizens, who are nevertheless required to regulate their actions by it, it being one of those profound legal axioms, which only lawyers can understand, that ignorance of the law cannot be pleaded as an excuse in court, but it conceals a most subtle foe to free institutions, by making possible the establishment of a judicial despotism. In monarchical countries, the danger arising from the exercise of arbitrary power on the part of the judiciary is perhaps not so threatening, but rather appears somewhat like an offset to the despotism of the crown, and hence as a protection to the liberties and rights of the people; but under our republican form of government judicial despotism should be carefully guarded against. I cite the conflicting decisions of the Federal Supreme Court on the legal-tender quality of treasury-notes, wherein it was decided, at first, that the Legal-Tender Act of 1862 was unconstitutional,1 and then very soon afterwards it was very properly decided, that the same act was constitutional (1870).2 Again, in the case of Murdock & Clark v. Governor Woodson and Attorney-General Ewing (1874), the same court overthrew the Constitution of Missouri of 1865, by construing the words,3 "The General Assembly shall have no power, for any purpose whatever, to 18 Wall. 603. 2 Legal-Tender Cases, 12 Wall. 457. 3 Art. 11, sect. 15. |