tial tribunal for the decision of such controversies. A controversy not altogether between citizens of different states. would neither be within the letter nor the reason of the constitution. An act of Congress which sought to remove into the federal courts any other controversies than those between citizens of different states would seem to be clearly unconstitutional. The act of 1875, construed as above contended for, appears to be free from all exception. It would be otherwise if it admitted of the construction sought to be put upon it by the argument above combatted. The latter construction finds not the least support in any adjudication of the Supreme Court of the United States. And, perhaps, it will be time enough to enquire into the limits of the power of Congress when, in the language of Mr. Justice Clifford, “the words of the enactment are of a character to warrant the construction." Case of the Sewing Machine Companies, 18 Wall. 587. At present the last expression of the legislative will, the act of 1875, seems to be free from constitutional objection, and to have repealed whatever was obnoxious to such objection in the previous statutes. At any rate, this is the impression made upon the writer after studying it critically by the light of the decisions of the Supreme Court of the United States, made, it is true, upon the previous statutes in pari materia, but upon provisions brought forward, in substance and form, into the later act.

Since the foregoing was written, the Central Law Journal for February 9, 1877, has been received. It contains the opinions of Treat and Dillon, JJ., in the case of Cape Girardeau R. v. Winston et al., recently decided at St. Louis. The application was to remand the cause, which had been removed from the state court under the second clause of section 639 of the Revised Statutes. The removal had been made at the instance of two of the defendants, and was an attempt to remove part of a cause, when the record clearly showed that co-defendants were necessary parties, to the relief sought by the bill. Both judges concurred in thinking that the removal was improper, and in ordering a remand.

Judge Treat was of opinion that the second clause of section. 639, Revised Statutes, was repealed by the act of March 3, 1875. He was also of opinion that the provisions of that clause, if not thus repealed, were unconstitutional and void. "If," says he, "the purpose of this act (1875) was to restore what, obviously, is the constitutional limit of the jurisdiction. of the United States courts, by confining them to controversies which are wholly between citizens of different states, then the act of 1866 is repealed." If not repealed, he unhesitatingly adds, “those peculiar provisions of the act of 1866 must be held to be unconstitutional and void." The writer's own previous convictions have been, of course, greatly strengthened by the conclusions of this eminent judge, put in that luminous and incisive style so characteristic of his opinions. And, he may add, it is refreshing to find a United States judge who can see that an act of Congress is unconstitutional, and plumply say so.

NASHVILLE, TENN.

W. F. COOper.

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II. THE ELECTION OF JUDGES BY THE PEOPLE FOR SHORT TERMS OF OFFICE.

The inevitable tendency of all free institutions is to radicalism. Free thought and free discussion bring two great forces into perpetual conflict-the one radical, the other conservative. The former is positive and aggressive; the latter, negative and defensive. The first assails, the last resists. It is a conflict of ideas, in which there can be no doubtful result. The active, positive, moving force ever prevails against the negative, quiescent, resisting force. This active force in a free country is democratic sentiment, the constant tendency of which is to carry all established institutions irresistibly forward in the direction of radicalism. Nor is it difficult to comprehend the philosophy of this social and political phenomenon.

There is nothing more natural to the human mind than to accept abstract propositions and follow them to their logical consequences, without regard to the existing conditions to which they are to be applied. This process of thought is at once natural and unphilosophical. The shallow thinker imagines that he sees in this logical process profound philosophy. The lazy investigator finds in it a ready solution of all difficult problems, without the painstaking labor required by the process of induction from innumerable facts. To say that certain things are true and right, and that they shall therefore be done, whatever may be the existing conditions of society and government to which they are to be applied, is the simple deduction of shallow and lazy thinkers. But to determine truly with what modifications abstract truths are to be applied to existing conditions, so as to avert possible evils and promote the well-being of society, demands the profoundest insight into men and things, as well as careful investigation and thorough knowledge. A great scholar

and legist has said with sententious wisdom that "many things which are true in the abstract are not true in the concrete." The founders of our institutions understood the full truth of this apothegm, and they acted upon it in laying the foundations of the system which they established. They were not mere theorists, nor doctrinaires, nor utopian legislators. They were great lawyers, practical philosophers, and wise statesmen, experienced in affairs. They recognized the principle of popular sovereignty. They were too wise not to know that the will of the people must needs be a great factor-nay, the greatest factor in any system of government to be established in a state of society where neither military power nor traditional rights exist. Hence, they skilfully wrought into the framework of our institutions the principle that the consent of the governed is the only legitimate source of human authority over the people. But in framing our early constitutions the fathers did by no means blindly follow the doctrine of popular sovereignty to its logical consequences. On the contrary, while recognizing fully the doctrine that sovereign power in this country resides nowhere but in the people, they carefully and ́studiously erected powerful barriers to arrest, control, and sometimes defeat, the popular will. Well did they know that any government purely popular, without checks and balances, and without bulwarks to resist the storms of popular frenzy and passion, would in time become intolerable, and end, according to all human experience, in despotism. The fathers evidently believed that between the tyranny of one man and the tyranny of an unrestrained popular majority, the balance of evil would be largely with the latter. Did they recognize the absurd dogma that all men, all women, and all children, at the age of discretion, have an inalienable right, without experience or training, to participate in the government of the country? Did they for a moment assent to the proposition that to fight and to vote are correlative rights, and that the bullet and the ballot must be wielded by the same hand? On the contrary, they postponed universal suffrage for many years after the close of the Revolution, and until the people

who had been living under monarchical form, without the training required to vote intelligently in a republic, became, to a certain extent, politically educated. Their idea seems to have been that the mass of the people must be trained to the great and responsible duties of self-government before they could exercise the right of suffrage with safety to the common weal. Little did they dream of perpetrating the monstrous and criminal folly of introducing, without the least preparation, into the body politic vast hordes of ignorant, illiterate, and semi-barbarous men, to vote away the property of their fellow-men, and subvert all civil order! If the fathers had been called upon to consider the question of negro suffrage under the same circumstances in which this generation of statesmen had to deal with that problem, they would probably have reasoned thus: "Let us by no means establish a constitution excluding these four millions of freedmen absolutely from the suffrage, lest we make the whole race enemies of the government under which they are to live. It is not consistent with the true idea of a republican commonwealth to exclude by arbitrary designation large numbers of people from all participation in the government. The deprivation of essential rights tends inevitably to make those who are thus excluded, enemies of the government. Let us, therefore, take measures to prepare these people, by education and political training, for the great duties of citizenship; and let us introduce them slowly and gradually as members of the political community. Thus may we at once satisfy the just and natural aspirations of the colored race, and prevent them from becoming the victims of demagogues and designing politicians, who will otherwise mislead them to their own injury, and to the irreparable detriment of society."

Many were the barriers which the wise fathers erected to oppose the popular will; many the obstructions which they placed in the way of unrestrained popular sovereignty. Consider the Senate of the United States. The people are not represented in that body at all. Its members are not elected by the people. The state of Delaware utters as potential a voice in the legislation of that illustrious assembly as the