MANUAL OF THE CON STITUTTIO1N OF THE UNITED STATES, DESIGNED FOR THE INSTRUCTION OF AMERICAN YOUTH IN THE DUTIES, OBLIGATIONS, AND RIGHTS OF CITIZENSHIP. BY ISRAEL WARD ANDREWS, D. D., LL. D., Prcsident of Mcarietla College. VAN ANTWERP, BRAGG & CO., 137 WALNUT STREET, 28 BOND STREET, CINCINNA TI. IVEW YORi K Entered according to Act of Congress, in the year 1874, by WILSON, HINKLE & CO., In the Office of the Librarian of Congress, at Washington. ECLECTIC PRESS: VAN ANTWERP, BRAGG & CO., CINCINNATI. TO THE TRUSTEES OF MARIETTA COLLEGE, WITH WHOM, FOR MORE THAN A THIRD OF A CENTURY, THE AUTHOR HAS BEEN MOST PLEASANTLY ASSOCIATED, THIS VOLUME Is GRATEFULLY INSCRIBED. (iii) PREFAC E. THIS work has grown out of the necessities and experience of the class-room. For the proper instruction of the student in the important subject of civil government, a clear exposition of the great principles of the Constitution is needed, with a summary of the legislative provisions in which they have been embodied. When the author took charge of this department of study, he found himself embarrassed in both these respects, and especially the latter. Questions were continually suggesting themselves, to which answers could be obtained only after laborious research. Urged on by a deep interest in the subject, and availing himself of the unusual facilities for the prosecution of studies of this character furnished by the library of the College, the author entered upon a somewhat extended investigation of our governmental history. The materials thus accumulated, and accumulating, having for some years furnished the basis for instruction by lectures, have now been condensed into this form, and are given to the public in the hope that other instructors may be in some measure relieved (v) Vi PREFACE. from the excessive labor which similar personal examination would involve. While the primary object was to provide a suitable text-book, a conviction that a knowledge of our government can not be too widely diffused, and that large numbers would welcome a good work on this subject, has led to the attempt to make the volume a manual adapted for consultation and reference by the citizens at large. With this end in view, the author has sought to embody in the work that kind — and so far as space would allow, that amount -of information on the various topics which an intelligent citizen would desire to possess. As the value of a work of this kind depends in large measure upon its accuracy, it is proper to say that in nearly every instance the statements touching the legislation or other action of the government have been taken from official publications. A careful revision of the work has been made, incorporating in it all important changes in the legislation of the country, and giving the practical workings of the Constitution to the present time. MARIETTA COLLEGE, August, 1878. CONTENNTS. CHAPTER I. PAGE. CIVIL GOVERNMENT - ITS OBJECT, ORIGIN, AND NATUREDIFFERENT FORMS OF GOVERNMENT — PECULIARITY OF THAT OF THE UNITED STATES- NOT A CONSOLIDATED REPUBLIC NOR A LEAGUE OF STATES,.. 9 CHAPTER II. THE COLONIAL GOVERNMENTS- ROYAL, PROPRIETARY, AND CHARTER - THE CAUSES OF THE REVOLUTION - THE CONTINENTAL CONGRESS — THE DECLARATION OF INDEPENDENCE,...... 24 CHAPTER III. THE ARTICLES OF CONFEDERATION - THEIR FAILURE -THE CONVENTION TO FORM A CONSTITUTION,... 36 CHAPTER IV. TIIE CONSTITUTION OF THE UNITED STATES,.... 45 (vii) 1iii CONiTENTS. CHAPTER V. PAGE. THE RATIFICATION OF THE CONSTITUTION BY THE SEVERAL STATES,.283 CHAPTER VI. THE ADMISSION OF NEW STATES —THE TERRITORIAL GOVERNMENTS,.294 CHAPTER VII. PRACTICAL OPERATION OF THE CONSTITUTION,... 314 CHAPTER VIII. THE STATE GOVERNMENTS... 360 APPENDIX,........ 371 CIVIL GOVERNMENT. CHAPTER I. CIVIL GOVERNMIENT-ITS OBJECT, ORIGIN, AND NATURE-DIFFERENT FORMS OF GOVERNMENT-PECULIARTTY OF THAT OF THE UNITED STATES-NOT A CONSOLIDATED REPUBLIC, NOR A LEAGUE OF STATES. A KNOWLEDGE of the nature and operation of the government under which wve live. is necessary for the successful prosecution of the business of life, and to secure the happiness of ourselves and of those dependent upon us. We can thus adapt ourselves to the circumstances in which we are placed, and avoid those perplexities and difficulties in which one ignorant of the laws and institutions of his country is liable to be involved. The fact that a man is subject to a government is a sufficient reason for studying its character and workings, although he may have no participation in its management. In a republican government the importance of such knowledge is still greater, because the people not only are amenable to the laws, but also have a voice in electing those who make and execute them. He who lives under a despotism should acquaint himself with its character and workings for his own protection; a citizen of a republic should do the same, because he is to some extent responsible for the government. Until within the last few years, Americans have been lamentably ignorant of their national government, both (9) 10 CIVIL GOVERNMENrT. as to its history and its operation. The war of the Rebellion, which could hardly have occurred had the whole people understood the true relation of the States to the national government, has had the effect to direct attention to governmental questions. There is probably a stronger desire for such knowledge now than at any previous time, and a corresponding demand for the introduction of such studies into all our schools of higher grade. Two circumstances facilitate the acquisition of a competent knowledge of our government. First, our national existence extends over a comparatively brief period. About a hundred years only have passed since we became an independent people, while most of the civilized nations of the world have had a long and checkered history. Second, our Constitution is a written instrument, framed with the utmost care, and adopted by the people after the most careful deliberation. No other nation has a constitution that can compare with it, either in its comprehensiveness and completeness of subject, or in the precision of its language. The object of civil government can not be better expressed than in the words of our Constitution. It is to "establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty." These were the express ends to secure which the people of the United States ordained and established our national Constitution. These are the ends which all governments, of whatever form, are under obligation to seek. Civil governments are not established for the good of the rulers, but for the good of the people. They are not for the good of one or a few, at the expense of the others, but for the good of all. The general good could not be secured without government. Civil government is thus a necessity. Without it, justice could not be established, or domestic tran OBJECT OF GOVERNMENT. 11 quillity insured, or the common defense provided for, or the general welfare promoted, or the blessings of liberty secured. Law is the guardian of liberty. Without law there would be no liberty, but in its stead anarchy. One object of civil government is to protect us in our rights. It does this by restraining those who would interfere with these rights. Civil government is thus rendered necessary by the disposition of some to do wrong to others, and it can not be dispensed with so long as this disposition to interfere with the rights of others continues. But government is not merely repressive. Its necessity is not wholly owing to the fact that there are wicked men in every community. Law and government are essentia.l for the good as well as for the bad. The " general welfare" is to be promoted, as well as the individual to be protected in his rights. There are many things to be done for the advancement of a nation, which could not be done without that combination and co6peration which are found only in governments. Science and art are to be fostered, education is to be encouraged, civilization to be advanced. Government has thus more to do than to restrain violence, to redress wrongs, and to punish the transgressor. There is government in heaven as well as on earth. It is sometimes said, that government is a necessary evil; and that that government is best which governs least. The tendency of such language is to excite distrust and aversion, whereas governments should be respected, obeyed, and loved. A government founded in justice and administered with wisdom is always a good. Were government a necessary evil, it would be impossible to account for the existence and strength of patriotism. The love of country, which is stronger than the love of kindred, or any other of the natural affections, is itself a proof that by nature we regard government as a good and not as an evil. There may be abuses, but men look forward to the time when 12 CIVIL GOVERNMENT. these will be remedied, and the affairs of the country administered with wisdom and justice. That is not the best government which governs least, though, other things being equal, that may be the best which makes the least show of governing. A wise ruler, whether in the family or the state, will never give needless prominence to the fact that he is a ruler, while an unwise ruler is disposed to make a display of his authority. In a good government, if the law is broken punishment must follow; but the better the government, the less will be the tendency to break the law, and therefore the less the necessity of inflicting punishment. In a well-regulated school or family we see no manifestation of government, and apparently no government is needed; but this apparent absence of government is itself a proof of the excellent manner in which the government is administered. Society is the natural state of man. His whole constitution shows that the intention of his Maker was that he should live in society and under government. History testifies that such has been the case from the beginning. In every age and in every part of the earth, men have lived together in families, tribes, nations. They have been under some authority. Civil society is thus a universal fact. It is not the result of any agreement among men, but is the natural working out of the human constitution. We are born into the nation as into the family. We do not make society, we find it already existing. We are to obey the lawrs of the land because they are the laws, just as the child is to obey the law of the family. In neither case is any consent asked. When a "social compact" is spoken of in connection with civil government, it is meant that there are reciprocal duties resting upon the governed and upon those who govern. Whoever enters upon any public office, by the act of doing so agrees to perform faithfully ORIGIN OF GOVERNMENT. 13 its duties. And whoever becomes a citizen of any nation, by becoming so makes an implied agreement that he will be a good citizen. In this sense there may be said to be, in an existing government, a compact between the governed and those who govern, and a compact between each citizen and all the others. But it is not correct to say that civil society derives its authority through any such compact, for then the power possessed by society would be limited to that received from the individual men composing the society. But the powers of government include those which never belonged to the individual man, and therefore could never have been conferred by him upon society. Indeed, if there ever was a state of nature, as some have supposed, prior to the existence of civil society, when men lived without government, all possessing equal rights, there could manifestly have been no right to govern, since no one could have had authority over another who was his equal. Men can not give what they do not possess, and society could never obtain its right to govern from the individual citizens, since they never had such a right. Suppose, however, that this idea of a state of nature antecedent to civil society were fact and not fiction, and that men lived without government, all possessing equal rights; what is to be done with those who do not choose to give up their rights? Plainly, the majority could have no authority to coerce a minority, and government would be an impossibility. Nor could one generation bind the one succeeding it; and each new-born citizen would be rightfully independent of all governmental control until his individual rights should be voluntarily deposited in the common stock. The authority of civil society is not, then, derived from the individual citizens composing that society. They surrender nothing; society receives nothing. The fallacy in the theory of the "social compact," considered as 14 CIVIL GOVERNMENT. an explanation of the origin of civil government, consists in confounding men as individuals with men as constituting a commuznity. Wherever an independent community of nmen can be found there is already civil society. There is no necessity for men to surrender a part of their rights in order to form a basis for authority; the authority exists without any such surrender. In society, man has all the rights which he could have in any state of nature; if any such state of nature out of society can be conceived of. As has been already said, society is the natural state of man. Hence it is of divine origin. It is the intention of our Creator that we should live in society and under government, as it is that the race should be grouped into families, and the child be subject to his parents. "The powers that be are ordained of God." "There is no power but of God." No individual man has any divine right to be a king; but civil government is of divine origin. Whoever exercises legitimately any function of the civil ruler, whether he be king or president, legislator or judge, is exercising an authority which is as divine in its origin as is the authority of a parent over his child. Civil authority is of divine origin, and it is lodged in the people. It is held by the nation as a whole, and not by them as individuals. Society is not a congress of sovereigns. The power of society does not come from the individual members, but it belongs to the nation as such. The nation receives it from God, as a parent receives from God his right to govern his children. If we suppose that civil society possesses no authority except what has been imparted to it by the individual menmbers, it follows, as we have already seen, that government can not be extended over those who have not surrendered their share of sovereignty. In such a case, majorities would have no right to control minorities. The supposition that civil government rests upon indi POLITICAL SOVEREIGNTY. 15 vidual sovereignty, would thus virtually destroy all governmental authority. It may be thought that the theory that the authority is in the conmmunity-the people as a whole-would lead to the other extreme of a social despotism. As, in the other case, the rights claimed for the individual would make government an impossibility, so, here, the rights claimed for the people as a whole would destroy all the rights of the individual citizen. But, although the sovereignty is in the people collectively, they have no right to exercise any authority which God has not bestowed upon them. The parent has no right to govern his child except for the child's good; neither has the nation any right to do any thing which is not for the good of the people. Each member of the community has inalienable rights, with which society has no right to interfere. It is not claimed that all rights come from the state; many do, but some do not. They belong to man as man. Humanly speaking, the sovereignty is in the nationthe people collectively. But this sovereignty is not absolute; it must be exercised in subordination to a higher sovereignty which recognizes the dignity and worth of the human being. A political community, independent of all others, framing its own constitution, and enacting its own laws without hinderance or question from any other community-in short, a body politic, with no political superior, is a sovereign state or nation.' France and England are sovereign nations; so is the United States. The sovereignty is in the state, as distinct from the governient of the state. The people collectively constitute The word state is used by writers on government to signify a separate political community; it is synonymous with nation. In the United States it is also applied to a member of the American. Union. In this volume, when used in the former sense, it will be written state; when in the latter, State. 16 CIVIL GOVERNMENT. the state; the body of men who for the time being are invested by the state with civil authority, constitute the government. The political society exists as a historical fact; thus existing, it frames for itself a constitution and adopts a government. The nation must exist as a separate political communlity before it can give itself a constitution. The constitution does not constitute the nation, but only the government of the nation. A constitution is an organic law, and presupposes a body politic possessing the authority to enact such a law. The constitution thus made by a nation already existing, prescribes the mode in which the nation determines that its governmental affairs shall be managed. It is a kind of letter of instructions to those who are to act as its ministers in carrying on the government. It is the organic law to which all other laws must be conformed. The constitution is made by the nation for the guidance of the government. The government can not change it, but the nation can. This distinction between the state, or nation, on the one hand, and the government on the other, is of great importance. The sovereignty is in the nation. As sovereign, the nation may constitute the government according to its own judgment, and give it such form as it pleases. But the sovereignty is in the nation as such, and not in the individual men composing it. The will of the nation is expressed in the constitution, which is the supreme law until the nation chooses to alter it; and this alteration must be made in the mode which the nation has itself prescribed in the same organic law. A large majority of the people may disapprove of a clause in the constitution, but their disapprobation passes for nothing until the obnoxious clause is constitutionally removed from the constitution. The same is true of the laws of a country. They are supposed to be valid until repealed. The constitution is made by the people, and the laws by the government; but both are in force until NATUTRE OF GOVERNMENrT. 17 changed or repealed by the power that enacted theim. The people as a whole do not make the laws, the government does not make the constitution. Somne writers distinguish between the constitution of the nation and that of the government. Jameson calls the first a constitution considered as an objective fact. It is the "mlake-up of the commonwealth as a political organism; that special adjustment of instruimentalities, powers, and functions, by which its form and operation are determined." The second is a constitution considered as an instrunment of evidence.l Brownson says, "The constitution is two-fold; the constitution of the state or nation, and the constitution of the government. The constitution of the government is, or is held to be, the work of the nation itself; the constitution of the state, or of the people of the state, is, in its origin at least, providential, given by God himself, operating through historical events or natural causes. The one originates in law, the other in historical fact."2 The constitution of the nation is unwritten. The constitution of the government may be written or unwritten. The constitution of the nation is its character-what it is, at any epoch. The constitution of the government is what the nation chooses to make it. As the nation changes, its constitution changes accordingly; and the nation should change its governmental constitution from time to time, to make it correspond with the real constitution. The American nation was in existence a number of years before it formed a written governmental constitution. The present constitution, which went into operation in 1789, has received slight modifications at different times, and will continue to be modified in future years, as the character lJameson's Constitutional Convention, p. 66. 2Brownson's Amnerican Republic, p. 138. C. G. 2. 18 CIVIL GOVERNMENT. of the nation itself is changed. We shall see, when the mode of amending the Constitution comes to be considered, that ample provision has been made against hasty changes in that instrument. Indeed, there is more reason to apprehend that needed changes will be delayed too long, than that those which are unnecessary will be introduced. There are various forms of government, differing from each other more or less widely. In a Monarchy, the ruler is a single person. An Aristocracy is a form of government in which the authority is held by a few. In a Democracy, the power is exercised by the people themselves. But most existing governments combine two or more of these forms. In a monarchy, the whole authority is not necessarily in a single person. Most of the governments of Europe are called monarchies; but in some of them the king has less power than the President of the United States. An absolute monarchy is a despotism. The monarch governs according to his own will and caprice, and not according to established laws. Such a government is clearly illegitimate. It is a government of force. In a limited monarchy, the king, prince, or emperor, or whatever he may be called, though nominally the sovereign, wields a power more or less restricted. Great Britain, and all the provinces subject to it, are called Her Majesty's Dominions. The government is carried on in the sovereign's name. The army and navy are called Her Majesty's troops and ships. But at the same time her real power is small. The laws are enacted by Parliament, and they are administered by the ministers, who are called Her Majesty's government. Parliament is composed of two houses: the House of Lords, which is hereditary, and the House of Commons, which is elective. A Republic is properly a commonwealth. The domain belongs to the nation rather than to the king or the OUR GOVERNMENT PECULIAR. 19 nobles. It is a government in which the authority is exercised by the representatives of the people. It differs from a Democracy in this, that in the latter the power is exercised by the people themselves, while in the former the people elect representatives to act for them. A pure democracy can exist only in a. small territory, where all the people can meet and enact laws. A republic may be democratic or aristocratic. If suffrage is universal, if the rulers are elected by the whole people, the government is a democratic republic. In proportion as suffrage is restricted, and the number of voters diminished, the government becomes less democratic and more aristocratic. Most existing governments are, to some extent, republican, although at the same time monarchical. Louis Napoleon, late emperor of the French, held his office by election. The people of France made him emperor by their votes. The monarchs of England rule by hereditary right: the members of the House of Lords hold their seats by virtue of their birth, but the meimbers of the House of Commons are elected. The governmnent is thus at the same time monarchical, aristocratic, and republican; but in its republican part, it is more aristocratic than democratic, as a large part of the people are deprived of the right of suffrage. Macaulay calls the Roman emperors republican magistrates named by the senate. Our own government is peculiar. John Quincy Adams speaks of it as "a complicated machine. It is an anomaly in the history of the world. It is that which distinguishes us from all other nations, ancient and modern." Dr. Brownson says, " The American Constitution has no prototype in any prior constitution. The American form of government can be classed throughout with none of the forms of government described by Aristotle, or even by later authorities. Aristotle knew only four forms of government: Monarchy, 20 CIVIL GOVERNMENT. Aristocracy, Democracy, and Mixed Governments. The American form is none of these, nor any combination of them. It is original, a new contribution to political science, and seeks to attain the end of all wise and just government by means unknown or forbidden to the ancients, -and which have been but imperfectly comprehended even by American political writers themlselves." 1 Our government is not a simple, or consolidated republic, on the one hand, nor, on the other, is it a league of States. Many seem to suppose that there is no middle ground between these two; that the denial of the one is equivalent to the affirmation of the other. The American people constitute a nation, with a republican government. The nation has a Constitution in which the character of the government is clearly delineated. This Constitution is the supreme law of the land. But the country is divided into divisions, called States, each of which has a constitution. The people of the whole nation have made the general Constitution, while the people of each State have made a constitution for that political division. The national Constitution is operative throughout the whole domain; it is binding on all the people. The constitution of a State is confined in its operation to the State limits; beyond them it has no force. But within the State, it is the organic law, whose provisions, unless conflicting with the national Constitution or the laws enacted under it, must be carried out. Were the government a league of States, there could be no supreme national government; were the nation a consolidated republic, there could be no State constitutions. Unquestionably, the American people are a single people, a nation, in the same sense, and just as truly, as the people of France. But at the same time the national Constitution every1Browlson's American Republic, p. 5. OUR GOVERNMENT PECULIAR. 21 where recognizes the existence of the States, with their separate constitutions, and their various departments. Were our government a simple republic, we should have no laws except those enacted at Washington. In that case, a county would bear to a State the same relation that a State does to the nation, as is sometimes affirmed to be the case now. But the statement is incorrect. A county can do nothing politically which it is not authorized by the State to do. A State can do any thing politically which does not contravene a law or the Constitution of the nation. The people of a county, as such, have no constitution, and have no power to form one. The people of a State have a constitution, and may alter it at pleasure, provided its provisions are in harmony with the national laws and Constitution. The county originates nothing; all its power conies to it from a political body above it. The State originates every thing; its power coming directly from the people themselves. But although the States have constitutions, and derive their governmental authority from nthe people, this does not make them sovereign states, or the general government a inere confederacy. The American people are one people, yet their government is not a consolidated one. They exist in States, yet their government is not a confederated one. From the day when the Declaration of American Independence was made, they have existed as a nation, yet grouped into States. The nation and the thirteen original States began their existence together. Neither preceded, neither followed. The American people "have not, as an independent sovereign people, either established their union, or distributed themselves into distinct and mutually independent States. The union and the distribution, the unity and the distinction, are both original in their Constitution, and they were born United States, as much and as truly so as the son -of a citizen is 22 CIVIL GOVERNMENT. born a citizen, or as every one born at all is born a member of society, the family, the tribe, or the nation. The Union and the States were born together, are inseparable in their Constitution, have lived and grown together; and no serious attempt till the late secession movement has been made to separate them."' I"Say the people of the United States are one people in all respects, and under a government which is neither a consolidated nor a confederated government, nor yet a mixture of the two, but one in which the powers of government are divided between a general government and particular governments, each emanating from the same source, and you will have the simple fact."'2 "Strictly speaking, the government is one, and its powers only are divided and exercised by two sets of agents or ministries." To the same purpose Jameson: "And here I may remark that the Constitution of the United States is a part of the constitution of each State, whether referred to in it or not, and that the constitutions of all the States form a part of the Constitution of the United States. An aggregation of all these constitutional instruments would be precisely the same in principle as a single constitution, which, framed by the people of the Union, should define the powers of the general government, and then by specific provisions erect the separate government of the States, with all their existing attributions and limitations of power."4 No other nation has such a distribution of the powers of government. Foreigners almost universally fail to comprehend it, and many of our own people find it a perplexing subject. The general government and the particular governments together constitute the government of the United States. The former is general, as its care extends to the whole Union; the 1Ain. Rep., p. 222. 2 Id., p. 231i. Id., p. 250. 4 Const. Con., p. 87. THE SOVEREIGNTY IN THE WHOLE PEOPLE. 23 governments of the States are particular, as limited to the local interests of the individual States. The two in combination form the one supreme national government, or government of the United States. It is one government, exercising its powers in two different spheres. The authority comes from the same people, the people of the United States, in whom is the whole sovereignty. As stated above by Judge Jameson, the general Constitution and the constitutions of the States might be considered as one great instrument. There are, first, those articles which are concerned with the interests of the whole, and then, in succession, those which relate to the particular and local interests of the several States. Or we may say that the people of each State have two constitutions; one local and particular, the other general. The latter has been adopted by them in conjunction with the people of the rest of the nation; the former they have adopted by themselves, yet taking care that none of its provisions are in conflict with those of the general Constitution. The local constitution is no more the constitution of a particular State than the general Constitution is. The people of New York by their ratification of the general Constitution, and the people of Ohio by their adoption of it at their entrance into the Union, have made it their own as truly as those constitutions for the adoption of which they alone voted. Every provision of the Constitution of the United States is to be regarded as expressing the will of the people of Ohio as much as any provision of the constitution of that State. There is, thus, no legitimate place for conflict between the general government and the governments of the States, because they have all been formed by the same authority-the people of the nation. It was never intended that these should be arrayed against each other like political parties, or serve as "checks and balances," after the example of some other governments. CHAPTER II. THE COLONIAL GOVERNMENTS-ROYAL, PROPRIETARY, AND CHARTER-T}IG CAUSES OF THE REVOLUTION-THE CONTINENTAL CONGRESS-THIE DE(:ILARATION OF INDEPENDENCE. TIlE Colonies, which declared their independence of Great Britain in 1776, and formed a new nation, known from that time as The United States of America, were thirteen in number, viz., Massachusetts, New Hampshire, Connecticut, Rholde Island, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. These had been settled at various times, from 1607, when the settlement of Virginia was commenced at Jamestown, to 1732, when the Colony of Georgia was established. They were not all settled as so many distinct colonies, but various changes had taken place among them. Thus, the Colony of Massachusetts, as it existed at the beginning of the War of the American Revolution, embraced what constituted originally three distinct colonies; that of Massachusetts, that of New Plymouth, and the Province of Maine. The Colony of New Haven had been merged in that of Connecticut. The Carolinas, on the other hand, had been divided; and what was at first a single colony, under the name of Carolina, was made two in 1732, and the divisions were called by the present names of North Carolina and South Carolina. All the lands were held by titles coming from the British crown, which claimed the country by the right of discovery. Near the close of the fifteenth century, King Henry the Seventh had sent out John Cabot on a voyage of exploration, who discovered the Islands of (24) THE COLONIAL GOVERNMENTS. 25 Newfoundland and St. John, and sailed along the coast from the fifty-sixth to the thirty-eighth degree of north latitude. All this territory, in consequence, was claimed to belong to Great Britain, and by that power grants were made from time to time to companies and to individual proprietors. Under the charters and patents thus granted, settlements were nmade and local governments established. The colonies all acknowledged allegiance to the mother country while they had no political connection with one another. The colonial governments have been described by most writers, followving the division given by Blackstone, as of three kinds; Provincial, Proprietary, and Charter. The Provincial governments, which were often called Royal, had a governor and council appointed by the Crown, and a legislature whose tupper house was the council and whose lower was elected by the people. The governor had a negative upon all the proceedings of the legislature, and could also prorogue or dissolve them at pleasure. Laws might be enacted not repugnant to the laws of England, and subject to the ratification of the Crown. The governor, with the advice and consent of the council, could establish courts and appoint judges and other oflicers. In the Proprietary governments, the proprietors appointed the governors, and it was under their authority that legislative assemblies were convened. While the proprietors thus exercised those prerogatives which in the Royal governments were exercised by the Crown, the sovereignty of the mother country was, nevertheless, to be strictly maintained. In the Charter governiments the leople had much more political power. Their relation to England was more like that of the citizens of one of our States to the nation, while that of the people in the Royal governments was more like that of the people in one of our Territories. Th1 charter granted to Massachusetts by C. C. 3. 26 CIVIL GOVERNMENT. Chailes the First gave power to elect annually a governor, deputy-governor, and eighteen assistants. Four "great and generali courts" were to be held every year, to consist of the governor or deputy-governor, the assistants, and the freemen. These courts were authorized to appoint such officers as they should think proper, and also to make such laws and ordinances as to theml should seem meet; provided they were not contrary to the laws of England.' Connecticut and Rhode Island formed governments for themselves; the provisions of which were afterwards secured to them in charters granted by Charles the Second, soon after his restoration to the throne. The people of these colonies, by the express words of their charters, were entitled to the privileges of natural-born subjects, and invested with all the powers of government, legislative, executive, and judicial. The only limitation to their legislative power was that their laws should not be contrary to those of England.2 " The king and parliament claimed the right to alter and revoke these charters at pleasure; but the colonists, on the other hand, denied this right, and claimed them to be solemn compacts between them and the Crown, irrevocable unless forfeited by some act of the grantees. This was a continual source of contention between the parent country and the charter colonies, and was one of tle causes which finally produced a separation between the two countries." 3 The people of these twTo colonies were indeed so well satisfied with their charters, granted in 1662 and 1663, that they continued to live under them long after they had ceased to be colonies, and had become States of the American Union. Connecticut did not form a State constitution till 1818, nor Rhode island till 1842. Pitkin's Pol. and Civ. Hist. U. S., I, p. 36. 2Pitkin,, I, p. 54. SIbid, p. 55. THE COLONIAL GOVERSNMENTS. 27 The colonies which had charter governments were, as we have seen, Massachusetts, Rhode Island, and Connecticut. The Royal, or Provincial, governments were those of New Hampshire, New York, Virginia, and Georgia; to which were added New Jersey in 1702, and the Carolinas in 1729, all which had previously been under Proprietary governments. The colonies that continued under Proprietary governments till the Revolution were Pennsylvania, Maryland, and Delaware. It has been seen that each of the colonies exercised some of the powers of government, while none claimed to be independent of England. In the Plymnouth Colony, for the first twenty years, all the freemen met in "general court" and participated in making laws. In 1639, a house of representatives was substituted for the whole body of freemen. In Virginia, a general assembly, composed of representatives from the various plantations, was called in 1619. This was the first representative legislature that ever sat in America. EventuallJy, all the colonies elected one or both of the branches of their provincial legislatures. The first union among any of the colonies was formed in 1643. It embraced MIassachusetts, Plymouth, Connecticut, and New Haven, under the name of "Tl'he United Colonies of New England." Their object was to defend themselves against the Indians, and also to resist the claims and encroachments of the Dutch.' In June, 1754, commissioners from seven of the coloniies, viz., MiIassachusetts, New Hamrpshire, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland, met in Albany at the request of the lords commissioners for trade. The object was to form a treaty with some of the Indian tribes, and to consider the best means of 1 Pitkin, i, p. 50. '28 CIVIL GOVERNMENT. defending America against France. With reference to this end the British Secretary of State had suggested that a plan of union among the colonies should be formed. At this meeting, after the adoption of a resolution that a union of the colonies was absolutely necessary for their preservation, a committee was appointed, consisting of one member from each colony, to report a plan of union. One proposed by Dr. Franklin, who was a mnember of the conmmittee, was finally adopted by the Convention. It provided for a gener-al government of all the American Colonies, to consist of a president-general to be appointed by the Crown, and a grand council of delegates to be chosen every three years by the colonial assemblies. The president and council were to regulate all affairs with the Indians. to make new settlements on lands purchased of the Indians, and govern such settlements, to raise soldiers, build forts, and equip vessels for guarding the coast and protecting the trade. For these purposes, they were to make laws and levy such duties and taxes as they might deem just. The president was to have a negative on all laws and acts of the council, and to see that the laws were executed. This plan was adopted by the Convention; all the delegates voting for it except those from Connecticut. But it never went into operation, having failed to obtain the approval either of the colonies or the mother country. " It had the singular fate of being rejected in England, because it left too much power in the hands of the colonists; and it was disapproved in Almerica, because it transferred too much power into the hands of the Crown." 1 In 1765, a Congress of delegates was held at New York. This was in consequence of the passage of the Stamp Act by the British Parliament in March of the same year. That body had determined to raise a revenue from the colonies by taxation, although the coloPitkin, I, p. 145. THE CAIUSES OF THE REVOLUTION. 29 nists most vehemllently protested against it. The passafge of the Stamp Act, which required all legal documents to be on stamped paper furnished by the British government, excited universal alarm in the colonies. rThe Colonial Assenmbly of Virginia, at a session held soon after the news reached America, adopted resolutions of the most decided character. These resolutions were movedl and supported by the celebrated Patrick Henry.'When, in the heat of debate, he exclaimed, " Cesar had his Brutuss, Chalrles I. his Cronmwell, and George III.' —he was interrupted by the Speaker and others with the cry of! treason.' Pausing a moment and fixing his eye on the Speaker, he added —" may profit by their example; if this be treason, mlake the most of it." Meanwhile Massacllusetts had voted that it was desirable that a Congress of delegates from all the colonies should be held. Accordingly, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina elected commissioners who met at New York, as stated above. New Hampshire approved of the Congress, but from the peculiar situation of the colony it was judged not prudent to send -delegates. Virginia, North Carolina,' and Georgia were not represented, because the governors of those colonies refused to call special assemblieis for the appointment of delegates. "This was the first general meeting of the colonies for the purpose of considering their rights and privileges, and obtaining' a redress for the violation of them on the part of the parent country."' They adopted a leclaration of rights and grievances, which asserted the claim of the colonists to all the inherent rights and liberties of subjects within the kingdom of Great Britain; "that it is inseparably essential to the freedom of a people, and the undoubted right of Engl Pitkin, I, p. 180. 30 CIVIL G(OVERNMEN[IT. lishrien, that no taxes be imposed on them- but with their own consent, given personally or by their representatives." 1 Tile Stamp Act was subsequently repealed, but other taxes and duties were imposed quite as obnoxious to the colonies. Their efforts to obtain redress being unsuccessful, it became obvious that they Imust form a closer union for their own protection. In 1774, Massachusetts recommended the assembling of a Continental Congress, to deliberate upon the state of public afftibirs. On the fifth of September, a Congress of delegates from twelve colonies assemnbled at Philadelphia. Of these, some were appointed by the popular branch of the Colonial Assembly, while others were elected by conventions of the people. Georgia, the youngest of the colonies, was not represented. This is known as "The First Continental Congress." "The Congress thus assembled," says Judge Story, " exercised dle facto and de jure a sovereign authority; not as the delegated agents of the governments de jacto of the colonies, but in virtue of original powers derived from the people." Among the distinguished rmembers of this Congress, were John Adamns and Samuel Adams of Massachusetts, Roger Slierman of Connecticut, John Jay of New York, Peyton Randolph, Richard H. Lee, Patrick Henry, and George Washington of Virginia. Peyton Randolph was chosen president. The first resolution adopted was, "That in determining questions in this Congress each colony or province shall have one vote; the Congress not being possessed of, or at present able to procure, proper materials for ascertaining the importance of each colony."' This rule of equal suffrage established because the Congress did not possess the information requisite for establishing a more equitable one, re1Story. 2Jour. of Cont. Congress, T, p. 11. THE CONTINENTAL CONGRESS. 31 mained in force until the adoption of the present Constitution, in 1789. The addresses to the King, to the people of Great Britain, to the inhabitants of the colonies they represented, and to the inhabitants of the Province of Quebec, were all drawn up with great ability, and were spoken of by Lord Chathami in terms of the highest admiration. After recommending that another Congress should be held on the tenth of May following, provided that a redress of grievances was not previouslyT obtained, this Congress adjourned on the twenty-sixth of October. That the measures adopted, if supported by the American people, would produce a redress of grievances, was the conviction of a majority of the members of the Co.ngress.1 But in this they were disappointed. The breach between England and the colonies became wider. Delegates were, therefore, appointed to meet in Phila(lelphia, May 10th, 1775, agreeably to the recommendation of the Congress of 1774. Some of these were chosen by conventions of the people, and some by the colonial legislatures, as in the previous Congress. With scarcely an exception, the deleg'ates of 1774 were reappointed in 1775. As before, twelve colonies were represented. A delegate also was present from a single parish in Georgia, and in July a convention was held in that colony, which voted to accede to the general association, and appointed delegates to the Congress. This Second Continental Congress continued its sessions, with occasional acljournments, till the adoption of the present Constitution, in 1789. Befove they assembled on the tenth of May, hostilities had been commenced by the British troops under General Gage. One of the first items of business brought before the body was a letter from the provincial congress of Massachusetts, giving an account of the battles of 1 Pitlri, I, p. 301. 32 CIVIL CGOVERNMENT. Lexington and Concord, with the action of that colony in relation thereto, and requesting the direction and -assistance of the Congress. In this letter is the following suggestion: "With the greatest deference, we beg leave to suggest, that a powerful army on the side of America hath been considered by this Congress as the only means left to stem the rapid progress of a tyrannical ministry." 1 The Congress at once resolved itself into a committee of the whole, to take into consideration the state of America, and referred this letter from Massachusetts to that committee. Hostilities having already' commenced, the necessities of the case compelled this Continental Congress to take measures to put the country into a state of defense, and soon they assumed a virtual control over the military operations of all the colonies. An army was organized, and on the fifteenth of June, George Washington, a delegate from Virginia, was unanimously elected general of all the forces. His colmmission styled him the General and Commander-in-Chief of the Army of the United Colonies. This was the first occasion on which the style, "The United Colonies," was adopted; it continued to be used till the Declaration of Independence substituted the name, "The United States." The action of Congress in providing for raisinlg an army and appointing a commander-in-chief was in accordance with the general expectation of the colonies. Congress thus assumed the defense of the country. They created a continental currency by issuing bills of credit. They established a treasury department, and organized a general post-office, Dr. Benjamin Franklin being the Postmaster-General. In answer to the applications from various colonies for advice as to their local governments, Congress recommended that such forms of government be established as would best secure good t Jour. Con., I, p. 77. INDEPENDENCE PROPOSED. 33 order during the continuance of the dispute between Grieat Britain and the colonies. This advice manifestly contemplated the establishment of provisional governments only. This was in Novemnber and December, 1775. But the question of separation began to be discussed. On the twenty-second of April, the convention of North Carolina empowered their delegates in Congress "to concur with those in the other colonies in declaring independency. This, it is believed, was the first direct public act of any colonial assembly or convention in favor of the measure."' On May 15th, the convention of Virginia went further, and unanimously ihlstructed their delegates in Congress "to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance or dependence upon the crown or parliament of Great Britain." In accordance with these instructions, Richard Henry Lee, one of the delegates from Virginia, submitted a resolution declaring "that the United Colonies are and ought to be free and independent States; that they are absolved from all allegiance to the British crown; and that all political connection between them and the State of Great Britain is, and ought to be. totally dissolved." This was on the seventh of June. On the next dayi it'was debated in committee of the iwhole. "No question of greater magnitude," says Mr. Pitkin, "was ever presented to the deliberation of a deliberative body, or debated with more energy, eloquence, and ability."' The resolution was discussed again in committee of the whole on the tenth, and adopted. The committee recommended that the farther consideration of the resolution be postponed till the first of July, but meanwhile that a committee be appointed to draft a decla1Pitkin, I, p. 360. 2 Iist., I, p. 362. 34 CIVIL GOVERNMENT. ration of independence. This committee consisted of Thomas Jefferson of Virginia, John Adams of Massachusetts, Benjamin Frankllin of PeninsAlvania, Roger Sherman of Connecticut, and R. R. Livingston of New York. The postponement was immlediately followed by proceedings in the colonies, most of which either instructed or authorized their delegates in Congress to vote for the resolution of independence; and on the second day of July that resolution, which had before been agreed to in committee of the whole, was adopted by Congress itself. The committee who had been instructed ~to prepare the declaration, had reported on the twenty-eighth of June, and on the fourth day of July that paper was adopted. After citing reasons for the dissolution of the political bands which had connected them with Great Britain, the Declaration concludes: " We, therefore, the Representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right, ought to be, FREE and INDEPENDENT STATES." This was the beginning of the nation. Whether it could maintain its independence, thus boldly declared, was to be decided by the sword. Should the people fail in the bloody struggle, they would never be known as a nation upon the page of history. Should they succeed, their national existence would date from the fourth of July, 1776. This Declaration of Independence was not the work of States, for no States existed. It was the people of the thirteen United Colonies who had through their representatives declared themselves absolved from their allegiance to Great Britain. The nation and the States INDEPENDENCE DECLARED. 35 were born on the same day. Hitherto, there had been colonies and the mother country, to which all the colonists acknowledged allegiance. Now, the sovereignty was no longer in Great Britain, but in the people themselves, who claimed to be a separate political community; and the individual colonies had become States. From that day the nation itself, through Congress, exercised all the functions of government. There was a real government, though as yet no written constitution; and the relations of the States to the general government were in substance the same as they are now. CHAPTER III. THEI- ARTICLES OF CONFEDERATION —THEIR FAILIURE —T-IHE CONVENTION TO FORM A CONSTITUTION. SOON after the Declaration of Independence was made, a conmmittee, previously appointed, reported a draft of the Articles of Confederation. These were debated from time to time, and, after several modifications, were finally agreed to by Congress, November 15,, 1777. They were to become binding when ratified by all the States. Ten States ratified them in July, 1778; New Jersey, Novermber 26, and Delaiware, February 22, 1779. Maryland withheld her approval till March 1st, 1781. This was nearly five years after the Declaration of Independence. During this time, the war had been carried on and all the affairs of the nation had been conducted, by Congress. A treaty had been made between France and tle United States, which was concluded at Paris, February 6th, 1778, and ratified by Congress May 4th of that year. The surrender of Cornwallis, wvhich virtually closed the wvar, took place on the 17th of October, 1781, about six months after the adoption of the Articles of Confederation. The successful prosecution of the War of the Revolution could not, then, have been owing to the influence or efficacy of these Articles. On the contrary, there is good reason to believe that, had these Articles been adopted in 1776, the final result would have been very different from what it was. These Articles were as erroneous in theory as they were inefficient in practice. The Declaration of Inclependence was made in the name of the people of the (?, \} THE ARTICLES OF CONFEDERATION.' United States. The first sentence alludes to them as;one people" that had found it necessary to dissolve the political bands which had connected them with another people, and to assume among, the powers of the earth the separate and equal station to which they were entitled. Thie Constitution speaks the same language: "We, the People of the United States, do ordain and establish this Constitution for the United States of America." But the Articles of Confederation do not purport to come from the people. They were the work of the States. The instrument is styled " Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay," etc. It was drawn up and adopted by Congress, and sent to the States for ratification. Being thus the work of the States, and not of the people, we are not surprised at the declaration in it, that "each State retains its sovereignty, freedom, independence," etc. The Articles contained much that was good, and soime tlbingls not good; and miluch was omitted which was essential to a Constitution. It provided for one House of Congress, to be composed of delegates appointed annually by the several States, as each should direct, no State to be represented by more than seven or less than twno, and( no person being capable of serving a's a delegate more than three years in six. Each State was to pay its own delegates, and could recall them at pleasure. The voting Jwas to be by States. Congress Awas invested with power as to war and peace, treaties and alliances. Congress could decide, on al)peal, disputes between States, could regulate the alloy and value of money, had charge of all postal lnatters, etc., etc.; but no important action could be taken without a vote of nine States —two-thirds of the whole. No Executive Department was provided, and no 3~8 CIVIL GOVERNMENT. Judiciary. Taxes were to be apportioned among the States, but Congress had no authority to levy them. Commerce was in the control of the States. Each State could lay duties and imposts. Congress had no power to enforce its own measures. " In the very nmodes of its operation there was a monstrous defect, which distorted the whole system from the true proportions and character of a government. It gave to the Confederation the power of contracting debts, and at the same time withheld the power of paying them. It created a corporate body, formed by the Union and known as the United States, and gave to it the faculty of borrowing money and incurring other obligations. It provided the mode in which its treasury should be supplied for the reimbursement of'the public credit. But over the sources of that supply, it gave the government contracting the debt no power whatever. Thirteen independent legislatures granted or withheld the Ineans which were to enable the General Government to pay the debts which the general Constitution had enabled it to contract, according to their own convenience or their own views and feelings as to the purposes for which those debts had been incurred."' As each State paid its own delegates in Congress, the smaller the number, the less the expense. Oftentinmes a State would have no representative. The Treaty of Peace, signed September 3d, 1783, could not be ratified till January 14th, for want of representatives, and then there were but twenty-three members present. In April of that year there were present twenty-five members from eleven States, nine being represented by two each. Three members, therefore-one-eighth of the whole-could negative any important measure. The Treaty of Peace was made by the United States 1Cnrtis's History of the Constitution, I, p. 181. THE ARTICLES OF CONFEDERATION. 39 with Great Britain, but Congress could not enforce its provisions. Various articles were constantly violated by the States, and Congress could not prevent it. Great Britain declared her readiness to carry the treaty into effect when the United States would do the same. As the General Government could not carry out its own treaties with foreign powers because of the refusal of the States, so it could not protect a State against insurrection or rebellion. The outbreak in Massachusetts in 1786, known as Shayas's Insurrection, which embraced a fifth of the inhabitants in several of the most populous counties, caused great allarmn through the country. Armed men surrounded the courthouses, and finally the insurgents were embodied in arms against the Government. The National Governnment was powerless to aid the State; the Articles of Confederation gave Congress no authority in such a case. The weakness of the league of States was made abundantly manifest. It is not surprising that Washington should write as he did to a member of Congress, "You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. to Inflluele is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once."' The weakness of the Confederation, especially in its relation to the revenue, had been early seen by Washington. He saw "that to form a new constitution, which would give consistency, stability, and dignity to the Union, was the great problem of the time."2 So, too, Mr. Hamilton, without doubt the ablest statesman of his age, was convinced before the Articles of Confederation went into operation that they could never 1Curtis, I, p. 274. 2 Ibid, p. 202. 40 CIVIL GOVERNMENT. answer the purposes of government. As early as 1780, he sketched the outlines of a system of government for the United States, embodying almost every feature of our present Constitution.1 In May, 1785, Governor Bowdoin of lMassachusetts suggested the appointment of special delegates from the States to define the powers with which Congress ought to be invested. A resolution was accordingly passed by the legislature of Massachusetts, declaring the Articles of Confederation inadequate, and calling a convention of delegates from all the States. But the matter was not brought before Congress by the melmbers of that body from Massachusetts. In January, 1786, the legislature of Virginia appointed commissioners to meet with those from other States to consider the subject of trade, with reference to a uniform system of commercial regulations. The meeting was held in September, at Annapolis, Maryland. Only five States were represented; viz., New York, New Jersey, Pennsylvania, Delaware, and Virginia; but great results followed from the Convention. The committee representing so few States did not enter upon the proper business of the Convention, but prepared a report, drawn up by Mr. Hamilton, expressing their unanimous conviction that a general convention should be called to devise such provisions as might render "the Constitution of the Federal Goverrnment adequate to the exigencies of the Union." This report, though addressed to the States represented, was also sent to Congress as well as to the other States. That body, on the twenty-first of Februar.y, 1787, adopted the following resolution: "Resolved, ThLat, in the opinion of Congress, it is expedient that, on the second Monday in May next, a'onvention of delegates, who shall have been appointed IC'UTtis, I, p. 204. THE CONVENTION OF 1787. 41 by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures, such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union." In accordance Awith this recommendation, all the States but Rhode Island appointed delegates, and the Conv\ention assembled at Philadelphila, Monday, Maya 14th, 1787. The organization was not, however, effected, for want of a quorum, till the twenty-fifth, when George Washington was unanimously elected President. This Convention contained many very eminent nmen. George Washington, Alexander Hamilton, James Mladison, Benjamin Franklin, Rufus King, IRoger Sherman, Jamnes Wilson, Gouverneur Morris, and Edmiund Randolph would have been distinguished in any assemlbly. There Awere fifty-five members in all, most of whom were illustrious for their character and public services. Dr. Franklin had been a member of the Convention of 1754. Three had been present at the Congress of 1765. Seven had been members of the First Continental Congress. Eight were among the signers of the D(claration of Independence. Eighteen were at the sanme tinme delegates to the Continental Congress; and of the whole number there were only twelve who had not sat at some time in that body.l If the Convention was composed of extraordinary men, it had before it extraordinary work. They were to form a complete system of republican government, with no example for their guidance. This was their real work, though this was not distinctly present lHildreth, III, 1p. 483. C. G0. 4. 42 CIVIL GOVERNMIENT. to all of them at first. Some were thinking only of amending the Articles of Confederation; but Hamilton and Madison and others were prepared to enter at once upon the construction of the organic law for a supreme general government, without regard, either in form or substance, to the existing Articles of Confederation.' Soon after the organization of the Convention, Mr. Randolph submitted a series of resolutions, embodying his views of the government desirable to be established. They were also the views of Mr. Madison. Mr. Pinckney, of' South Carolina, submitted, on the samne day, a draft of a Constitution. All these were referred to the Committee of the Whole, and the discussion was commenced. The first resolution adopted in Committee of the Whole was the first of the series offered by Mr. Randolph, somewhat modified. It was as follows: "Resolved, That it is the opinion of this Committee that a national government ought to be established, consisting of a supreme Legislative, Judiciary, and Executive." On the thirteenth of June, the Committee reported a series of resolutions to the Convention. On the fifteenth, Mr. Patterson of New Jersey offered resolutions expressing the views of those who favored almending the Articles of Confederation, and opposed the fornlation of a new Constitution. The whole subject was then again referred to the Committee of the Whole, and debated till the nineteenth, when the Committee reported adversely to IMr. Patterson's plan, and submitted the resolutions formerly reported. These resolutions were debated in the Convention from day to day, some great questions, like that of suffrage in the Senate and House of Representatives, being occasionally referred to a special col-mmittee. On the twenty-third of July, 1 Towle's Analysis, p. 31. THE CONSTITUTION ADOPTEiD. 43 it was voted to appoint a Committee of Detail, to whom should be referred the proceedings of the ConventLion, except what related to a supreme executive, for the purpose of reporting a Constitution embodying what had been agreed upon. This Committee, appointed by ballot the next davy, consisted of Messrs. Rutledge of South Carolina, Randolph of Virginia, Gorham of Maine, Ellsworth of Connecticut, and Wilson of Pennsylvania. The propositions of Mr. Patterson and of Mr. Pinckney were also referred to this Committee. On the twenty-sixth, after some instructions. to the Committee of Detail, the Convention adjourned to the sixth of August. This Committee reported at the time appointed, and their draft was considered by the Convention till the eighth of September, when a committee of five was appointed to revise the style and arrange the Articles. This Committee consisted of Messrs. Johnson of Connecticut, Hamilton of New York, Morris of Pennsylvania, Madison of Virginia, and King of Massachusetts. On the twelfth, they reported the Constitution; also a letter to Congress to accompany the Constitution. The discussions iwere continued until Saturday, the fifteenth of September, when the Constitution, as amended, was agreed to, all the States concurrinag. It was then ordered to be engrossed, and on the Monday folloiwing it was signed by the members, after striking out 40,000 as the basis for representation and inserting 30,000. The form of signaturle was this: "Done in Convention, by the unanilous consent of the States present, the seventeenth day of September, in the year of our Lord, 17S7, and of tlhe Independence of the United States of,America, the twelfth."'The votes had been )vy States, as in the Continental Conl'ress. 44 CIVII, GOVERNMENT. Two of the three New York delegates having left the Convention, that State was technically not present, though Alexander Hamilton's signature was attached. Mr. Gerry of MIassachusetts and Messrs. Randolph and Mason of Virginia did not sign the Constitution, though it was signed by a majority of the delegates from each of those States. CHAPTER IV. THE CO-NSTITUTION OF THE UNITED STATES. Tlre, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tr'anquillity, provide for the conmmon defense, promnote the general welfayre, and secure the blessings of liberty to ourtselves and our posterity, do ordain and establish this Constitution for the Tfnited States of Avmerica. This first sentence of the Constitution is often called a "preamble." But that term was not applied to it by those who framed the Constitution, and is not found in the original manuscript. It is not a preamble, either in form or substance, but is the enacting clause —an integral part of the Constitution itself. A preamble gives reasons why a resolution should be adopted or an enactment made, but it is no part of the resolution or enactment. The enacting clause, on the contrary, is mandatory. No other part of a statute is more important. Such is the introductory sentence of the Constitution. " We, the People of the United States," for certain purposes, "do ordain and establish this Constitution for the United States of America." "The enacting clause is perfectly authoritative in its source,-the people; peremptory in its action, —ordain and establish; definite and exact in its subject,-this Constitution; and distinct, broad, and extensive in its purposes and ends, embracing the liberty, safety, and welfare of the whole Union, and all its people." 1 Farrar's Manual of the Constitution, p. S8. (45) 4 6 THE CONSTITUTION. We have here (1) the authority-We, the People of the United States; (2) the ends for which the Constitution is macle, in six particulars; (3) the explicit ordaining of this Constitution, including this introductory clause; (4) the nation for whom it is made,-" the United States of America." r'he Constitution was ordained by the people of the United States as a nation. The language presupposes the unity, the nationality, and the sovereignty of the people. The nation began to exist on the fourth of July, 1776. The people then cast off their allegiance to Great Britain, and became a separate nation, possessing the rightful sovereignty of the country. They became united in a national corporate capacity, as one people, and took for their national designation the name, the " United States of America." From that day to the present, they have been known to the world by this name. Wherever in the Constitution these words occur, or the briefer form, the " United States," they signify the nation as a whole; wherever the word' States" occurs it signifies the States considered separately, or as distinguished from the nation. The purposes for which the Constitution was formed are admirably stated: "To form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The Congress of the Confederation called the Constitutional Convention for the purpose of forming "a firm national government * * adequate to the exigencies of government and the preservation of the Union." The Union under the Confederation was imperfect and unsatisfactory, and the framers of the Constitution determined to submit to the people an instrument which should be mlore efficient than the Articles of Confederation. It was a -union of the people of all parts of the country, as con THE CONSTITUTION. 47 stituting one nation, which they wished to secure, instead of a mere league of States. Under the Articles of Confederation, there was no distinct judicial department, as there was no executive, while the new Constitution provided for both. The domestic tranquillity had been greatly interfered with because of the power given to the individual States; the central government having little more than the power to recommend. The national government would insure this domestic tranquillity. The words "common defense" and "general welfare" were introduced near the close of the Convention, but they met with no opposition. No language could be more comprehensive than this, "to promote the general welfare." For these various purposes the people of the United States ordain this Constitution for themselves. It is the organic, fundanmental law for the whole people of the country whose corporate name is the United States of America. The nation, as such, establishes this Constitution, making it sufficient for all the exigencies of government. As the organic law of the nation, it is everywhere supreme. Subordinate governments may continue and new ones be established, but always in conformityr Awith this. The Constitution contains seven articles, lwhich are subdivided into sections. In the original there are no headings to the articles. Both articles and sections are numbered. Article st relates to the Legislative power. Article 2d, to the Executive power. Article 3d, to the Judicial powTer. Article 4th, to various subjects. Article 5th, to the mode of amnending the Constitution. Article 6th, to the validity of debts contracted before the adoption of the Constitution, and to its supremacy. Article 7th. to the mode of its ratification. Besides these seven articles, fifteen amendments have 48 THE CONSTTTUTION. 1. I. 1. been made to the Constitution, which are as binding as the original articles. ARTICLE I. THE LEGISLATIVE DEPARTMENT. See. 1.-All legislative powers herein g)ranted shall be vested in a Congress of the United States, which shall coLsist of a Senate anid ITouse of Reprtesentatives. Under the Confederation, the whole governmental authority was vested in Congress. There was no Executive department, and no Judicial. The first resolution adopted in the Constitutional Convention was, that a national government ought to be formed, consistihg of supreme Legislative, Executive, and Judicial departments. Most legislative bodies have two houses. This is true of all the existing State governments, and was true of all at the time the Constitution was fi'aled, except Pennsylvania and Georgia, which had but one each. The Continental Congress had but one house. While there is a general distribution of powers among the three great departments of the government, the exercise of these powers is not absolutely exclusive. We shall see that the President has a qualified veto on legislation, and that the Senate sometimes acts as a court, and sometimes transacts executive business. Sec. 2, Clause 1. —The House of Representatives shall be composed of members chosen every second yeari by the people of the several States; and the electors in each State shall have the qcalifications requisite for electors of the most n~,,e'erous branch of the State legislature. Under the Confederation, the members of Congress were chosen annually, and as the legislature of each State should direct. They could also be recalled. The Constitution makes the term of service of the Representatives two years, and requires that the election shall be by "the people." In England, a member of the House of Commnons is elected for seven years. 1. II. 2. THE HOUSE OF REPRESENTATIVES. 49 Those who vote for Representatives to Congress must have the qualifications requisite to enable them to vote for members of the lower house of the State legislature, but it is not clear by whoin these qualifications are to be prescribed. The commion opinion has been that the State prescribes them. The Constitution says simply that the qualifications must be the same; so that whoever can vote for the State representative can vote for the National one also, and vice versa. The Constitution does say that Representatives to Congress shall be elected by the peop)lc; thus virtually saying that the members of the most numerous branch of the State legislature shall also be elected by the people. Clause 2. —Xo person, shall be a Representative who shall volt have attaigned to the ctge of twenty-five years, and been seven years a citizen of the Un5tited States, an'id who shall not, when elected, be an inhabitant of that State in ~which he shacll be chosen. The qualifications of a Representative relate to age, citizenship, and inhabitancy; he must be twenty-five years old, a citizen of the United States for seven years, and an inhabitant of the State where he is elected. It has been decided that the States can not prescribe additional qualifications. According to the Articles of Confederation, no person could be a Representative in Congress more than three years in six; and each State prescribed the qualifications of its own Representatives. In the British Parliament the required age is twenty-one years; and the same age is required in the different States of our Union. The Representative must have been a citizen of the United States for seven years. The United States is spoken of as oze country, a nation. It would be nonsense to say a Representative must have been seven years a citizen of the thirteen States. Yet a United States Senator, in an argument for secession, once said, on the floor of the SenC. G. 5. 50 THE CONSTITUTION. 1. II. 3., ate, that he pitied the stupidity of any one who supposed there was or could be a citizen of the United,States There was stupidity somewhere plainly enough, and with the Constitution before us it is not difficult to see where it, belonged. The Representative must be an inhabitant of the State in which he is chosen, but not necessarily of the district. In England, members of Parliament often represent boroughs and cities other than those in which they live. No such case has occurred in this country, however. The Constitution does not require the Representative to be a voter. If a State should come into the Union through conquest or purchase, the inhabitants beconming citizens thereby, the seven years' citizenship would not be insisted on. Clause 3. —Representatives and direct taxes shall be apiportioned acnong the several States which vmay be included within this Union, according to their r'espective,utoLnbers, whlich shall be determvined by adding to the whole nzmber of free p!ersons, including those bound to service for a terml of years, arcnd excluding Indians not taxed, three-fifths of all other persons. T7'e actual enuvmerationl shall be nmaccde within three years after the first meeting of the Congress of the United States, and within every subsequen.t term of ten years, in such mvzaner as they shall by law direct. The nuvmber of Representatives shall not exceed onze for every thirty thousand, but each State shall have at least one Representative; and until such enumneration shcall be macle, the State of New Hanmpshire shall be entitled to choose three; Massachusetts, eight; Rhode Island and Providence Plantations, one; Connecticut, five; New York, six; Nlew Jersey, four; Pennsylvania, eight; Delaware, one; Mlaryland, six; Virginia, ten; North Carolina, five; South Carolina, five; and Georgia, three. 1. II. 3. THE HOUSE OF REPRESENTATIVES. When the Continental Congress commenced its sessions, September 5th, 1774, the following resolution was adopted: "Resolved, That in determining questions in this Congress, each colony or province shall have one vote: the Congress not being possessed of, or at present able to procure, proper materials for ascertaining the importance of each colony." "As if foreseeing the time when population would become of necessity the basis of congressional power, they inserted, in the resolve determining that each colony should have one vote, a caution that would prevent its being drawn into precedent."' The Articles of Confederation followed the same rule, and thus this method of voting prevailed till the Constitution went into operation in 1789. When the Convention decided to form two legislative bodies, the question of voting came up. Some were in favor of an equal representation by States in each branch, while others favored a popular basis, and a proportionate representation in each House. In general, the larger States wished the representation to be in proportion to the importance of the State, while the smaller States favored an equality, as in the Continental Congress. It was first decided that in the House of Representatives suffrage should not be like that under the Confederation, but according to some equitable ratio of representation. The question then arose as to the basis of that ratio. Should the different States send Representatives in proportion to their population or their wealth? And if according to population, who were the people? Should the number of representatives be according to the number of voters, or as the white population, or as the free population, or as the 1Curtis, I, p. 17. 52 THE CONSTITUTION. 1. II. 3. whole? It was decided that the representation from the States should be "according to their respective numbers," that is, as the whole population, but that only three-fifths of the slaves should be counted. According to the Articles of Confederation, the votes were by States -each State, whether large or small, having one vote. But the quotas for the support of the General Government were as the values of real estate in the several States. In 1783, a proposition was made to alter that provision so that each State should pay "in proportion to the whole number of free inhabitants, and three-fifths of the number of all other inhabitants of every sex and condition, except Indians not paying taxes in any State."' The Convention followed, both as to representation and direct taxes, the rule approved by the majority of the Continental Congress in 1783 for the payment of taxes, and this was the origin of the three-fifths rule.'The adoption of this rule was favorable to the Slave States as it increased the number of their Rea2resentatives; it was unfavorable as it increased their proportion of direct taxes. The advantage was greater than the disadvantage, however, as they enjoyed the increased number of Representatives continually, while direct taxes have been levied but five times since the adoption of the Constitution. Slavery having been abolished in 1865, by an amendment to the Constitution, all the colored population must be counted in determining the number of Representatives from a State. If this class of the population could not vote, the Southern States would have nearly twice as mnany Representatives, in proportion to the number of voters, as the Northern States. Thus, by the census of 1860, Pennsylvania had 2,893,266 white inhabitants, and twenty-four Representatives.'Jour. C!ont. Congress, VIII, p. 123. 11. II. 3. THE HOUSE OF REPRESENTATIVES. 53 North Carolina, South Carolina, Georgia, Alabama, Florida, Mississippi, and Louisiana had 2,829,785 white inhabitants, and thirty-hine Representatives. If the white inhabitants and three-fif'ths of the blacks gave them thirty-nine Representatives, these States would have fifty Representatives, counting all the blacks; that is, with a less voting population than Pennsylvania they would have more than twice as many Representatives. To remedy this inequality, the Fourteenth Amendment provides that if the right to vote is denied to any class of citizens, the basis of representation shall be reduced in proportion. The basis of representation was reported at forty thousand by the Committee, and so remained till the last day of the Convention, when it was changed to thirty thousand, General Washington himself advocating the change. This is said to have been the only occasion on which he entered into the discussions of the Convention. A question arose early in WTashington's administration as to the construction of this clause. Should the number of Representatives be determined by dividing the whole populttiov, of the United States by the number taken as the basis of representation, or by dividing the population of the respective States by that number, and takling the sum of the quotients. The former method would give the largest number of Representatives, and was adopted by Congress in the bill first passed. But the bill was returned by President Washington, as conflicting with the language of the Constitution. Congress yielded to the judgment of the President; and the method then adopted, of dividing the population of each State by the basis of representation, continued till 1842, when an act of Congress provided that there should be one Representative for every 70,680, and for a fraction greater than one-half of this number. By act of AMay 23d, 1850, it was pro 54 THE CONSTITUTION. 1. II. 3. vided that the whole population of the United States should be divided by the number 233, and th'e quotient be the ratio. With this ratio the population of each State is divided, tile quotient being the number of its Representatives. The number of Representatives necessary to make 233 are given to the States having the largest fractions. The first enumeration of the people was made in 1790, the second in 1800, and so on. After the census returns have been imade, Congress provides by law for the representation, to take effect March 4th of the third year after. The Constitution provided for 65 members for the First Congress. In March, 1793, there were 105; in 1803, 141; in 1813, 181; in 1823, 212; in 1833, 240; in 1843, 223. In 1850, as stated above, the number was fixed at 233, and the Secretary of the Interior was directed to ascertain the number to which each State was entitled, and make certificate of the same to the Governors. In all the cases plrevious to this time the specific number for each State had been given in the act of Congress. Before an election had been held under the act of 1850, Congress changed the number from 233 to 234, to remain till the next apportionment. The additional one was given to California. In 1862 the number for the next ten years was fixed at 241, the eight additional ones (to 233) being apportioned to Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vernmont, and Rhode Island. The number of Representatives for the different decades, and the number of inhabitants for a Representative are as follows: Period. No. of Members. Ratio of.Population. 1789-1793 65 1793-1803 105 33,000 18013-1813 141 33,000 1813-1823 181 35,000 1823-1833 212 40,000 1833-1843 240 47,700 1. II. 4. THE HOUSE OF REPPRESENTATIVYES.,55 Period. No. of Menmbers. Ratio of Population. 1843-1853 223 70,680 1853-1863 234 93,500 1863-1873 241 127,941 1873-1883 292 130,533 The actual number of Representatives has usually been greater than that here given, owing to the admission of new States. Thus the Forty-second Congress (18711873) had 243, instead of 241; Nevada having been admitted in 1864, aCd Nebraska in 1867. Each organized Territory is allowed by law to send one deleguate to Congress, who may participate in the discussions, but can not vote. In the Forty-second Congress there were nine delegates from the Territories, and one from the District of Columlbia. Clause 4. — TVhen vacancies happen in the )re2presentation froi' Cay State, the ezecutive authority thlereof shall issue wurits of election to fill such vacancies. Vacancies may be created by death, resignation, renmoval, or accepting incompatible offices. All these cases have occurred. The person thus elected to fill a vacancy serves only the remainder of the term. Clause 5. —The House of Representatives shall, choose their Sopeake!r and other officers, and shall have the sole poweir of impeachmnent. The Speaker is the presiding officer of the House. The presiding' officer of the Continental Congress was styled President. Where a legislature is composed of two houses, the presiding officer of the upper house is usually called President, and of the lower house. Speaker. The British House of Commnons choose their Speaker, but the approbation of the Crown is necessary. The other officers of the House of Representatives are a Clerk, Sergeant-at-Arms, Door-keeper, Postmaster, and Chaplain. The office of Clerk is one of great importance, and is usually filled by an ex-menmber of Congress. The Clerk 56 THE CONSTITUTION. 1. III. 1. presides at the organization of the subsequent Congress. The Congress that convened December 3d, 1855, did not succeed in electing a Speaker till the second of February, 1856, having balloted 133 times. Mr. N. Po Banks was the successful candidate. In the case of the Thirty-sixth Congress, in the winter of 1859-60, there was a delay nearly as long. Mr. William Pennington was elected. A list of the Speakers will be found in Chapter VII. The Constitution gives to the House of Representatives the sole power of impeachment, and to the Senate the sole power to try the party impeached. As a citizen can not be tried before a court until he has been indicted by a grand jury, so an officer of the Government can not be tried by the Senate until articles of impeachment have been brought against him by the House of Representati ves. The method of proceeding, so far as the House is concerned, is this: A committee is appointed to inquire into the conduct of the officer supposed to have been guilty of acts requiring impeachment. If they report in favor of im-peachment, the question is acted on by the House. Should the House determine on impeachment, articles are prepared, embodying the charges, on each of which action is taken. A committee is then appointed to prosecute the impeachment before the Senate. The method of trial and a list of the persons impeached will be given in a subsequent part of the work. See. 3, Clause l.-The Senate of the United States slall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. In the Convention that framed the Constitution there was great difference of opinion as to the mode of electing Senators, as to their term of service, and as to the rule of suffrage. Some were in favor of a nomination by the State legislatures and an election by the United States 1. III. 1. THE SENATE. 57 House of Representatives; others would have the President appoint from those nominated by the State legislatures; others would have them chosen by the House of Representatives; and others still proposed an election by the people. As to the term of office, some advocated a life tenure, or during good behavior; some, a term of nine years; others, seven; others, six; and others, four. The question of voting was the most difficult. As in the Continental Congress the States were on an equality as to their votes, the smaller States wished the same rule to hold under the Constitution; while the larger States claimed that an equality of votes in either House would be unjust. The smaller States finally conceded that in the House of Representatives the number of members should be in proportion to population; but they insisted that in the Senate the States should be equal. But the larger States were tenacious as to the Senate as well as to the House; and the Committee of the Whole reported, "That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first." This report was adopted by the Convention; but the matter was subsequently referred to a committee of one from each State, who reported the rule as it now stands. The final vote was: Affirinative Connecticut, New Jersey, Delaware, Maryland, North Carolina - 5; Negative — Pennsylvania, Virginia, South Carolina, Georgia —4. Massachusetts divided. "So that this greatest and most difficult of all the important questions which the Convention was called upon to solve, was carried by less than a majority of the States present, and by the concurrence of less than one-third of the represented population." 1 l Towle, p. 69. 58 THE CONSTITUTION. 1. III. 1. Mr. Madison strongly opposed the principle finally adopted. In his letter *to Mr. Sparks, he said the Gordian knot of the Convention was the question between the larger and smaller States as to the rule of voting in the Senate; the latter claiming, the former opposing, the rule of equality.l By the Articles of Confederation each State might send not more than seven delegates to Congress, nor less than two. They were elected annually, but no one could sit more than three years in six. The States could recall their delegates at any time. Under the Constitution, we see that each State can send two Senators, and as many Representatives as her population entitles her to; that there is nothing to prevent a Senator or Representative from being returned as often as his constituents desire; and that, when a Senator or Representative has been elected, the State has no power to recall him.2 Though all the States have the same number of Senators, and each Senator has one vote, this is not the same as voting by States, as was done in the Continental Congress. If both the Senators of a State are present, and vote on opposite sides of a question, their votes neutralize each other, as under the Confederation. But if only one of two delegates from a State was present in the Continental Congress, his vote could not be counted; under the present Constitution the vote of one is counted whether his colleague is present or not. The Constitution does not prescribe the precise method in which the legislature of a State shall choose the Senators, whether by joint ballot or by'Elliot, I, p. 508. 2Thomas H. Benton was thirty years a Senator fiom Missouri. Charles Sumniler and Henrv Wilson were elected four times each from Massachusctts. 1. IIIo 2. THE SENATE. 59 concurrent resolution. It is not properly an act of legislation, and the Governor of a State has no participation in it, as, in some States, he has in ordinary legislation.1 On the 25th of July, 1866, Congress passed an "Act to regulate the times and manner of holding elections for Senators in Congress." It provides, that the legislature of each State, which shall be chosen next preceding the expiration of the time for which any Senator was elected, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator as follows: Each House shall name a person for Senator by a viva voce vote; the next day at noon the two HIouses shall meet in joint assembly, and if the salme person shall have received a majority of all the votes in each Hlouse he shall be declared duly elected. If no person has received such majorities, the joint assembly shall choose by a vriva'oce vote; and whoever shall receive a majority of all the votes cast, a majority of each House being present, shall be declared elected. If no person is elected the first daly, thle joint assembly shall convene each day at twelve o'clock and take at least one vote each day during the session, or until a Senator is elected. If a vacancy exists when the legislature convenes, the same steps shall be taken; and if a vacancy occurs during the session of the legislature, they shall proceedl to elect on the second Tuesday after they have had notice of the vacancy. Clause 2.-Imtrmoediately after they shall be cassemvbled in consequence of the Jfi)st election, they shall be divided ras T New York had no Senators for the first few months of the First Congress, because of disagreement between the two branches of the legislature~ For the same reasons she had no Electors. 60 THE CONSTITUTION. 1. III. 2. eq/ullly as mvay be i)to three classes. The seats of the Senalors of the fiJrst class shall be vacated at the eapiration of the second yea), of the second class at the emxpiration oJ' the foZurth yearc, and of the third class at the expiration of the sixth year, so that one-third may be chosen every secolcd year; and if vacancies happen, by resigznation, or otherwclise, dalriing the recess of the legislature of any State, the Executive thereof may make teimpoirary appointmllents until the nzext meeting of the legislatutre, which shall then fill sach vacancies. When the Senate convened, March 4th, 1789, there were twenty Senators present: Rhode Island and North Carolina had not yet ratified the Constitution, and New York had not elected her Senators. These twenty were divided hvy lot among the three classes, making seven of the first, seven of the second, and six of the third. When the two Senators from New York took their seats, July 26th, one was placed in the third class, and the other in the first, making eight of the first class, and seven of each of the others. The North Carolina Senators, who came in November 27th, fell into the second and third classes. Tlhe classes had now eight each in them. Thus the Senators of each newv State have been placed in diffirent classes, that their terms might not expire at the same time; and the classes have been kept substantially equal, so that the terms of one-third of the Senators may expire every second year. If a Senator from a new State is placed in the third class, we are not to infer that his term will be six years. As the Constitution went into operation in 1789, the terms of the Senators of the first class wTould expire in 1791. The terms of their successors would expire in 1797, 1803, 1809, and so on. The terms of the Senators of the second class would expire in 1793, 1799, 1805, etc.; and those of the third class in 1795, 1801, 1807, etc. The Senators from Ohio took their seats in 1803. One of them was placed in the first cl ass, and the other in the 1. II. 2.'I'HE SENATE. 61 third. As terms of Senators of the first class expire in 1809, 1815, etc., the one in the first class would remain in office six years, while the one in the third class would remain but four, the terms of the third class expiring in 1807. The Senate is a permanent body, while the House of Representatives is changed every two years. As the Constitution went into operation on the fourth of March, 17 89, the term of office of every Senator, as well as Representative, ends on the fourth of March of a year denoted by an odd number. A Congress is measured by the term of office of the Representatives; the first extending from the fourth of March, 1789, to the fourth of _March, 1791. The Forty-fourth Congress began March 4th, 1875, and ended March 4th, 1877. When a vacancy is temporarily filled by executive appointment, the Senator thus appointed holds his office till the close of the next succeeding term of his State legislature.' The legislature of a State sometimes adopt resolutions in which their Representatives in Congress are "requested," and their Senators "instructed," to vote for certain measures; thereby implying that the legislature have the right to "instruct" their Senators, while they have not the right in regard to their Representatives. But there is no right of instruction in either case. The Constitution prescribes the mode of election for the Senator and for the Representative; one is elected by the legislature, and the other by the people of his district. The mode is immaterial; it is but a mode. Once elected, the Senator, as well as the Representative, must be guided by his own enlightened judgmient, and can not be instructed by those who elected him. Neither is the Senator or Representative to consult exclusively the interests of his own State or district. He is a member Towle, p. 72. 62 THE CONSTITUTION. 1. III. 3. of a body which legislates for the nation. He is to consult the interests of the whole people, and not mcerely those of a section. Clause 3.-NXo person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the TlJiited States, and who shtall not, when elected, be an inhabitant of that State for which he shalh be chosenz. A Representative must be twenty-five years of age; a Senator, thirty: a Representative must have been a citizen seven years; a Senator, nine. The condition as to residence is the same for both. The age required in a Roman Senator was thirty years. In Rome, majority was not attained till the age of twenty-five: the same is true in France and Holland.' Two cases have occurred of elections to the Senate without the requisite number of years of citizenship. Albert Gallatin was elected from Pennsylvania in 1793: his seat was vacated by resolution of the Senate. Jamnes Shields was elected from Illinois in January, 1849; his seat was vacated also, but he was re-elected ina October of the same year, his disability having been by that time removed. There is nothing to prevent a Senator's changing his residence to another State after his election. He is not the representative of a particular State. Clause 4. —The Vice-President of the United States shall be Priesident of the Senate, but shall hare no vote, unless they be equally divided. The Convention that formed the Constitution did not at first contemplate such an officer as Vice-President. The Senators were to elect their own presiding officer, who was to become President of the United States in case of the death, resignation, or removal of that officer. I Story. 1. 1I. 5. THE SENATE. 63 But as the mode of electing a President, which was adopted by the Convention, required two persons to be voted for at the same time, the one receiving the highest nunmber of votes to be President, this provision for a Vice-President was made near the close of the session. The Lieutenant-Governor of a State is usually the presiding officer of the State Senate. The casting vote of the Vice-President can be of efficacy only when in favor of a measure. If he had no vote, no measure could be carried upon which the Senate were equally divided. As it is, he has helped to carry somne measures of great importance. By a rule of the Senate, adopted in 1828, " every question of order shall be decided by the president without debate, subject to appeal to the Senate." In the British House of Lords, the Lord Chancellor, or some other person appointed by the Crown, presides. If no person is appointed, the Lords elect. Clause 5. —The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the ofice of President of the United States. The officers of the Senate are a Secretary, Chief Clerk, Executive Clerk, Sergeant-at-Arms, Door-keeper, and Chaplain. The President pro tempore seems not to be appointed permanently, except on the death of the Vice-President, or on his becomning President. Tilus on the twentythird of March, 1869, Mr. Anthony of Rhode Island was chosen President pro temipore, Vice-President Colfax having given notice that he should be absent for a few days. On the twenty-ninth of March the Vice-President resumed the chair. On the ninth of April Mr. Anthony was elected again, the Vice-President being absent. It is customary thus to continue to elect the 64 THE CONSTITUTION. 1. III. 6. same gentleman. Mr. Ferry wias President pro teiiPore when Vice-President Wilson (lied in 1875. When the Vice-President becomes President of the United States, the President p/ro tempore receives the salary of the Vice-Presidenit. The President pro tevmpore is not restricted to a casting vote; he has his vote as Senator. Clause 6. —The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or afirmation. WIFhen the President of the United States is tried, the ChLief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. The Senate, whose principal functions are legislative, is here clothed with judicial powers. All those who are impeached by the House of Representatives muust be tried by the Senate. In Great Britain, the power of impeachment is with the Commons, and the power of trial with the Lords; but the Lords do not take a special oath, and a mlajority is sufficient to convict. Our imethod is thus more favorable to the party under trial than the British. When the President is tried, the Chief Justice presides, oecause the Vice-President is interested in the result of the trial. If the President is convicted, the Vice-President succeeds to the office. WVhen Andrew Johnson was tried in 1868, Chief Justice Chase presided. If Mr. Joh nson had been convicted, the President pro teml,)ore would, by the law of March 1st, 1792, have succeeded to the Presidency; on that account it was claimed that he ought not to participate in the trial. His own view of his right and his duty differed from this, however, and he vot.f-d on the case as other Senators. As the Constitution provides (Art. II, Sec. 1, Clause C) that, in case of the inability of the President to discharge the duties of his office, Congress may declar.) 1. III. 7. IMPEACHIMENT. 65 what officer shall act as President till the disability be remnoved, it has been claimed that Congress might make a trial under impeachment sucl- a disability, and provide that during the trial the President should not exercise the office. No such law has been enacted, and President Johnson continued to discharge his official duties from the twenty-fourth of February, when the Hlouse of Representatives voted to inpeach him, to the twenty-sixth of May, when the final vote waas taken. There have been seven cases of impeachment: William Blount, Senator from Tennessee, in 1798; John Pickering, District Judge of New Hampshire, in 1803; Samuel Chase, Associate Justice of the Supreme Court, in 1804; James H. Peck, District Judge of Missouri, in 1830; West H. Humphries, District Judge of Tennessee, in 1862; Andrew Johnson, President, in 1868; and W. W. Belknap, Secretary of War, in 1876. Judges Pickering and Hunmphries only were convicted. Clause 7.-Judglment in ctases of inmpeachment shall not extendcl faurther than to removal from office, acnd disqlualifccation to hloldl can(tl ejoy tqly ofgice of honor-, trust, or profit, under the United States; but the paity convicted shall nevertheless be liable and subject to indictment, trial, judcgmelnt, and punishment, accorlding to law. In England, there is no such limitation in the punishment. The person convicted may be fined, or imprisoned, or banished, or put to death. But in our country, the punishment is political-removal from office and disqualification for it. This judgment, however, does not prevent a subsequent trial by jury for the criminal violation of law. In a subsequent Article it is provided that a civil officer of the United States, impeached and convicted, "shall be removed from office." This punishment is imperative; he may be punished further by disqualification to hold office. The punishment inflicted on such Cl. G. C. 66 THE CONSTITTTION. 1. IV. 1. an officer, who has been convicted by the Senate, can not be less than rernoval from office; it can not be greater than removal and disqualification combined. Judge Pickering was removed fromnl office only; Judge Humphries was removed from office and declared disqualified to hold any office of honor, trust, or profit under the United States. Sec. 4, Clause 1.-/The timles, places, and icianner of holding elections for Senators and tRepresentatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, mitake or alter such }'egulations, except as to the places of choosing Senators. By Act of Congress, passed June 25th, 1842, it was provided that Representatives should be elected by districts of contiguous territory equal to the number of Representatives. This is believed to have been the first instance of any regulations by Congress touching elections of Senators or Representatives. In 1866 (July 25th), an act was passed to regulate the mode of choosing Senators, as already stated. In 1871 (February 28th), Congress enacted that all votes for Representatives in Congress should be by written or printed ballots, any law of any State to the contrary notwithstanding. In 1872 (February 2d), provision was made that Representatives should be elected on the same day throughout. the United States, viz., on the Tuesday after the first Monday in November; to go into effect in 1876. By act of 1875, states whose constitutions prescribed a different day were exempted from its effect. This clause, giving to Congress the ultimate control as to elections for Senators and Representatives, met with little opposition in the Convention, but it was opposed in some of the State Conventions called to ratify the Constitution. "Its propriety," says'Mr. HIamilton, "rests upon the evidence of this plain proposition, that every government ought to contain in itself the 1. IVv. 2. CONGRESSIONAL ELECTIONS. 67 means of its own preservation." But the opponents of the Constitution maintained that this clause gave to Congress the whole ultimate control of elections for members of Congress, including the qualifications of electors and elected, except as stated elsewhere in the Constitution. Patrick Henry said: "The control given to Congress over the time, place, and manner of holding elections will destroy the end of suffrage. * * * Congress may tell you they have a right to make the vote of one gentleman go as far as the votes of a hundred poor men. * * * They may regulate the numnber of votes by the quantity of property, without involving any repugnancy to the Constitution." 2 The practice has been for the States to prescribe the qualifications of voters in their constitutions. Mr. Farrar claims, on the other hand, that it was well understood by both parties at the time the Constitution was framed, "that the whole law of elections, subject to the provisions of the Constitution, was under the control of Congress." 8 The Constitution of the Confederate States says, "No person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, State or Federal." Thus their federal Constitution prescribed qualifications for voters at State elections. The restricting clause, as to the place of choosing Senators, was inserted that Congress should not have the right to prescribe to the State legislatures their places of meeting. Clause 2.- The Cbongress shall assemble at least'once inl every year, and stech mneeting shall be on the first ilonday in DecevTber, unless they shall by law appoint a different cday. Annual sessions are thus made imperative. As the 1 Federalist, No. 59. 2 Elliot's Debates, III, pp. 60, 175. Manual of the Constitution, p. 268. 68 THE CONSTITUTION. 1. IV. 2. term of each Congress is two years, there would be two regular sessions during each ternm. In eighty-eight years fiomn March 4th, 1789, or to the end of the Fortyfourth Congress, there have been eleven instances of three sessions- by the same Congress.' For the first thlirty-two years, the regular sessions began on the first Monday in December about half the time: since that, all the regular sessions have begun on that day. The first regular session of each Congress usually continues from December till the following spring or summer. The Thirty-first Congress was in session till the thirtieth of September-three hundred and two days. The second regular session closes at noon on the fourth of March, being thus about three months long. But though the constitutional term of Congress ends at noon on the fourth of March (it formerly.ended at mlidnight of the third), the Journals of the Senate and House of Representatives bear the date of the third of March, and the laws signed by the President after midnight are dated on the third and not on the fourth. By act of January 22d,' 1867, each new Congress was required to meet'"at twelve o'clock, meridian, on the fourth day of March, the day on which the term begins for which the Congress is elected." Under this act each Congress had three sessions; the first commencing on the fourth of March, the second on the first Monday of December of that year, anlld the third on the first Monday of December of the following year. The first session was very short, and the second and third were regarded as the regular sessions. This act has now been repealed. It was in force during the Fortieth, Forty-first, and Forty-second Congresses. Under the Articles of Confederation, Congress might There were three sessions in the First Congress, the Fifth, Eleventh, Thirteenth, Twenty-fifth, Twenty-seventh, Thirty-fourth, Thirty-seventh, Fortieth, Forty-first, and Forty-second. 1. V. 1. CONGRESSIONAL ELECTIONS. 69 adjourn to any time within, the year, but no period of adjournment could be for a longer time than six months. Congress was thus a permanent body, and not subject to periodic dissolution as now. See. 5, Clause 1. — Each House shall be the judge of the elections, returns, and qualifications of its own m)ermberes, and a majority of each shall constitute a qu.orum to do business; but a smaller n.inber way adjourn from d(lay to day, and Imay be authorized to compel the attenldance of' absent members, in such wanner and cunder such penialties as each I-ouse nmay provide. The certificate of election furnished by the State authorities is prizma facie evidence that the person holding it is entitled to a seat, but it is not conclusive. Each House has a Committee on Elections, to whom are referred all doubtful cases, and on their report the House decides: from this decision there is no appeal. The recent war has multiplied the number of such cases, and, in repeated instances, persons holding certificates of election have not been deemed entitled to membership. The British Parliament and most legislative bodies exercise the same power as to the admission of members. A majority seems to be a suitable quorum. In the British House of Commnons, composed of over six hundred members, forty-five is a quorum. Under the Articles of Confederation, no question, except that of acjournment, could be decided unless by a majority of all the States, and for the most important questions nine States were required, i. e., two-thirds. There was no power to compel attendance, and business was frequently delayed through the absence of members. In one instance, Congress assembled on the third of November, but there was no quorum till the fourteenth of January. Rhode Island once recalled her delegates, and so prevented the transaction of important business. 70 ~THE CONSTITUT10ON. 1. V.'2. In the State of Ohio, no bill can be passed without the votes of a majority of all the members elected to each House. The new constitution of Illinois has a similar provision. By a rule of the House of Representatives, fifteen members, including the Speaker, can compel attendt nce.' Clause 2.-Each House mazcy determine the rules of its proceedinys, punish its mzembers foer disorderly behavior, and, with the conceurrence of two-thirds, expel a nimember. The " rules of proceedings " constitute what is called Parliamentary Law. When the first Congress convened,.in 1789, the House of Representatives established rules, some of which are still in force. At the beginning of the first session of each Congress it is usual to adopt the rules of the previous Congress until otherwise ordered, and a committee is appointed to report new rules during the session. The rules of the House of Representatives may be found in the Appendix of their Journal. The power to punish a member has been exercised by both Houses. William Blount, Senator from Tennessee, was expelled in 1797, and Jesse D. Bright, Senator from Indiana, in 1863. It seems to be settled that a member may be expelled for any imisdemeanor which, though not punishable by any statute, is inconsistent with the trust and duty of a member. The Constitution does not confer any express power to punish contemzpts, i. e., offenses by persons not menmbers of the House, but this power has been considered to belong to legislative assemblies as such, and the Supreme Court has so decided. But the power to punish is held to extend only to imprisonment, and this Journal H. R. Thirty-ninth Congress, p. 1204. 1. V. 3. VOTING BY YEAS AND NAYS. 71 only until the dissolution of the House by which the punishment is inflicted. Clause 3.-Eac~h House shall keelp a Joturnal of its proceediglys, and frosm time to timne publish the same, excepting such parts as may in their judgment r-equire secrecy; and thle yeas and nays of the mnembers of either Ilouse, on any question, sheall, at the desire of one-fifth, of those present, be ente)red on the journal. It is usual for both Houses to have open sessions, except the Senate when in Executive session, i. c., acting upon nominations made by the President, or engaged in discussion of treaties. The'Convention that franmed the Constitution sat with closed doors, and so did the Senate from the beginning of the First Congress until the second session of the Third Congress. There are three methods of voting in Congress. The usual method is viva voce; the presiding officer deciding by his ear. If he is doubtful as to the result, he makes a count; or, if a menmber questions the correctness of his decision, a division of the House is called for, and tellers are appointed who count the voters. But in important questions the roll of the House is called by the Clerk, and each member's vote is recorded in the journal. This is voting by "Yeas and Nays." It enables the people to know how their representatives vote. The Articles of Confederation required the yeas and nays to be taken when called for by a single member. The present provision, making the yeas and nays dependent on the call of one-fifth the members present, is a decided improvement on the former one. A factious minority often avail themselves of this rule to delay proceedings, and prevent the passage of a bill. Thus a member moves for adjournment, for example, and asks for the yeas and nays. If a fifth of those 72 THE CONSTITUTION. I. VI. 1. present concur in this request, the roll must be called, occupying much time. Oftentimes the member nmoving to adjourn votes against his own motion. Clause 4.-Neither Hoouse, durting the session of Congress, shall, withoUt the consent of the other, acljourn for mzore than three dclays, nor' to any other' place th(an that in which the two Houses shall be sitting. Under the Articles of Confederation, Congress could adjourn to any time within the year, and to any place within the United States, but no adjournment could bIe for a longer period than six months. The present provision prevents either House from interrupting, by adjournment, the progress of business. Sec. 6, Clause 1. —The Sernators and Representatives shall receive a compensation for thleir services, to be acscertained by law, and paid out of the Trealsul.ry of the United States. They shall in all cases, except treason, felony, and breach of the peace, be privileyed froom arcrest dar'ing their attendance at the session of their respective HIouses, and in going to andl returning fornm the satmie; and for any speech or debate in either HIouse, they shall not be questioned in any other _place. Under the Articles of Confederation, each State paid its own members of Congress. By providing for their payment from the national treasury, the Constitution makes them independent of the States. In the Convention Mr. Madison said, "he could not see any chance of that stability in the general government the want of which was a principal evil in the State governments," if the members were left dependent on the States for their compensation. In the British Parliament the rmembers receive no compensation. And in our Convention, Gen. Pinckney suggested, as the Senatorial branch was to represent the wealth of the country, that no salary be allowed. 1o Vi. 1. CONGRESSIONAI. COMPENSATION. 73 This was seconded by Dr. Franklin, but disagreed to; tile vote standing six to five. The compensation is to be ascertained by law; that is, Congress itself is authorized by the Constitution to determine it. The First Congress passed an act fixing the allowance at six dollars a day while in attendance, and six dollars for each twenty miles of travel in goinig and returning. The Speaker of the House, besides his pay as Representative, was to have six dollars a day additional. This rate continued till 1815, except that for one year, 1795, the Senators received seven dollars a day, and the same for each twenty miles of travel. By act of MItarch 19th, 1816, the compensation was fixed at fifteen hundred dollars a year for each Senator and Representative: the Speaker to receive three thousand dollars, and the President pro teimpore of the Senate, the same when there should be no Vice-President. This was repealed in February, 1817, having been operative only during the Fourteenth Congress. In 1818-January 22d —the per-diem, system was restored, to be operative from March 4tl, 1817, the rate being established at eioght dollars a day, and eight dollars for each twenty nmiles of travel: the Speaker, and the President p3ro tewpore of the Senate, in the absence of the Vice-President, receiving eight dollars a day additional. This rate continued till the Thirty-fourth Congress, which passed an. act -— August 16th, 1856- establishing the compensation at three thousand dollars a year, and eight dollars for each twenty miles going and returning, for twAo sessions only: the Speaker receiving six thousand dollars; and the President pro tem>opoe of the Senate, in the absence of the Vice-President, the salary of that officer, wvhich had been raised to eight thousand dollars. In 1866 —July 28th —it was raised to five thousand C. G. 7. 74 THE CONSTITUTION. I. 1. I. 1. dollars a year, and mileage at the rate of " twenty cents a mile, to be estimated by the nearest route usually traveled in going to and' returning from each regular session." The pay of the Speaker waras fixed at eight thousand dollars per annum, this being the salary of the Vice-President. In 1873, March 3d, another change was made. The compensation was raised from five thousand to seven thousand five hundred dollars, with actual traveliing expenses. Tlhe Speaker of the House and the President p'(ro teia7lpore of the Senate were to receive ten thousand dclollars. In 1874, January 24th, the act was repealed so far as concerned these salaries, thus making them, as before, five thousand and eight thousand clollars respectively. Tlle change made in 1816, from six dollars a day to fifteen hundred dollars a year, was received by the people with great disfavor, and many members were not returned to the next Congress in consequence. The more recent change, in 1873, also called forth very severe criticism. The members were blamed for the large increase of salary, and still more for imalking it retroactive. A number of members refused to receive tlhe increase for the time already expired. The retroactive feature is, howsever, not peculiar to the act of 1873. The law of 1816-March 16th-was operative frol March 4th, 1815. That of August 16th, 1856, increased the compensation from March 4th, 1855. So that of July 28th, 1866, took effect from March 4th, 1865. Every act of Congress, therefore, to increase the pay of Senators and Representatives, has been retroactive in its operation, covering a period varying froni twelve months to twenty-four. All the acts prior to that of 1866 were separate and independent acts; but the one of 1866, and that of 1873, were sections in appropriation bills. They -were both passed on the last days of the respective sessions. From 1789 to the present tinme, then, the compensa 1. VI. 2. FREEDOM FROM All1EST. 75 tion Ilas been as follows: 1789 to 1815, $6.00 a day; 1815 to 1817, $1500 a year; 1817 to 1855, $8.00 a day: 1855 to 1865, $3000 a year; 1865 to 1871, $5000 a year; 1871 to 1874, $7500 a year; 1874 and since, $5000 a year. By act of AMarch 29th, 1867, each Senator, Representative, and Delegate, after having taken the required oath, is entitled to receive his comnpensation at the end of each month. The privilege of freedom fronm arrest has belonged to legislative bodies in Europe for many years. The exceptional cases are what are called indictable offenses. Whoever should cause the arrest of a memnber would be liable for trespass, and imight also be punished for contempt of the House. The privilege commences fromthe time of the election, and before the member takes his seat or is sworn. Freedom of' debate is secured by this clause. But the privilege is confined to words spoken in the course' of parliamentary proceedings, and' does not cover things done beyond the place and limits of duty; while a member can not be questioned for a speech delivered in the House, he might be liable if he should cause the speech to be published. The privilege fronm arrest secures the member, of course, against all process, the disobedience to which is punishable by attachment of the person, as a subl)pva, or a summons to serve on a jury. (Story, Vol. II, p. 608.) Clause 2.-No Senator or Representative shall, duri7,g the time for which he was elected, be appointed to atny civil fliece under the auzthority of the United States which shall hlave been created, or the. emnolnuments whereof shzall hare been increased, duriayg such time; acld no person holding any office under the United States shall be a member of either House during his conlti22lance in ofice. The first part of this clause Awas intended to prevent 76 THE CONSTITUTION. 1. VII. 1. corruption and secure the integrity of the members. It would tend to diminish the temptation to create luerative offices which they themselves might hope to fill. But the security is only partial, as an office created duringo the term of a imember might be held by him many years after his membership had expired. The acceptance of an office under the United States, by one who has been elected a member of Congress and has taken his seat, operates as a forfeiture of his seat. But if one holding an office under the United States is elected to Congress, he may hold the office until he is ready to take his seat, when he must resign. In Great Britain, the members of the Cabinet may also hold seats in Parliament, but our Constitution prohibits Cabinet officers from being members of Congress. The subject has been often discussed, but no serious attempt has been made to amend the Constitution in this respect. By the present arrangement, the Legislative and Executive departments of the governmient are more widely separated, and any undue influence of the Executive is better guarded against. Sec. 7, Clause 1.-All bills for raising revenue shall originate in the House of Representatives; betl the Senate miay propose or concur with amedmelnts, as on other bills.s This is the practice in the British Parliament. All bills for raising revenue must originate in the House of Commons. The subject was discussed at great length in the Convention, and was not finally decided till near the day of adjournment. It was so connected with other provisions of the Constitution as to render it difficult to ascertain by what principles it was settled. As first acted upon by the Convention, the clause was much more comprehensive than in its present form: " That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first 1. VII. 2. BILLS FOR RAISING REVENUE. 77 branch of the legislature, and shall not be altered or amended by the second branch." Our circumstances differ so widely from those of Great Britain that there seems to be no sufficient reason why the Senate may not originate bills for raising revenue as well as amend them; why they lmay not provide for raising revenue as well as make appropriations. During the third session of the Forty-first Congress, the Senate passed a bill to repeal the law imposing the income tax. But the House of Representatives, instead of acting upon it in the usual way, passed a resolution calling the attention of the Senate to this clause of the Constitution. Bills looking to the raising of money have originated in the Senate and have passed into laws': as the bill to establish the post-office, that to establish the mint, and bills to regulate the sale of the public lands. Raising revenue is understood thus to be confined to levying taxes. Clause 2. —Every bill?which shall have passed the House of lRepresentatives and the Senate, shall, before it become a law, be preseed todent of the UPeslitede States; if he ac)rov lie shae ll sign it, but'if not he sh/all return it qwith his objections to thaCt LTouse in which it shall have originated, who shall enter the objectionls at lacge in thleir jou'lrnatl, an(l p'roceed to reconsider it. If, after such r'econsideration, two-thirds of that tiouse shall caygee to pass the bill, it shall be sent, together'with the objections, to the other IHouse, by which it shall likewise be reconsidered, and.if ac)proved by two-thirds of that DIouse, it shall become a law. But in all such cases the votes of both HIo ulses shall be determiined by yecas acd nays, andl the ncamles of the persons votiny for catcl ctgainst the bill shall be entered on the journal of each House respectively. If any bill shall not be retrlned by the President within ten dclys (Sundays excepted) cafter'it shall hccve been pre'scnted 78 THE CONSTITUTION. 1. VII. 2. to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their acj'ourmzent, prevent its return, in which case it shall not be a law. This clause gives the President some participation in legislation. The Executive and legislative departments are not entirely disjoined. But the President's participation is negative. This returning of a bill with objections is called vetoing the bill, though the word veto does not occur in the Constitution. In Great Britain the sovereign possesses an absolute veto, but it is said not to have been exercised since 1692, in the reign of William III, with, perhaps, a single exception. In the Convention various plans wAere discussed for revising the bills passed by Congress. One was to give the right of revising all bills to the Executive and the Judiciary. This was Mr. Randolph's plan, and was approved by Mr. Madison. Somie memlbers wished the President to have an absolute veto. At one tinme the Convention voted in favor of requiring a vote of threefourths of each House in order to pass a bill over the President's veto. The present method has commended itself to the peuople of the country. It is, doubtless, better than one admitting an unqualified veto, and better than one that should require a thlree-fourths vote in each House. The practice in the State governments is not uniform. In some the Governor has no veto, while in others a bill may be passed over a veto by a bare majority in each House. The veto power has been used by most of the Presidents. Washington vetoed two bills; Madison vetoed feive and retained one; Monroe vetoed one; Jackson vetoed seven and retained two, Tyler vetoed five, Polk, three; Pierce, four; Buchanan, one; Johnson vetoed twe~nty-one and retained nineteen which became laws. No bill was passed over the veto of the President till the admin 1. VII. 3. THE PRESIDENT MAY VETO. 79 istration of Mr. Tyler. One was so passed in his administration, four in that of Mr. Pierce, and seventeen in that of Andrew Johnson. It has been decided by the Senate-July 7th, 1856that two-thirds of a quorums only were requisite to pass a bill over the President's veto, and not two-thirds of the whole Senate. There are three methods by which a bill may become a law. (a.) If it is passed by a majority of each House and is signed by the President. (b.) Withlout the signature of the President, if it receives the votes of twothirds of the members present of each House, after having been returned by the President wvith his objections. (c,) If, having been passed by each House and sent to the President, it is retained by him ten days (Sundays excepted), it becomes a law, unless Congress has adjourned in the mean time. Clause 3.-E-very order, resolution, or vote, to which the conceurerence ofJ' the Senate and Hou.se of Represe~ntatives may be necessary (except on a qugestion of adcjo1urnmen.lt) shall be presented to the President of the United States, and before the same shall take effect shacll be approved by hint, or, being disapproved by hinm, shall be repassed by two-thirds of the Senate and Houtse of Representatives, according to the rules and limitations prescribed in the case of a bill. This clause prevents the passage of laws under the name of resolutions, etc., without the approval of the President. The process is the same, no matter what may be the term employed, whether order, resolution, vote, or bill. Whatever does not relate to the internal government of the individual House, as elections, votes of censure or thanks, etc., requires the signature of the President, or a two-thirds majority in each House. A joint resolution, approved by the President, or duly passed without his approval, has all the effect of law. o0 THIE CONSTITUT'ION. i. VIII. A resolution of Congress proposing an amendmlllent to the Constitution does not require the signature of the President; though in one or two cases such resolutions have been sent to him through inadvertence. In February, 1865, Congress passed a joint resolution that the electoral votes for President and Vice-President, given in certain States then in rebellion against the government, should not be received or counted. The President approved the resolution, but said in a message that his approval was not necessary. (The electoral votes were counted on the eighth, though the official approval of the President was not received till the tenth.) In March, 1866, the two Houses determined that neither House should consider the credentials of any man presented as a member from a State lately declared to be in rebellion, until Congress shall have decided that such State is entitled to representation therein. This resolution was not sent to the President. Sec. 8.-The Congress shall have power In Article I, Section 1, it is declared that all legislative powers granted in the Constitution shall be vested in a Congress of the United States. In Section 8 it is declared more specifically that Congress shall have power, i. e., rightful authority, to legislate on various subjects. But it is not intended tlhat this shall be considered an exhaustive enumeration of the powers of Congress, or that Congress shall not legislate except on the matters here mentioned; for the eighteenth clause gives Congress power "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 officer thereof." The Constitution itself in other sections requires of Congress the exercise of powers not specifically mentioned( in this section; and it implies in various places that 1.IIIo 1. TAXES, DUITIES, IMi?3RTS, AND EXCISES. 81 Congress must do what it is nowhere in the Constitution expressly authorized to do. Some of these cases will be cited, and the subject will be still further discussed, in connection with the consideration of the eighteenth clause. Clause 1.-T-o lay and collect taxes, dutties, imposts, and excises, to pay the debts and provide for the co mmon defense and general welfare of the United States; but all duties, imposts, and excises shall be ulnitfor i throughout the United States. Every civil government must have a revenue for its own support, and the subject of raising funds is appropriately placed in this first clause. Under the Articles of Confederation the common treasury was supplied by the several States, in proportion to the value of the land with the buildings and improvements. Taxes were not laid and collected by the general government, but were levied by the authority and direction of the legislatures of the several States. The subject was discussed in the Convention with great earnestness, and the result was to give to Congress the control of the whole subject of taxation and revenue so far as relates to the administration of the general governm ent. The obvious construction of the language of the clause makes it confer upon Congress the power to raise a revenue for the purpose of paying the debts an(l providing for the common defense and general welfare. This involves the power to pay the debts and provide for the general welfare. The four terms used, taxes, duties, imposts, and excises, were originally of nearly the same signification. Theyr imply pecuniary burdens imposed by a civil government upon its subjects. This clause distinguishes between tax:es and the others, inasmuch as it states that 82 THE CONSTITUTION. 1. VIII. 1. "'all duties, imposts, and excises shall be uniform throughout the United States." In Article I, Section 2, Clause 3, Representatives and direct taxes are required to be apportioned among the several States in proportion to their population. In Political Economy, that is a direct tax which comes fr.om the property of the nominal payer, while an indirect tax is assessed on one person but is really paid by another. Duties on goods imported are indirect, as the consumer pays them. Poll taxes and those imposed directly on property are direct. Tile provision of the Constitution as to direct taxes prevents our strict observance of this distinction; and the courts have decided that taxes on carriages, for example, are not direct taxes, though Political Economy would so regard them. So also of taxes on incomes. The taxes levied by the State governments, by counties, and by cities and towns, are for the most part direct taxes. The constitution of the State of Ohio prohibits poll taxes, and requires that all property shall be taxed equally. The revenues of the general government are almost wholly from indirect taxation. Congress has never levied a general tax on all the property of the country. Until the war of the rebellion the general government derived nearly all its revenues from duties on goods imported into the country. Before that time a direct tax had been laid but four times since the adoption of the Constitution, viz., in 1798, 1813, 1815, 1816. In these cases the tax was upon lands, houses, and slaves. The amount of tax to be paid by each State, was named in the act, and was in proportion to the population, and not according to the property of the State. In one or two of the cases the amount of tax assessed upon each county of the several States was given. In the act of 1798, the tax on each slave was fifty cents. In the others all the property taxed-dwelling-houses, lands, and slaves — was to be 1. VIII. 1. DIRECT TAXES. 83 assessed at its true value. In each case the tax was in force but a single year. In August, 1861, after an interval of forty-five years, another direct tax was levied. This was in consequence of the war of the rebellion. The act required that twenty millions of dollars a year be levied on all lots of ground with their improvements and dwellinghouses. The amount was apportioned among the States and Territories and the District of Columbia, according to their population, as required by the Constitution.' The law provided that any State or Territory might collect its quota, and be allowed fifteen per cent. of the arount for the expense of collection. All the loyal States and Territories, except Delaware and Colorado, assumed the payment of the tax.2 This law, like the others of an earlier period, was in force but one year. By act of July 1st, 1862, its operation was suspended, save as to the collection of the first annual tax, until April 1st, 1865.3 By act of June 30th, 1864, it was again suspended till Congress should take further action.4 The second act passed by Congress after the adoption of the Constitution was, "for laying a duty on goods, wares, and merchandises imported into the United States." All civilized nations adopt this as one of the methods of. raising revenue. Whatever may be their theoretical notions as to free trade, none hesitate to lay duties on a portion of the merchandise which they import. There is great diversity of opinion as to the articles upon which duties shall be levied; whether it is or is not expedient to impose duties upon those whichl would come into competition with the products of the country itself. It is worthy of notice that the act alluded to above, which was passed July 4th, 1789, had I The Territories lihad not been named in any previous act imposing direct taxes; nor the District of Columbia, prior to 1815. 2 Report of Commissioner of Interna.l Revenue for 1870, p. 14.' Statutes at Large, XII, 489. Ibid I,, 4. 84 THE CONSTITUTION. 1. VIII. 1. a preamble, as follows: "Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandises imported: Be it enacted," etc. We have seen that until 1861 direct taxes had been levied for only four years since the adoption of the Constitution; but duties on goods imported have been collected from the first, and have formed until recently the chief source of revenue. The term excises, though used in the Constitution, does not appear in the laws enacted by Congress. As commonly used, it signifies all indirect taxes except duties on imports and exports. In a narrower meaning, it is a tax upon the production of commodities. Thus, distillers pay a tax of so much a gallon on the whisky they manufacture, and oil refiners have paid a similar tax. The first case of indirect taxation, other than duties on imports, was that of a duty on spirits distilled within the'United States, by an act of Congress, March 3d, 1791. The duty ranged from nine cents a gallon to twventyfive, according to its percentage below or above proof. On the stills employed, there was also a yearly duty of sixty cents for every gallon of their capacity. In 1794, duties were levied upon carriages, and retail dealers in wines, etc., were required to pay five dollars a year for license. A duty of eight cents a pound was also levied upon snuff manufactured in the United States, and one of two cents a pound on sugar refined. About the same time duties were laid on auction sales; and in 1797 stamp duties were imposed on certain certificates, letters patent, insurance policies, bills of exchange, promissory notes, etc., etc. Thus a system of internal revenue was brought into full operation during the last century, having been commenced very soon after the adoption of the Constitution. 1. VIII. 1. INTERNAL TAXES. 85 In April, 1802, an "Act to repeal the Internal Taxes," swept away "the internal duties on stills and domestic distilled spirits, licenses to retailers, sales at auction, carriages for the conveyance of persons, and stamped vellum, parch ment, and paper." But in 1813, these were restored, and the office of Conlmissioner of the Revenue was established, "for superintending the collection of the direct tax and internal duties." In 181.5, the list of manufactured articles on which internal duties were levied was largely increased, and taxes imposed also upon household furniture and gold and silver watches. All these taxes-they are called duties in the statutes of the United States —were required to be uniform by the Constitution. Thus, if upon a promissory note for a given sum a certain duty was levied in one State, the same duty must he paid upon a note of the same amount in every other State. If the owner of one gold watch was required to pay a tax of one dollar, every one owning a gold watch must pay a like sum. But direct taxes must be in proportion to the population of the State. If two States are equal in population, their citizens, must pay to the general government the same aggregate amount of direct taxes, though the citizens of one State may possess twice as much property as those of the other. The act of Congress of August 5th, 1861, which levied a direct tax on the States and Territories, provided, also, for an income tax, believed to be the first ever levied by our general government. The tax was three per cent per annum on the excess of income over eight lhundred dollars. In July, 1862, it was changed to three per cent on the excess of income over six hundred dollars; but five per cent on the excess over ten thousand. For the years 1870 and 1871, it was two and a half per cent on the excess of income over two thousan(l dollars. No income tax has been levied since that 86 THE CONSTITUTION. 1. VIII. 2. for 1871. The amnount collected on this tax in 18C5, was $20,000,000; in 1866, $61,000,000; in 1867, $57,000,000; in 1868, $32,000,000. On the first of July, 1862, an act to provide internal revenue was passed by Congress, which is by far the most elaborate and coimprehensive scheme of internal taxation in the history of our government. It included duties on a great variety of manufactured articles, licenses for carrying on divers trades and, occupations, duties on carriages, yachts, billiard tables, and plate; on banks, trust and insurance conm-panies, railroads, steamboats, ferry-boats, railroad bonds, stamps, etc., etc. The income to the government fiom internal revenue from 1791 to 1849 was about $22,000,000; ranging from about $200 in 1843, to $5,124,708 in 1816. During the same period the income froim customs was about $946,000,000. But in the year 1866 the income friom internal revenue was over $309,000,000, that from customs being about $179,000,000. For the year ending June 30, 1877, the receipts from customs were about $131,000,000, and those from internal revenue $118,000,000. Clalse 2.-To borrow imoney on the credit of the Unzited States. In thnre of peace, the ordinary revenues of a nation should be sufficient to pay the expenses of its governiment; but in time of war these will be insufficient, and debts must be incurred. All nations possess this power of borrowing money, and all have exercised it. The usual mode of making loans is to issue the bonds of the government, which are its promises to pay the sums specified, at a given time, and with interest at given rates, usually payable semi-annually. These bonds are then sold at the best rates the government can command. The United States have issued bonds from time to time since the formation of the government; though 1. VIII. 2. POWER TO BORROW NMONEY. 87 these.were in possession of the capitalists almost exclusively, until the war of the rebellion made large loans necessary. Then efforts were made to circulate themn among the people, and with such success that multitudes purchased United States bonds who had never before seen securities of this character. The issues were of various denominations, $50, $100; $500, $1,000, and so on. There have been three classes of loans which have been widely circulated among the people, viz., those known as seven-thirties, ten-forties, and five-tvweaties. The first were called treasury notes, and both principal and interest were payable in currency. Tlhe interest was at the rate of seven and thirty-hundredths per cent per annum, which gave thenm their nanme, seven-thirties. This rate gives the interest one cent a day on a note of $50, two cents on one of $100, etc., rendering it easy of computation. The five-twenties are payable, principal and interest, in coin, and the name, five-twenties, conmes from the time of payment; the goxvernmnent im-ay pay at any time after five years from their date, though they are not cldue till the expiration of twenty years. The interest is at the rate of six per cent per annum. The ten-forties may be paid, in like manner, after ten years, and are due at the end of forty years: interest five per cent per annulm. The blonds of the United States can not be taxed by the State governments, according to a decision of the Supreme Court, even if the bonds themselves contain no stipulation to that effect. The public debt of the United States, on the first of January, 1791, was about $75,000,000. In 1816, it was over $127,000,000, whliich within about twenty years was entirely paid. In 1861, the debt was $90,000,000, and in 1866, it was $2,773,000,000. On the first of July, 1877, it was $2,060,000,000. The advantages of this method of distributing the payment of a debt over a 88 THE CONSTITUTION. 1. VIII. 3. period of years are obvious. The country is every year becoming richer, and thus more able to pay off its indebtedness. What would have been an insupportable burden at the creation of the debt, becomes, in the lapse of years, tolerable and easy. At the same time, the temptation to postpone unduly the payment of principal should be steadily resisted. The ordinary expenses of the government will alVways call for heavy taxes, without adding to thein interest on debts. The act of 1870, and subsequent acts, authorized tle issue of bonds for $1,500,000,000 at five, four and a half, and four per cent interest, payable prilncipal and interest in coin, and redeemable at the pleasure of the Government after ten, fifteen, and thiirty years respectively; to be sold at not less than par, and the proceeds to be applied to redeeim thle five-twenties. Over $7.00,000,000 of six ]per cent bonds have already (January, 1878) been thus redeemed, reducing the annual interest over $8,500,000. A portion of our present public debt is in the form of Treasury Notes, commonly called legal tenders, which are circulated as imoney, and on which the Government pays no interest. The power to issue these comes fromrn this clause (to borrow mIoney) but it will be more convenient to consider them under another clause. Clause 3.-To regulate commerce with foreign natiofn.9, and ramong the several States, and with the Izdian tiribes. Prior to the adoption of the Constitution the power to regulate commerce was not in Congress, but in the several States. Each State made such regulations as its own interests seemed to require, without regard to the influence upon its neighbors. "' The States through whose ports the natural or artificial channels of trade principally passed, were able to exact a revenue from those which were less favorably situated for commercial 1. VIII. 3. POWER TO REGULATE COMMIERCE. 89 purposes." It was on account of the difficulties and irritations growing out of these commercial regulations that a Convention of Commissioners from various States was held at Annapolis in September, 1786; which Convention recommended the one that framed the present Constitution in the year 1787. As appears from this third clause, the whole control of the subject of commerce, both with foreign nations, among the several States, and with the Indian tribes, is placed by the Constitution not with the States but with the general government. Under the Articles of Confederation each State levied duties on imports and exports as it pleased, and this, not only as regarded foreign countries, but with reference to commerce between contiguous States. But now there can be no restrictions on trade between two States, and all duties on goods imported from other countries must be "uniform." The nation has the exclusive power over commerce, and without this it would hardly deserve the name of a nation. "To regulate" commerce is to prescribe rules by which it is to be carried on. "With foreign nations" means with the people of those nations. The general government, and not the States, prescribes the rules of commercial intercourse between the people of the United States and those of foreign countries, and between the people of any one State and those of all the other States. So also trade with the Indian tribes is under the exclusive control of Congress. "In the practice of the government, the commercial power has been applied to embargoes, non-intercourse, non-importation, coasting-trade, fisheries, navigation, seamen, privileges of American and foreign ships, quarantine, pilotage, wrecks, light-houses, buoys, beacons; obstructions in bays, sounds, rivers, and creeks; inroads of the oceans, and many other kindred subjects; and, doubtless, includes salvaoge, policies of insurance, bills C. G. 8. 90 THE CONSTITUTION. I. VIII. 3. of exchange, and all maritime contracts, and the designation of ports of entry and delivery. "Wherever the power of Congress extends, they are the exclusive judges of the proper reasons and motives for exercising it, and are not to be controlled by any allegation that it was done for a purpose not contemplated in the original grant. This commniercial power has been employed for the purposes of prohibition, reciprocity, retaliation, and revenue —sormetimes, also, to encourage domestic navigation and manufactures, by bounties, discriminating duties, and special privileges and preferences, and to regulate intercourse, with a view to mere political objects; and the right to do so has been sustained by the unequivocal voice of the nation."' In December, 1807, under the administration of MiIr. Jefferson, an embargo act was passed. It provided "That an embargo be laid on all ships and vessels in the ports and places within the limits or jurisdiction of the United States, cleared or not cleared, bound to any foreign port or place; and that no c(leatrance be furnished to any ship or vessel bound to such foreign port or place, except vessels under the iimmediate direction of the President of the United States." 2 Under the power "to regulate commerce," Congress thus passed a law prohibiting every American merchant vessel from leaving port; and this, not for a limited period, but without limitation of time. It was repealed, however, in March, 1809, the act going into effect in June of the same year. An act to prohibit the importation of certain goods frol Great Britain and her colonies was passed in April, 1806; and one to interdict the commercial intercourse between the United States and Great Britain and France was passed in March, 1809. For the fiscal year ending June 30th, 1877, the total I'iFarrar, p. 228. -2U. S. Statutes, II,.I' 451. 1. VIII. 4. NATURALIZATION. 91 value of exports was $602,475,220, and of imports $451,323,126. The power to regulate conmmerce with the Indian tribes is given to Congress. The exclusive right of pre-emption to the Indian landls is with Congress, and neither States nor individuals can purchase lands frolm the Indians. An Indian tribe is not a foreign nationl but a people in a condition of dependence or pupilage, sustaining to the United States the relation of a ward to a guardian. Clause 4.- To estabiish a uniformn rule of naturalization, and uniform laws onl the subject of bankrujptcies th'oglyhout the United States. Naturalization is the conferring of citizenship. By it an alien, or foreigner, is made a citizen. Neither the Constitution nor any act of Congress defines citizenship. The Fourteenth Amendment declares who are citizens, but gives no definition of the term. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States wherein they reside." " Citizens, under our Constitution and laws, means free inhabitants born within the United States, or naturalized under the laws of Congress." (Kent.) "A citizen is a member of the body politic, bound to allegiance on the one side, and entitled to protection on the other." (Attorney-General Bates.) Citizens are either native-born, or naturalized. Every person born in the country is, at the moment of birth, prima faccie a citizen. An alien can become a citizen only by compliance with the rule of naturalization prescribed by Congress. On the twenty.fourth day of June, 1776, the Continental Congress resolved, "That all persons abiding in any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, 92 THE CONSTITUTION. 1. VIII. 4. and are members of such Colony." This resolution was passed after the Resolution of Independence had been decided upon in Committee of the Whole. This is supposed to have been the lawv until March, 1781, when the Articles of Confederation went into effect, in which jurisdiction over the subject was left to the individual States. The objections to giving each State the power to frame naturalization laws for itself are obvious. One State might confer the rights of citizenship after a residence of one year, another after two years, and another after ten; yet the Constitution provides that, "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." There was no difference of opinion in the Convention as to the propriety of giving to Congress the exclusive control of the matter. In 1790, Congress passed an act requiring two years' residence before a foreigner could become a citizen. In 1795, the time was extended to five years, and in 1798, it was extended to fourteen years. But in 1802, it was reduced to five years, which is the time now required. The mode of naturalization requires, first, that the alien shall make, at least two years before his admission-it was three years by the act of 1802, but changed to two in 1824-a declaration, on oath, of his purpose to become a citizen of the United States, and to renounce all allegiance to any foreign prince or state; secondly, that when he applies for admission he shall declare, on oath, that he will support the Constitution of the United States, and doth renounce all allegiance to any foreign prince or state; thirdly, that the court admitting him shall be satisfied that he has resided five years within the United States, and one year in the state or Territory where the court is held, and that he has behaved as a man of good moral character. The children of persons duly naturalized, who were under twenty-one at the date of such naturalization, 1. VIII. 4. NATURALIZATION. 93 shall be considered citizens, if residing in the United States. An alien, coming to this country when a minor, 0who shall have resided in the United States three years next preceding his arriving at the age of twenty-one, and who shall have continued to reside therein to the time of his application, may, after he arrives at the age of twenty-one, and after he shall have resided five years, in the United States, be admitted a citizen without the previous declaration. A woman who might lawfully be naturalized under the existing laws, married to a citizen, shall be deemed a citizen.' The children of citizens of the United States shall be considered citizens, tlhouo'h born abroad. If an alien who has made his declaration of intention to become a citizen die before he is actually naturalized, his widow and children shall be considered as citizens upon taking the oaths prescribed by law. No alien, who shall be a native citizen or subject of any country with which the United States shall be at war at the time of his application, shall be then admitted to citizenship. By act of July 17th, 1862, a soldier of the age of twenty-one years and upward, regularly discharged from the army of the United States, may be admitted to citizenship without a previous declaration of intention, and with a single year's residence. The admission to citizenship of those who have been subjects of other governments, implies the right of expatriation. This right has been denied by some of the European states, and the claim maintained that American naturalized citizens still owe allegiance to the countries where they formerly resided. In July, 1868, an act of Congress was passed, expressly declaring the right of expatriation, and that "All naturalized citizens 1 U. S. Statutes, X, 604. 94 THE CONSTITUTION. 1. VIII. 4, of the United States, while in foreign states, sl-hall be entitled to, and shall receive from this governmlent, the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances." Within a few years treaties have been made by thle United States with a number of other nations, in which provision is made for the mutual naturalization of citizens, thus recognizing the right of expatriation. A treaty of this kind was made with Prussia and Bavaria in 1868, with Belgium and Hesse in 1869, with Great Britain and Wurtemburg and Baden in 1870, with Austria in 1871, and with Sweden and Norway in 1872. Though the Constitution gives to Congress the-whole control of the subject of naturalization, with no limitation as to those Awho might be admitted to citizenship, every law enacted, from 1790 to 1870, restricted it to whites. By act of July 14th, 1870, it was provided: "That the naturalization laws are hereby extended to aliens of African nativity, and to persons of African descent." As the original statute limited naturalization to white aliens, and the act of 1870 extended it to those of African descent, the question has arisen wNaether the Chinese Fmay be naturalized under the present law. In April, 1878, Judge Sawyer of the United States Circuit Court decided this adversely, holding thlat Cllinamnen are not "white" in the meaning of tlhe statute. Mr. Curtis, in his History of the Constitution, says, "the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national authority an efficient practical control over the States, in respect to the political rights to be conceded to persons not natives of the country." In a note he says: "I have called the naturalization power a practical control upon the States in the matter of suffrage. It is indi 1. VIII.. 4 NATUIALIZATION. 95 rect, 1but it is effectual; for I believe that no State has ever gone so far as, by express statutory or constitutional provision, to admit to the right of voting persons of foreign birth who are not naturalized citizens of the United States." Mr. Curtis is, doubtless, right in his opinion that an alien ought not to be allowed to vote; hut he is wvrong in the statement that no State has extended the right of voting to persons of foreign birth not ntaturalized. In a number of the States this right is enjoyed, as in Indiana, Michigan, and Wisconsin. The Constitution of Indiana permits an alien to vote who has been one year in the United States and six mlonths in Indiana, and who has declared his purpose to become a citizen of the United States. The new Constitution of Illinois restricts suffrage to citizens of the United States. By the common law, an alien could not hold real estate; and in some of the States a special act of the legislature is necessary to enable an alien to hold such property. But other States have provided by statute that no differenece in this respect shall exist between an alien and a citizen. Naturalization removes the disabilities of alienage, and confers, with one or two exceptions, all the rights and privileges pertaining to the native-born citizen. A naturalized citizen can not hold the office of President or Vice-President of the United States, nor can he be a Representative or Senator in Congress till he has been a citizen for a term of years. While this clause of the Constitution authorizes Congress to "establish a uniform rule of naturalization,'' and such a rule has been established, Congress has exercised the power of granting naturalization without regard to the rule. Foreign territory has repeatedly been incorporated into the Union by treaty and other1 History of the Constitution, II, p. 202. 96 THE CONSTITUTION. 1. VIII. 4. wise, and the inhabitants, of whatever race or description, clothed with the rights of citizenship. The President and Senate have thus naturalized whole communities, without reference to the sections of the act prescribing the mode of naturalization. So Texas, with all its people, was admitted into the Union by joint resolution of Congress. As the general government has thus naturalized whole masses of people without any specific authority, the grant to establish a uniform rule has not been considered as exhausting the power of Congress over the subject. In 1870, Congress passed a stringent law to punish crimes against the naturalization laws. Great frauds had been committed in some of the cities in the issue of naturalization papers, thus leading to the casting of many fraudulent votes. Bankruptcey. —According to English usage, the term bankrtupt was limited to traders who could not or would not pay their debts, while the word insolvent was applied to persons not engaged in trade. This distinction was recognized in the first law passed by Congress on the subject, April 4th, 1800. It refers to'"merchants, bankers, brokers, underwriters," etc. But the law of August 19th, 1841, makes no such limitations, but refers to "'all persons owing debts." The same is true of the recent law, passed MIarch 2dl, 1867. Its langllage is, "If any person owing debts," etc. The popular usage in the United States makes the words barnkrutpt and insolvent synonymous, and applies them to persons not engaged in trade as well as to traders. Strictly, a person is insolvent who is not able to pay his debts. He becomes a bankrupt when, on his own petition, or the petition of one or more of his creditors, he is declared to be such by the proper law officer, called a Register in Bankruptcy. Insolvency thus naturally precedes bankruptcy. A man seeks to avail J. VIII. 4. BANKRtUPTCY. 97 himself of the bankrupt act because he is insolvent, and many are insolvent who are never adjudged bankrupts. The Constitution gives to Congress the power to pass uniformI laws on the subject. Prior to the adoption of the Constitution the power was exercised by the several States. Three bankrupt laws have been enacted by Congress: the first, April 4th, 1800, repealed December 19th, 1803; the second, August 19th, 1841, repealed MIarch 3d, 1843; the third, March 2d, 1867, and repealed in April, 1878, to take effect September 1st. Thus bankrupt laws have been in force only sixteen years in about ninety. Some of the States have had laws in regard to insolvency, which have been for the relief of unfortunate debtors. It has been held that the States might pass laws on thle subject, provided they did not contravene the Constitution of the United States, or the provisions of any law of Congress in force at the time. A State might thus pass laws releasing the person of the debtor from imprisonment; or releasing property which he might acquire from debts which he should contract aRfter the passage of the law. But a State could not release a debtor from debts already incurred, nor could it pass laws affecting the citizens of other States. Congress, however, is subject to no such limitation. While the Constitution prohibits States from passing laws which impair the obligation of contracts, there is no such prohibition on Congress. It has been said that a bankrupt law is intended primarily as a renmedy for the benefit of creditors; while an insolvent law is for the benefit of the debtors. The wordc banlckript formerly carried with it the sense of an offender. Thus the law of 1800 refers only to involuntary bankruptcy; the creditors petitioning that the debtor may be declared a bankrupt, and l his property be divided among his creditors. The idea of fraud C. G. 9. 9'8 THE CONSTITUTION. 1. VIII. 4. on the debtor's part is implied in the wording of the statute, and, as before said, that law applies only to traders. The law of 1841 provides for voluntary as well as involunta ry bankruptcy, and the provisions are applicable to any person owing debts which he is unable to pay. The sallle is true of the recent law. Most of its provisions refer to voluntary bankruptcy. In all the laws an allowance is made to the debtor who is adjudged a bankrupt. In the law of 1800 the amount depended upon the proportion of his debts which he was able to pay. If this was less than fifty per cent, the allowance could not exceed three hundrecl dollars and wearing apparel. If fifty per cent of his debts could be paid, he was allowed five per cent, but the allowance could not exceed five hundred dollars. If seventy-five per cent of d(ebts was paid, he was allowed ten per cent, provided the allowance did not exceed eight hundred dollars. The law of 1841 exempted furniture and other necessary articles not to exceed three hundred dollars, also the wearing apparel of the bankrupt and his fai-ily. The law of 1867 makes the limlit five hundred dollars, and such other property as may be exempted from sale or execution by the laws of the State or of the United States. The bankrupt, after the various requirements of the law have been complied with, receives a "discharge" froin his debts. The three laws differ somewhat as to the influence which the creditors may exert to prevent this discharge of the bankrupt from his debts. The law of 1800 required that two-thirds of the creditors —including both the number of the creditors and the value of their claims - should give their assent. The law of 1841 provided that a discharge should be given unless a majority of the creditors in number and value should dissent therefrom in writing. That of 1867 provided that " lo discharge shall be 1. VIII. 4. BANKRUPTCY. granted to a debtor whose assets shall not be equal to fifty per cent of the claims proved against his estate upon which he shall be liable as the principal debtor, unless the assent in writing of a lnajority in number and value of his creditors" be given. It provides also that any creditor opposing the discharge may present to the court the grounds of his opposition, but the court shall decide. It is to be feared that debtors, in our country, are released too easily from their obligations.'"In England, bankruptcy is a more serious matter. The bankrupt not only loses credit; he also, to a great extent, loses caste.: ~ In France, the lot of the bankrupt is still more severe; not only does he lose his social position, but the law prevents him from engaging in any other business on his own account till he has redeemed his oultstandiing obligations." 1 But even the English laws are far too lenient, according to the opinion of an eminent writer. "It is seldom difficult for a dishonest debtor, by an understanding with one or nmore of his creditors, or by imeans of pretended creditors set up for the purpose, to abstract a part, perhaps the greatest part, of his assets froml the general fund through the fornms of the law itself. -* -. ~ To have been trusted with money or money's worth, and to have lost or spent it, is zzrimca cfacie evidence of something wrong, and it is not for the creditor to prove, ivwhich he can not do in one case cut of ten, that there has been criminality, but for the debtor to rebut the presumption by laying open the whole state of his affairs, and showing either that there has been no misconduct, or that the misconduct hlas been of an excusable kind."2 The distinction between a legal obligation and a 1Bowen's American Political Economy, p. 211. 2Miill's Political Economy, 11, pp. 473, 476. 100 THE CONSTITUTION. I. VIII. 5. moral onle must not be overlooked. The law may discharge the bankrupt frolm his debts, but there still rests upon him the moral obligation to satisfy the claims of his cleditors. The legal discharge puts him in a position to accumulate again, and thus furnishes him the opportunity to provide the nmeans with which to pay his debts. Some niake this right use of the advantage which the law gives them, but many regard the legal discharge from their debts as a release also from their moral'obligations. Bankruptcy is a test, though a severe one, of a man's real character. Clause 5.-To coin' monney, egttlate the value thereof and of foreign coin, ancl fix the standard of weights cntd m3easures. All civilized nations use gold and silver for money. To coin money is to mold the metal into the required form, and to give to it the stamp of the government. The power to coin money is an attribute of sovereignty, and is therefore properly placed with the general government. Without doubt, Congress would have possessed the power had the Constitution contained no specific grant to this effect. A subsequent section prohibits the States from coining nmoney. Under the Articles of Confederation the power of coining money was possessed by the States and Congress jointly, though Congress had the "sole and exclusive right and power of regulating the value of coin struck by their own authority, or by that of the respective States." By act of April 2d, 1792, Congress made provision for issuing money by the establishment of the Miint. This was located at Philadelphia, where Congress held its sessions till 1800, and it has never been removed from that city. Branch Mints have been established at New Orleans; Clharlotte, N. C.; Dablonega, Ga.; San Francisco, Cal.; Carson City, Nevada; and Dallas City, i. VIII. 5. POWER TO COIN TONEY. 101 Oregon. Assay offices have been established at New York, and at Boise City, Idaho. By act of February 12th, 1873, Mints are established at Philadelphia, San Francisco, Carson, and Denver; Assay Qfices at New York; Boise City, Idaho; and Charlotte, N. C. The coinage act of 1792 made our system bi-metallic; both gold and silver coins were made real money. The gold coins were three: the eagle (of the value of ten dollars), the half-eagle, and the quarter-eagle. The silver coins were five: the dollar, the half-dollar, the quarter, the dime (written " dclisme" in the statute), and the half-dime. All these were legal tender in payment of all debts. There were also two copper coins which Aere subsidiary, or token, money: the cent and the half-cent. The coins both of gold and silver have a simall fraction of alloy, and the alloyed metal is called standclrd gold or silver. The weight of the coin is thus expressed in the standard mIetal, while its value depends entirely upon the amount of pure metal which it contains. In the gold coins made under the act of 1792, there were 27 grains of standard, and 24.75 of pure, gold to the dollar; and in the silver coins, 416 grains of standard, and 371.25 grains of pure, silver. Gold was thus estimated to be worth fifteen times the same weig'ht of silver. In 1834 an ounce of gold had become worth considerably more than fifteen ounces of silver, and as a consequence the gold coins were melted up and sold as metal. In order to retain both m-etals in circulation as money, it was necessary either to reduce in weight the gold coins, or to increase the silver. A little reflection will show that in such cases the metal wA-hich is undervalued must ll:ways be reduced; the one tlhat is overvalued being really the standard. A reduction of something more than six per cent was accordingly made in the weight of the gold coins. In 1837 thle 102 THE CONSTITUTION. 1. VIII. 5. alloy of both mnetals w\as fixed at one-tenth; malking, with the change of 1834, the dollar to contain 25.8 grains of standard, and 23.22 grains of pure, gold, or 412.5 grains of standarld, and 371.25 grains of pure, silver. This reduction in the gold coins chalnged the ratio of gold to silver from fifteen to one to sixteen to one. But presently the equilibrium was again disturbed, silver having become worth more tthan the oine-sixteenth part of gold. Thlis was owing, in part at least, to the increased production of gold in the Australian and Californian mines. If both silver and gold are to be retained as full legal tender, the silver coins must be reduced ini weighlt as those of gold were in 1834. There was anotlher method, however-to give up the bi-metallic systerm; to make gold alone the legal standard, and have the silver coins subsidiar7y. This was what the government determined upon; and in 1851 the Secretary of the Treasury recommended tllat the silver coins be reduced in weight, and be made legal tender for small sunms only. A bill was accordinglTy prepared which became a law February 21, 18,3, providing that two half-dollars, four (luarters, etc., should contain 384 grains of standard silver, instead of 412.5; and that these coins should be a legal tender for only five dollars. The silver dollar was not mentioned in the act, and so remained as a nominal coin, but it formed from that time no part of the circulating money of the country. In this great monetary change the United States followed the example of England, where gold was a-dopted as the only standard in 1816, silver being a legal tender for only forty shillings. Silver was thus practically demonetized in 1853, and from. thalt time was used only as change or token money. In 1873 a general coinage act was passed, which prohibited the coining of all coins excpt those enumerated in the act. As the silver dollar was not 1. VIII. 5. AMERICAN COIN. 103 named in the list, this legislation completed the demonetization of silver, and declared that the gold dollar "shall be the unit of value." From 1792 to 1875 the ratio of the metallic values of gold and silver had ranged between fifteen and sixteen to one. But in the latter year silver began to decline in value, so that in July, 1876, the silver in the old dollar of 412.5 grains was worth only 79}- cents. There wvere also great fluctuations in its value, the variation amounting to twenty-five per cent within a period of five months. About this time the question of recoining the silver dollar, and rmaking it again a full legal tender, began to hbe agitated, and by thle act of February 28, 1878, it was finally done. The bill was vetoed by President Hayes, but was subsequently passed by the requisite majority in each House. The act plovidecl for a monetatlry convention of representatives from different nations to agree, if possible, upon a ratio of value between silver and gold. Such an agreement among the leading nations mlight perhaps make feasible the concurrent use of both gold and silver as full money; without it, one metal would probably soon drive the other out of circulation. Besides gold and silver coins, we have five-cent and three-cent pieces made of copper and nickel, aCnd tw(acent and one-cent pieces of copper. The tendency of the government to overvalue the cheap coins used for change, is shown in the fact that the cent issued under the acts of 1S864 and 1873 contains less than 46 grains of copper, while that of 1792 contained 264 grains. The coinage act of 1873 provides for the following coins: Gold —the dollar piece; the quarter-eagle, or two-and-a-half-dollar piece; the three-dollar piece; the half-eagle, or five-dollar piece; the eagle, or ten-dollar piece; and the double-eagle, or twenty-dollar piece. The silver coins are a trade-dollar; a half-dollar, or fifty cent piece; a quarter-dollar, or tswenty-five-cent 104 THE CONSTITUTION. 1. VTI. r[. piece; a dime, or ten-cent piece. The " ininor coins" are a five-cent piece, a three-cent piece, and a one-cent piece. The gold dollar was made the unit of value; the standard weight is 25.S grains, and tile weight of pure gold is 23.22 grains, tile alloy being one-tenth. The gold coins are a legal tender for all sunas. To the silver coins provided for by the act of 1873 we Imust add the dollar of 412.5 grains. There are thus three distinct classes of silver coins: (a) the tradedollar, (b) the dollar, and (c) the subsidiary coinshalf-dollars and smaller pieces. The trade-dollar was not intended for circulation at honme, but for trade with Japan and other Eastern nations. It nweighs 420 grains of standard silver. It is a coi'n but not mow?eJ; not even token money, as since July, 1876, it has not been a legal tender for any sum. The dollar is money proper, legally on an equality with gold. The smaller silver coins are token money, a legal tender for five dollars only. They were slightly increased in weight in 1873, and now weigh 385.8 grains, or 25 grammies to the dollar. Formerly the government made no charge for coining money, but any person might bring gold and silver bullion and have it coined free of expense. If, however, he preferred to take the value in coins at once, one-half of one per cent was deducted. Subsequently, the law provided that the cost of preparing the metal for coining should be defrayed by the person to whom the bullion belonged. In 1853 there was a srignoragye, or chargoe for coining, of one-half of one per cent; in 1873, it wias made one-fifth; and in 1875 it was wholly removed. But while there is free coinage of gold, silver is coined only for the government, as silver coins are largely overvalued; but standard silver is converted into tradedollars, or into bars, at cost. The decimal systenm for our coinage was recommended in a report of the Financier, January, 1782. In July, 1. VIII. 5. FOREIGN COIN. 105 1785, Congress resolved that the money unit of the United States be one dollar, and that the decimal system be followed. In August, 1786, they provided for the issue of two gold coins, the eagle and the halfeagle; of four silver coins, the dollar, the half-dollar, the double-dime, and the dime; and of two copper coins, the cent and the half-cent. Though the dollar was made the unit of the money system in 1785, the accounts had been kept in dollars for more than ten years. Foreign Coin. —Congress has repeatedly regulated the value of foreign coin; that is, has established the rates at which it should be received at the Custom-house for duties on goods, or in payment for the public lands. The sovereign, or pound sterling of Great Britain, is taken at $4.86x1-,% and this is to be the par of exchange between the two countries, instead of 94.444. For most of the time the coin of some foreign countries has been a lawful tender for debts and payments; but in 1857 all laws of this kind were repealed, and none have been enacted since. Under Clause 2 of the present section, which authorizes Congress to borrow money, we -have spoken of the issue of Treasury Notes. These have been issued repeatedly by the general government, the notes being of various denominations, generally redeemable in a year or other short period, though sometimes with the time of redemption left indefinite. Generally they have borne interest, but not always. They were receivable by the United States for all taxes and duties, and for public lands, and were paid out to such creditors of the government as were willing to receive them at par. In most cases they were made payable to order and were transferable by delivery and indorsement, though some were made payable to bearer, and were transferable by delivery. In 1862, and the years immediately subsequent, they were made legal tender for all debts, 106 THE CONSTITUTION. 1. VIII. 5. public and private, except interest on the bonded debt of the United States, and duties on imports. These Treasury notes are what the Constitution calls "bills of credit." The States are forbidden to "emit bills of credit," as well as to " COin money," and to " 6make any thing but gold and silver coin a tender in paymnient of debts." Tihe Constitution places the coinin g of money amnong the powers of Congress, but says nothing in regard to their issuing bills of credit, and nothing as to their making even gold and silver a legal tender. In the draft of the Constitution, as reported by the Conmmittee of Detail, Congress was authorized to "coin money and emiit bills on the credit of the United States." But the latter clause was stricken out. A suggestion was made in the Convention to prohibit the making of such bills a legal tender, but no motion to that effect was made. The Constitution, therefore, does not confer upon Cong'ress in specific terms the authority to emit bills of credit, or to make them, if issued, legal tender: nor does it prohibit the exercise of such authority. As we have seen, the government has assumed it as one of the powers of sovereignty. The question whether such notes, made by Congress legal tender in payment of debts, could be used to pay debts contracted prior to the passage of the law, has been twice before the Supreme Court. In the first case the decision was adverse to such payment; but, subsequently, it was decided in favor of it. There can be no doubt that this second decision accords with the general theory and practice of the people from the time the law was passed until the time of the first decision. During this period of some eight years, debtors tendlered and creditors received these government notes in payment of debts without protest or unwillingness. This second decision covers the whole ground, and establishes the right of the government to issue bills 1. VIII. 5. TREASURY NOTES. 107 of credit, and to make them a lawful tender for all debts, as well past as future. At the same time -it is clear that this right is one which should be exercised with the greatest caution, and only in times of extreme exigency. Some writers make no difference between coining money and issuing Treasury notes; holding that a legal tender note is as truly money, and coined money, as a silver dollar or a gold eagle. "The government paper now, 1866, forming, almost exclusively, the currency of the country, is the money of the country. It makes no pretension to being a substitute or a representative. All substitutes for noney are redeemable in that; and that is redeemable in nothing, so long as it constitutes money and is itself a legal tender for all the purposes of money."1 So Mr. Tiffany holds that the value of money arises from the government stamp. The article stamped may be gold, silver, or any thing else. "Whether the coin shall be metal, leather, parchment, paper, or any other substance, is a question of expedielncy." 2 It seenis to be much sinmpler as well as truer to say, that the present government paper, circulating as money, is a government loan- a forced loan. Every note is a promise to pay by the government. It is a note like a note of hand drawn by a privNate citizen, or a note issued by a bank. Trhe difference is, that a bank-note is a promise to pay on demand, and the promissory note of an individual is a promise to pay at some specified time, while on the government note the time is indefinite. A gold eagle has upon it the stamp of the United States, which is a guaranty that it contains so many grains of gold. It bears its value upon its face — ten dollars. But a legal tender note Farrar's Manual of the Constitution, p. 339. 2Tiffany's Treatise on Coyveinment, p. 223., 108 THE CONSTITUTION. 1o VIII. 5. does not purport to be ten dollars; it is a mere certificate of indebtedness for that amount on the part of the government to the holder of the note. "The United States will pay the bearer ten dollars." If this piece of paper were itself ten dollars, there would be no subsequent transaction requisite between the holder and the government. As between manl and man it is given and taken as in full satisfaction of debt; but he. who receives it holds it as a valid debt against the United States. When the government pays gold to its creditor, the debt is paid. When it pays him legal tender notes, it gives him a certificate of indebtedness which lie may transfer to another. If' the Treasury notes in the hands of the people are veritable nmoney, as truly so as gold, then the United States is hot indebted to those who hold them any more than it is to those who have gold eagles in their possession; and the Treasury Department should not report these Treasury notes as a part of the national debt. In authorizing Congress to "borrow money " as well as "coin money and regulate the value thereof," and in prohibiting the States from coining money and emitting bills of credit, the Constitution places in Congress the control of the whole subject of money; not only of gold and silver coin, but of all substitutes for them. This control, however, so far as it relates to the bank-note currency of the country, Congress has not chosen to exercise, except partially, until within a few years. A bank of the United States was chartered February 25th, 1791, as a fiscal agent of the government, with a capital of ten millions, and to continue twenty years. On the tenth of April, 1816, another was chartered, with a capital of thirty-five millions, to continue for the same period. Congress refused to. re-charter the first, and President Jackson vetoed the bill to renew the charter of the second. In 1841, two bills in succession were passed to establish a United States bank, but both 1. VIII. 5. BANTK-NOTE CJURRIENCY. 109 were vetoed by President Tyler. Congress also authorized the establishbment of banks in the District of Columbia. With these exceptions the charters of the banks of the country have been granted by the several State legislatures. So familiar had the people become with the currency furnished by these State banks, that when Congress passed, February 25th, 1863, the act to establish National banks, many supposed that the general government was usurping an authority which belonged to the States. On the contrary, we are forced to inquire, where did the States obtain the power to charter banks, and thus provide the paper circulation of the country? "Is not the right," says Mr. Webster, "of issuing paper intended for circulation in the place, and as the representative, of metallic currency, derived merely from the power of coining and regulating the metallic currency? Could Congress, if it did not possess tile power of coining money and regulating the value of foreign coins, create a bank with power to circulate bills? It would be difficult to make it out. Where, then, do the- States, to whom all control over metallic currency is altogether prohibited, obtain this power? 1 The States have established banks because Congress tacitly left it to them in great measure. The authority was in the general government; but, as Congress did not choose to exercise it, the State legislatures went forward in this work till such time as the general governument should see fit to provide a bank-note currency for the whole people. The act of June 3d, 1864, a substitute for that of February 25th, 1863, provided for a Bureau of Currency in the Treasury Department, at the head of which is a Comptroller. Banking associations may be formed with'Tiffany, p. 227; Story, II, 56. 110 THE CONSTITUTION. 1. VIII. 5. power to issue bills, receive deposits, loan money, and perform the ordinary functions of banks. By an act of March, 1865, amended July 13th, 1866, a tax of ten per cent was levied on the notes of State banks used for circulation after August Ist, 1866. This, of course, excluded these notes from circulation, and the present bank currency of the country consists of the notes of National banks. Tlhis circulation was at first limited to three hundred and fifty-four mlillions, and was distributed among tlle States and Territories according to wealth and population jointly; but both these provisions have been repealed. It is secured by a deposit of United Stbtes bonds in the treasury of the United States. Thie circulation of a bank can not exceed ninety per cent of the amount of bonds deposited; ranging fiom sixty per cent when the capital is three millions and over, to ninety per cent when not over half a million. The advantages of this national currency are, that the payment of the notes is guarantied by the United States, that a uniforni currency is provided, and that the notes are receivable for all dues to the United States except duties on imports. Much efilrt has been made to secure an international coinage. As the pound sterling contains 113 grains of gold, and the American half-eagle 116.1, if the latter were reduced 3.1 grains in weight, or about thirteen cents in value, the two coins would be equal in value. This would make four shillings equivalent to one dollar. So if the twenty-five-franc piece were increased about four cents, it would equal the pound sterling. These slight changes would secure uniformity in the gold coins of England, France, and the United States. Tfeiights acd Measures.-There is propriety in connecting weights and measures with money. By money we express the prices, or relative values, of all commodities, and by weights and measures we ascertain the 1. VIII. 5. AEIGHTS AND MEASURES. 111 quantities of commodities. As we need uniformity in money, so we need it in all measures of quantity; and, therefore, both subjects were committed to Congress. The importance of uniformity was urged by President Washington in his message to the first Congress; and various reports on the subject have been presented at different times. A very elaborate one was prepared by John Quincy Adams when Secretary of State, in 1821, but the recommendations were never embodied in a statute. By an act of Congress, May 19th, 1828, the brass trov pound wreight, procured by the minister of the United States at London, was made the standard troy pound of the AMint of the United States. A series of standard weights corresponding to this was ordered to be made, from the hundredth part of a grain to twenty-five pounds. In 1836 the Secretary of the Treasury was directed to cause a complete set of weights tand measures adopted as standards to be delivered to the governor of each State that a uniform standard might be established throughout the United States. The Metric System was legalized by act of Congress in July, 1866; and in 1873, and again in 1876, appropriations were made for procuring metric standards for the States. and for the construction and vNerification of standard weights and measures for the custom houses and for the several States. This is a decimal system, and its unit is a meter, which is equal to 39.37 inches. Its multiples are, the dekaimeter (10 meters), the hectometer (100 meters), the kilometer (1,000 meters), and the myriamXieter (10,000 meters). The subdivisions are, the decigmeter ( — of a meter), the ceqntimeter (ro~ of a meter), and the millimeter (0-0- of a meter). The unit of the measures of surface is the centcre, which equals one square meter. The others are the 112 THE CONSTITUTION. 1. VIII. G. are (100 square meters), and the hectare (10,000 square meters). Of measures of capacity the liter is the unit, which equals one cubic decimeter. Its equivalents are 0.908 quarts in dry, and 1.0567 in liquid measure. The other denominations are formed like those in measures of length-the dealiter, hectoliter, and kiloliter; and the deciliter, cenltiliter, and milliliter. The unit of the measures of weight is the grai., which is the weight of one cubic centimeter of water at its mnaximum density, and is the equivalent of 15.432 grains avoirdupois. Then we have, as before, the nmultiples, dekagrain, hectogramc, kilogram, myrictgram,, quintal, and millier or tonneau (2204.6 pounds); and the subdivisions, decigra1m, cenztigraq,, and mnilligram. The legalizing of this metric system is a step towards international uniformity. The advantages of the use of the same weights and measures by all civilized nations, and of the same gold and silver coins, are many and obvious; but it will be exceedingly difficult to change, in these respects, the habits of nations fixed by long usage. By act of July 27th, 1866, the Postmaster-General was required to furnish post-offices exchangingo mails with foreign countries postal balances, denominated in grams of the metric system; and, until otherwise provided by law, one-half ounce avoirdupois was to be taken as 15 grains (15 grams being equal to.529 oz). Clause 6. To provide for the pytnis/hlment of conlteifeiting the securities and curr)ent coin of the United States. The right to punish counterfeiting would follow from the right to coin money. By " securities " are meant all certificates of indebtedness, such as bonds, Treasury notes, etc. The word stock, or stocks, is often used to denote a debt due by a government on which it pays interest. Thus we say that a person holds ten thousand 1. VIII.. COUNTERFEITING. 113 dollars of United States securities, or twenty thousand dollars of Ohio stock. The general government punishes the making and also the passing of counterfeit money or securities. It is held that the States may also punish the passing of counterfeits on United States coin or securities. Congress has passed laws punishing the making, forging, or counterfeiting, and the passing, uttering, or publishing, of the coin of the country, the notes of the United States bank, the Treasury notes, the fractional currency, the notes of the National banks, the excise stamps used for internal revenue, letters patent, postage stamps, stamped envelopes, and custom-house certificates. The law now in force relating to counterfeiting the coin of the United States was passed in February, 1873. It provides that if any person, except as now authorized by law, shall make, or cause to be made, or shall utter or pass, or attempt to utter or pass, any coins of gold or silver, whether in the semblance of the coins of the United States or of foreign countlies, every person so offending shall be punished by fine not exceeding five thousand dollars, and by imprisonment for a term not exceeding ten years. The penalty for counterfeiting the "minor coins" is a fine not exceeding one thousand dollars, and imprisonment not exceeding three years. The law of June 30th, 1864, provides that if any person shall falsely make, counterfeit, or alter, or shall )pass, utter, or publish any obligation or security of the United Styates, etc., he sllhall, on conviction, be punished by fine not exceeding five thousand dollars, and by imniprisonment and confinement at hard labor not exceeding fifteen years. The act also provides that the words "obligation or other security of the United States " shall be held to include "all bonds, coupons, national currency, United States notes, Treasury notes, fractional C. G. 10. 114 THE CONSTITUTION. 1. VIII. 7. notes, checks for money of authorized officers of the United States, certificates of indebtedness, certificates of deposit, stamps, and other representatives of value, of whatever denomination, which have been or may be issued under any act of Congress." Clause 7.-To establish post-offices and post-roads. A Post-office Department was established before the Declaration of Independence. In July, 1775, the Continental Congress made provision for such a department, and Dr. Benjamin Franklin was placed at the head of it, with the title of'"Postmaster-General of the United Colonies." The Articles of Confederation gave Congress "the sole and exclusive right and power of establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office." "'By the authority of two short words,'establish postoffices,' the government have instituted an establishment employing more men, controlling more patronage, and collecting and disbursing more revenue, than sufficed, within a few years past, for the administration of the whole government."' In 1790, there were seventyfive post-offices in the United States, and the expenditure for that year was $32,140. In 1876, there were 36,383 post-offices, the mails were transported 1i36,269,708 miles, and the expenditures were $32,796,186. The expenditures exceed the receipts by more than 84,000,000. The Post office Department is under a Postlmaste(rGeneral, and three Assistant Postmasters-General. Postmasters whose compensation is less than one thousand dollars, are appointed by the Postmaster-General, and may be removed by him. In all other cases the ap1Farrar, p. 346. 1. VIII. 7. POST-OFFICES AND POST-tOADS 115 pointrnent, which is four years, is made by nomination of the President and confirmation by the Senate. This class, which numbers less than two thousand, are paid salaries. The others receive the rents from boxes, and a percentage on the sale of stamps and other office receipts. Prior to 1864 all the postmasters received their compensation in this way. Except in the city of New York, where the salary is $8,000, no postmaster receives over $4,000 a year. The salary is not expected to exceed one-half of the gross revenue of the office. The amount paid for the transportation of the mail is nearly three times that paid to the postuimasters. In a few instances the incomle of the Post-office Depalrtmlent has equaled or exceeded the expenditures. As the population of the country becomes rmore dense, the relative cost of transporting the mails may be expected to diminish. Mailable matter is divided into three classes, namely: first, letters; second, regular printed matter; third, Imiscellaneous matter. (1) Postage on letters not exceeding a half-ounce in weight is three cents. (2) On newspapers and other periodicals sent regularly once a week or oftener, the postage is two cents a pound prepaid. The matter is weighed in bulk. If sent less frequently than once a week, the postage is three cents a pound. Newspapers are carried free to subscribers in the county in which they are published. (3) Mailable matter of the third class is divided into two classes. (a) On books, catalogues, pamphlets, transient newspaplers, and periodicals, etc., the postage is one cent for two ounces or less. (b) On blank books, book manuscript, and merchandise the postage is one cent for each ounce. Of third class mailable matter no package may exceed four pounds in weight. Less than one-tenth of the mailable imatter in weight belongs to the first class. Letter postage is now three cents for any distance within the United States. Formerly the rates were much hibgher, and were different for different distances. 116 THE CONSTITUTION. 1. VIII. 7. From 1792 to 1799 there were nine rates, ranging from six cents for thirty miles and less, to twenty-five cents for a distance over four hundred and fifty miles. From 1799 to 1816 there were six rates: the lowest, eight cents for forty miles; the highest, twenty-five cents for over five hundred. During the year 1815, these rates were fifty per cent higher. From 1816 to 1845 the rates were six cents, ten, twelve and a half, eighteen and three-fourths, and twenty-five, for distances from thirty miles to four hundred and upwards. In 1845 the rates were greatly reduced in amount, and the system simplified. Under three hundred miles the postage was five cents; over that distance, ten cents. In 1851 this was changed to three cents for three thousand miles, if prepaid, and five cents if not prepaid; over three thousand miles, doulble these rates were charged. In 1863 the present'rate was establishedthree cents to any part of the United States. In 1872, postal cards were autllorized, which are carried in the mails at a postage charge of one cent each, including the cost of the card. Until 1845, letters were single or double, according as there was one piece of paper or two; since that time a letter or parcel not exceeding half an ounce has been deemed a single letter. Prior to 1851 there was no reduction for prepayment. In that year a difference of two cents was nmade, as stated above. In 1855, prepayment was required, and this continues to be the rule. Postage stamps were introduced in 1847. but did not become general till 1855, when letters Avere required to be prepaid. Stamped envelopes were furnished first in 1852. In 1855, for the greater security of valuable letters, the Postnmaster-General was authorized to establish a plan for registratior). A fee of ten cents besides the regular postage is charged for registering a letter. 1. AVIII. 7. POST-OFFIcES AND) POST-ROAD)S 117 The government takes special charge of such letters, but does not hold itself responsible if they are lost. In 1864 thle ostal oizoney-order system was established. This enables one who wishes to send money to a correspondent to do it by depositing the amount with a postmaster, and receiving an order on the postmaster of the place where his correspondent lives. A small fee is charged, ranging from ten to twenty-five cents according to the amount of the order. No order is issued for more than fifty dollars. The postmaster is entitled to one-third of the fees collected by him, and one-fourth, of one per cent of the orders which he pays. Money orders are exchanged between the United States and Canada, Great Britain and Ireland, Germany, Swvitzerland, and Italy. In 1863, the Postmaster-General was authorized to provide for the free delivery of'letters by carriers, in cases which, in his judgment, might justify it. In 1865 the system of free delivery was required to be established in every place containing a population of fifty thousand, and at such other places as might be thought best. In 1873, letter carriers were authorized in all places containing not less than twenty thousand inhabitants. The postage on drop letters is two cents in places where there is free delivery; in other places, one cent. Letters unclaimed for a certain time are advertised; if not called for, they are sent to the Dead-letter Office. Here they are opened and returned to the writers. During the year ending June 30th, 1872, there were 4,241,374 dead letters. The name and address of the writer upon the envelope secures its return to him if not called for. The franlki.ng privilege, or privilege of sending and receiving mail matter free, was formerly enjoyed by the President, Vice-President, the Cabinet officers, the Members of the Senate and House of Representatives, 118 THE CONSTITUTION. 1. VIII, 7, the Delegates from the Territories, and some others. In general, it was limited to the term of office, but Senators and Representatives could retain it till the December following the expiration of their term. To each of the first four Presidents it was voted for the remainder of his life, and subsequently it was conferred for life on all Ex-Presidents. It has also been voted to the widows of the Presidents during their lives. In February, 1873> the franking privilege was labolished, the act to take effect the first of July follonwin'g. Modifications have since been made. The act of Alarch, 1877, provides that letters and packages on government business may be sent free from the departments, and that Senators and Representatives may receive and send all documents printed by Congress. Moail Routes.-Obstruction of the mails is forbidden under heavy penalties, as is the carrying of mail matter outside of the mails by public carriers. In 1825 it was enacted, "That no other than a free white person shall be employed in conveying the mail; and any contractor who shall emuploy, or permit, any other than a free white person to convey the mail, shall, for every such offense, incur a penalty of twenty dollars." This disqualification continued for forty years; it was removed March 3d, 1865. The power to establish post-roads has been interpreted to include the power of lmaking internal improvements. In 1803, Congress authorized three per cent of the net proceeds of the sale of public lands ini the State of Ohio to be paid to that State for the construction of roads. In 1806, an act was passed for the construction of the Czcnberllactd Road- more commonly called the National Road- from the River Potomac to the Ohio. Both these acts were approved by Mr. Jefferson, as President, though in one of his messages he expresses the opinion that Congress, under the Constitution, does not possess the power of making 1. VIIi. 8. COPYRIGHTS ANI) PATENTS. 119 roads. While doubting the existence of the power, he appeared to favor an amendment to the Constitution conferring it upon Congress. As the object of granting to Congress the power to establish post-offices and post-roads was to give then-i the control of the transmission of correspondence, it is claimed that the electric telegraph should be managed by the government. The control over this agency, it is said, can be abdicated by the government with no more propriety than that over correspondence by railroad or steamboat. The subject was referred to conmnlittees in the Forty-second Congress, and favorably reported on. The plan proposed provides that telegramns be received and distributed through the postoffice, and transmitted like other postal matter by parties owning and operating the lines, and contracting to perform the service at rates fixed by Congress.' Clause 8. To p1)romiote the progress of science and uiseful arts, by secuvring, for limited tivnes, to authors and inventors the exclusive right to their respective writings and discoveries. This clause authorizes Congress to issue copyriyghts to authors, and 2patents to inventors. There is no limitation to science in the strict sense of the word, nor to the useful as distinguished from the fine arts. All books, maps, charts, mnusical compositions, engravings, photographs (or negatives), chromos, statues, etc., whatever the subject may be, are included, and so are all inventions. There are many copyrights and patents issued which promote the progress neither of science nor of the useful arts. But there can be no question as to the propriety of giving to authors and inventors the exclusive right for a limited time to their Aorks. Colpyrights.-In England authors have rights to their 1North American Review, July, 1873. 1.20 THE CONSTITUTION. 1. VIII. 8. works by conmmon law as well as by statute; but in this country the rigllt is derived entirely fiom legislation. Prior to the adoption of the Constitution, the States granted copyrights, and the first act of Congress on the subject recognized the rights thus granted. Tile first law was enacted in 1790, and gave to the authors the exclusive right to their works for fourteen years, with liberty of renewal. for a like period. In 1831 the term was made twenty-eight years, with the right to renew for fourteen years longer. If the author has died, the renewal niay be made by the widow or children. A copyright is obtained as follows: A printed copy of the title of the book, or a description of the painting or other article for which a copyright is desired, must be sent to the Librarian of Congress, and within ten days from the publication two copies of the book, or a photograph of the painting, must be sent to the said Librarian. In every copy of the book there must be entered on the title page, or the page following, the words "Copyright, 18-, by A. B." The copyright now issued by the Librarian of Congress was fornmerly issued by the Clerk of the District Court of the United States the present law having been enacted in July, 1870. In books printed early in the century, the copyright entry on the page following the title page was full and formal, sometimes covering the entire page. The copies of books and other articles for which copyrights were obtained were kept in the Department of State till 1859, when they were transferred to the Department of the Interior. In 1870, they were placed under the control of the Librarian of Congress. TWh-len the Snmithsonian Institution was established in 1846, Congress provided that a copy of every book for which a copyright was granted should be placed in the library of that institution, and another copy in the Congressional Library. These seem to have been in addition to 1. VIII. 8. COPYRIGHTS AND PATENTS. 121 thle copy deposited with the Clerk of the District Court when the copyright was obtained. In 1859 the provision as to the copy for the library of the Smithsonian Institution was repealed. Two copies are now sent to the Librarian of Congress, as stated above. During the year ending December 1st, 1877, copyrights were entered for 4,476i volumes of books, and for 3,518 pamphlets and periodicals. The whole number of copyrights entered during the year was 13,979. If there are different editions of the work issued at the same time, the two copies deposited must be of the best edition; a copy of every subsequent edition in which any substantial changes are made must also be sent. The penalty for failure to send these copies is twenty-five dollars. A copyright is assignable in law, but the assignment must be recorded in the office of the Librarian of Congress within sixty days. The mode of securing a renewal of a copyright is the same as for obtaining the original; it must be done within six months before the expiration of the first term. The subject of international copyright has been discussed with much earnestness by authors and publishers, and organizations have been formed for the purpose of securing the necessary legislation. Thus far, however, there has been no action of Congress on the subject. Patents. -Provision was made by Congress in 1790 for giving to inventors the exclusive right to their discoveries. From that time to the present, patents have been issued, the number increasing each year. At first, applications for patents were made to the Secretary of State, and the decision was made by a Board, consisting of the Secretary of State, the Secretary of War, and the Attorney-General. In 1793 the Secretary of State alone was authorized to issue patents. In 1836, an office, or bureau, was created in the DepartC. (G. 11. 122 THE CONSTITUTION. 1. VIII. 8. ment of State, under the name of the Patent Office, the chief officer being styled the Commissioner of Patents. From that time, patents have been issued by the Commissioner. The Patent Office was transferred to the Department of the Interior in 1849, when this latter department was created. Originally patents were signed by the President of the United States; then by the Secretary of State and the Commissioner of Patents; now by the Secretary of the Interior and the Commissioner. The term for which a patent was valid was fourteen years originally, but in 1870 it was made seventeen years. It is competent for Congress to extend the time of a patent, whether application be made before or after the expiration of the original term. In 1836 the power to extend for seven years if the patentee had failed to receive a suitable return for his time, ingenuity, and expense, was conferred on a Board, consisting of the Secretary of State, the Commissioner of Patents, and the Solicitor of the Treasury. But such extension must be granted before the expiration of the time for which the patent was originally issued. Since 1848 the power to extend in such cases has been exercised by the Commissioner. Prior to the formation of the Constitution the issuing of patents, ats well as the granting of copyrights, was lodged in the several States. But while copyrights were granted, at least in some of the States, by general legislation, no patents were issued except by special legislative acts.l When application is made for a patent, a model of the article is required to be deposited in the Patent Office, There has gradually been gathered in this way a vast collection of nmodels and specimens, making the Patent Office at Washington a place of resort to (C'urtis, II, p. 339. 1. VIII. 8. PATENTS. 123 most who visit the national Capital. In 1836 the building in which these were contained was burned, and many of the models were destroyed; hut Congress made an appropriation of one hundred thousand dollars to procure duplicates of those which were the most valuable. The present buildings extend over two entire blocks of the city of Washington. Patents may be granted for designs and tracde-viarks, as well as for machines. Designs may be patented for three years and six months, for seven years, or for fourteen years; and trade-marks may be patented for thirty years. The applicant for a patent must make oath that he believes himself to be the original inventor of that for which he seeks a patent; he must file a full description of the same, and. in all cases admlitting it, lmust present drawings and a model. A prior patent in a foreign country does not debar him from receiving a patent here, provided the invention shall not have been introduced into public use in the United States for more than two years prior to the application. If one has made a discovery or invention, but wishes to mature it, he may file a caveat, setting forth its character, and praying for protection of his right until he can mature the invention. Should another apply within a year for a patent covering the same ground, notice is goiven to the first applicant, who must file his description, etc., within three months. The fees in the Patent Office are, on filing the application for a patent, fifteen dollars; on issuing the patent, twenty dollars; on filing a caveat, ten dollars; on application for extension of a patent, fifty dollars; on granting an extension, fifty dollars. The fees for patents for designs are, for three years and a half, ten dollalrs; for seven years, fifteen dollars; for fourteen years, thirty dollars. The fee for protection for a trade-mark is twenty-five dollars. The first law regulating patents, 124 THE CONSTITUTION. i. VIII. 8. passed in 1790, made the fees very small-about four dollars. But in 1793 it was provided that every inventor should pay thirty dollars before presenting his petition. The receipts of the Patent Office are usually more than the expenditures, though there are exceptional years. Over 330,000 applications for patents have been filed since 1836, and about 219,000 patents have been granted. Comparing the years 1840 and 1877, we find a very remarkable increase. Thus in 1840 the applications were 765, and in 1877 the number was 20,308; in 1840, patents issued, 473; in 1877 the number was 13,619; in 1840 the caveats filed were 228; in 1877 they were 2,809; in 1840 the receipts and expenditures were, respectively, $38,056 and $39,020; in 1877 they were $732,342 and $613,152, the excess of the receipts over the expenditures being $119,190. The Commissioner of Patents makes an annual report, giving, among other things, a list and description of all patents granted, with the names of the patentees. Drawings of all the inventions are also published. These Patent Office Reports now form many volumes, and constitute a record of the industrial progress of the country. For a number of years prior to 1863, one volume of the annual report was devoted to Agriculture; but in 1862 a Department of Agriculture was established, with a Commissioner at the head of it; and an annual report on Agriculture is issued by this Commissioner. In 1871 the publication of the specifications and engravings was discontinued, in connection with the annual report of the Commissioner of Patents, and a weekly Gazette substituted. Patents are assignable, but the assignment must be recorded in the Patent Office. All patentees, and those making or selling patented articles under them, must cause the word " patented," with the date of the patent, to be affixed to each article, that the public may have notice of its character. 1. VIII. 9. PIRACY. 125 Clause 9.-To constitute tribunals inferiori to the S1upreme Court. The Constitution itself provides for the Supreme Court (Art. III), but leaves to Congress the question of the inferior courts. Congress, at its first session, established two tribunals inferior to the Supreime Court, called the Circuit and District Courts; and these three still constitute the judiciary of the United States. In 1855 the Court of Claims was established, which hears and determines claims on the government. All these will be considered under Article III. Clause 10. — To define angd punish pir'acies and felonies connnitted on the high seas, and offenses cagainst the law of nations. Piracy is robbery at sea. The common law recognizes and punishes it as an offense against the universal law of nations; a pirate being deemed an enemy of the human race. The Continental Congress, in 1781, declared death to be the punishment for piracy. In 1790 an act was passed by Congress providing for the same punishment. In 1820 Congress passed an act which declared it to be piracy to land on a foreign shore and seize negroes or mulattoes, or decoy them on board vessels, with intent to make them slaves. At common laws that was considered felony which occasioned the forfeiture of lands and goods, and for which the punishment of death might also be inflicted. Capital punishment does not necessarily enter into the definition of felony, yet the idea of felony is so generally connected with that of capital punishment that it is difficult to separate them.' By high seas is mneant, in genieral terms, the ocealn, including the waters along the coast beyond low-water mark. 1Tiffany, p. 241. 126 THI- CONSTITUTION. 1. VIII. 11, A nation is responsible for its citizens, and must punish them, if they interfere with the rights of other nations; otherwise there will be retaliation, and friendly relations will be disturbed. The Constitution, therefore, gives to Congress authority to define and punish offenses against the law of nations. Clause 11. —To declare ware, grant letters of marpque and reprisal, and mcake rules conlcerlning capturiges on landl and water. The power to declare war belongs to the sovereignty of a nation. It is one of the highest acts which any government can perform, involving interests of the greatest importance, and affecting the property and lives of the people. In Great Britain the power to declare war is the exclusive prerogative of the Crown. Mr Pinckney proposed in the Convention that it should be in the Senate; so Mr. Hamilton also; Mr. Butler proposed that it should be in the President. In one of the two wars in which the United States has been engaged there was a formal declaration of war; in the other, war was recognized as already existing. Thus, in 1812, it was enacted, "That war be and the same is hereby declared to exist between the United Kingdoin of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories."' And, in 1846, the preamble of the Iact of Congress says, " Whereas, by the act of the Republic of Mexico, a state of war exists between that governmient and the United States." In 1798 Congress declared the United States to be freed and exonerated from the stipulations of the treaties with France, because that power had repeatedly violated the treaties 1The act is entitled " An Act declaring war between the United Kingdom of Great Britain, etc., and the United States of America and their territories." 1. VIII. 11. THE POWER TO DECLARE WAR. 127 and refused all reparation. A few days later an act was passed, authorizing the President to instruct the commanders of armed vessels to capture any French armed vessels. In the case of Great Britain only, was there a formal declaration of war by Congress. In the other cases a state of hostilities was recognized, making hostile measures on our part necessary. The war of the Southern Rebellion was neither declared nor formally recognized, although hostilities commenced some months before Congress met. The rebellion as an existing fact is scarcely alluded to in any of the several acts passed at the special session convened in July, 1861. The language is hypothetical: " Whenever it shall, in the judgment of the President, by reason of unlawful combinations of person's in opposition to the laws of the United States, become impracticable to execute the revenue laws," etc. "If two or more persons within any State or Territory shall combine together to overthrow the government of the United States," etc. There is an act to provide for the payment of the militia and volunteers called into the service of the United States, but against what enemy the act does not say. The most distinct recognition of the rebellion is in a section of an act to increase the military establishment of the United States. It is declared that this increase is "for service during the existing insurrection and rebellion." So in the preamble to an act for calling out the national forces, passed March 3d, 1863. The word mar/tque signifies landmark or boundary, and letters qf acrqtue denote the commission issued to a private person, authorizing him to pass the frontier and take the persons or property of the subjects of another nation from which injury has been received. The word reprisal, meaning a retaking, indicates the purpose for which the commission is issued. A vessel bearing such letters is called a privateer. Without this authority 128 THE CONSTITUTION. i. VIII. 12. the seizing of men and goods would be piracy. The law of nations recognizes the right of one nation to take this mode of obtaining redress firom another. Oftentimes letters of marque and reprisal are issued before a declaration of war. They may prevent a war, or they may occasion it. The rules concerning captures are not limited to those made beyond the nation's territory, but apply also to the property of enemies found within the territory. The Supreme Court has decided that these rules are an express grant to Congress of the power of confiscating enemy's property found within the territory at the declaration of war. Clause 12. — /o raise and support armies, but no appropriation of money to that use shall be for a longer term than two years. Under the Articles of Confederation, Congress could declare war, but they could not raise armies. They had power only "to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants of such State." 2 "The experience of the whole country, during the Revolutionary War, established, to the satisfaction of every statesman: the utter inadequacy and impropriety of this system of requisition. It was equally at war with economy, efficiency, and safety." 3 This clause gives the power to raise and support a standing army, or "'the military peace establishment of the United States," and the large armies necessary in times of war. Three times in our national history, since the war of the American Revolution, has it been necessary to call out large bodies of men: in the war with Great Britain in. 1812, in that with Mexico in 1 8 Cranch, p. 110. 2 Articles of Confederation, Art. IX. 3Judge Story. 1. VIII. 12. THE REGULAR ARMY. 129 1846, and during the late rebellion. The number of men called into the service of the government in the war of the rebellion was vastly greater than in either of those preceding. There were over a million of men in the Army of the United States at the cl'ose of the rebellion. There was a small standing army at.the time the Constitution was formed. The organization has been continued to this time. By act of Congress of July, 1866, the regular army was to consist of five regiments of artillery, ten of cavalry, and forty-five of infantry. Of general officers there were one General, one Lieutenant-General, five Major-Generals, and ten BrigadierGenerals. The army has been'largely reduced since 1866. In 1871 it consisted of 30,000 men, and in 1874 it was reduced to 25,000. It was also provided that no new (appointments should be made of Major-Generals or of Brigadier-Generals till the number should be below three and six respectively; and that then the number of Major-Generals should not exceed three, or that of Brigadier-Generals exceed six. It was also provided that the offices of General and Lieutenant-General should cease with the present officers. The office of Lieutenant-General was created in 1798, and General Washington received the appointnient. The office of General was created in 1799, and abolished in 1802. In 1855, the office of LieutenantGeneral was revived that it might be conferred by brevet on General Winfield Scott. In 1864 General Ulysses S. Grant was appointed Lieutenant-General, and became the highest military officer under the President. The office of General was revived in 1866, and General Grant was appointed to the office. Major-General William T. Sherman was then appointed Lieutenant-General. On the election of General Grant to the Presidency, Lieutenant-General Sherman was made General, and Major-General Philip H. Sheridan LieutenantGeneral. 130 THE CONSTITUTION. 1. VIII. 13. The appropriation is limited to two years, which is the Congressionall term. This gives the virtual control of the army to the people. Clause 13.-T-o p7rovide and mcaitaint a nIavy. There was no opposition in the Convention to giving to Congress this power, but in some of the State Conventions omuch hostility was manifested. The Department of the Navy was not established till 1798; the general charge of the naval forces and the matters pertaining to naval affairs having been up to that time committed to the Department of War, which had been established in 1789. It was not till the brilliant naval achievements during the war with Great Britain that all jealousy disappeared, and the desire to lmake our navy equal to that of other nations was manifested by the vwhole nation. With such an immense sea-coast on both oceans, and with so great a commerce with all nations, the United States needs a strong naval force for the protection of our maritime interests. The Navy Department has been, from its establishment in 1798, under the charge of a Secretary. In July, 1861, provision was made for an Assistant Secretary, but the office was abolished in March, 1869. By the report of the Secretary, in November, 1876, the Navy consisted of 146 ships of all classes. Exclusive of howitzers and gatlings, they carry 1142 guns. Of these vessels, 75 are in actual use. The number of persons authorized to be enlisted into the Navy, including seamen, lalndsmen, and imechanics, as also apprentices and boys, is seven thousand five hundred. The Marine Corps, which consists of those who are trained to serve on land as well as on vessels of war, numbers twenty-five hundred privates, with nearly seven hundred officers, including musicians. The highest officer of the Marines has the rank and pay of a Brigadier-General. I. VIII. 14. THE NAVY. 131 The officers of the Navy are as follows, with their rank corresponding to that of officers of the Army: Navy. Arvmy. Admiral. General. Vice-Admiral. Lieutenant-General. Rear-Admi ral. Major-General. Commodore. Brigadier-General. Captain. Colonel. Commander. Lieutenant-Colonel. Lieutenant-Conmmander. Major. Lieutenant. Captain. Master. First Lieutenant. Ensign. Second Lieutenant. Until 1862, the office of Captain was the highest recognized by law. A Captain commlnanding two or more ships was called a Commodore by custom, and this title, when once applied to an officer, was usually continued.' In 1862 the offices of Rear-Admiral and Commodore were created, in 1864 that of Vice-Admiral, and in 1866 that of Admiral. By act of January 24th, 1873, Congress provides that when the offices of Admiral and Vice-Admiral become vacant, the grades shall cease to exist. The present Admiral (1877) is David D. Porter; and the Vice-Admliral, Stephen C. Rowan. There are twelve Rear-Admirals and twentyfive Commodores. Clause 14. -To'mnake rulcs' for the governnment antd regulation of the land and naval forces. The power to declare and carry on war involves that of providing armies and navies, and that of governing the forces thus raised. Rules for the government of these forces have been made by Congress in accorcdance with this clause. In 1806,2 an act was passed 1Gillet's Federal Government, p. 335. 2April 10th. 132 THE CONSTITUTION. 1. VIII. 14. establishing the Rules and Articles of War for the government of the Army. Every officer nmust subscribe these articles, in number a hundred and twenty-eight; they are read to every recruit at the time of enlistment, and they are read and published every six months to every garrison, regiment, troop, or company. An act for the government of the Navy was first passed in 1799,1 but it was repealed the next year and a new one passed.2 The rules now in force were enacted in 1862.3 For minor offenses the commanding officer may inflict such punishments as reprimand, suspension from duty, arrest or confinement, neither of which shall continue longer than ten days, except a further period be necessary to bring the offender to a Court Martial. For greater offenses, both in the army and navy, a trial is held before a Court Martial, and such punishments may be inflicted as the Court may pro.nounce, even to the taking of life. Until 1850, flogging was one of the punishments inflicted in the navy, but by act of the twenty-eighth of September of that year it was abolished in the navy and on board vessels of commerce. Flogging in the army was prohibited in 1812, but in 1833 an exception was made in the case of desertion. In 1861,4 however, it was abolished. Having thus two classes of Courts, civil and military, each of which is clothed with authority to sentence to the severest punishmbents, the country will be liable to a conflict of jurisdiction, especially in time of war. But it must not be forgotten that the two Courts are alike established by law. They owe their authority to the same source. The Court Martial has no power save what is given to it by Congress in accordance iwith the Constitution, and within its own jurisdiction its power is as legitimate las that of the civil Court. I March 2d. 2April 23d, 1800. 3 July 11th. 4 August 5th. 1. VIII. 15. THE MILITIA. 133 Clause 15.-To plrovide for callitng for'thA the militia to execute the laws of the Union, suppiress insurrections, and repel invasions. Clause 16. —To provide for organizing, Carming, cnd disciplinling the militia, and fori goverving sutch plart of them as may be employed in the service of the Uniited States, }reserving to the States respectively the acppoinltmnent of the ogicers, andc the authority of tratilng the mnilitia acco)rding to the discipline 2prescribed by Congress. The militia are distinguished from the regular army. They are the citizen soldiers of the country, liable to be called out in cases of emergency. These clauses virtually give Congress the whole power in regard to the militia. In 17921 an act wias passed "to provide for the national defense by establishing a uniform militia throughout the United States." It provided for the enrolling of "every free able-bodied white male citizen of the respective States" between the ages of eighteen and forty-five. The act of March 2d, 1867, provided for the enrolling of negroes by striking out the word "white" from the act of 1792. In 1863,2 Congress enacted that all citizens, and those who have declared their purpose to become such, between the ages of twenty and forty-five, shall constitute the national forces, and shall be liable to perform military duty in the service of the United States when called out by the President for that purpose. A law providing for calling forth the militia in accordance with Clause 15 was passed in 1792.3 An amended act was passed in 1795,4 which is still in force. This law authorized the President to call out the militia, for the purposes specified, as he might judge necessary. The militia, when in the service of the United States, were to be subject to the same 1 May 8th. 2 March 3d. 3 May 2d. 4February 28th, 134 THE CONSTITUTION. 1. VIII. 16. articles of war as the regular troops, and their time of service could not exceed three months in any one year. In 18621 this time was extended to nine months; and it was provided, if the militia had not been enrolled in any State, that the President might make all necessary rules and regulations for doing it. The militia have been called out three times in the history of the country. The first was at the insurrection in the western counties of Pennsylvania, known as the'"Whisky Rebellion."' A portion of the inhabitants had opposed the execution of the laws imposing duties on domestic spirits, and this oppositionu was at length carried so far as to render necessary the interposition of force. On the seventh of August, 1794, the President issued a proclamation, commanding the insurgents to disperse, and at the same time made requisitions on the governors of New Jersey, Pennsylvania, Maryland, and Virginia, for their quotas of twelve thousand men. The number was afterwards increased to fifteen thousand. On the twenty-fifth of September another proclamation was issued, declaring the necessity of putting the force in motion. By this energetic action of the President the insurrection was quelled without bloodshed.2 In his next message to Congress the President recommended a revision of the militia law, which was made in 1795. The militia were again called out in 1812, in the war with Great Britain. In this case it was to "repel inLvasions." Though the President was authorized, by act of Congress May 13th, 1846, to employ the militia, as well as the naval and military forces, and to accept the services of volunteers, in the prosecution of the war with'July 17th. 2Mlarshlall's Life of Washington, Vol. V, Chap. viii; Pitkin'. Pol. and Civil Hist. of the U. S., Vol. II, Chap. xxiii. 1. VIII. 17. THE DISTRICT OF COLUMBIA. 130 Mexico, the militia were not called out. The troops furnished by the several States were all volunteers. The third instance in which the militia were called out was in the war of the rebellion in 1861. The first call was by proclamnation of President Lincoln on the fifteenth of April, 1861, for "the militia of the several States of the Union to the aggregate number of seventyfive thousand, in order to suppress said combinations, and to cause the laws to be duly executed." The President, by order dated August 4th, 1862, called for a draft of 300,000 militia to serve for nine months. And again June 15th, 1863, he called for 100,000 militia from the States of Maryland, Pennsylvania, Ohio, and West Virginia, to serve six months. Thus in the late civil war there were three calls for the militia as such, to the number of 475,000 men. This was but a small part of the number in the service, the others being called for as volunsteers. The whole number mustered into the service of the United States in the four years from April, 1861, was 2,656,553.' Clause 17.-To exercise exclusive legislation in all cases wchatsoever, over such distrlict (not exceeding ten mniles square) as way, by cession of particular States, cand the acceptanlce of Congress, becovme the seat of the goverinnient of the Unlited States, and to exercise like althority over all places purechased by the consent of the legyislature of the State in wrhichl the samne shall be, Jfo the erection oj' forts, ma.gqaziles, acsenals, dock. yards, and other qeecdfi buildings. The district for the government of rwhich provision is here made was ceded to the United States by Maryland and Virginia, and accepted by Congress July 16th, 1790. Maryland made the cession of that part lyJing east of the Potomac in December, 1788, and Virginia lReport of Secretary of War, Nlov., 1866. 136 THE CONSTITUTION. 1. VIII. 17. the part west of the Potomac in December, 1789. The act of Congress accepting the cession provides "that a district of territory not exceeding ten miles square, to be located on the river Potomac, at some place between the mouths of the Eastern Branch and Connogochleguc, be, and the same is hereby accepted, for the permanent seat of government of the United States." The precise location was to be determined under the direction of the President by commissioners to be appointed by him. The act further provided that prior to the first Mlonday of December of that year —1790 —all the governnent offices should be removed to Philadelphia from New York, where Congress was then in session, and should remain there until the first Aionday of Decenmber, 1800, when they were to be removed to the permanent seat of government. The Continental Congress held their sessions in New York from January, 1785, till the Constitution was adopted, and the first Congress under the Constitution held the first two of its three sessions there. Thus the seat of government was at New York from Marcl 4th, 1789, till the close of the second session of the first Congress, then at Philadelphia for ten years, and has been at Washington since December, 1800. The original District of Columbia was ten miles square, its boundary lines running N. E., S. E., S. W., and N. W. It was divided into two counties, Washington east of the Potomac, and Alexandria west. In July, 1846, the latter was retroceded to Virginia. The necessity of exclusive power on the part of Congress at the seat of government is abundantly manifest. Without it, the officers of the government might be interrupted in their duties, the public archives and other property injured, and Congress itself insulted. When the Continental Congress was in session at Philadelphia, the building where they were in session was surrounded by some mutinous soldiers, clamoring 1. VIII. 17. THE DISTRICT OF COLUMBIA. 137 for their pay. The executive government of that State not giving to Congress adequate protection, that body immecliately adjourned to Princeton, N. J. No less necessary is it that the general government should have exclusive control of the places where forts, arsenals, etc., are erected. The district in which the seat of government is located is obtained by cession from the State. The other places mentioned in the clause are purchased with the consent of the legislature of the State where they are located. In whichever manner acquired, the districts are under the exclusive control of Congress. They hold to the government the same relation as the territories do. There is no transfer of political power from the State to the general government. The latter does not exercise legislation by virtue of any authority derived from the States, but by virtue of the general powers granted by the Constitution. It was claimed, in a case before the Supreme Court, that Congress, when acting under this clause, must be considered as a mere local legislature, and not as administering the supreme law of the land. "But the Supreme Court held directly the contrary-that the power belonged to'Congress as the legislature of the Union; for strip them of that character, and they would not possess it. In no other character can it be exercised. * * * Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature. of the Union.'" "The efficiency of the government is all derived from the Constitution, and is equal in all places within its jurisdiction. It is supreme every-where. It is inrclutsive of all subordinate governments, where there are any, and exclusive where there are none. It is permanently exclhsive, if there can be no other. It is'Farrar, p. 360; 5 Wheaton, p. 317. C. G. 12. 138 THE CONSTIT'lUTION. 1. VIll. 17 temporarily exclusive, till a subordinate is instituted. It becomes exclusive again, if a subordinate is extinct, whether by right or by wrong; and it remains exclusive, when it is so, till a subordinate is rightfully restored."' As direct taxes are by Article I, Section 2, Clause 3, to be apportioned among the several States according to their respective nunmbers, it might be thought that the inhabitants of the District of Columbia would be exempt. But the Supreme Court has decided that Congress has the power to levy a direct tax on the District of Columbia, and also upon the territories. Congress is not bound to do it, but the power is possessed, qualified in the same manner as in regard to the States; i. e., the tax must be in proportion to the population. A direct tax was levied upon the States in January, 1815. In February of the same year a tax was levied on the District of Columbia. The direct tax of $20,000,000 a year, according to act of August, 1861, included the District of Columbia, and all the territories then existing. In the cessions to Congress under this clause, there has generally been a reservation of the right to serve State process, civil and criminal, upon persons found therein. Thus these places can not be made sanctuaries for fugitives. On the sixteenth of April, 1862, slavery was abolished in the District of Columbia by act of Congress. At the same session of Congress (the second of the Thirtyseventh Congress), an act was passed declaring that there should be neither slavery nor involuntary servitude in any of the territories then existing, or which should be formecl thereafter. In the District of Columbia provision was made to remunerate loyal owners for the slaves thus set free, not exceeding $300 each in the aggregate.?101 IT 363_.7 1. VIII. 18.' THE DISTRICT OF COLUMBIA. 139 In 1871 a territorial government iwas established for the District. It provided for a Governor, Secretary, Council (upper legislative house), Board of Health, and Board of Public Works, to be appointed by the President and Senate. There was a House of Delegates to be elected by the people. In 1874 the act was repealed, and until a new system could be framed, the government was entrusted to three Commissioners, to be appointed by the President and Senate. In 1878 a new act was passed placing the government under a Board of three Commissioners; two to be applointed by the President and Senate for three years; and the third, an officer of the Corps of Enogineers of the army, to be detailed by the President. These Commissioners have general charge of the municipal interests of the District, appointing the police, firemen, school trustees, and all other officers. They submit each year to the Secretary of the Treasury a detailed estimate of expenses, which on his approval, is transmitted to Congress. If Congress approves the estimate, one-half the amount is appropriated from the general treasury, and the other half is assessed upon the taxable property of the District. Clause 18.-To wmakne all laws which shall be necessariy and proper for carrying into execution the fore/oing powers, and all other powers vested by this CGonstitftionl ijn the government of the United States, or in cny deptartnment or ogicer thereof. This, in substance, was in Mr. Pinckney's plan. The Committee of Detail reported it as it is now, and so did the Committee of Revision. There was no opposition or discussion in the Convention, but great opposition was made in the State Conventions. Patrick Henry often speaks of it as "the sweeping clause," by which Congress was to overthrow the States. Those 140 THE CONSTITUTION.'1. VIII. 18. opposed to the Constitution assailed it with great vehemence, and endeavored, through the prejudice excited, to prevent the Conventions of the States from ratifying the Constitution. Mr. Randolph's plan in relation to the powers of Congress was that "The National legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the National legislature, the Articles of Union, or any treaty subsisting under the authority of the Union." This was agreed to in Committee of the W\hole.l The clause as to the power of Congress to veto State laws was lost in the Convention, five States voting for it, and six against it. Mr. Madison earnestly supported it. Writers on Constitutional Law agree that Congress would have had ample authority to make all laws necessary and proper for carrying into execution the powers vested in the general government by the Constitution, even if this clause had not been inserted. If the Constitution provides for a government, and invests it with powers, it follows as an unavoidable inference that the legislative department of that government can make the laws needful for carrying those powers into execution. Mr. Madison says,2 " Few parts of the Constitution have been assailed with more intemperance than this; yet, on a fair investigation of it, as has been elsewhere shown, no part can appear more completely invulnerable. Without the substance of this power, the whole Constitution would be a dead letter." He proceeds to show the folly of attempting IElliot, V, p. 190. 2Federalist, No. 44. 1. VIII. 18. IMPLIED POWERS. 141 a positive enumeration of the powers necessary and proper for carrying their other powers into effect; that "the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated, too, not only to the existing state of things, but to all the possible changes which futurity might produce." No less chimerical would it be to enumerate the powers or means not necessary or proper for carrying the general powers into execution. "Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication. No axiom is more clearly established in law, or in reason, that whenever the end is required, the means are authorized. Wherever a general power to do a thing is given, every particular power necessary for doing it is included." Thus Mr. Madison. Mr. Hamilton uses similar language.l "It may be affirmed with perfect confidence that the constitutional operation of the government would be precisely the same if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers." Chief Justice Marshall says: "A power vested carries with it all those incidental powers which are necessary to its complete and efficient execution." This principle has been repeatedly sanctioned by the Supreme Court, and has been acted on by the general government from 1789 to the present day. Judge Story says: "It would be almost impracticable if it were not useless, to enumerate the various l Federalist, No. 33. 142 THE CONSTITUTION. 1. VIII. 18. instances in which Congress, in the progress of the government, have made use of incidental and implied means to execute its powers. They are almost infinitely varied in their ramifications and details."' Nothing is plainer than that the Constitution was intended to vest in the general government; all the powers which properly belong to such a government, and so it has been understood from the beginning. The affairs of the nation could not be carried on a single year if no laws were enacted but such as are specifically provided for in the Constitution. The very language of the Constitution in divers places presupposes that Congress could make laws for which no specific authority is given. Thus, in Art. I, Sec. 9, it is provided that the importation of slaves should not be prohibited till 1808; yet nowhere fdoes the Constitution invest them with any authority to prohibit it then. In the same section it is declared that, "The privileges of the writ of habects corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." But where has the Constitution conferred upon Congress, or any department of the government, any distinct power to suspend this writ? So also, " No bill of attainder or ex post facto law shall be passed." Such laws were passed by the British Parliament, and were not unlknown in the legislation of the American States. Without this restriction, it was evidently supposed by the framers of the Constitution that Congress might do the saLme, although there is no clause granting such authority. The same may be said in regard to granting titles of nobility, and requiring religious tests. The clauses' prohibiting government from these acts are manifestly limitations upon its powers: without the limitations, it would have had ample authority in both cases. The First Amendment is of the same nature. Where 1. VIII. 18. IMPLIED POWTERS. 143 does the Constitution intimate any power in either department of the government to establish religion, or prohibit the freedom of speech or of the press? It is a favorite form of speech with many that the general government is one of enumerated powers, and especially is this said of the legislative dlepartment. "The powers specifically granted to Congress are what are called'the enumerated powers,' and are numbered in the order in which they stand," says one of the Presidents in his message. Saiys another in a veto message, "The legislative powers vested in Congress are specified and enumerated in the 8th sec. of the first Article of the Constitution." We have seen that the restrictions expressly placed upon Congress by the Constitution presuppose, in the absence of such restrictions, the existence of plenary powers to legislate for the general welfare. On any' other supposition these prohibitions are entirely devoid of meaning. Fronm the time of Washington's administration to the present day the government, in all its departments, has been carried on as a national government with full powers of sovereignty. Opposition to certain measures has often been based upon their alleged unconstitutionality; but when the political party from which the opposition came has itself been placed in power, it has not hesitated to deviate quite as far from the strict letter of the Constitution. Among the acts which are indefensible on the theory of specially enumerated powers, and which canll be sustained only on the general doctrine of national sovereignty, may be mentioned the purchase of Louisiana; the embargo act of 1807; the claim of the general'government to be preferred as creditor not only to private citizens, but even to the State authorities; grants of lands for railroads and canals; the annexation of Texas; grants of lands for Agricultural Colleges; the establishment of a Department of Education; etc. 144 THE CONSTITUTION. 1. IX. 1. "The most remarkable powers," says Judge Story, "which have been exercised by the government, as auxiliary and implied powers, and which, if any, go to the utmost verge of liberal construction, are the laying of an unlimited embargo in 1807, and the purchase of Louisiana in 1803, and its subsequent admission into the Union as a State. These measures were brought forward, and supported, and carried by the known and avowed friends of a strict construction." "The friends of the latter nmeasure were driven to the adoption of the doctrine that the right to acquire territory was incident to national sovereignty; that it was a resulting power, growing out of the aggregate powers confided by the Constitution; that the appropriation might justly be vindicated upon the ground that it was for the common defense and general welfare." The people of the United States have ordained and established the Constitution for the purpose of providing for the common defense, and promoting the general welfare; and whatevQr legislation is necessary and proper to secure these ends is clearly within the authority of Congress, except in those particulars which the Constitution has expressly restricted. Upon this theory the government has been administered from the beginning. This has been the practice of every administration, whatever may have been its theory. Sec. 9, Clause 1.-The migration or importation of such persons as any of the States now existing shall think proper to addmit, shAc/l not be prohibited by the GColgress prior to the year one thousacd eight hundred and eight, but a tax or duty ~may be imposed on such imvportation, not exceeding ten dollars for each person. The "persons" here mentioned were slaves. The clause permitted the slave-trade till 1808. As reported by the Committee of Detail, the provision was that such importation should not be prohibited; there was 1. IX. 1. SLAVERY AND THE SLAVE-TRA1)E. 145 no limitation of time. It was provided also in that report that no tax or duty should be levied. The tax of ten dollars which the Convention finally decided upon was in fact never imposed by Congress. At the expiration of the twenty years the further importation of slaves was prohibited by an act passed March 2d, 1807, to take effect January 1st, 1808. When the Constitution was formed, no nation had abolished the slave-trade.' Yet of the thirteen American States all but three had prohibited the imnportation of slaves. These three were North Carolina, South Carolina, and Georgia; and they insisted upon a provision in the Constitution for the admission of slaves, at least for a limited period. Hence the clause as it appears. The following is a summary of the action of our government touching slavery and the slave-trade: In 17872 the Continental Congress passed an "Ordinance for the government of the Territory of the United States north-west of the river Ohio," which provided that in the Territory there should "be neither slavery nor involuntary servitude, otherwise than in punishment of crimes."' The slave-trade to foreign countries was prohibited in 1794.3 The importation of slaves was prohibited in 1807,4 the law to take effect January 1st, 1808. In 1820' the slave-trade was declared to be piracy, to be punished withl death. Slavery was abolished in the District of Columbia by act of Congress in 1862,6 and in the Territories the same year.' The President's first proclamation as to emancipation 1Great Britain abolished it March 25th, 1807. 2 July 13th.' March 22d.,i March 2d. May 15th. April 16th. 7 June 19th. C. G. 13. 146 THE CONSTITUTION. 1. IX. 2. of slaves in the rebel States was issued September 22d, 1862.'T'he second proclalnation, emancipating them, is dated January 1st, 1863. The coastwise slave-trade was forever prohibited by act of July 2d, 1864. The Thirteenth Amendment to the Constitution, abolishing slavery throughout the United States and all places subject to their jurisdiction, was proposed to the legislatures of the States by Congress, February 1st, 1865, and was ratified December 18th, 1865. Clause 2. —Thle rivilege of the writ of habeas corpus shall tnot be suspended, sunless when in cases of rebellion or invasiol the public sqfety may requgire it. A writ is a legal instrunment or writing issued by a competent authority, commanding the performance or non-performance of some act by the person to whom it is directed. These writs were formerly written in Latin, and they are often designated by some important Latin words contained in them. The words habeas corpus mean "you may have the body;" and the writ is issued by the judge having competent authority commanding the officer to bring the person held in confinement before the judge, that he may inquire into the cause of his imprisonment. The object is to prevent any illegal imprisonment or detention; and it is regarded as one of the great bulwarks of personal liberty. The writ may be granted upon the application of the person himself who is restrained of his liberty, or on the application of another person in his behalf. If, upon judicial inquiry, he is found to be imprisoned or confined for sufficient cause, he is still held in confinement; but if it appears that he has been arrested illegally, he is set at liberty. Such writs are issued not only to release from confinement those who are unlawfully imprisoned, but to enable parents to get control of their children when held in custody by others, and to set at liberty 1. IX. 2. THE WRIT OF HABEAS (-CORPUS. 147 sane persons who imay be confined under pretense of insanity. The application must be accompanied with an affidavit that the detention is contrary to law, and setting forth the facts in the case. "Though the writ of habeas corpus is a writ of right, it is not a writ of course; and the judge is not bound to grant it except for cause shown." From the application itself it may be evident to the judge that the arrest was legal; in which case the writ of habeas corputs will not be issued. The Constitution does not determine by whomn the privilege of the writ of habeas corlpus may be suspended, whether by Congress, or the President, or both. The more common opinion has been that the power belongs to Congress and not to the President. In 1807, a bill for the suspension of the writ was lost in the House of Representatives after having passed the Senate. The first act passed by Congress to suspend the writ was in March, 1863. It had, however, been previously suspended by President Lincoln (April 27th, 1861) in an order to Lieutenant-General Scott. This had reference to the military line between Philadelphia and Washington. The President, also, by proclamation, authorized the commander of the forces on the Florida coast to suspend it on the islands near the coast. This proclamation was dated May 10tlo, 1861. This action of the President was in accordance with the opinion of the Attorney-General, who is his legal adviser. Attorney-General Bates says; "If by the phrase, the suspension of the writ of habeas corptus, we must understand a repeal of all power to issue the vwrit, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean, that in case of a great and dangerous rebellion like the present, the public safety requires the arrest and confinement of persons implicated in 148 THE CONSTITUTION. 1. IX. 2. that rebellion, I as freely declare the opinion that the President has lawful power to suspend the privilege of persons arrested under such circumstances; for hle is specially charged bv the Constitution with the'public safety,' and he is the sole judge of the emergency which requires his prompt action." Most of those who believe that the Constitution gives to Congress the power to suspend the writ, would admit that in cases of exigency the President might exercise the power without the authority of Congress. Thus Mr. Mulford says: " Since the legislature can not always act with the immediate energy which may be demanded, and does not act continuously, in its supreme necessity, in the actual or in the imminent peril of the nation, it becomes not only the office but the imperative duty of the executive to assert it." In the act of Congress passed March 3d, 1863, the President was authorized to suspend the privilege of the writ in any case throughout the United States, whenever in his judgment the public safety should require it. The same act contained a clause of indemnity to the President and those acting under his orders for any arrest or imprisonment during the existence of the rebellion. The suspension of the writ of halecis corpus in the recent rebellion was, therefore, by the authority of both the legislative and executive departments of the government. The suspension of the writ does not make it unlavwful for the judge to issue the writ; but the writ having been issued, it is a sufficient return, or answer, to it to say, that the privilege of the writ had been suspended. Though the writ of habeas corpus had never been suspended, either by the Congress or the President, until the late rebellion, it appears to have been suspended The Nation, p. 188. 1. IX. 3. BILL OF ATTAINDER. 149 by military officers. "During the administration of President Washington, in the Pennsylvania'Whisky Insurrection' of 1794 and 1795, the military authorities engaged in suppressing it disregarded the writs which were issued by the courts for the release of the prisoners who had been captured as insurgents. General Wilkinson, under the authority of President Jefferson, during the Burr Conspiracy of 1806, suspended the privilege of this writ, as against the Superior Court of Neew Orleans. General Jackson assumed the right to refuse obedience to the writ of hlabeus corpius first in New Orleans, in 1814, as against the authority of Judge Hall, when the British army was approaching that city; and afterward, in Florida, as against the authority of Judge Fromentin."' Clause 3. —No bill of ctttainder or ex post facto law shall be passed. A bill of attainder is a legislative act inflicting death or other punishment without a judicial trial. If the punishmnent is less than death, the act is now called in England a bill of pains and penalties. The legislature in passing such a bill assumes the functions of the judicial department of the government; it pronounces sentences and inflicts punishments not determined )byr previous law; and it ordinarily gives the person accused no opportunity of defending himself. "Such was the bill of attainder in England, and such was it in this country at the time of the adoption of the Constitution. By that the whole subject was abolished and prohibited entirely and forever." 2 An ex post facto law is one which makes an act crimninal which was not criminal when committed. 1Halleelk's International Law and Laws of War, quoted by Hon. A. F. Pertry. 2 Farrar, p. 420. 150 THE CONSTITUTION. 1, IX. 4. So a law would be ex post facto that inflicts a greater punishment than the law imposed when the crime Awas commnitted. The phrase applies only to penal and criminal laws, and not to civil proceecings which affect private interests retrospectively. A law abolishing imprisonment for debt would not be all ex post Jccto lawv, though it should apply to past contracts; nor would a law rectifying some error, as making deeds of land valid, which were void through some defect. In the case ex parte Garland, the majority of the Supreme Court held that the law of January 24th, 1865, which required a prescribed oath of every attorney before he could practice at the bar of a United States Court, was in violation of this clause, and therefore unconstitutional. Judges Chase, Davis, Miller, and Swayne dissented; in their judgment the act of Congress referred to was neither a bill of attainder nor an ex post facto law. Clause 4. —No capitation or other direct tax shall be laid, unless in proportion to the census or entumeration hereinbefore directed to be taken. A capitation tax is a poll tax. The tax is levied not according to property, but by the head. By Article I, Section 2, the Constitution provided that direct taxes should be divided amnlong the States according to the population; and in estimating the population, only three-fifths of the slaves should be counted. This clause would therefore exempt two-fifths of the slaves from every poll tax levied by the general government. It was to secure this exemption, and to prevent the levying of any special tax on slaves, that the clause was inserted. No capitation tax has ever been levied by the United States. In some of the States it is forbidden by their Constitutions. The direct tax of 1798 was assessed upon dwelling-houses, lands, and slaves- upon each slave fifty cenlts. This was not a 1. IX. 5. EXPORT' DUTIES PROHIBITED. 151 capitation tax, though in the States where slaves were held, a part of the tax was levied upon the capitation principle, so far as the slaves were concerned. Clause 5.-lNo tax or duty shall be laid on articles exported froim any State. BNo preJerence shall be given by any regul.ation of commerce or revenue to thIe ports of one State over those of another; nor shall vessels bountl to or front one State be obliged to enter, clear, or pcay duties in another. That part of this clause which relates to the taxing of exports was reported by the Committee of Detail in connection with the clause relating to the importation of slaves. There was strong opposition in the Convention to giving up the right to tax exports. Several of the most influential members, Washington, Madison, Wilson, Morris, and others, were in favor of allowing Congress to tax exports as well as imports, regarding the power as essential to a general government. This prohibition has been generally understood as including all exports, though there has been no judicial decision upon the subject. The opinion is held by some that the intention was to prevent any discrimination against a particular State, and that Congress is not prohibited from levying an export duty on articles exported from a number of States.' The Constitution of the Confederate States contained no such clause of prohibition, and heavy export duties were levied upon cotton. To "enter" a port is to report the shi? with the cargo to the proper officer, and obtain permission to land the cargo. To "clear"' is to obtain fromt the proper authorities the necessary papers for s'ailing from the port. While we were colonies under Great Britain, no lNorth American Review, July, 1865. 152 THE CONSTITUTION. 1. IX. o. American ship could trade with any port in Europe unless it first entered and cleared from a British port. But now a vessel can take her cargo front New York, or Boston, or New Orleans, directly to any European port. So a vessel can go from any one American port to any other. This latter constitutes the coasting tracle, which is vastly greater in amount than the foreign trade. A former clause (Sec. 8, Clause 1) requires all duties, imposts, and excises to be uniform throughout the United States. This clause, providing that no preference should be given to one State over another in any commercial regulation, is of the same character. The different States were to be treated with absolute impartiality and equal justice by the general government. Clause 6. — No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and exzendituries of all public nmoney shall be published fromi time to time. The propriety of this clause is obvious. It is a limitation on the Executive Department, and not on the Legislative. The appropriations are voted annually, the fiscal year ending on the thirtieth of June. These appropriations are made for the different departments of the government with much detail, and the duties devolving on the Committee on Appropriations are very arduous and responsible. The acts making appropriations for the year ending June 30th, 1872, fill ninetyeight pages of the United States Statutes at Large. To show the minuteness of these appropriations, there are fifteen different specifications under the head of "Library of Congress." The account of the receipts and expenditures is annually reported to Congress by the Secretary of the Treasury. These reports form an important part of the executive documents of the government. 1. IX. 7. TITLES OF NOBILITY. 153 Clause 7. — TNo title of nobility shall be granted by the Unlited States; and no person holdCing any ofice of profit or trust under them, shall, without the consent of the Congress, accept of any present, eimolhu.ent, office, or title, of anjy kind whatever, from any kinig, prince, or foreiqn state. "Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people."l The second clause is to prevent any officer of the government from being influenced by a gift of any kind from any foreign prince or state. History shows abundant instances of the bribing by one government of the officials of another. When presents have been sent to officers of our government by a foreign power, they have become the property of the government, or Congress has authorized those to whom the.y were sent to receive them. At the second session of the Eleventh Congress, an amendment to the Constitution was proposed, two-thirds of both houses concurring, extending this prohibition to private citizens. "If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."2 But this lrioposed amendment has never been ratified by the requisite number of States. 1Hamilton, Federalist, No. 84. 2U. S. Statutes at Large, II, p. 613. 154 THE CONSTITUTION.. 1. X. 1, Sec. 10, Clause I.-No State shall enter into any treaty, alliance, or confederation; girant letters of marque and reprisal; coin nmoney; emit bills of credit; mlake any thin.q but gold and silver coin a tender in paynment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of cotlracts, or grant any title of nobility. This section contains prohibitions and restrictions on the power of the States. The Constitution is the expression of the will of the nation; that is, of the people of the whole country. To the nation belongs the sovereign power. In the Constitution the nation has declared that the general government shall exercise all the powers of national sovereignty, and that the States shall have authority in matters of local and municipal government. Powers pertaining to national sovereignty are expressly denied to the States in this tenth section. Nearly all these prohibitions are found also in the Articles of Confederation, and some of them are expressed there in terms stronger than in the Constitution. IWe find, indeed, in those Articles the clause, "Each State retains its sovereignty, etc.," but the words are without meaning, as the Articles themselves make the general government sovereign, and not the States. Though we often hear the States spoken of as sovereign, they have never been so in fact. They were Colonies till the fourth of July, 1776, and then the United Colonies became a nation, and each Colony becanme a State. From that day to this the individual States have exercised none of the powers of sovereignty. It is not unfrequently said that the States parted with their sovereignty when the Constitution was formed; implying that till then they possessed sovereign powers. But they could not part with what they never possessed. The question is one of fact, and not one of 1. X. 1. PROHIBITIONS ON THE STATES. 155 theory. The Continental Congress exercised the powers of national sovereignty fronm the day of the Decllration of Independence till the present Constitution went into operation. In the language of Mr. Jay, afterward Chief Justice of the Supremne Court, " To all general purposes, we have unifornly been one people; each individual citizen every-where enjoying the saime national rights, privileges, and protection. As a nation, we have made peace and war; as a nation, we have vanquished our co-immon enemlies; as a nation, we have formned alliances, and made treaties, and entered into various compacts and conventions with foreign states. " 1 Thle Articles of Confederation prohibited the States from "sending any enmbassy to, or receiving any enmbassy from, or entering into any conference, agreement, alliance, or treaty, with any king, prince, or state," without the consent of the United States. In the Constitution the prohibition is absolute. Were each State to have the power to fornm alliances with foreign nations, it would be impossible to preserve the peace and harmony of the several parts of the Republic. The Union would soon be dissolved, and the nation split into fragments. Could the States grant' letterls of nczarque, it would be in the power of any one to involve the rest in war. All these powers, being incident to national sovereignty, are thus wisely and necessarily prohibited to the States. The Articles of Confederation allowed the States to coin money, but gave to Congress the exclusive right to regulate the alloy and value of the coin. The poiwer of the States in regard to money was thus a qualified power. But the provision of the Constitution, prohibiting the States absolutely fronm coining money, is a manifest improvement on the previous systeml. The States are also prohibited fromn emitting bills'Federalist, No. 2. 156 THE CONSTITUTION. 1. X. 1, of credit. "To constitute a bill of credit, within the Constitution, it must be issued by a State, involve the faith of the State, and be designed to circulate as money, on the credit of the State, in the ordinary uses of business." Such bills may or may not bear interest; they may or may not be made a legal tender. Neither of these circumstances would affect them as bills of credit. The State of Missouri issued loan certificates, bearing interest and redeemable by the State, which were made receivable for taxes and debts, and by public officers in payment of their salaries. But the Supreme Court decided that they were bills of credit, and therefore unconstitutional. A State may borrow money and issue bonds therefor; such bonds are not bills of credit. The paper currency issued by the Continental Congress, and by the several States prior to the adoption of the Constitution, was known as bills of credit. The evils of the paper money issued by the States after the war of the Revolution are strikingly depicted by Mr. Madison. "The loss which America has sustained since the peace, from the pestilent effects of paper money on-the necessary confidence between rnan and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised( measure, which must long remain unsatisfied; or rather an accumulation of gulilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it."' The States are also forbidden to make any thing but gold and silver coin a legal tender in payment of debts. The Constitution virtually places the control 1Federalist, No. 44. 1. X. 1. PROHIBITIONS ON THE STATES. 157 of the whole subject of money and the currency with the general government. The States have, indeed, established banks and authorized thenm to issue notes for circulation, but it has been by sufferance, and not by Constitutional authority. The general government, in the establishment of national banks, have assunmed the exercise of the power which it was manifestly the intention of the Constitution they should possess. While the power to coin money is among the powers of Congress mentioned in Section 8, nothing is said as to the power of Congress to emit bills of credit, or to make anv thing but gold and silver a legal tender. These porwers, have, however, been considered as belonging to Congress, and both have been exercised. The United States notes now in circulation as money, known as " greenbacks" or "legal tenders," are bills of credit, and they would be such even if they were not required by law to be received in payment of debts. The States as well as the general government are prohibited from passihg any bills of attainder or ex post facto laws. There would be no propriety in allowing it to the former, if prohibited to the latter. Very wisely such laws are entirely prohibited. No State can pass laws impairing the obligation of contracts. The obligation here spoken of is legal, not moral.'aThe spirit of the provision is this: A contract which is legally binding upon the parties at the time and place it is entered into by themn, shall remain so, any law of the States to the contrary notwithstanding."1 Under this clause the States are clearly prohibited from passing lbankrupt laws, which should impair the obligation of contracts made antecedently to their passage. The Supreme Court has decided, however, that 1 Tiffany, p. 217. 158 THE CONSTITUTION. 1. X. 1. the States may pass laws operating upon future contracts between their own citizens. But this prohibition does not apply to the general government. The States can not pass laws impairing the obligation of contracts, but Congress may establisll uniform laws on the subject of bankruptcies throughout the United States. "The general government has jurisdiction over all persons and property within the United States, to execute the plenary power and authority of the nation in respect to all subjects committed to its jurisdiction. It can determine upon what conditions and in what degree individuals may be released from the complete fulfillmlent of their contracts. That is, as the supreme authority upon that subject, Congress can by law determine the limit of legal obligation arising out of every species of indebtedness, and can prescribe the manner by which a party should proceed to obtain legal absolution of his debts." The term, contract, is macde to include grants, which are contracts that have been executed. A grant imade by a State legislature is irrevocable. Whenever a law is in its own nature a contract, and absolute rights have vested under it, a repeal of that law can not divest those rights, or annihilate or impair the title so acquired.2 If a charter of a bank, which has been incorporated by a State, should prescribe the manner in which the bank should be taxed, the State could not subsequently alter the mnode of taxation, not even if umeanwhile the State should have adopted a new Constitution prescribing the manner in which banks should be taxed. So a charter of a college is a contract which the legislature of a State can not annul or impair. The State of New Hampshire attempted to change the charter of Dartmouth College, transferring the govern-'Tiffany, p. 217. 2Story. 1. X. 2. PROHIBITIONS ON THE STATES. 159 ment of the institution from the old charter trustees to new trustees appointed under the legislative act. But the action of the legislature was declared by the Supreme Court to be unconstitutional. Clause 2. —No State shall, without the consejnt of the Congress, lay any iimposts or dutties on impo'ts or0 exports, except what nmay be absolutely necessary for executing its inspection laws: and the net produce of all dluties and iinposts, laid by any State on? impo'ts or' exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the r'evision acn)dl contriol of the Congreess. AXo State shall, without the co))sent of Congqress, lay any dCuty of tonnage, keep troops or? ships of war in time of peace,'enter i~nto any aggreemnent or colmpact with another' State or with a foreign power, or engctge in war, unless actually invaded, or in such inoninlent danger as will not admrit of delay. The authority to levy duties on goods imported properly belongs to the general government. The exercise of this power by the several States, prior to the adoption of the Constitution, was one of the chief causes of the overthrowr of the Articles of Confederation. The whole power is now vested in Congress, and the States are by this clause prohibited from laying any duties except with the consent of Congress, and the revenue obtained in such case must be paid into the treasury of the United States. Trhe object of inspection is to secure a certain standard of excellence in commnodities offered for sale, so that purchasers may not be imposed upon. An inspector is appointed under State law, whose duty it is to examine flour, pork, etc., and certify as to its quality. If it comes up to the required standard he stamps or brands the cask or package accordingly. Sometimes the inspector is paid by the city which ap 160 THE CONSTITUTION. 1. X. 2. points him, and sometimes his compensation is obtained by means of fees. Thus in Ohio the inspector of refined oil receives from rsix to ten cents a barrel for inspecting it. To prevent the State from receiving any revenue from this source, the Constitution requires that all fees beyond the cost of inspection shall be paid into the national treasury. A State can not lay duties on imports or exports indirectly. Maryland once required all importers of foreign goods, and those selling the same in the original package, to take a license from the State, for which a fee of fifty dollars was to be paid. The Supreme Court decided that the law requiring this was unconstitutional, because it virtually levied a duty on the articles imported. The Constitution in no other clause refers to taxation of any kind by State authority. But it everywhere recognizes the existence of the States as governments, and thus presupposes their power to levy taxes. For the support of its local government a State may tax its citizens, but it may not levy duties on imports, save with the consent of Congress,'and for inspection purposes. And the Supreme Court has decided that a State can not levy a tax that shall in any way obstruct the legislation of the general government. Thus a State can not tax United States bonds or Treasury notes, or a bank chartered by the general government, except as provision is made for such State taxation by Congress; while the United States may levy a tax upon State bonds, or banks chartered by the States. When Congress tax the chartered institutions of the States they tax their own constituents; and such taxes must be uniform. But when a State taxes an institution created by Congress it taxes an instrument of a superior and independent sovereignty, not represented in the State ]eg'islature. (Story.) 2. I. 1. THE EXECUTIVE DEPARTMENT. 161 Duties on tonnage are duties on ships. A ship that can carry five hundred tons of freight is said to be of five hundred tons burden. Where duties are levied upon ships, it is in proportion to their capacity, or the amount of freight they can carry. If the States are prohibited from raising a revenue from goods imported, they should also be prohibited from taxing the ships in which the goods are brought. The other prohibitions in this clause refer to matters of national sovereignty. The whole control of questions relating to peace and war, treaties, alliances, etc., is placed in the general government; and nothing can be done by the States in these matters except under its direction. It has been seen that there are implied as well as express prohibitions on the powers of the States. Thus' io State can control, or abridge, or interfere with the exercise of any authority under the national government. And it may be added that State laws, as, for instance, State statutes of limitations, and State insolvent laws, have no operation upon the rights or the contracts of the United States." (Story.) ARTICLE II. THE EXECUTIVE DEPARTMENT. Sec. 1, Clause. —The Executive power shill be vested in a Prlesident of the 3United States of Armerica. iHe shall hold his oftlce during the term of four years, cand, toyetlher with th.e Vice-President, chosen for the samre: term', be electedl as follows: From the Declaration of Independence to the time when the Constitution went into operation, there llad been no Executive Department. In the Convention there was no difference of opinion as to the propriety and necessity of establishing such a department distinct from the Legislative. There was not the same C. G. 14. 162 THE CONSTITUTION. 2. I. 1. unanimity as to the other questions, viz., whether the power should be vested in a single person, what should be the term of office, how the Executive should be chosen, and whether the office should be held a second time by the same person or persons. The vote in the Committee of the Whole was "T'lhat a national Executive be instituted, to consist of a single person, to be chosen by the national legislature (Congress) for the term of seven years." Subsequently the Conmmittee of Detail reported the same clause, with the addition that he should not be elected a second time. Repeated efforts were made in the Convention by the delegates from Pennsylvania, to change the mode of election, so that the Executive might be elected by the people, or by electors, instead of by Congress; but only two States voted for the change. It was then referred to the Committee of one from each State, appointed to report on the unfinished parts of the Constitution, who reported it nearly as it was finally adopted. There is no difference of opinion at the present time in regard to the importance of unity in the Executive. All are agreed that this power must be lodged in the hands of one man. To divide responsibility is to introduce feebleness. Every government should be administered with firmness and vigor. When laws are enacted they must be executed. The nmaxin that that government is best which governs least, is not true. That government is best which is so promptly and wisely administered that there will be little disposition to violate or evade the law. Republics are often affirmed to be feeble of necessity; but there is no inconsistency between a republican government and great firmness and energy of administration. The Executive power "shall be vested," that is, is vested. The President duly elected has the power by the Constitution, without any law conferring it on him. The power is vested in the President alone; not 2. I. 1.'THE EXECUTIVE DEPARTMENT. 163 in him and his Cabinet. In some of the States the Executive power is exclusively in the Governor; in others the joint action of the Governor and Council is required. The Executive power is not defined in the Constitution. Whatever it is, it is vested in the President. The Constitution authorizes him to do some things which do not necessarily belong to him as President. Thus he has a qualified negative on the legislation of Congress; with the advice and consent of the Senate he can make treaties; he is Commander-inl-Chief of the Army and Navy. But whatever else may belong to the Executive Department, this does, that the President should see that the laws are executed. WTe have seen that the Convention that framed the Constitution decided in Committee of the Whole that the term of office of the President should be seven years, and that he could not hold the office a second term. Both these provisions were subsequently changed; the term of office being four years, and the restriction to a single term having been stricken out, so that the people may elect the same man to the Presidency as many times as they7 please. From the adoption of the Constitution to 1840, each successive President was a candidate for re-election, and five were elected a second tinme, viz., Washington, Jefferson, Madison, Monroe, and Jackson. John Adams, John Quincy Adams, and Martin Van Buren were nolminated for a second term, but not elected. Since 1840 no President has been nominated for re-election except Mr. Lincoln in 1864, and General Grant in 1872, who were both elected. Thus seven Presidents have been elected a second time, three have been candidates for a second term, but have failed of an election, and six have not been re-nominated. No President has been a candidate for a third term. The question of one presidential term has been much agitated. It is doubtful whether the Convention acted 164 THE CONSTITUTION. 2. I. 2. wisely in reducing the length of the term from seven years to four, and in striking out the clause forbidding a re-election. "The election of a supreme executive magistrate for a whole nation, affects so many interests, addresses itself so strongly to popular passions, and holds out such powerful temptations to ambition that it necessarily becomes a strong trial to public virtue, and even hazardous to the public tranquillity.:i This is the question that is eventually to test the goodness, and try the strength of the Constitution."l Besides the excitement attending the election of the executive head of a great nation, which is so great that Mr. Paley condemns all elective monarchies, and thinks nothing is gained by a popular election worth the dissensions, tumults, and interruptions of regular industry, with which it is inseparably attended, there is the unfavorable influence on the President himself. It is natural that he should desire the approbation of the people as manifested by a re-election. But the danger is that this desire may tempt him to shape his administration so as to secure a renomination. C{lause 2.- Exach State shalcl appoint, in su cl vanner as the legislature thereof mnay direct, a numnber of Electors equal to the whole number of Senators and Representatives to which the State nCay be entitled in the Congress; but no Senator or Represe))tative, or person holding an ofice of trust or profit undeir the United States, shall be appointed an EZecdtor. The President and Vice-President are to be chosen by Electors, but the manner in which the Electors are to be appointed is left to the legislature of each State. "The Electors were at first chosen in four different modes, viz., by joint ballot of the State legislatures, by 1 Kent, I, p. 273. 2, I. 2. THE ELECTION OF PRESIDENT. 165 a concurrent vote of the two branches of the legislature, by the people of the State voting by general ticket, and by the people voting in districts. This latter mode was evidently that which gave the fairest expression to public opinion by approaching nearest to a direct vote. But those States which adopted it were placed at the disadvantage of being exposed to a division of their strength and neutralization of their vote; while the Electors chosen by either of the other methods voted in a body on one side or the other, thus making the voice of the State decisively felt. This consideration induced the leading States of Massachusetts and Virginia, which originally adopted the district systenl, to abandon it in 1800."' The election in 1844 was the first in which the electoral vote in no State was divided. In 1860, New Jersey divided her vote; and in 1872 the Democratic votes were scattered, as Mr. Greeley, the candidate, had died. With these exceptions, all the Electors in any given State have since 1844 voted for the same candidates, and the President and Vice-President have received the same number of votes. The Constitution determines the number of Electors. Whatever may have been the mode of choosing them, whether by the people or the legislature, it has been the practice to take one from each Congressional district, and two from the State at large. No qualification is required for an Elector except the negative one, that he shall not hold an office of profit or trust under the United States. The third clause has been abrogated by an Anmendment which was proposed by Congress in December, 1803, and having been ratified by the requisite number of States, became valid as a part of the Constitution in September, 1804. This clause will be found in 1 Lanman's Dictionary of Congress, p. 427. 166 THE CONSTITUTION. 2. I. 3. the note.' The Amendment substituted for it is Article XII of the Amendments, and is as follows: PT/e Electors shall gmeet in their respective States, and vote by ballot fojr President and Vice-lPresident, olne of whom, at least, shall not be an inhabitant of the scnme State with themlselves; they shall ncane in their ballots the pelrson voted for as Piresident, and in distinct ballots the per'son votedc for as Vice-President, and they shall make distilct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The Presidenzt of the Senzate shall, in the presence of the Senacte and'Clause 3. —The Electors shall meet in their respective States, and vote by ballot for two persons, of whomn one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one who have such a majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a. major.. ity, then from the five highest on the list, the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation fiom each State having one vote. A quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President. Amiend. 12. THE ELECTION OF PRESIDENT. 167 House of Representatives, open all the certificates, acnd the votes shall then be counted; the person having the greatest gnuvlber of votes for Preside'nt shall be the Pr'esident, ij' such nume ber be a milcority of the whole Fnumber of Electors appointed; andc if no person have such vCjority, then from the persons having the highest number's, lot exceeding three, on the list of' those voted for as Presidet, the I-otse of Representatives shall choose imviediately, by ballot, the President..But in choosing the President, the votes shall be taken? by States, the representation friomi each State having one vote; a quorumi for this putrpose shall consist of ae menTber or memvlbers from two-thirds of t/he States, anct( a macjo'ity of all the States shall be necessary to a choice. And if the House of Repiresentatives shall not choose a President, wvlhenever the right of choice shall devolve q)pon them, before the fourth Clay of llarcah next following, then the Vice-President shall act as Presidentt, as in the case of the death or other constitutional disability of the President. lhle person having the greatest nuvLber of votes as VicePresident shall be the Vice-President, if such nuvmber be a nmacjority of the whole nzunber of Electors appointed, and if no 2person have a mcajority, then from the two highest niumbers on the list the Sernate shall choose the'Vice-President;t; a quoru'm for the puipose shall consist of two-thirds of the whole nuvnber of Senators, and a mzcjority of the whole number shall be necessary to a choice. But ~no person, constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the Un~ited States. According to the original clause the Electors were to vote for two persons without designating either as President or Vice-President. The one who had the greatest number of votes, provided that number was a majority, of all the votes cast, was to be the President, and the other the Vice-President. If two had the 168 THE CONSTITUTION. 2. I. 3. same number, being a majority, the House of RWpresentatives was to choose one of them for President. If no one had a majority, the House of Representatives was to choose a President from the five highest. The chief points of difference between the methods are these two: according to the Amendment each Elector votes for President as such, and also for Vice-President; and if the election goes to the House of Representatives, the choice is from the three highest, instead of from five, as was provided in the original article. At the first election General WVashington was voted for by each of the Electors, 69 in number. Mr. John Adams, who became Vice-President, as having the next highest number of votes, received only 34; the remaining 35 votes hiaving been divided among ten candidates. At the second eleclon, in 1792, General Washington was again elected unanimously, receiving 132 votes.' Mir. Adams was re-elected Vice-President, receiving 77 votes, a majority of the whole. At the third election, in 1796, Mr. Adams was elected President, receiving a small majority of the votes; and Mr. Thomas Jefferson became Vice-President, though he had not a majority. At the fourth election, in 1800, Messrs. Jefferson and Burr, who belonged to the same political party, had the same number of votes, being a majority of the whole; and thus the choice devolved upon the House of Representatives. There were sixteen States, of which eight voted for Jefferson, six for Burr, and two were divided. They continued to vote thus for thirtyfive ballotings, occupying seven days, nominally without adjournment. On the thirty-sixth ballot, the two divided States voted for Jefferson, and so he became President, and Aaron Burr Vice-President. It was this lJames Monroe in 1820, received all the Electoral votes but one. 2. Io 3. THE ELECTION OF PRESIDENT. 169 difficulty that led to the amendment of the Constitution, which Amendment was ratified before the fifth election in 1804. The election of President has devolved on the House of Representatives in one other case. In the fall of 1824, Andrew Jackson received 99 Electoral votes, Johln Quincy Adams 84, William H. Crawford 41, and Henry Clay 37. General Jackson lacked 32 of a majority, and the choice devolved on the House of Representatives. As the choice must be from the three highest, Mr. Clay could not be voted for. Of the twenty-four States, thirteen voted for Mr. Adams, seven for General Jackson, and four for Mr. Crawford. John C. Calhoun, the candidate for Vice-President on the ticket with General Jackson, was elected, having received 182 votes. In this case the President alnd Vice-President belonged to different political parties. Once only has the choice of Vice-President devolved on the Senate. In the fall of 1836, Martin Van Buren received 170 votes out of 294 for President, and was elected: Richard 5M. Johnson failed of an election to the Vice-Presidency by one vote, having received 147. He was chosen by the Senate. Practically the people vote for President and VicePresident, and it is known who is to be the next President long before the Electoral College convenes. Thus the voting by the Electors has become a mere form, though it was not so intended. Various plans have been suggested in respect to the mode of electing the President, but Congress has never yet proposed an amendment since the Constitution was altered in 1804. By the present mode a candidate may have a large majority of the Electoral votes, and yet be in a decided minority so far as the popular vote is concerned. By the original article a Vice-President could not be chosen till the President had been chosen; a failure in the choice for the first office would involve thereCo G. 15. 1 70 THE CONSTITUTION. 2. 1. 4. fore a failure in the second also. The Amendment avoids this difficulty, by providing that the Senate may choose a Vice-President if no one has been chosen by the Electoral vote. In the failure by the House of Reprlesentatives to choose a President by the fourth of March, the Vice-President already chosen by tile Senate will act as President. It is usulal for the two Houses to meet in the House of Representatives, when the votes are opened by the President of the Senate, and handed to the tellers (one from the Senate and two from the House), who count the votes and announce the result. In February, 1865, Congress passed the twenty-second joint rule, by which the vote of no State should be counted if objected to by either House. This feature of the rule was not enforced in 1865 or 1869, but was in 1873, the Senate objecting to the votes from Arkansas, and three votes for Mr. Greeley from Georgia. Before 1877 it was repealed by the Senate. In January, 1877, an act was passed, applicable to that election only, that no vote of a State should be rejected except by concurrent vote of both Houses, and that all cases of two or more sets of votes from the same State should be referred to a Commission of fifteen, composed equally of Senators, Representatives, and Judges of the Supreme Court. The cases referred were those of Florida, Oregon, South Carolina, and Louisiana, and were all decided by a vote of eight to seven, and Mr. Hayes was elected by a vote of 185, Samuel J. Tilden having 184. Clause 4.-The Congress may determinie the time qf choosing the Electors, and the clay on which the1y shall give their votes; which dcay shall be the samne throughout the United States. After the Constitution had been ratified by the requisite number of States, the Continental Congress appointed the first Wednesday in January, in 1789, as 2. I. 5. PRESIDENTIAL ELECTORS. 171. the dclay for choosing Electors, the first Wednesdayn ill February for the Electors to assemble and vote for President, and the first Wednesday of March as the day on which to commence proceedings under the new Constitution.l The first Wednesday of March was the fourth dclay of the month, in the year 1789. In 1792 an act was passed requiring that the Electors be appointed within thirty-four days preceding the first Wednesday in December; that the Electors should meet and give their votes on the first Wednesday in December; that the votes should be counted on the second Wednesday of February; and that the Presidential term of four years should commence on the fourth day of March. All these provisions remain in force, except that as to the time of choosing Electors. By act of Congress of January, 1845, they are to be chosen on the Tuesday next after the first Monday in November. Each State may provide for filling any vacancy which may occur in its college of Electors. By the Amendment to the Constitution, made in 1804, if the House of Representatives should not elect a President by the fourth of March, the Vice-President becomes President: the fourth of March is thus virtually made by the Constitution, as well as by statute, the day when a new Presidential term begins. The Electors in each State make and sign three certificates of all the votes given by them, one of Alwhich is to be forwarded by special messenger to the President of the Senate at Washington, one is to be sent to him by mail, and one is to be delivered to the judge of that district in which the Electors meet. Clause 5. —No person, except a naturatl-born citizen, or a citizei of the United States at the time of the cldoption of this Coonstitution, shcall be eligible to the office of 1 Journal Cont. Cong., XIII, 105. 172 THE CONSTITUTION. 2. 1. 6. President; neither shall any person be eligible to tftat office whlo shall not h/ave attained to the (age of tl'hirtyfive years, and been foueteen years a resident within the United States. At the time of framing the Constitution, a number of men of foreign birth were among the most prominent in the nation, some of them being members of the Convention. This exception in favor of those who were citizens at the time the Constitution was adopted was a mark of respect to them. A residence abroad on official duty would not incapacitate one from holding the office of President. Mr. Buchanan had been Minister to England just prior to his election to the Presidency in 1856. Clause 6.-In case of the removal of the President from office, or of his death, resigcnation, or inability to discharge the powers and duties of said ofqice, the same shall devolve on the Vice -President; and the Conqgress tmay by law provide for the case of removal, death, resignatioz, or inability, both of the President and Vice -Presidenit, declaring what officer shall then act as President, andl such officer shall act acco'rdingly, until the disability be removed, or a Piesident shall be elected. Until near the close of the Convention that framed the Constitution, nothing had been said of a Vice-President. The Senate had been -authorized to choose their own presiding officer, and in case of the death or removal of the President of the United States, the President of the Senate was to become President. The Convention had decided that the President should be elected by Congress; but there was difficulty in arranging the details, and the Committee of one from each State finally reported a new plan, providing for an election of President by means of Electors appointed in the several States. This'plan seemed to render de 2. I. 6. THE EXECUTIVE-VICE-PRESIDENT. 173 sirable the election of a Vice-President, and thus the Constitution made provision for such an officer. We have seen that, according to the Amendment adopted in 1804, the Senate may choose a Vice-President immediately, if there has been no election by the people. If, therefore, by possibility the House of Representatives, when the election devolves on them, should fail to elect a President by the fourth of March, the Vice-President would become President. Congress has provided by law' that in case of the removal, death, resignation, or inability of both President and Vice-President, the President pro temnpore of the Senate, and in case there is no such President, the Speaker of the House of Representatives, shall act as President until the disability be removed, or a President be elected. If the Vice-President becomes President, he holds the office during the remainder of the term for which the President was elected; if the President pro tenmpore of the Senate, or the Speaker of the House, should be called to act as President, he would act till a new President could be elected. Such special election would be held at the same time of the year as the regular election. The act of 1792 provides that " when ever the offices of the President and Vice-President shall both become vacant," a special election shall be held. This would include the case of non-election at the regular time, for which the Constitution does not provide; hence the constitutionality of that part of the act has been doubted. As the Constitution seems to distinguish between members of Congress and civil officers, in Article I, Section 6, Clause 2, and as the President must "commission all the officers of the United States" (Article II, Section 3), it has been maintained by some that'March 1st, 1792. 174 THE CONSTITUTION. 2. I. 7. neither thle President of the Senate nor the Speaker of the House is an "officer " in the meaning of the Constitution; and, therefore, that the act of 1792, has no constitutional authority, as the Constitution authorizes Congress to declare what "officer" shall act as President. This objection was made when the bill was under discussion in the House of Representatives, and that body substituted the Secretary of State in place of the President of the Senate and Speaker of the House; but as the Senate refused to concur in this substitution, the House receded from its amendment, and the bill was passed as it now stands. A vacancy in the office of President has occurred three times, and in each instance by the death of that officer; General William Henry Harrison died April 4th, 1841, just one month after his inauguration, and was succeeded by John TSyler, April 6th. General Zachary Taylor died July 9th, 1850, and was succeeded by Millard Fillmore, July 10th. Abraham Lincoln was assassinated on the night of April 14th, 1865, and was succeeded by Andrew Johnson, April 15th. Clause 7. —The President shall, at stated times, receive for his services a comnpensation, which shall neither be increased nor dimzinished dtoring the period for which he shall have bean elected, and he shall not 1receive within that peiriod any other emolamnent fSrom the United States, oro aoy of them. The salary of the President was made twenty-five thousand dollars a year, and that of the Vice-President five thousand dollars, by act of Congress September 24th, 1789, and again February 18th, 1793. The former continued the same to the third of March, 1873, when it was raised to fifty thousand. The salary of the VicePresident was raised to eight thousand dollars in 1853, to ten thousand March 3d, 1873, and reduced to eight thousand January 20th, 1874. A furnished house is provided for the President. The salaries are paid monthly. 2. I. 8. THE EXECUTIVE-OATH OF OFFICE. 175 Clause 8.-Before he enter on the execution of his office, he shall take the following oath or affirmacttion: "I do solemnly swear (or ffinrm) that I will faithfully execute the office of President of the iUnited States, and will, to the best of mzy ability, preserve, protect, and defend the Constitution of the Unitecd States." The oath is administered to the President by the Chief Justice of the Supreme Court, in connection with the inauguration ceremonies, which are held at noon on the fourth of March. After the death of President Harrison, Mr. Tyler took the oath prescribed in the Constitution,' although he deemed himself qualified to perform the duties and exercise the powers and office of President without (any other oath than that which he took as Vice-President." The same was done by Mr. Fillmore and Mr. Johnson. It is said that the Cabinet of President Harrison proposed that Mr. Tyler be styled " Acting President," but the proposition was declined. The Constitution sa ys the powers and duties of the office "shall devolve on the Vice-President " in case of the removal of the President, but that Congress shall declare what officer shall "act as President," when there is neither President nor Vice-President. There appears to be no reasoin, then, for using the style "Acting President" in the case of the Vice-President succeeding to the office, whatever might be done if the President of the Senate or the Speaker of the House should be called to the Executive chair. Sec. 2, Clause 1. —The President shall be commanderin-chief of the army and navy of the United States, and of the vmilitia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the princi2pal officer in each of the executive deparltments, updn any subject relating to the duties of their respective ofices, and lhe shall have power 176 THE CONSTITUTION. 2. II. 1. to igrant reprieves andcl padons for ofuesnses against the United States, except in cases of iTvpeachvZent. Most writers on the Constitution have regarded the authority to command the army and navy as necessarily belonging to the Executive Department. This is the opinion of Story, and Kent, and Duer. Mr. Tiffany thinks, however, that the duties of the President as military head of the nation may be contemplated as distinct from those devolving on him as the chief magistrate. "The powers and duties of the President as commander-in-chief of the army and navy are separate and distinct from his powers and duties as the simple Executive head of the nation; and neither of those functions of the presidential office derives any strength from the other. As the chief Executive of the nation he takes no authority from the military department of his office; and as colnmmander-in-chief he gets no aid from the civil department of the same. That is, his authority as comniandcer-in-chief is the same as it would have been, had it been an office separated from, and independent of, the office of President of the United States. Had the Constitution provided for the appointment of some other person than the presidential incumbent to that office, the powers and duties of the office would have been the same."' Whatever may be true in theory, there are great practical advantages in making the President the military as well as the civil head of the nation. The only reference in the Constitution to the heads of the executive departments is found in this and the following clauses. The language implies that such departments would be established, but the Constitution neither in Section 8, of Article I, nor elsewhere, specifies the power to establish them as one of the powers'Tiffliny's Treatise,,. 340. 2. II. 1. THE EXECUTIVE - PARDONS. 177 belonging to Congress. The heads of these departments are the advisers of the President. Collectively they are called his Cabinet. They have frequent meetings at which measures are discussed, and in addition their written opinions are given to the President whenever he requires them. The opinions of the AttorneyGenerals fill a number of volumes. A reprieve suspends for a time the execution of a sentence, especially when the criminal has been sentenced to death. A pardon is a full release from the punishment which would otherwise be inflicted. The power to reprieve or pardon implies the possible. inmperfection of human justice. Circumstances may come to light after a trial which, had they been known before, would have secured a different result. This prerogative of mercy is found in all civilized governinents, and it is properly lodged with the Executive. Our Constitution gives it to the President, except in cases of impeachment. "The power of impeachnment will generally be applied to persons holding high offices under the government; and it is of great consequence that the President should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it." (Story.) The saime writer thinks the President would have no authority to pardon in case of contempts; tas it would tend to make the legislative bodies wholly dependent upon his good will and pleasure for the exercise of their own powers. Thle language of the Constitution is that the President shall have power "to grant reprieves and pardons." For the meaning and use of the expression "to grant pardons," we are referred to the English law, which allowed the king as the sovereign to pardon before trial as well as after. Was this the intention 178 THE CONSTITUTION. 2. 1I. 1. of the framers of our Constitution? Judge Field, in giving the opinion of the Supreme Court in the case of Garland, said: " The power thus conferred is unlimited, with the exception stated; it extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." Mr. Tiffany views the matter differently. " To pardon or reprieve a man implies that he has become, in the eye of the law, the subject of punishment to be inflicted upon him. It implies that the law has pronounced him guilty, and denounced upon him the penalty. The Executive, as an officer of the law, can know nothing of the guilt or innocence of a party, or of his need of a reprieve or pardon, until his guilt has been judicially ascertailled. No reprieve or pardon can, in law, be granted, until there be that from which a reprieve is needed, or for which a pardon is demandedl."' "There may be cases as in rebellion or civil war where a large class of citizens may need, and public policy may require, an amnesty in their behalf. But such exigency addresses itself to the legislfative, not to the executive department of government." 2 This seems to have been the view of Congress when, by act of July, 1862, they authorized the President to extend pardon and amnesty by proclalnation to those in rebellion against the government, with such conditions as he might deem expedient. On the third of December, 1863, President Lincoln issued an amnesty proclamlation, referring to the action of Congress. Other proclamations were issued by Mr. Lincoln and Mr. Johnson prior to the repeal of the section authorizing such offers of amnesty. The latter, however, issued proclamations of like character after the repeal-Jan-'Tiffany, p. 3.35. 2Ibid p. 338. 2. II. 2. THE EXECUTIVE-TREATIES. 1 9 uary 19th, 1867 —giving the Constitution as his authority, in answer to an inquiry made by the Senate. President Fillmore granted a conditional pardon to a man convicted of murder and sentence(l to be hung. The condition was that he be imprisoned during his life. It was commuting the sentence of death to ilmprisonment for life. The Supreme Court held that such a pardon was within the power of the President. Clause 2. —He shall hIave powe, by andt with the advice ctnd consent of the Senate, to gmake treaties, provided two-thirds of ithe Senators present conculr; and he shall nominate, and by and with the advice and consenlt of the Senate, shall ctppoint Anbacssadors, other public iiniisters and Consuls, Judges of the Sulpremen Court, a(id atll other ocecrs of the United States, whose cappointmelnts are onot herein othed'wise provided for, and which sholl be established by law; but the Congress may by laby vest the atppointment of such inferior oqicers as they think plroper, in the Presidenlt cdlone, inl the Courts of law, or in the Ih.eads of Depalrtmnents. The "advice and consent" of the Senate, both in making treaties and in appointments to office, is, in practice, consent rather than advice. The treaty is made and then sent to the Senate for their concurrence. A nomination is made by the President and the Senate acts upon the question of confirmation. A treaty is tan agreement or contract between t\~wo nations. In Great Britain the power to make treaties is in the Crown. In a republic the people may place it where they choose. The wisdom of giving it to the President and Senate will hardly be questioned. To give it to the President alone would intrust to himn more power than is consistent with the nature of our government. It could not well be placed in Congress because of the promptness and secrecy often necessary. 180 THE CONSTITUTIONT. 2. II. 2. By requiring the concurrence of two-thirds of the Senate with the President the Constitution has provided as ample a guaranty as could well be required for the maintenance of the rights and honor of the country. While the power to make treaties is general and unrestricted it is not to be so construed as to destroy the fundamental laws of the land. "A treaty to change the organization of the government, to annihilate its sovereignty, to overturn its republican formi, or to deprive it of its constitutional powers, would be void; because it would destroy what it was designed merely to fulfill, the will of the people" (Story). Cases imay arise where a given end may be reached either by a treaty or by ordinary legislation. Thus, Congress authorized the admission of the Republic of Texas in either of two modes-by treaty, to be negotiated by the Executive with that Republic; or by the acceptance, on the part of Texas, of certain terms specified in the joint resolution of the two Houses. "The annexation was made, in fact, by the acceptance of the propositions of Congress. So that the treaty was made directly with Texas by Congress, and not by the President with the advice and consent of two-thirds of the members of the Senate, as the treaty-making power."1 If a treaty made by the President and Senate with a foreign power involve the payment of money, can Congress exercise any discretion as to the appropria — tion? This question came up during the administration of President Washington, and was debated with great earnestness in the House of lepresentatives. The treaty was one made by Mr. Jay with Great Britain, and in sole of its features was obnoxious. The House by a large majority passed a resolution, that whenever a treaty required laws to be passed to carry it into effect, they had a constitutional right to delibI lFarral, p. 333. 1. II. 2. THE EXECUTIVE-TREATIES. 181 erate and determine the propriety or impropriety of passing such laws, a(nd to act thereon as the public good should require. Shortly after, however, Congress passed a law to carry the treaty into effect. Says Chancellor Kent, "If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the government or upon the people at large, so long as it continues in force and unrepealed." 1 It is claimed that whenever terrzitory has been acquired by treaty, Congress has been consulted beforehand; that in the three great cases of the purchase of Louisiana, of Florida, and of California, Presidents Jefferson, Monroe, and Polk consulted Congress beforehand to ascertain its wishes in the matter, thus apparently recognizing the authority of the House of Representatives to make or refuse the necessary appropriations. As the Constitution (Article Vi.) expressly nmakes treaties, no less than the statutes enacted by Congress, to be the supreme law of the land, mlight not a treatystipulation for the payment of money be construed to be an appropriation made by law, according to the meaning and intent of the Constitution? If so, the money might be lawfully drawn from the treasury, even if Congress made no appropriations. It is evident, however, that the framers of the Constitution did not contemplate the purchase of territory as belonging to the treaty-making power, and President Jefferson at the time Louisiana was purchased admitted that the authority to make the purchase wvas not given to the government in the Constitution. As, prior to the purchase of Alaska, Congress has always been consulted whenever it was proposed to enlarge our domain, and as there are grave doubts whether the acquisition of territory comes within the province of Vol. I, I,. 256. 182 THIE CONSTITUTION. 2. II. 2. treaties, it seenms desirable that in all such cases the consent of Congress should be obtained. In framing a treaty the President acts through the Secretary of State, a foreign minister, or a plenipotentiary appointed for the purpose. The treaty is signed by the representatives of the two nations, and then submitted to the respective governments for their ratification. After the ratifications have been exchanged, the President issues his proclamation, making the treaty public, "to the end that it may be observed with good faith by the United States and the citizens thereof." In discussing a treaty, as well as in considering a nomination, the Senate sit with closed doors. It is called going into Executive session. Two-thirds of the members present must concur in the ratification of a treaty, while a majority is sufficient to confirm a nomination to office. Nominations are sent to the Senate by the President in writing. The nomination is by the President alone. The Senate can confirm the nomination or reject it, but they can not make the nomination. The wisdom of this mode of appointment is thus stated by Mr. Hamilton: " The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace."' The Constitution provides that Ambassadors, other public ministers and consuls, and Judges of the Supreme Court, must be appointed by the President and Senate; but such " inferior officers' as Congress may designate,' Federalist, No. 77. 2. II. 2. THE EXECUTIVE —APPOINTMAENTS. 183 may be appointed by the President alone, by the courts, or by the heads of departments. It has not been determined who are, or who are not, " inferior officers; " but it may be considered settled that the heads of departments do not belongo to this class. If Congress does not vest the appointmlent of any officer in the President alone, in the courts, or in the head of a department, then, as a matter of course, the President and Senate appoint, no matter how insignificant the office may be. The courts have been invested with very little power of appointment; but the heads of departments have had large power of this kind. Formerly, the Postmaster-General could appoint and remove all deputy postmasters. This gave him an enormous patronage, which was continually increasing. But the Thirtyseventh Congress, at its third session, enacted that the Postmaster-General should appoint those deputies only whose compensation is less than one thousand dollars a year, all others being appointed by the President. VWhile the Constitution makes provision for appointment to office, it says nothing in regard to relmoval from office. At the time the Constitution was under discussion in the States, its friends spoke of the consent of the Senate as no less necessary for the removal of an officer than for his appointment.' But in the First Congress the question coame up in the House of Representatives, and was discussed at great length. In a bill establishing a Department of Foreign Affairs-now called the Department of State-it was provided that the Secretary might be removed by the President. The debate occurred on a motion to strike out this provision. It was maintained on the one sidcle that the power to appoint and the power to remove must go together; if the President could appoint only with the consent of the I"The consent of that body would be necessary to displace as well a, to a.ppoint."-Federalist, No. 77. 184 THE CONSTITUTION. 2. II. 2 Senate, their consent must also be necessary to remove. On the other side it was held that appointing to office and removing therefrom were executive acts. If the Constitution had not associated the Senate with the President in the matter of appointments, Congress could not have given them that power; and as the Constitution had not conferred upon the Senate the power to unite with the President in removal, Congress was not authorized to associate them with the President in removing from office.l The bill, with the provision authorizing the President to remove from office, finally passed the House of Representatives by a vote of twenty-nine to twenty-two, and the Senate by a majority of two.2 Howv strong was the opposition to giving such power to the President appears from the language of Mr. Sumter, of South Carolina, who said: "Tllis bill appears, to my mind, so subversive of the Constitution, and in its consequences so destructive of the liberties of the people, that I can not let it pass without expressing my detestation of the principle it involves."' "That the final decision of this question in favor of the executive power of removal was greatly influenced by the exalted character of the President then in office, was asserted at the time, and has always been believed; yet the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in the decision; and it constitutes, perhaps, the most extraordinary case in the hlistory of the government of a power conferred by implication on the Executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions." (Story.) lAnnals of Congress I, p. 463. 2 When the question first came before the Senate, some imembers were absent, and the Senate were equally divided, the Vice-President giving the casting vote.-Pitkin's History, vol. II, p. 326.:) Annals of Cong'ress I, p. 591. 2. II. 2. THE EXECUTIVE- REM.OVALS. 185 For forty years after the adoption of the Constitution there were very few removals from office, except as a public necessity to secure greater efficiency in the discharge of official duty. Such, unquestionably, was the expectation when tile Constitution was formed. Mr. Madison, in the debate referred to above, used the following language: "I contend that the wanton removal of meritorious officers would subject him (the Presi(lent) to impeachment and removal from his own high trust."' " It can not be doubted," says Mr. Tiffany, "that the practice of creating vacancies by remlovals fromn office, without any reference to the fidelity or efficiency of those removed, or to the better qualifications or character of those who are appointed to their places, is a violation of both the letter and the spirit of the Constitution."2 But, although for many years men were appointed to office for their fitness, a change had taken place before the first half century had elapsed. In 1835, during the second term of General Jackson's administration, a Committee of the Senate, Mr. Calhoun Chairman, appointed to investigate the subject of';Executive Patronage," used the following language in their report: "It is easy to see that the certain, direct, and inevitable tendency of this practice is to convert the entire body of those in office into corrupt and supple instruments of power, and to raise up a host of hungry, greedy, and subservient partisans, ready for every service, however base and corrupt. Were a premium offered for the best means of extending to the utmost the power of patronage; to destroy the love of country and substitute a spirit of subserviency and man-worship; to encourage vice and discourage virtue; and, in a word, to prepare for the subversion of liberty and the establishment of despotism, no scheme more perfect IAnnIals of Congress I, p. 497. 2 Treatise, p. 350. C. G. 16. 186 THE (CONST'TrTTifON. 2. II. 2. could be devised. * * The question now is, not how, or wvhere, or with whom, the danger originated, but how it is to be arrested; not the cause, but the remedy."' Although bills had been introduced into Congress to limit the President's power of removal, no bill to that effect was passed until 1866. In July of that year it was enacted that "No officer in the military or naval service shall, in time of peace, be dismissed from service except upon and in pursuance of the sentence of a court nmartial to that effect, or in commutation thereof." This was under the administration of President Andrew Johnson. In March, 1867, an "Act regulating the tenure of civil offices" was passed, which provided that the President might suspend an officer during a recess of the Senate, reporting the same with the reasons for it to the Senate within twenty days after their assembling; if the Senate should concur in the removal, another person might be appointed. But if the Senate should not concur, the suspended officer was to resume his duties. This bill was vetoed by President Johnson, but passed over his veto by a large majority in each House. It was chiefly for violating the provisons of this act, in removing Secretary Stanton after the Senate had refused to concur in his suspension, that the House of Representatives brought articles of impeachment against the President. Thus, after more than three-quarters of a century, the legislative construction given to the Constitution in 1789, was reversed in 1867. In each case the action of Congress was doubtless largely influenced by their estimate of the character of the Executive. The question has never yet been, the subject of judicial construction. The frequent changes in office, and the appointment of men often sadly deficient in intellectual and moral 1Senate Doc,, 2d Sess., 23d Cong., vol. 3, No. 109. 2 This act was modified by act of April 5th, 1869. 2. II. 3. THE EXECUTIVE - FILMING VACANCIES. 187 qualifications, form one of the sources of official corruption. The subject of "Civil Service Reforlm " has been largely discussed within the last few- years, and various plans have been suggested to remedy existing evils. Three things have been affirmed to be requisite in order to bring about a reform: a competitive examination of all candidates for subordinate offices; promotion to higher grades on the principle of service.and desert; and a tenure of office during good behavior, or for a term of years. Clause 3. —The Piesident shall ]have power to fill up all vacancies that tmay happen dzcuinyg the recess of the Senate, by giawnting cmzmissions cwhich shall expire at the endl of their next session. When an appointment has been made in the usual mode, that is, the President having nominated and the Senate having confirmed, the commission is not made out till the Senate leave signified their concurrence. If the person nominated by the President is rejected by the Senate, of course no commission is issued. But when a vacancy is filled in the recess of the Senate, the President grants a commission, which continues in force until the end of their next session. If the President nominates to the Senate one whom he had thus appointed and commissioned, and the Senate confirms the nomination, a new commission is issued, and, if a bond had been given under the first appointment, a new one is required. Suppose a vacancy had been filled by the President in the recess of the Senate, and the officer thus appointed should be nominated to the Senate at their next session, and be rejected; could the President, after the adjournment of the Senate, re-appoint the same person? Would this be a "vacancy" in the meaning of the Constitution? If the Senate have rejected an officer, the President should not appoint him to the 188 THE CONSTITUTION. 2. III. same office. The consent of the Senate to an appointmnent is clearly required by the Constitution, and that instrument contemplates action by the President alone only when there is no opportunity to consult the Senate. If the Senate take no action upon a nonmination, the President, whose duty it is to see that the laws are executed, must make the appointment himself. This occurred under the administration of President J. Q. Adams. President Monroe made a nomination which was rejected, and after the expiration of the session filled the vacancy by an appointment. President Jackson nominated a person whom the Senate rejected, and he subsequently renewed the nomination of the same person. The Senate laid the nomination on the table, and adjourned without taking further action on the subject. After the adjournment of the Senate, the President appointed the man. It would have been better if the Senate had acted upon the nomination. The nomination having been madec the second time could again have been rejected. In that case the President would have felt compelled to make a different appointment. Section 3. —He shall Sfromw tine to time give to the Congress inforlmation of thle state of the Union, and recoovmmend to their considecration such measures as he shall judge necessary and exedient; he may, on extctorldinary occasions, convene both Houtses, or either of them, and in case of disagreemene! beLweeeu theml with r'espect to the time of adjoournmlent, he may adjozurn then to such time as he shall think proper; he shall receive ambassadors and other public mvinister.-: he shall take cacre that the laws be faithfully execzuted), a.d shall comvmission all the ofqcers of the United State-e. It is customary for the President, at the beginning of each regular session, to send a message to Con'gress, So III. THE EXECUTIVE — DUTIES. 189 which contains a summary of the reports from the ]leads of departments, and a general account of the operations of the government for the year, with such suggestions as he may deem expedient. Accompanying the message are the full reports of the various departments, and documents containing detailed infor. mation as to every branch of the government. The "1 Message and Documents" and "Executive Documents" fill annually a number of octavo volumes. The President also sends special messages from time to time, recommending such measures of legislation as he thinks the interests of the country require, or containing information requested by Congress. President Washington delivered his first message to both Houses assembled in the Senate Chamber. He continued to deliver his messages in person at the opening of each session of Congress, during the eight years of his administration, and his example was followed by Mr. Adams. Each House appointed a committee to prepare a reply, which, when adopted by the House, was presented to the President. This was in accordance with the custom of England and other constitutional governments. Mr. Jefferson, however, preferred to send his message, to be read to each House by its clerk. There was no expectation of an answer. This custom has been followed to the present time. The authority given to the President to convene Congress ]las been used on eight occasions. President Adams called an extraordinary session for May 15th, 1797, on account of the, difficulties with France; President Madison, May 22d, 1809, and again 5May 24th, 1813 both because of difficulties with England; President Van Buren, September 4th, 1837, to consider the financial condition of the country; President Harrison, May 31st, 1841, for the same purpose; President Pierce, August 21st, 1856, because of the Kansas troubles; President Lincoln, July 4th, 1861, on account of tlb -]90 THE, CONSTITUTION. 2. III. rebellion in the south; President Hayes, October 15th, 1877, for want of an appropriation for the Animy. Pr1esident Jefferson convened Congress October 17th, 1803, three weeks earlier than usual, because of the purchase of Louisiana, and thile difficulties with Spain. The House of Representatives has never been coinvened alone, but the Senate has often been, for executive business. No case has Ayet arisen of disagreement between the two Houses in regard to the time of adjournment, and therefore the President has never had occasion to use the contingent power of adjourning them. In Encgland the sovereign may at any time prorogue or dissolve Parliament. The President is to receive ambassadors and other public ministers. Diplomatic intercourse with other nations is carried on through the Executive Department. Instructions to our foreign ministers, though bearing the signature of the Secretary of State, are always in the name and by the order of the President. To receive an ambassador or other public minister is to recognize the country from which he comes as belonging to the commonwealth of nations. The Southern Confederacy made great efforts to secure such recognition from Great Britain and France during the war of the rebellion. The power to receive involves the power to refuse to receive, or to reject and dismiss. This may be done for reasons pertaining to the minister himself, as in the case of AM. Genet, the French minister, whom President Washington requested France to recall in 1794, or on account of the relations of the two governtnen ts. The President "shall take care that the laws be faitllfully executed, and shall commission all officers of the United States." To see that the laws are executed is the great duty of the President. He is not to 2. IV. IMIPEACI-HMENT. 191 make the laws, or repeal them, save as the Constitution gives himl a qualified negative in their enactment, but to take care that the laws are duly enforced. When the meaning of a law is judicially called in question, it is not the province of the President to decide as to the true meaning and intent of the statute; this belongs to the Courts. HIe may differ from the Supreme Court as to the interpretation of a law, or a clause of the Constitution, or he nmay think a statute unwise or inexpedient; still, whatever has been enacted in accordance with the forms prescribed by the Constitution, must be executed in good fatith by the President. For this purpose he is clothed with great power; the armny and navy are under his orders. Either directly or indirectly all executive offices are filled by men of his selection. It is his duty, therefore, to see that none are appointed to office but those who are honest and capable. Sectioin 4. —The President, Vice-President, and all civil oficers of the United States, shall be removed from, ofice on inq)leachniellt for, and conviction of, treacson, bribery, or other higyh criinews acnd miscdeq)meanors. The other instances in which impeachments are alludecd to in the Constitution are these: The HIouse of Representatives shall have the sole power of impeachment; The Senate shall have the sole power to try impeachments; When the President of the United States is tried, the Chief Justice shall preside; In trials for impeachments, the Senate shall be on oath or affilrmation, and the concurrence of two-thirds shall be necessary for conviction; Judlgment shall not extend further than to renioval from office, and disqualification to hold and enjoy an office of honor, trust, or profit under the United States; The party convicted nay also be tried and punished according to law; The President has power to grant reprieves and pardons 192 THE CONSTITUTION. 2. IV. for offenses against the United States, except in cases of impeachment; The trial of all crimes, except in cases of impeachment, shall be by jury. While it is clear that the I-Iouse of Representatives only can prefer articles of impeachment, and the Senate only can. try impeachments, it is not clear who may be impeached. The present section prescribes a minimum punishment for all "civil officers" on conviction, but the Constitution nowhere defines "civil officers," nor does it say that others are not liable to impeachment. The term civil is here supposed to be used in distinction from military and naval. Some understand that members of Congress are not included under the designation "civil officers," as Section 3, Article II, provides that the President "shall coimmission all the officers of the United States." As members of Congress are not commissioned by the President it is inferred that they are not "officers" in the sense of the Constitution. Articles of impeachment were brought against William Blount, United States Senator from Tennessee, in 1i797. The day after the resolution to impeach passed the House, Mr. Blount was expelled from the Senate, by a vote of twenty-five to one. Action, however, was taken by both Houses for going on with the impeachment. Articles of impeachment were agreed to January 29th, 1798, and the Senate summoned Mr. Blount to appear and answer in the December following. At that time the Senate formed itself into a. Court, and counsel for the defendant appeared and filed a plea that the Senate could not impeach one who was not them a Senator, and who was not an (qt[icer of the United States when the offenses charged were commlitted. The question of jurisdiction was then argued, and tlle court decided,1 fourteen to eleven, that they had no jurisdic1A.nnals of Congress. 5th Congress. 2. IV. IMPEACHMENT. 193 tion, and so tile case ended. The decision is supposed to have been on the ground that a Senator is not a'civil officer" of the United States. It appears that all "civil officers" inay be impeached for "high crimes and misdemeanors," and, if convicted, they shall be reinoved from office, and,way be disqualified for any office under thle government. It does not appear that they may not be ilmpeachedl for other and lesser offienses, and punished in the same manner, or otherwise, not exceeding that. Military and naval officers, and even persons not in office mlay be impeached; at least the Constitution does not forbid it. "It was the opinion of the framers and early adclinistrators of our government, that all the civil officers were inipea-chable for minor nmalfeasances in office, not amounting' to high crimes or misdemeanors at law, and punishable in any manner not exceeding removal from, and disqualification for, office."1 Mr. Madison's language in regard to removal from office has already been quoted: "The wanton removal of meritorious officers would subject him (the President) to impeachmlent and removal froll his high trust." Besides the case of Senator Blount, there have bceln six instances of impeachment. The first was that of Judge John Pickering, of the District Court of New Hampshire, in March, 1803. The second wias that of Judge Samuel Chase, of the Supreme Court, inl March, 1804. Jamies H. Peck, District Judge of Missourli, was impeached in April, 1830; West H. Humphries, District Judge of Tennessee, in May, 1862; Andrew Johnson, President of the United States, in Februlry, 1868; and Ailliamn W. Belknap, Secretary of War, in March, 1876. The charge against Senator Blount was an attempt to carry into effect a hostile expedition in favor of the EnLgFarrar, p. 436. C. G. 17. 194 THE CONST'lTUTON. 2. IV. lish agtainst the Spanish possessions ilI Florida and Louisiana, and to enlist some of the Indiatn tribes in thle samtlle. Judge Pickering was charged with great irregularities on the bench, as well as gross intemlperance. He was undoubtedly insane at the time lie was imlpeached, and did not appear in person or by counsel. rThe decision, on March 12th, 1804, was that he was guilty of the charges, by vote of nineteen to seven. By a vote of twenty to six he was removed from office. Judge Chase was charged with improper conduct on the bench, as manifesting partiality, injustice, and oppression. There were eight articles of impeachment, onl two of which eighteen Senators voted " guilty," and sixteen'not guilty;" on the other six articles a majority voted'not guiltyv." He was, therefore, acquitted on every article. John Randolph was the leading Manager on the part of the House to conduct the case. Judge Peck was impeached for an abuse of his judicial power in punishing Mr. 1,. E. Lawless, an attorney, for contempt. The offense of MIr. IL. was the publishing in a newspaper a criticism on a decision by Judge Peck, and he was plunished by imprisonment for twenty-four hours, and suspension from the bar for eighteen months. The decision was in favor of Judge Peck, twent-y-one Senators voting " guilty,' and twenty-two " not guilty." Mr. James Buchanan was the Chairman of the Mnanagers. Judge Humphries was impeached for aiding the rebellion, for acting as Judge of a Confederate Court, for illtreating loyal men, confiscating their property, etc. He did not appear in person or by counsel. The Senate pronounced him "guilty " on each of the seven articles, and by a unanimous vote he was removed from office, and disqualified from holding any office of honor, trust, or profit, under the United States. Mr. John A. Bingham was the Chairman of the Managers. President Johnson was impeached for removing Secre 3. I. THE JUDICIARY. 195 tary Stanton from office in alleged violation of the act regulating the terms of certain civil offices, passed Marich 2d, 1867, and for affirming that the Thirty-ninth Congress was no Congress, etc., etc. Thle President had suspended the Secretary in August, 1867, but the Senate voted in January, 1868, not to concur in the suspension. In February thle Secretary, who had resumed his office, was removed by the President. Three days afterwards the House of Representatives passed resolutions of impeachment. The articles were read to the Senate March 4th, and the trial ended May 26th. Thirty-five Senators voted "guilty," and nineteen "not guilty." AMr. John A. Bingham was the chief maniager. Secretary Belknap was impe~ached for "high crimes and misdemeanors in office" in receiving money for an appointment to the post of trader aIt Fort Sill. The resolution of impeachment was adopted March 3d, but the trial did not end till August 1st. The question of jurisdiction was raised, as thle Secretary had resigned before the House took action, but the Senate decided, thirty-seven to twenty-nine, that they had jurisdiction. The trial resulted in an acquittal, thirty-seven voting "guilty," and twenty-five "not guilty." The votes were nearly the same as to the guilt of the defendant and as to the jurisdiction of the Senate. Mr. Scott Lord was the chief manager. ARTICLE III. TI-HE JIUDICIARY. Section 1.-The judcicial power of the United States shall be vested in o.ne Sutpreme Colrt, arid in such inferior Courts as the Cog)gress ma(y from? timne to tivme ordain anlC establish. The Jutdges, both of the Supreme adcl inferior Courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a corlaensa 196 THE CONSTITUTION. 3. 1. tion which shall not be diminished during their continuance in ofice. The Judiciary is the third of the three great departments of the general government. The Constitution itself provides for one Supreme Court, but leaves to Congress to determine how nmany inferior Courts should be established. The organization of the Supreme Court is also left to Congress. At the first session of Congress, in 1789, an act to organize the Judiciary was passed. Two inferior Courts were established, called the Circuit Court and the District Court. While there were thus three distinct Courts, there were but two kinds of Judges —Supreme and District. The country was divided into thirteen districts, in each of which a Judge was to be appointed, who was to hold a Court four times in each year. These districts were grouped into three circuits, in each of which a Circuit Court was to be held twice a year, to be attended by two Supreme Judges and the District Judg'e.' The Supreme Court consisted of a Chief Justice and five Associate Justices. This Court was to hold two sessions each year at the seat of government. As the l)opulation of the country increased, and new States were admitted into the Union, the number of inferior Courts was increased, till, in 1863, there were ten Circuits and about forty Districts. By the act of March 3d, 1863, the Supreme Court was composed of a Chief Justice and nine Associate Justices, the whole equal to the number of Circuits. But the act of July 23d, 1866, provided that no vacancy should be filled till the nulnber of Associate Justices was reduced to six. From 1793 till 1869 the Circuit Court was composed of one Judge of the Supreme Court (instead of two, as 1 In February, 1801, an act was passed providing for the appointment of sixteen Circuit Judges, but the act was in force but a single year,, having been repealed in March, 1802. 3. I. THE JUDICIARY-TERAI OF OFFICE. 197 at first) and the District Judge. In 1869 an act of Congress was passed creating Circuit Judges, one for each of the nine Circuits. The same act made the Supreme Court to consist of a Chief Justice and eioht Associate Justices, corresponding to the number of Circuits. We have seen that in both the legislative and the executive departments the term of office is limited: the Representatives being elected for two years, the Senators for six, and the President for four. But in the judicial department the office is to be held durigy good lbehavior. T'his is virtually for life; for a Judge of the United States can be removed from office only by impeachment. As the Judges are not elected by the people, but appointed by the President and Senate, they would be virtually dependent on the other departments of the government unless their term of office was during good behavior. If the President, or the President and Senate, could remove them at pleasure, or if they were appointed for a limited term, the Judclges could not be truly independent. It was the purpose of the Constitution to make this department co-ordinate with the otlhers, and with no more dependence upon them than they should have upon it. The independence of the Judiciary is quite as important in a republic as in a monarchy. All the plans submitted to the Convention contained this provision, that the Judges should hold their oflices during good behavior. While iMessrs. Randolph, Pinckl ney, Patterson, and Hamilton differed as to many other things they agreed entirely as to the term of office of the Judges. The practical working of the system has been such as to commend it to the people. The Judges, made thus independent of the other departments of the government, and removed from the fluctuations of popllar opinion, have discharged the duties of their high trust with firmness and dignity. In some instances men have been appointed to the bench who had previously been intense political partisans; but with scarcely 198 THE CONSTITUTION. 3. 1. an exception they have laid aside party feeling when entering upon office, and as Judges have devoted themnselves faithfully and conscientiously to their appropriate duties of interpreting and applying the laws alnd the Constitution. In 1855 a Court of Claims was established, which has jurisdiction of claims against the government tounded upon a law of Congress, on any regulation of an executive department, or any contract, express or implied, with the government of the United States. Before the organization of this Court, those who had claims against the government which were not allowed by the departments had no remedy but to petition Congress. This devolved a great deal of labor upon the members of Congress, while it was still difficult to adjust the claims. This Court consists of five Judges, of whom one is Chief Justice, who hold their offices during good behavior. Their annual session commences at the same time with that of the Supreme Court, on the first Monday of December. There is also a Supreme Court of the District of Columbia, consisting of a Chief Justice and four Associates, who hold their offices during good behavior. Any one of these Justices may hold a District Court for the District of Columbia, with the same powers and jurisdiction as are exercised by the other District Courts of the United States. Supreme and District Courts are established in the Territories, but they are not considered as an integral part of the Judiciary of the United States. They are estaablished by Congress in virtue of the general sovereignty which exists in the general government over the Territories. The Judges are usually appointed for four years, unless sooner removed. The general Judicial systemn of the United States consists, then, of three grades of Courts-the Supreme, 3. 1. - THE JUDICIARY-COMPENSATION. 199 the Circuit, and the District. There are also three grades of Judges, corresponding to the Courts. The Supreme Court is held by the Supreme Judges, and the District Court by the Judge for the District. But the Circuit Court may be held by a Supreme Judge, the Circuit Judge, or the District Judge, or by any two of them. The Court for the District of Columbia is special for that locality, and the Court of Claims is special in regard to the cases brought before it. The compensation of the Judges of the United States Courts shall not be diminished during their continuance in office. The propriety of this provision is obvious. If Congress could reduce their salaries at pleasure it would place themn at the mercy of the legislative department, and thus destroy their independence. Wlhen the Courts were organized in 1789, the salary of the Chief Justice of the Suplreme Court was placed at $4000, and those of the Associate Justices at $3500 each. The District Judges received fromn $1000 to $1800. The salaries have been raised from time to time; since March, 1873, they have been as follomws: the Chief Justice, $10,500; the Associates, $10,000; the Circuit Judges, $6000, and the District Judges from $3500 to $5000. By act'of April 10th, 1869, it was provided that any Judge of any Court of the United States, having held his commission ten years, and having attained the age of seventy years, might resign his office and receive the same salary during life which was payable to him at the time of his resignation.1 The officers of the United States Courts are Attorneys, Marshals, Reporters, and Clerks. The Attorney-General is charged with the duty of conducting suits in the Supreme Court in which the United States shall be: Judges Robert C. Grier and Samuel' Nelson of the Suprenme Court have resigned under this provision. 200 THE CONSTITUTION. 3. II. 1. concerned. He is also to give his advice and opinion upon questions of law when required by the President, or requested by the heads of any of the departments touching any matters that may concern their departnents. He has a seat in the Cabinet, and is at the head of the Department of Justice established in 1870. The Supreme Court has a Reporter, whose duty it is to report all the cases brought before that Court. These reports are published, and now fill many volumes.' In each judicial district there is a District Attorney, who attends to all cases in the District and Circuit Courts in which the United States is a party. Each district has also a MarIshal, who is the executive officer of the Coulrt, performing the same general duties in the United States Courts as the Sheriff in the State Courts. He carries out the order or judgment of the Court, and executes its process. The Clerk keeps a record of all the proceedings, giving a history of each case, with all the orders, decrees, judgments, etc., of the Court. He keeps the seal of the Court, and has charge of any moneys paid. The Attorney, Marshal, and Clerk of the District Court are also officers of the Circuit Court. The Attorney and Marshal are appointed by the President and Senate, but each Court appoints its own Clerk. Sec. 2, Clause 1. — The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties nmade, or which shall be made, under their authority; to all cases ctffecting ambassadors, other public milnisters, and consuls; to all 1 The Reporters have been as follows: Alexander J. Dallas, 1789 to 1800. Beni. C. Howard, 1843 to 1860. William Cralich, 1801 to 1815. Jeremiah S. Black, 1861 to 1862. Henry Wheaton, 1816 to 1827. John W. Wallace, 1863 to 1875. Richard Peters, Jr., 1828 to 1842. WVin. T. Otto, 1875 to. A reference to 5 Wheaton, 317. means the 5th Vol., 317th page of Wheaton's Reports. 3. II. 1. THE JUDICIARY-CASES. 201]. cases of admciralty and mnaritime jurisdiction; to controversies to which the United States shctll be a ptarty; to controversies between two or more States; between a State and citizens of another State; between citizens of d(lierent States; between citizens of the samne State, claiming lanzds under granbts of digferent States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects. The judicial power extends to all cases, etc. The Court has no power to act except when cases are brought before it.'All cases in law and equity are all suits, civil and criminal, involving controverted rights between party and party, and instituted in legal form of judicial proceedings."' 1 Until a case has been regularly brought before the Court the Judges have no power in regard to it. It is not their province to give information to Congress that a proposed law is unconstitutional, nor does it belong to them to advise the President that a law already enacted is in conflict with the Constitution. Their power is judicial merely. When a suit is commenced, and the case is before them, it is their duty to interpret the law involved, and to give the mleaning of any hart of the Constitution which may have a bearing upon the matter at issue. But the Court can not go beyond the case which is before them and give their views as to points not involved. The Judges do not make the law; they interpret and apply it; and this only as cases are regularly brought before the Court. The judicial power extends to cases in equity. "There is hardly a subject of litigation between individuals which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, 1 Farrar, p. 458. 202 THE CONSTITUTION. 3. II. 1. of a Court of Equity to relieve against what are called hard bargains. These are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been sonme undue and unconscionable advantage taken of tile necessities or misfortunes of one of the parties, which a Court of Equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction."' In some of the States there are separate Courts for cases of equity, called Courts of Equity or Courts of Chancery. In other States, the same Court has jurisdiction both in law and equity; this is the case, as we have seen, in the United States Courts. The power extends to cases arising under the COonstifhttion, the latws of the United States, and trecaties made under their authority. The Constitution confers certain powers, grants certain privileges, and secures to the citizen certain rights. If a citizen should be injured in regard to any of these, lie could seek redress in a United States Court. If a law of the United States is violated, the offender must be tried before a National, not before a State Court. Robbery of the mnail, evasion of the revenue laws, counterfeiting the coin of the country, would be instances of this. Any disregard of the stipulations of a treaty, whether by an individual, a corporation, or a State, would lead to a case arising unlder the treaties made by the authority of the United States, which must be tried before a National Court. The propriety of referring to the Courts of the United States the various cases enumerated in this clause can not be questioned. "The judicial power," says Chief Justice Jay, " extends to all cases affecting ambassadors, other public ministers, and consuls; because, as these lFederalist, No. 80. 3. II. 1. THE JUDICIARY —JURISDICTION. 203 officers are of foreign nations, whom this nation is bound to protect, and treat according to the laws of nations, cases affecting theml ought to be cognizable only by national authority: To all cases of admiralty and maritime juriscdiction because, as the seas are the joint property of nations, whose rights and privileges relative thereto are regulated by the laws of nations and treaties, such cases necessarily belong to national jurisdiction: To controversies to which the United States shall be a party; because, in cases in whichl the whole people are interested, it would not be equal or wise to let any one State decide and measure out the justice due to others: To controversies between two or more States; because domestic tranquillity requires that the contentions of States should be peacefully terminated by a conmmon judicatory, and because, in a free country, justice ought not to depend on the will of either of the litigants: To controversies between a State and citizens of another State; because, in case a State-that is, all the citizens of it —has demands against some citizens of another State, it is better that she should prosecute their demands in a National Court than in a Court of the State to which those citizens belong, the danger of irritaction and criminations arising from apprehensions and suspicions of partiality being thereby obviated: To controversies between citizens of the samtne State claiming lands under grants of different States; because, as the rights of the two States to grant the land are drawn into question, neither of the two States ought to decide the controversy: To controversies between ca State, or the citizens thereof, and foreign States, citizens, or subjects; because, as every nation is responsible for the conduct of its citizens toward other nations, all questions touching the justice due to foreign nations or people 204 THE CONSTITUTION. 3. II. 1. ought to be ascertained by and depend on national authority." 1 The judicial power of the United States is thus made to extend to all cases involving national questions. The Supreme Court is to construe the laws and Constitution of the United States. The crowning defect of the old Confederation was that there was no nactioical judiciaryr. The United States had treaties with other nations, whose import, like that of other laws, must be ascertained by judicial determinations. "To produce uniformity in these determiniations, they ought to be submitted in the last resort to one Supremne tribtonal. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independclent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice." 2 "Thirteen independent courts of final jurisdiction over the same causes arising upon the same laws, is a hydra in government, from which nothing but contradiction anld confusion can proceed.'3 The good results anticipated from the judicial system of the United States have been, to a large extent, realized. "The act of September, 1789, providing for the organization of the courts, has stood the test of experience since that time writh very little alteration or improvement; and this fact is no small evidence of the wisdom of the plan, and of its adaptation to the interest and convenience of the country. The neact wans the work of much profound reflection and of great ]2 Dallas, 419, 475. 2Federalist, No. 22. Ibid, No. 80. 3. Ii. 1. THE JVUDICIARY-JURISDICTION. 2G5 le-gal knowledge; and the system then formed and reduced to practice has been so successful and so beneficial in its operation that the administration of justice in the federal courts has been constantly rising in influence and reputation." 1 The Chairman of the Committee that reported the bill was Oliver Ellsworth, of Connecticut, who subsequently held the office of Chief Justice of the Supreme Court. The Constitution, as it originally stood, allowed suits to be brought against a State by citizens of,another State, or by citizens or subjects of a foreign State. This caused dissatisfaction on the part of the States, as they were unwilling to be arraigned before the United States Courts on suits brought by private persons. For this reason an Amnendment to the Constitution was proposed by Congress March 5th, 1794: The juldicia power qof the United States shall not be construied to extend to any suit in law or equity, comlmened or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign zState. This was ratified by the legislatures of three-fourths of the States, and became a part of the Constitution, as announced by the President, January 8th, 1798. It is the Eleventh Amendnment. While it relieves so far the dignity of the States, it weakens the power of the national judiciary to do justice to the citizen, which is one of the ends for which the Constitution was formed. The word State, in this clause (1) is interpreted by the Courts as not including the Territories or the District of Columbia. Hence, a citizen of one of the Territories or of the District of Columbia can not bring a suit in a United States Court. The National Courts, wMhich are open to the citizens of every State, and even to aliens. 1 Kent I, p. 205. 206 THE CONSTITUTION. 3. II. 2. are closed against a portion of the citizens of the United States. No direct suit can be brought against the United States either by a citizen or a State, without the authority of an act of Congress.' But claims against the government may be brought before the Court of Claims. Nor are the officers of the general government liable to be sued for acts performed in- the regular discharge of their official duties. "The suability of the officers for acts in the regular routine of their duties, and their liability to appear in courts, and plead such process, or answer for it in their own persons or property, would not only stop the wheels of government, but break the whole machine to pieces, and put an end to that political ideal being —the United States." 2 Clause 2.-In all cases affecting ambassadors, other public ministers, and consuls, and those in'which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdictionz, both as to law and fact, with such exceptions and under such regulations as the Congiress shall make. Jurisdiction is the power to hear and determine a cause. Original jurisdiction is the right to hear and determine a cause in the first instance. If- a suit can be commenced in the Circuit Court, for instance, then that Court has original jurisdiction in the case. But if the case must be commenced in the lower court, then the Circuit Court has only appellate jurisdiction. The Constitution vests the judicial pow'er in one Supreme Court and in such inferior Courts as Congress may establish. One Supreme Court must be established, but Congress may exercise its discretion as to the number and character of the inferior Courts. So, 16 Wheaton, 411. 2 (Wirt ) Opin. of Att-Generals, I, p. 457. 3. II. 2. THE JUDICIARY-JURISDICTION. 207 also, the Constitution itself prescribes the cases in which the Supreme Court shall have original jurisdic-. tion, that is, the cases which may be commenced in the Supreme Court. All other cases to which the judicial power of the United States extends must be commenced in inferior Courts, and come before the Supreme Court only by way of appeal or review. "It has been decided by the Court that this original jurisdiction can neither be enlarged nor diminished; because, if enlarged it would detract from the Constitutional appellate jurisdiction.; and, if diminished, it would so far deny all jurisdiction to the Supreme Court, which can take appellate jurisdiction only in'other cases.' It must also be exclusive; because, if a case of this kind can originate in any other Court, this Court,'not being able to take appellate jurisdiction, could have no jurisdiction at all."' The language of this clause, as to the appellate power of the Supreme Court, implies the establishment of the inferior Courts in which the suits can be commenced. As already stated, two inferior Courts have been established: the Circuit Court and the District Court. The act of Congress establishing them prescribes in what cases the District Court and in what the Circuit shall have original jurisdiction. Of some cases, the District Courts were to have exclusive original jurisdiction; and of others, this jurisdiction was to be concurrent with the Circuit Courts and the State Courts. So, also, the cases are prescribed which may be carried from the District Court up to the Circuit, and those which may be carried from the Circuit up to the Supreme Court. Unless Congress had made these "exceptions and regulations " the Supreme Court would have, by the Constitution, appellate jurisdiction in all the cases coming under the cognizance of the National Courts, lFarrar, p. 468. 208 THE CONTSTITUTION. 3. II. 2. except those in which the Constitution had given them original jurisdiction. Congress has "excepted" some cases out of the appellate jurisdiction of the Supreme Court, giving the final disposition of themn to the inferior Courts. The Act of Congress now referred to provides for the exercise of appellate power by the Supreme Court in certain cases whichl have been decided by the highest State Courts. Of course, these cases involve the Constitution, laws, or treaties of the United States; otherwise, the decision of the State Supreme Court would be final. Two views are held as to the appellate jurisdiction of the Courts. The language of the Constitution is, "'In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact, with such regulations and exceptions as Congress shall make." Some maintain that the expression, " with such exceptions and regulations as Congress shall make," gives Congress the control of the whole matter. They hold that the Courts can exercise appellate jurisdiction in those cases only which Congress has provided for. If Congress had not provided any rule to regulate the proceedings on appeal, the Court could not exercise any appellate jurisdiction. This theory is, that all the judicial power of the nation, except in cases affecting ambassadors, etc., or those in which a State is a party, is placed at the disposal of Congress, who may give it out at their discretion. Others hold that the Constitution itself vests the judicial power of the nation in the Supreme Court, and such inferior Courts as Congress may establish. The language of the Constitution is the same for the three departments of the government. As it says the Legislative power " shall be vested " in Congress, and the Executive power in the President, so the Judicial power "shall be vested " in the Courts. By the Constitution Congress may make the necessary laws, the President 3. II. 2. THE JUDICIAItY-APPELL ATE POWER. 209 n)may execute them, and the Courts may interpret and apply them. As Congress is not dependen t upon the President for authority to legislate, neither are the Courts dependent on Congress for authority to exercise their judicial functions. According to this view the whole judicial power belongs to the Courts. "Congress may remove or'except' some cases out of the appellate jurisdiction of the Suprenme Court by giving it to some other Court of the United States, but not by abolishing it, or leaving it to be exercised or not by any body else. They may also make'regulations;' that is, prescribe rules by which the jurisdiction shall be exercised so as to render it efficient and effectual for its purposes, but in no case to limit or obstruct it. "'The only power conferred on Congress by this clause is to make exceptions to, and regulations for, the appellate jurisdiction of the Supreme Court. If they do neither, that Court has the whole appellate power by the Constitution. If they make'exceptions,' they must give cases excepted to some inferior Court. If th ey make'regulations,' the jurisdiction must be exercised according to the rules so prescribed; otherwise, the jurisdiction must be exercised in conformity to such rules as the Court itself may prescribe, according to law."I Though the former of these views has been the one adopted in the main, both by the Legislative and Judicial departments of the government, the latter seems to be more in accordance with the spirit and letter of the Constitution. The Courts of the United States have a wider scope than those of Great Britain. If a law of Congress conflicts with the Constitution, the Supreme Court lmay declare it null and void. But the Courts of Great Britain can only interpret and apply the statutes of Parliament; they can not declare them null. There is I Far'rar, p. 471. C. G. 18. 210 THE CONSTITUTION. 3. II. 2. no question of constitutionality or unconstitutionality touching an'act of the British Parliamnent. Parliament itself is supreme for law-mnaking purposes; it possesses all the legislative power of the British people. But while Congress can repeal or amend their own statutes, they can not alter or anmend the Constitution. The Constitution is the work of the people, and they alone can amlend it. The legislative power of Parliament, therefore, is broader than that of the Congress of the United States, and, as a consequence, the province of the British Courts is narrower than that of ours.1 It has been already said that the powers of the Courts are jutdicial, not political. Thus if there were two contending parties, each claiming to be the rightful government, of France, for instance, the question would not be left to the Judiciary. So if there should be a contest between two parties in a State, each claiming to be the legitimate government, the question would be a political, and not a judicial, one. Congress has decided that the votes of certain States should not be counted in an election for President; Congress has also decided that, where the legislature of a State had voted to ratify an amendml ent to the Constitution, and subsequently withdrawn its ratification, the vote of ratification must be counted. The Supreme Court has itself decided that certain questions were political, and therefore did not come within its jurisdiction. The judiciary can not prescribe a policy for the government of the country. That must be left to the other departments. The judicial department can not restrain the others in their action, though the acts of both, when performed, are, in proper cases, subject to its cognizance.2 There is danger in times of high political excitement that one department may encroach upon another; but 1 Yeaman's Study of Government, Chap. vii. 2 4 Wallace, 500. 3. I[. 2. THE J-JDICIARY-DECISIONS. 211 no government, save an absolute despotism, could be framed in which this liability would not exist. We have a right to asstume that each department of the government wvill honestly and in good faith confine itself to the duties which by the Constitution have been assigned to it. Apprehension is sometimes expressed lest the Supreme Court, by deciding acts of Congress to be unconstitutional, mnay obstruct the work of legislation, and block the wheels of government. But it must be remnembered that each of the three great departments of the government is clothed with great power, and each may do incalculable mischief, if so disposed; yet the history of the nation does not show that this power has been so used to any considerable extent. In general, the National Courts have been extremely cautious in regard to interference with the laws of Congress. "It is an axiom in our jurisprudence," says Judge Swayne (United States vs. Rhodes and others), "that an act of Congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the validity of the law. Since the organization of the Supreme Court but three acts of Congress have been pronounced void for unconstitutionality."' The first instance was in 1801, at the beginning of Mr. Jefferson's administration. Near the close of the administration of Mr. Adams, a person was appointed to office and his commission made out, but not delivered. Mr. Jefferson withheld the commission. Application was made to the Supreme Court for a writ of mandamus, to compel Mr. Madison, the Secretary of State, to deliver it; the Judiciary act of 1789 authorizing the Supreme Court to issue such writs. But the Court, while they held that to withhold the commission was an act not warranted by law, and violative of a vested legal right, decided that clause of the act of 1789 212 THE CONSTITUTION. 3. 1I. 2. to be unconstitutional, as it gave the Court original jurisdiction where the Constitution had not given it.1 The second instance was in the celebrated Dred Scott case, in Mr. Buchanan's administration, in 1857. The Court decided that the eighth section of the act of Congress of 1820, preparatory to the admission of Missouri into the Union, commonly called the "Missouri Compromise," was unconstitutional. This section prohibited slavery in that part of the Louisiana territory lying north of thirty-six degrees thirty minutes north latitude, and not included in the State of Missouri.2 (It was claimed by the minority of the Court at the time, and by other Judges of the same Court since, that this question was not before the Court, and, therefore, that what Aas said in regard to it was no imore binding than the views of the minority.) The third case was that of Garland, of Arkansas, which was tried in the winter of 1866-7. Congress had enacted, (Act of July, 1862, amended by that of January, 1865,) that all officers of the United States, including attorneys practicing in United States Courts, should take a test oath. The Supreme Court decided that this act was unconstitutional as to attorneys of the Supreme Court, who were such before the rebellion, as being a bill of attainder and an ex post facto law. The last two decisions were made in times of high political excitement, and were severely commented upon by lawyers; the dissenting judges also gave their reasons for believing the laws in question to be strictly constitutional. Some other cases have occurred more recently, but they are comparatively unimportant. The fact that, in a period of more than fourscore years, Congress enacted but three laws, which, in the judgment of the Supreme Court, contained any thing conflict11 Cranch, 137, Marbiiry vs. Madison. 219 Howard, 393, Scott vs. Sandford. 34 Wallace, 334, Eg parte Garland. 3. 11. 3. THE JUDICIARY-TRIAL OF CRI-MES. 213 ing with the Constitution, is a proof of the care and caution of Congress on the one hand, and, on. the other, of the disposition of the Judiciary to avoid all encroachment upon the Legislative department of the government. Clause 3.-The trial of all crimes, except in cases of imp)eachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been commlittedl; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. A trial by jury is a trial by twelve men, impartially selected, who must all concur in the guilt of the person accused before he can be convicted. This right of trial by jury has long been regarded as one of the bulwarks of liberty. In the celebrated Magna Charta, granted by King John, at Runnymede, June 15th, 1215, is the following article: " No freeman shall be taken, or imprisoned, or disseized, or outlawed, or banished, or any ways injured; nor will we pass upon him, nor send upon him, unless by the legal judgment of his peers, or by the law of the land." Nor will we pass upon him, nor send upon him " (nec super eum ibimus, nec super eum mittemus), is interpreted to mean that no man should be condemned (without trial by his peers) either in the Court of the King's Bench, where the king is supposed to be always present, and to render judgment in his own person, or before any judge whoni the king may delega'te to try him.1 The word peers means equals, and has reference to the different classes or orders of men in a country like England. Another article of Magna Charta says: "Earls and barons shall not be amerced but by their peers." A man must be tried by a jury composed of those who are. Bowen's Constitution of Eingland and America, p. 11. 214 THE CONSTITUTION. 3. II. 3. of the same rank or standing with him. In the United States, as we have no orders of nobility, the trial is by a jury of impartial men. Most of the cases that come before the Supreme Court, and many of those before the lower Courts, are decided by the Court; there is no jury. But the Judiciary act of 1789 provides that issues of fact, in the District Courts, in all causes, except civil causes of admiralty an(l maritime jurisdiction, shall be by jury. So in the Circuit Courts, with the exception of equity suits, besides those above named, the trial of issues of fact shall be by jury. But the Constitution requires that cll criminal cases, before any United States Court, shall be by jury. Cases of impeachment are tried by the Senate, as we have seen. The trial must take place in the State where the crimes were committed. This is a provision in favor of the accused. He is made to suffer as little inconvenience as possible. Offenses "not committed in any State" are those in the District of Columbia; in the organized territories; in the Indian country; in the forts and arsenals of the United States; and upon the high seas. Provision is made by lawv for all these; those committed upon the high seas are tried in the State where the vessel first arrives.' With us there is no conviction unless the jury are unanimous. "The unanimity required in the verdicts of English and American juries was not originally required among the people with whom the institution had its origin; the verdict being reckoned by a majority, except among the Normans after they went to that province of France which has since borne their name. I* * In Sweden the jury exists to-day as it has existed for many centuries. A verdict is given by one-half tle jury, or any greater proportion, and the judge; or by a. 1Paschal's Annotated Constitution, p. 211. Amnend. 5. THE JUDICIARY-TRIAL OF CRIMES. 215 unanimous jury against the opinion of the judge; there being no verdict when the majority are opposed by a minority and the judge. We could now well consider whether absolute unanimity may not safely be dispensed with; whether the jury is not less a necessity in a perfectly free community of equals than in one composed of the three orders; whether its functions, in the progress of our political growth, have not been in great part, or entirely performed, so that in the future it is to be simply a preservative and safeguard instead of a, forming and guiding influence-a conservative rather than a progressive force; and therefore whether we imay not well limit its application to penal, criminal, and political causes and actions arising in tort or sounding in damages; leaving all matters of account, contract, title, and estates, entirely to the Court, without the intervention of a jury. Such, at least, seems to be the tendency of the professional judgment of the country." We may consider here some Amendments which relate to the subject of the Judiciary. Amendment 5. —No person shall be held to answer for a capital or otherwise infamous crime, unless on a p2resentment or indictmeant of a grand jury, except in cases arisibig in the land or naval forces, or in the vilitia wthen in actual service ins time of war' or public danger; nor shall any person be subject for the sacle offense to be twice put in jeopardy of life or limzb; nor shall be compelled in any criminal case to be a witness cagainst himse!f, nor be dleprived of life, liberty, or property, wcithout due process of laiw; nor shall private property be taken for public use witho2ut just compensation. There are two juries, the grand jury and the petit jury; the latter being meant when the wordl jury is 1Yeaman, Chap. xiii. 216 THE CONSTITUTION. Amend. 5. used wvithout any qualifying term. The grand jury is composed of a number of men, not less than tfwnelve nor more than twenty-three, selected as prescribed by law. In the National Courts after the grand jury has been impaneled, the Judge delivers his charge to them, directing them to make careful inquiry of all offenses committed within the district against the laws of the nation, and to make presentment of the salme. A pr'eseatment is an accusation macde by the grand jury from their own observation or knowledge, or from evidence before them. An iirdictment is a formal accusation drawn up by the proper officer —in the United States Courts, the district attorlney-charging offenses upon certain parties. It is the duty of the grand jury to examine the grounds of this accusation. If the evidence seem to them insufficient to warrant a trial of the party accused, they endorse upon the bill of indictment, "not a true bill," or "not found,' and the prisoner is released. But if they regard the accusation as well founded, they endorse upon the indictment the words "a true bill." In this case they are said to fitd the indictment, and the person accused must be brought to trial. A presentment may lead to an indictment, or it may not. Sometimes it is a mode taken by the grand jury to call public attention to certain acts which are thought worthy of reprehension. Though the Constitution says no person can be tried unless on a presentment or indictment, no person is, in fact, brought to trial except on indictment. Congress has never authorized trials on presentment. No person may be subject to a second trial for the same offense. That is, when by the verdict of a jury, a man has been regularly acquitted or convicted of the offense charged, and judgment has been pronounced, he can not be tried for that offense a second timne. But if the jury could not agree, or were discharged before a Amend. 6. THE JUI)ICIARY-TRIALS. 217 verdict was rendered, or if judgment was arrested after a: verdict, or a new trial granted in his favor, he might be tried again. No person may be compelled to testify against himself, or be deprived of life, liberty, or property, without due process of law. In former times criminals have been compelled, and in some countries are now, to be witnesses against themselves, and even torture is used to wring from them a confession of guilt. Though the protection to the citizen specified in this Amendment was among the common-law privileges, it is inserted here for additional, security. Private property shall not be taken for public use without just compensation. It is necessary for the government sometimes to take possession of private property for public purposes. A road is to be made, or a street is to be opened, for example. In some cases the property is purchased beforehand; but if a price can not be agreed on, or the owner will not sell, the property is conzdemned, and a jury are summoned to assess the damages. They may not place as high an estimate on it as the owner does, but this is a liability to Mwhich all are subject alike. Amendment 6. —In call criminal prosecutions the accesed shall enjo?/ the riqht to C speedy and public trial by an impartital ju1'/y q te State ctnd district wherein, the crivie shall hcave been comminitted, which district shall have been prieviously acscertained by law, cta to be informned of the nature and causte qf the accusation; to be confironted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; ande to have the assistance of counsel for his defense. All but the last two of these provisions were a part of the common law of England. But, until a period, comparatively recent, the accused was not, il that C. G. G19. 218 THE CONSTITUTION. Amend. 6. country, allowed in capital cases to have the assistance of coullsel, or the right to compel the attendance of witnlesses. We can hardly credit the statement, that before the accession of William and Mary, ill 1688, a person arraigned for a capital crime was entitled neither to witnesses nor counsel. Yet such was the fact. (Judge Story). It Twas well, therefore, to guard these rights by a provision in the Constitution; thus making sure that in all the land an accused person should be entitled not only to a trial by jury, but to witnesses and counsel as well. Both these Amendlments have reference to the civil admlinistration of the government in time of peace. "Whenever froml invasion or rebellion the public safety may require the administration of martial authority, criminals mlLay be tried, convicted, and executed, with: out the intervention of a jury." 1 " The conspirators who assassinated the President of the United States while the country was in a state of war, and while the city of WVashington was under martial law, were triable by military commission under the act of Congress, and not entitled to a trial by jury." 2 "The Constitution contemplates the possible existence of war with all its stern realities; and provides for an administration of authority under its provisions suited to such exigencies. In times of peace the citizen is to be secure in the enjoyment of his civil liberty and rights, according to the established forms and usages of laiw. But the Constitution contemplates the possibility of a state of public danger arising from the presence of a foreign or domestic foe. * * It contemplates the necessary suspension for the time being, and in particular localities, of the civil functions of the government, that the martial powers of the same may be efficiently exercised, for the security and welfare of the nation.'" 1Tiffany, p. 366. 2PaSChal, p. 264. Tiffiiny, p. 259. Amend. 7. THE J ITI)lCIARY-TRIALS. 21,9 Amlendment 7. —In suits at covmmon /law, w/here the value in coltroversy shall exceed twe.nty dollars, the'right of trial by jurly shall be preserved; and 1no fact tried by a jury shall be othe'rwise ire-examinzed in any Court of the United( States, than according to the rules of the conmmonm law. The phrase " common lawT" is used in contraclistinction from equity, admiralty, and maritiime jurisprudence. It is the common law of England, the lex non scriptca, the immemorial customs of the country. Article III., Section 2, Clause 2, gives to the Supreme Court appellate jurisdiction both as to law anid fict. G' The real object of that p)rovision was to retain the power of reviewing the fact as well as the law, in cases of equity, and admiralty, and maritime jurisprudence." But as it was thougllt by some to autlhorize the Supreme Court to review the decision of a jury in mere matters of fact, and thus reduce to a form the right of trial by jury in civil cases, this Amendment was proposed to remove the mlisapprehension. The rules of common law recognized but two modes of re-examining facts tried by jury; first, the grantino'a new trial by the Court before which the issue 7was tried; and, second, by a writ of error. A writ of error removes nothing for re-examination but the law. An appeal would remove the cause entirely, subjecting the fact as well as the law to a review and a retrial. But an appeal is a process of civil law origin and not of common law. Sec. 3, Clause 1.-iTreeson agatinst the Unzited Stctes shall consist only in levying war agcainst theml, ori in adhering to their enemnies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of twvo witnesses to the same overt act, or on confession inl opIeno Court. 220 THE CONSTITUTION. 3. III. 1. Treason is the highest crime known to society, because it tends to the destruction of the government itself. A traitor is always regarded as meriting the severest punishment that society can inflict. As treason is a breach of allegiance, it can be committed by one only against the government to which he owes allegiance. Most governments have made the word treason include many offenses which were not strictly treasonable, and thus often persons have been put to death for crimes for which some milder punishment would have been sufficient. As the word implies a breach of faith, it was petit treason for a wife to kill her husband, or for. a servant to kill his master. The act was more than murder; it was a kind of treason. For a subject to attempt to take the life of the king or queen, or to levy war against the king, or to adhere to his enemies, was high treason. When a tyrannical king was on the throne, his judges would often declare offenses to be treason which the people never suspected to be treasonable. This was called constructive treason. To prevent this, a statute was enacted in England in the time of Edward III., which defined the term. This statute comprehended the various kinds of treason under seven heads. The third of these was, levying war against the king in his realms; and the fourth was, adhering to the king's enemies in his realm, and giving them aid and comfort in his realm or elsewhere. Our Constitution takes a part of this statute of Edward III. for its definition of treason. It is made to consist only in levying war against the nation, or in adhering to its enemies, giving them aid and comfort. The purpose was to make the meaning as definite as possible, that all opportunity for constructive treason might be removed. Mr. Madison thought the definition was too restricted, and that lumore latitude ought to be left to the discretion of Congress. But the Convention preferred to place the 3. III. t. TIHE JUTICIARY —TREASON. 221 definition in the Constitution itself, and not to leave it to the judgment of Congress. It has been decided by the Court that there must be an actual levying of war; that a conspiracy to subvert the government by force is not treason. But after war has been commenced, men may give aid and comfort to the enemny, although they may not actually bear arms. The language of the Court is: If war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to. be considered traitors. 1 While the Constitution thus makes the offense of treason to embrace the giving aid and comfort to the enemies of the country, opinions may differ in regard to what constitutes "aid and comfort." During the late civil war, two steamers belonging to a steamship company had been seized for the rebel service. Subsequently, payment was offered for them to the agent of the company, when he was informed by the government that acceptance of payment from the rebels would be treated as an act of treason against the United States. Said Mr. Seward, Secretary of State: "It is treason for any person to give aid and comfort to public enemies. To sell vessels to them which it is their purpose to use as ships of war, is to give them aid and comfort. To receive money from them in payment for vessels which they have seized for those purposes, would be to attempt to convert the unlawful seizure into a sale, and would subject the party so offending to the pains and penalties of treason, and the government would not hesitate to bring the offender to punishment." 2 In times of rebellion, or civil war, all persons should IE,: pa7ote Bollmlan, 4 C'ranch, 126. 2Tiffany, p. 283. 222 THE CONSTITUTION. 3. III. 2. exercise great caution in regard to their conduct and language, lest they subject themselves to the charge of giving aid and comlfort to the enemies of their country. Actions and words, which, in other circumstances, would pass unnoticed, may be productive of great mischief when the life of the nation is endangered. All good citizens will, therefore, at such times, studiously refrain from whatever might bear an unfavorable construction. Conviction of treason requires the testimony of two witnesses to the same overt act of treason, or a confession in open Court. A private confession passes for nothing. Aaron Burr, who had been Vice-President of the United States, was tried for treason in 1807, and acquitted. Clause 2. —The Conyress shall have power to declare the punishiment of treason, but no attainder of treason shall work corruption of blood, or fotrfeiture, except durinq the life of the person attaintecd. Had this clause been omitted from the Constitution, Congress would still have had the power to declare what punishment should be inflicted on a traitor. It was inserted, doubtless, to prevent the barbarities usually connected with the punishment of treason, and to limit the effects of attainder. According to the Englislh theory the judgment itself pronounced upon one who had been convicted of treason involved certain consequences in the mode of his execution, as well as in regard to his estate. The offender was put to death in a cruel manner. His bowels were to be taken out while he was yet alive, and burned in his presence. His head was cut off, and his body divided into quarters. The judgment also involved attainder, which worked corruption of blood, or forfeiture. There was no judegment of attainder, but the attainder followed the judgment, as a matter of course. And this attainder in 3. III. 2. THE JUDICIARY - TREASON. 223 cludcled corruption of blood, or forfeiture, as a -natural consequence. All his property, of every description, was forfeited. And not only so, his children could not inherit through him from his ancestors. All inheritable qualities were destroyed by corruption of blood. In a country where real estate was entailed, the children were thus made to suffer for the offense of the parent. If the property of the traitor himself were confiscated to the government, there would be no hardship to the children; for the heirs have no right to the estate while the ancestor lives. But if the blood is corrupted so as to cut off' the connection between his children a(ind his ancestors, and prevent any inheritance descending to the former from the latter after his death, the children would suffer. Our Constitution mnitigates the severity of this punishment. It provides that the offender himself shall bear all the punishment. There shall be no corruption of blood except during the life of the party attainted. As Mr. Madison says, "The Convention have restrained Congress from extending the consequences of guilt beyond the person of its author."' If there should be any attainder in the punishment of treason, it must not be allowed to work corruption of blood after the death of the traitor. The corruption of blood must then cease, and there can be no new forfeiture. It does not mean, as some have supposed, that if the property of the traitor has been confiscated, it must be restored to his heirs at his death. This would involve the absurdity of forbidding the taking away, except for the short period between sentence and execution, the property of one who had been guilty of the highest offense known to society, while minor offenses are often punished with heavy fines. The attairnder spoken of in this clause must be that Federalist, No. 43. 224 THE CONSTITUTION. 3. ITI. 2. connected with the judgment pronounced by a Court, and not a legislative attainder. For we have already seen that Congress is forbidden, as also the States, from passing any bill of attainder. Congress might provide for a judicial attainder in the case of treason, but the effects of this attainder must be limited to the life of the offender. By act of April, 1790, Congress provided that treason should be punished with death by hanging. In 1862 (July 17th), an act of Congress declared that the traitor should suffer death, and his slaves should be made free; or, at the discretion of the Court, he should be imprisoned for not less than five years, and fined not less than ten thousand dollars, and all his slaves be made free; the fine to be levied on any of his property, real or personal, excluding slaves. This act was accompanied by a joint resolution, providing that no punishment under the act should be so construed as to work a forfeiture of real estate of the offender beyond his natural life. This resolution was passed because the President regarded the clause of the Constitution now under consideration as forbidding the forfeiture of real property except during the life of the offender. The act of 1790, referred to above, provides for punishing a variety of offinses besides treason. Some of these were to be punished with death, but most of them with fine and imprisonment; the fines ranging from one hundred to five thousand dollars. Section 24 of the act provides that "no conviction or judgment for any of the offenses aforesaid shall work corrup'tion of blood or any forfeiture of estate." The language is, that no conviction or judgment shall work avy forfeiture of estate. To interpret it as the President in 1862 interpreted the clause of the Constitution relating to the punishment of treason, would be to make it contradict the other sections of the same act, which prescribe punishments by fines, i. e., by the forfeiture of estate. 4. I. TIHE JUDICIARY —FORFEITURE. 225 The meaning is obviously this: The offenses mentioned are to be punished, some with death, some with fines and imln)risonllent; but no- conviction or judgment, aes sucht, or by its owin force, is to work corruption of blood, or any forfeiture. The offender must give up so much of his estate as is needed to pay the fine imposed; but, that being done, there is to be no loss of additional plroperty, in the way of forfeiture, as a consequence of conviction or judgment. Had Congress made the punishnient of treason to be death and the absolute forfeiture of all the estate of the traitor, they would not have gone beyond the authority conferred on them by the Constitution. They preferred not to go to the limit assigned them. They enacted that attainder of treason should not work any corruption of blood or forfeiture. But at the same time they made an absolute confiscation of property for offenses much less heinous than treason.1 As treason is a crime against sovereignty, a violation of one's allegiance, there can be no treason against a particular State.2 If a State, by its Courts, punishes treason, it must be not as treason against itself, but as treason against the Union; and in this view the propriety of that State legislation which affixes to it particular penalties is doubtful.3 ARTICLE IV. Section 1. —Full faith and credit shall be given in each State to the pjublic acts, records, and judiiicial proceedings of every other State. And the Congress mq/ay, by general law1s, p)rescribe the mlanner in which such acts, records, awd proeedings shall be proved, aldl the efect thereof. lFor views similar to those here advocated, see Story, Duer, Farrar, Tiffany, Mansfield, and others. For the opposite view, see Yeanlan, appendix. 2Elliot's Debates, V, 449. 3Jameson, p. 56. 226 THE CONSTITUTION. 4. II. 1. "Full faith and credit" means that credit which the State -itself gives to the acts, etc., when proven. "The public acts " are the-legislative acts, the enacted laws of a State. "Records " are the registration of deeds, of wills, legislative journals, etc. "Judicial proceedings" are the proceedings, judgments, orders, etc., of courts. Whenever the laws and acts of one nation coine into examination in any forensic controversy in another nation, they must be proved like other facts. The Constitution provides that this shall not be necessary as between the different States of the Union; that the judgments, etc., of one State need not be re-examined in another. But the manner in which the acts and judgments shall be authenticated, and what their effect shall be, is to be left for Congress to declare. In 1790, Congress enacted that the acts of the leoislature of a State shall be authenticated bv its seal. And that the records of a Court should be proved by the attestation of the clerk and the seal of the Court annexed (if there be one), with the certificate of the judge. It was provided, also, that the records thus authenticated should have such faith and credit in the Courts of other States as they have in the Courts of the State froml which they are taken. Sec. 2, Clause 1. —The citizens of each State slhall be entitled to all privileges ad(t ilm?,enities of citizens in the sev'eral States. Though the word citizen is repeatedly used in the Constitution, it is nowhere defined in the original instrument. But the Fourteenth Amendment says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside." Prior to the abolition of slavery, only free inhabitants 4. II. 1. PRIVILEGES OF (CiTiZENS. 227 born in the United States, or naturalized under the laws of Congress, would have been considered citizens. Every citizen of the United States is a citizen of the State where he resides, and every citizen of a State is a citizen of the United States. One may be a citizen of the United States and not a citizen of any particular State, because his residence nmay be, not in a State, but in a Territory, or in the District of Columbia. But whenever he becomes a resident of a State he becomes a citizen of it also. This clause of the Constitution provides that a citizen of one State on removing to another shall enjoy all the rights and pl)ivileges of the citizens of that State. But he can not claim any which were peculiar to the State he has left. He can not carry the local laws of one State With him whenl he removes to another. This clause also provides that the person and property of a citizen of one State shall be secure in every other State. No other part of the Constitution has been so frequently or flagrantly violated as this. Indeed, until 1866, no law had been enacted by Congress for carrying its provisions into effect. Early in that year a bill was passed, entitled " An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication." It, was vetoed by President Johnson, but receiving the requisite twothirds vote of each House became a law, April 6th, 1866. It is known as the Civil Rights Bill. It declares, that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are citizens of the United States; and all such citizens, of every race and color, without regard to any previous condition of slaveryA or involuntary servitude, shall have the same right, in every State or Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real ind 228 THE CONSTITUTION. 4. IL 1. personal property; and to full and equal benefit of all laws and proceedings for the security of person and property. This act of Congress is, obviously enough, in conflict with the language of Judge Taney in the Dred Scott case, that "a free negro of the African race whose ancestors were brought to this country and sold as slaves, is not a citizen in the meaning of the Constitution." But, as has been already stated, it has been maintained by other members of the Supreme Court that this point was not before the Court; and therefore the language above quoted is not to be regarded as the decision of that body. The study of our governmental history shows that the emancipation of a slave was exactly equivalent to the naturalization of an alien or foreigner. As naturalization removed the disqualification of the alien, emancipation removed that of the slave. This was the decision of the Supreme Court of North Carolina, in 1836, as delivered by Judge Gaston, and it was re-affirmed by the same Court in 1848. That the language of Judge Taney in the same trial, to the effect that "free negroes were not regarded in any State as citizens at the time of the Declaration of Independence, and the formation of the Constitution," is not in accordance with the teachings of history, two facts will suffice to show. At the time of the ratification of the Articles of Confederation, all free, nativeborn inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended fromn African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications, possessed the franchise of electors on equal te'rms with other citizens.1 The other fact is this. On the twenty-fifth of June, 1778, l Judge Curtis, ii Scott vs. Sandforld. 4. II. 2. AVI —O ARE CITIZENS. 229 when the Articles of Confederation were under discussion in Congress, a motion was made that the word "white" should be inserted between the words "free" and "inhabitants" in the fourth article. Two States voted for the amendment, eight voted against it, and the vote of one State was divided.1 This fourth article corresponds to the clause of the Constitution Atwhich we are now considering, It reads: " The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." The first section of the Fourteenth Amendment to the Constitution which was proposed by Congress, June 16th, 1866, and having been ratified by three-fourths of the States, was declared to be a part of the Constitution, July 28th, 1868', is as follows: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. Clause 2.-A }9erson charged in cny State wcith treason, felony, or other crime, Vwho shall flee fromn justice, and be found in another State, shall, on demand of the executive cauthority of the State from which he fled, be delivered zup, to be removed to the State hacving jtrisdiction of the crinle. A State has no authority beyond its own limits. If a criminal should escape from one State to another, the Jouir. Cont. Collg., IV, 272. 230 THE CONSTITUTION. 4. II. 2. former could not arrest him because he is beyond her boundaries, and the latter could not punish him for offenses comlnitted beyond her jurisdiction. It was necessary that a power whose authority extended over the whole country should make provision for the arrest and punishment of fugitives fromn justice. Before any law had been enacted by Congress to carry into effect this clause of the Constitution, the Governor of Pennsylvania made a requisition upon the Governor of Virginia to deliver up an escaping criminal. The requisition was refused by the latter on the ground that the clause gave him no authority to deliver up the fugitive. The case was referred by the Governor of Pennsylvania to the President, and by him laid before Congress. In consequence, the act of 1793 was enacted. This act provides that the demand be made on the executive authority of the State to which the fugitive has fled. Accompanying the demand should be a copy of the indictment found, or an affidavit made before a magistrate, and certified as authentic by the Governor nmaking the demand. The arrest is then nmade by the order of the Governor of the State to which the criminal has fled, and the fugitive is delivered to the agent of the former. All the expenses must be paid by the State from which the escape was made. The act applies to the Territories as well as to the States. A fugitive from justice may be arrested and detained prior to the demand by the Governor. The executive upon whom the demand is made can not go behind the demand and accompanying charge of the Governor demanding, to determine whether, by the laws of his own State, the offense charged is a crime. The giving up by one nation of a fugitive from justice escaping from another lnation, is called extradition. No nation can demand of another the surrender of a criminal except in consequence of express treaty stipulations. 4. II. 3. FUGITIV ES FROM SERVICE. 231 Clause 3. —ATo person held to service or labor in one State, under the laws ther'eof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from suech service or labor, btit shall be delivered up on claimt of the p2arty to whom such service or labor zmay be due. The act of February 12th, 1793, was passed to carry into effect this clause as well as the preceding one. A "person held to service or labor" mig'ht be a slave or an apprentice. This clause, and that part of the act of Congress relating to fugitives from labor, had special reference to slaves, though the word slave does not occur in the Constitution. The law of 1793 was amended in 1850, and made still more objectionable to the friends of freedom. The commissioners, before whom alleged fugitives were to be taken, might order any citizens tc assist in returning fugitive slaves; and any person hindering such return could be filled one thousand dlollars and imprisoned six months, and might forfeit, inl addition, one thousand dollars to the owner for each fugitive so lost. The commissionesr was to have a fee of five dollars if the fugitive was not returned to the claimant, and ten dollars if he was returned. The harsh features of this law of 1850, with the repeal of the AMissouri Compromise, and the Dred Scott decision, had much to do in directing public attention to the evils of slavery, and in preparing the people to put down the rebellion of 1861. The law of 1850, and those sections of the law of 1793, which related to fugitive slaves, were repealed June 20th, 1864. On the first of February, 1865, Congress proposed an Amendment to the Constitution, abolishing slavery throughout the United States. On the eighteenth of December, of the same year, this was declared to have been ratified by the legislatures of three-fourths of the States. It is the Thirteenth Amendment. Tlhus 232 THE CONSTITUTION. 4. III. was the question of slavery at last settled —a question which has caused nmore disturbance in our government than all other questions combined. Sec. 3, Clause 1. —lew States may be adm2itted by the Congress into this Union; b6t 1no new State shall be formed or erected wlithin the jurisdliction of any other State; nor any State be formed by the junction of two or mor e States, or parts of States, without the consent of the legislatures of the States conceirned cas well as of the Congrless. Clause 2. —The Conxgress shall have power to dispose of and inmake all need(ful rules and regulations respecting the territory or other property belonging to the Uqnited States; and lothing in this Cornstitution shall be so construed (as to prejudice anly claims qf the United States, or of any particular State. The Articles of Confederation made no general provision for the admission of new States. Canada might come into the Union on acceding to the Articles of Confederation and joining in the measures of the United States; but no other colony could be admitted unless by the agreement of nine States. Vermlont made application for admission in 1781; but the application was not granted, as Congress was unwilling to offend the States of New York and Newv Hampshire, both of which claimed it as within their jurisdiction, and opposed its admission into the Union.] From the adoption of the Constitution to the present time twventy-five new States have been admitted: the first, Vermont, in 1791; the last, Colorado, in 1876. No State has been formed by the junction of two or more States, or parts of States, while four have been created within the jurisdiction of other States: Verimont from Newv York (claimed also by New Hampshire), l Pitkin's Hist., II, p. 314. 4. III. NEW STATES AND TERRITORIES. 233 Kentucky from Virginia, Maine from Massachusetts, and West Virginia from Virginia. The language of the Constitution is, new States may be admitted into the Union. It is not imperative upon Congress to admit them. Nor can Congress compel the people of a Territory to become a State. For obvious reasons, however, this has been regarded as desirable, and as such has been eagerly sought by the Territories. After the Colonies threw off the yoke of Great Britain, the unsettled territory within the limits of the United States became a subject of grave concern. Some of the States claimed that'those lands were within their chartered limits, and that to them belonged both soil and jurisdiction. Others insisted that, as the war had been carried on under a common government, and for the common interest, this territory should be considered as the common property of the nation. On the sixth of September, 1780, Congress pressed upon the States having claims to the Western country, a surrender of a portion of their territorial claims, as they could not be preserved entire without endangering the stability of the general Confederacy. A month later (October 10th) Congress resolved, that the unappropriated lands that may be ceded or relinquished to the United States by any particular State, pursuant to the recommendation of Congress of September 6th, should be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States. In accordance with this recommendation cessions were made by different States, as follows: New York, March 1st, 1781; Virginia, March 1st, 1784; Massachusetts, April 19th, 1785; Connecticut, September 14th, 1786; South Carolina, August 8th, 1787. These were made before the formation of the Constitution. North Carolina and Georgia had not relinquished their claims when that instrument was adopted, but they did so C. G. 20. 234 THE CO(NSTITIUTION. 4. III. afterward: North Carolina, February 25th, 1790, and Georgia, April 24th, 1802. The language of Clause 2, that the claims of any particular State should not be prejudiced, had reference to the claims of the last two States named above. The Constitution confers on Congress full power to make laws respecting the territory belonging to the nation and not vet formed into States. Without a specific grant to that effect in the Constitution, Congress would doubtless have had this power. The first law, indeed, organizing a Territory, was enacted before the Constitution was adopted-the Ordillance for the Government of the Territory of the United States North-west of the River Ohio, July 13th, 1787. The framers of the Constitution introduced these two clauses of Section 3, into the Constitution, that the resolution of Congress, of the tenth of October, 1780, might be carried into effect; and they had primary reference to the territory then claimed by different States. But the language is broad enough to cover whatever territory the United States might subsequently acquire. The Constitution nowhere in express terms authorizes the general government to enlarge the national domain by purchase, by conquest, by annexation, or in anV other mode; but this is one of the powers incident to national sovereignty, and as such it has been repeatedly exercised by the United States. Louisiana was purchased under the administration of Mr. Jefferson; Florida, under that of Mr. Monroe; Texas was annexed under the presidency of Mr. Tyler; and the territory which was obtained from Mexico was conquered under Mr. Polk. All these gentlemen were strenuous advocates in theory of the doctrine that our general government is one of limited and enumerated powers. There is no doubt that the United States, like other nations, can acquire territory and govern it. Though 4. III. NEW STATES AND TERRITORIES. 235 the Articles of Confederation said nothing about the government of territory, Congress exercised this power, as we have seen, and passed the celebrated ordinance of 1787, while the Convention that framed the Constitution was in session. After the Constitution was adopted Congress did not deem it necessary to re-enact that ordinance, but merely adapted it to the new Constitution, by providing that the territorial officers who, before, were appointed by Congress, should now be appointed by the President and Senate, and should report to the President instead of to Congress. This act, which was passed August 7th, 1789, shows that the members of that first Congress under the Constitution regarded the ordinance as still binding. This ordinance, for the government of the North-west Territory, was for a long period the model after which other Territories were organized. If the territory was at the South, that clause of the ordinance which prohibited slavery was excepted; if the territory was at the North, the government was to be in all respects similar to that provided by the ordinance of 1787. Including the act of August 7th, 1789, eight separate acts were passed, extending over a period of over sixty years, each one *prohibiting slavery in the Territory organized. The power of the general government to make all needful rules and regulations for the government of the Territories was not called in question till the winter of 1856-7, on the trial of the Dred Scott case. In giving the decision of the Court in that case, Judge Taney said, among other things which were not before the Court, that Congress had no power to prohibit slavery in a Territory of the United States. Even if that question had been before the Court, being a political question and not a judicial one, it was one over which that department of the government had no control. In the same opinion the Court held that "the pro 236 THE CONSTITUTION. 4. I1I. priety of admitting a new State into the Union is committed to the sound discretion of Congress, and that the power to acquire territory must rest upon the same discretion." The power to govern a Territory waas not inferred, however, from the clause of the Constitution now under consideration, but was regarded as the inevitable consequence of the right to acquire territory, which last right, as there is no allusion to it in the Constitution, must be a right of general sovereignty. Mr. Douglas held that the power of Congress to govern the Territories was to be found in the clause authorizing the admission of new States; if States may be admitted into the Union, Territories may be governed so as to fit them to become States.' It is admitted, then, by all that Congress has the exclusive right to govern the Territories; though the advocates of slavery would make that right, as they would all rights, subordinate to that institution. Since, however, slavery itself has been abolished by the Thirteenth Amendment, this only limitation is removed.2 As soon as new territory is acquired by the United States, the right of sovereignty vests in the nation. The authority of the nation over such territory is absolute, except as modified by the treaty with the nation from which it was obtained. The people of the Territory have no governmental power except as granted by Congress. Whenever Congress sees fit, it may organize a territorial government. Such a government 1 Report on Kansas. 2 The Constitution of the Confederate States provided for the acquisition of new territory, and its government by Congress. But slavery was recognized and protected, and the inhabitants of other States and Territories might take their slaves into every Territory. That Constitution provided that other States might be admitted into tfle Confederacy by a vote of two-thirds of the whole House of Representatives, and two-thirds of the Senate -the Senate voting by States. (Macpherson's History of the Rebellion, 1860-65, p. 99.) 4. III. NEW STATES AND TERRITORIES. 237 usually consists of a legislature chosen by the people, a Governor appointed by the President and Senate, and Judges appointed in the samle manner. But the territorial authority, whether legislative, executive, or judicial, derives its sanction from the sovereignty of the nation. According to our governmental system, the people of a Territory, while they have civil rights and are entitled to protection, have no power to govern the Territory, that is, to govern themselves, save as it is given them by the general government; and they can not in any way participate in the general authority of the nation. But whenever a Territory is admitted into the Union by Congress, it becomes a State; and as such its people are authorized under the Constitution to manage their local affairs, and to participate in the administration of the nation. When a citizen of a State goes to reside in a Territory, he leaves behind him his political privileges, though not his civil rights. He has no longer any voice in the election of President, or of a member of Congress. He can not take part in electing a Governor of the Territory. A Territory is a part of the domain of the United States; it is a part of the United States considered as the name of the country, but it is not ina the Union, in the sense in which a State is. Nor can it come into the Union except as it is admitted by Congress. It may frame a State constitution, which its people may ratify; but that does not constitute it a State. The consent of Congress is indispensable to enable it to become an integral part of the Union. But when admitted, and thus constituted a State. it becomes a political corporation for local purposes, and a part of the great political organization whose sway extends over the whole domain. All our political privileges are thus dependent upon our being a part of the people of a State. 238 THE CONSTITUTION. 4. III. As a Territory is not compelled to become a State, so a State is not compelled to remain a State. If a State, as a political organization, refuses to consider itself any longer a member of the great national body, and by deliberate act witlldraNws fromn the Union, what then? The soil is still a part of the domain of the United States, and the people who dwell upon it are still subject to the nation. They have simply given up their privilege of managing their own local affairs, and all right to participbte in the government of the nation. They have no more political authority than the people of a Territory before its admission into the Union, and they can have none till Congress confers it upon them. There is no such political estdity knzown to our governv11enttal system as c State outt of the Unionl. The moment the withdrawal takes place, the existence of the State as such ceases. It is no longer a State. If its people can maintain their independence by the sword, they may firame a government and call it what they please. But whether successful or unsuccessful, it is no longer one of the United States of Amnerica. It is no longer a State in the American Union. If it fails to gain its independence, it is not inz the Union but under it.' There has not been entire uniformity in the mode of admitting new States, but the following is the most usual, and may be considered the regular, mode. WVhen a Territory has a sufficient population, a petition is sent to Congress, asking for leave to formn a State constitution, and to be admitted into the Union. Congress then passes an act, called "an enabling act," authorizing the inhabitants to form a constitution. A Convention is held for this purpose, and the constitution thus formed is presented to Congress for their approval. If the proceedings have been regular, and the constituIBrownson, Chap. xii. 4. IV. NEW STATES AND TERRITORIES. 239 tion is free fronm objection, Congress passes an act admitting the new State into the Union "on an equal footing with the original States, in all respects whatever." The case of Louisiana may be taken as an example. In March, 1804, the country purchased of France, under the name of Louisiana, was erected by Congress into two Territories — the District of Louisiana, and the Territory of Orleans. In February, 1811, an act was passed "to enable the people of the Territory of Orleans to form a constitution and State governlent, etc." April 8th, 1812, an act w(as passed, to take effect April 30th, "for the admission of the State of Louisiana into the Union, and to extend the laws of the United States to the said State." This power to admit new States into the Union, and to make them equal participants with the older States in the government is "one of the new principles introduced into our system, and is, perhaps, the most anomalous, and most influential upon its, future destiny. All the nations of antiquity held inmmense provinces, which constituted a part of the State, for purposes of revenue and armies, but were never admitted upon terms of equcdlity, and wvhose inhabitants were never citizens. The idea of constituting a governiment, to be increased as to the source of law —by its own colonization, or by recruits from abroad, is wholly zew." 1 Section 4.-Tlhe U:lited Stcttes shall gcua/ranty to every State in this UC'ion a irepjubtican form1 of governmlent, (tcd, shall protect each of tlhen cagainst in?:asion; and, o0 aIpplication of the legislature, o~ of the Executive (when the leyislatulre cant not be convented) c(gcainst doimestic violelnce. This clause makes a republican government necessary in every State. It could not be obligatory upon the United States to guaranty it to the individual States, I Mansfield's Pol. TManual., p. 192. 240 THE CONSTITUTION. 4. IV. unless it was incumbent on them to have such a government. It is equivalent to saying that "no other shall be permitted to be establishled."' The clause prescribes a republican government for all the States, protection against hostile invasion, and, on request, against domestic violence. Every State must have a republican government, and if, at any time, a State is destitute of one, the general government is bound to provide it.2 This is the only instance in the Constitution where the government has a duty enjoined upon it, while the particular department is not mentioned. Here the obligation is from the United States to the States; but whether to be exercised by the President or by Congress is one of the questions that has grown out of the reconstruction measures.3 In the case of Rhode Island, the Supreme Court held that, "It rests with Congress to decide what government is the established one in a State. For, as the United States guaranty to each State a republican government, Congress must necessarily decide what government is established before it can determine whether it is republican or not. And when the Senators and Relpresentatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." The Constitution does not define a republican government. The national government may be assumed to be republican in form, and thus a model for the States. Mr. Madison says: "AWe may define a republic to be a government which derives all its powers directly or in1 Curtis, T-ist. of the Const., II, p. 472. 2Farrar, p. 221. Paschllal, p. 242. I- 7 HIoward, 42. 4. IV. ITHE STATE'S AlMUST lE REIPUlLICAN. 241 directly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior."1 " The principle of republicanism is the equal right of the people, the citizens, all the members of the body politic. In theory it is the government of public opinion. * * The fundamental principles of right and justice for the government, the representative character of the governors, and their practical responsibleness to the governed, are the essentials of republicanism.," 2 The Constitution indirectly requires various provisions in the State governments by enjoining duties. The Senators of the United States are to be elected by the State leoisla.tures. Members of the House of Representatives are to be elected by the same electors as vote for the members of the most numerous branch of the State legislature. The Executive of the States are often referred to. The Judges are to take an oath to obey the Constitution of the United States. Thus, the States must have the three great departments of governmcent-the legislative, executive, and judicial. The legislature must be in two branches, and the most numerous branch must be elected by the people. The States are supposed to have written constitutions (Article VI). It would have been the dutyr of the United States to protect each State against invasion and domestic violence had not this special provision been inserted, for one of the ends for which the Constitution was ordained was to provide for the common defense. In the Convention that framed the Constitution, "Mr. Rutledge thought it unnecessary to insert any guaranty. No doubt could be entertained but that Congress had the authority, if they had the means, to co-operate with 1Federalist, No. 39. 2Farrar, p. 223. C.G. 21. 242 THE CONSTITUTION. 4. IV. any State in subduing a rebellion. It was and,would be involved in the nature of the thing."' "It may well be doubted if any dereliction of duty on the part of the officers of the State, whether legislative or executive, could afford an adequate excuse for the general government in suffering the regular adclministration of the authorized republican government of a State to be overthrown and destroyed, or otherwise substantially interfered with by domestic violence, under circumstances that obviously required their authoritative interposition for the preservation of the peace and good order of the conmmunity."2 The clause of the Constitution now under consideration has been brought prominently into notice in the recent secession and subsequent reconstruction of eleven States of the Union. In the six months commencing with December, 1860, ordinances of secession, so called, were passed by conventions in South Carolina, AMississippi, Florida, Alabama, Georgia, Louisiana, Texas, Arkansas, Virginia, Tennessee, and North Carolina. These conventions were entirely revolutionary and depended for their justification upon success. But success was not theirs. Their armies were defeated, after an immense expenditure of blood and treasure. The doctrine of the right of secession, or, which is the same thing, of absolute State sovereignty, which they had deternmined to submit to the arbitrament of the sword, had been proved to be utterly untenable, and their States had been placed in positions entirely abnormal. "Here, then, were brought again into relations of practical subjection to the Union certain integral populations, wvhich had once been Constitutional States, but which, having, by truancy from Constitutional courses, lost something necessary to that character, 1Elliot's Debates, V, p. 333. 2Farrat, p. 229. 4. IV. RECONSTRUCTION OF STATES. 243 were such no longer-were, indeed, little more than'geographical denominations;' communities, which, although as mnuch. in the Union, territorially, as ever, were properly neither Constitutional States nor Constitutional Territories, but States which had, sua slontie, for purposes of ambition, divested themselves of their Constitutional apparel, and donned that of treason and rebellion, and so had forfeited their prerogative as States to participate in governing the Union, and been relegated to a condition analogous to that of Territories -a condition in which they belonged to the Union, but had rightfully no governing function whatever, local or general." 1 Thle work of reconstruction had commenced in some of the States before the close of the wtar. A large majority of the legislature of Virginia adhered to the rebellion, but Congress recognized as the lawful legislature a minority who assembled at Wheeling. This body sent Senators to Congress, and gave consent to the formation of the new State of West Virginia. In Missouri the governor and the majority of the legislature adhered to the rebellion, and passed an ordinance of secession. The State was admitted as a member of the "' Confederate States," and continued to be represented in the Confederate Congress till the overthrow of the Confederacy. But a Convention, which had been called by the legislature of Missouri in 1860, having refused to pass an act of secession, was reconvened in July, 1861. This body took upon itself the government of the State, and was recognized as the lawful authority by the general government. In December, 1863, President Lincoln issued a proclamation to the effect, that when one-tenth of thle qualified voters of a State, having taken the required oath, should re-establish the State government, republican in i Jameson, p. 244. 244 THE CONSTITUITION. 4. IV. form and in conformity vitl the oath, it should be recognized as the true government of the State, and should receive the benefits of the Constitutional guaranty embodied in thlis clause which we are now considering. In pursuance of this proclamation, Louisiana Iand Arkansas provided themselves with loyal State governments. But these States having been reconstructed through the military power, the mode adopted was not entirely satisfactory to Congress, and thle States were not allowed representation in that body. The first State that was fully restored to her former relations to the Union was Tennessee. On the 24th of July, 1866, Congress passed a joint resolution, "That the State of Tennessee is hereby restored to her former, proper, practical relations to the Union, and is again entitled to be represented by Senators and Representatives in Congress." In the preamble to this resolution, it is recited, that the inhabitants of the State, having been by act of Congress declared to be in a state of insurrection, the State governnment can be restored to its former political relations in the Union only by the consent of the law-making power; that the people by a large vote, had adopted and ratified a constitution, abolislhingr slavery, and declaring void all ordinances and laws of secession, and debts contracted under the same; and had organized a State go vernment under the new constitution, which had ratified the Thirteenth and Fourteenth Amnendmenlts to the Constitution of the United States. In MIarch, 1867, an "Act to provide for the more efficient government of the rebel States" was passed, and, later in the same month, a supplementary act for the same purpose. This act divided these States into five military districts, each to be under the conmrmand of a military officer, who should b)e charged with the duty of protecting the inhabitants in person and property, of suppressing all disorder, and punishing, crile. Criminals might be tried by the local civil 4. IV. THE RECONSTRUCTION OF STATES. 245 tribunals, or, at the discretion of the commanding general, by military commissions. The inhabitants were to be registered, and an election held-for delegates to a Convention in each State for the formation of a constitution. When such constitution should be approved by Congress, and the legislature elected under its provisions lbad ratified the Fourtee'nth Amendment, the State should become entitled to representation in Congress. Under this act Arkansas was admitted to representation in Congress as one of the States of the Union, June 22d, 1868, laving framed and adopted a constitution of State government, which Congress decided to be republican, and her legislature having ratified the Fourteenth Amendment. Three days later ain act was passed providing for the conditional admission to representation of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida. These had framed and adopted constitutions of republican governmlent, and were to be fully admitted as States of the Union when they should have ratified the Fourteenth Amendment. In all the above cases, including Arkansas, the admission was upon one or more fundamlental conditions prescribed by Congress. All the six States made the required ratification, and were admitted without further legislation by Congress, except Georgia. Virginia was restored by act of Congress of January 26th, 1870; Mississippi by that of February 23d; Texas by that of March 30thl; and Georgia by that of July 15th, of the same year. The action of the general government has fully settled this, that if a State takes the attitude of hostility to the nation, and refuses to acknowledge the supremacy of the Constitution of the United States, it forfeits its right to'all participation in the government of the Union, and can be restored to its former position only by the distinct and formal action of the law-making 246 THE CONSTITUTION. 4. IV. power of the United States. The doctrine, that the people of a State may take up arms against the nation, putting forth their whole energies and usinlg all tlieir resources to destroy the national life, and yet the moment they are subdued, claim the right to send Senators and Representatives to Congress, is, in the highest degree, preposterous. Yet this doctrine was gravely maintained in the Minority Report of the Joint Congressional Committee on Reconstruction, in June, 18()G. And many worthy people seemed to be involved in inextricable confusion as to the relation of such States to the Union. The argument assumes this logical form: A State is either in the Union or out of the Union. If in the Union, her people owe allegiance on the one hand, and are entitled to representation on the other. If out of the Union, they do not owe allegiance, nor are they entitled to representation. The inference drawn from this is, that if the people of a State are not allowed representation in Congress there rests upon them no obligation of obedience; and that whenever they acknowledge the obligation of obedience, representation is theirs as a matter of right. The fallacy lies here. The terms in the TUvion and out of the Union are not necessarily contradictory. A given district of the United States may be in one sense inll the Union, and in another sense out of the Union at the same time. That portion of our country called Ohio was a part of the national domain in 1800, and all the people living there were subject to the general government; in that sense the district and the people were in the Union. But the people had no participation in the general government, they had no Senators or Representatives in Congress, they cast no votes for President in the election of that year; in this sense they were not in the Union. Two or three years later Ohio was admitted into the Union, and then she was in the Union in both Art. 5. AME ENTS. 247 the senses stated. During the rebellion South Carolina was not in the Union as Ohio was; she w'as not out of the Union as Mexico was. She had forfeited her right to a share in the government, but she was under the authority of the United States. Whatever forms of language may be used to describe the attitude of portions of the country in a state of insurrection, and their relation to the United States, we may be sure that they will not be admlitted to a representation in the councils of the nation till, in the judgment of Congress, such admission will not conflict with the well-being of the country. No claim to be admitted, based on the ground that a State once a State is always a State, will have the slightest influence with those who shall, for the time being, be entrusted with the legislative power of the nation, no matter what may be their theoretic opinions as to the rights of States. The war was commenced in the interest of State sovereignty, and the sword has settled the question.' Let us hope that many years may elapse before the general government shall again be under the necessity of exercising the power with which it is clothed by this Section of the Constitution. ARTICLE V. AMENDMAENTS. The Congress, wheneiver two-thi'ds of both Houses shall deem? it necessa?'y, shall propose Aimendlenlts to this Constitutionb, or, on the application of the legislatures of twothirds of the sevecraul States, shall call a convention for proposing Amlenldments, which, in either case, shall be valid to all intents and purposes (is part qf this Constitution, when 1 "It can not be too often repeated that the war was not primarily between freedom and slavery. It was the war of the nation and the Confederacy." M Iulford, p. 340. ~48 THE C(ONSTITUTION. Art. 5. ratified by the legislattures of three-fourths of the several States, or by conveltions in tlhree-fouriths the reof, as the one or the other mlode of ratfication may be 1Jroposedl by the Congress: Priovided, that no Amendcent which mcay be mlade prioir to the year' one thoutsacnd eight hundred and eight shacll in any mianner acte theJfirst anccdfourthl clauses in the ninth section of the first article; anld that no Stacte, without its consent, shall be dceprived of its equal sqffrage in the Senate. Definite provision is here made for amending the Constitution. The Articles of Confederationi could not be altered except with the assent of all the States. The present Constitution, howTever, can be amended with the assent of three-fourths. There are two modes of proposing Amendments, and two modes of ratifying them. Congress itself may propose an Amendllent whenever two-third(s of both Houses deemi it necessary; or, if two thirds of the State legislatures request it, Congress must call a Convention for proposing A mendments. Amendments thus proposed becom-e valid when ratified by the legi'slatures of three-fourths of the States, or by conventions in three-fourths thereof. Nineteen Amendments have been proposed since the adoption of the Constitution; all of them by the first mode. Two-thirds of the legislatures have never yet applied to Congress to call a Convention for this purpose. Fifteen of the Amendments proposed have been ratified; and these ratifications have all been by the first mode —by the legislatures of the States, and not by conventions. The First Congress, which proposed twelve Amendments, adopted this method of ratification, and their example has been followed in every other case. It is fortunate for the counti7ry that a Convention has never been called for the purpose of proposing Aniendments. The organic law of a: people should- be framed Art. 5. AMENDMENTS. 249 with great care and altered with the utmost caution. A body of men convened. for the purpose of suggesting alterations in the Constitution would be likely to nmagnify their office in proposing many Amendments. There are three limitations to this power of amending the Constitution: First, the clause could not be altered which prohibited Congress from passing, prior to the year 1808, a law prohibiting the importation of slaves. Second, the clause prescribing the mode of levying a capitation or other direct tax, could not be altered prior to the same year, 1808. Third, no State, without its consent, could be deprived of its equal suffrage in the Senate. The first Vtvo limitations had reference to slaves, and became inoperative in 1808. The third was for the protection of the smaller States: to allow them the same representation in the Senate as the larger States. This provision was added at the very close of the Convention that framed the Constitution. Mr. Sherman, of Connecticut, moved that it be added to the article, but Mr. Madison opposed it, and it was lost. Mr. Gouverneur AMorris, of Pennsylvania, subsequently renewed the nmotion, and it was carried on Saturday, September 15th. On AMonday the Convention adjourned. This is the only provision of the Constitution which is virtually irrepealable. In 1861 an Amendment was proposed by two-thirds of both Houses, as follows: "No Amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere within any State with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." Had this Amendment been ratified, it would have been in terms an irrepealable clause. Whether it would have been so ill fact it is not necessary now to inquire, as the ratification did not take place. The British Constitution may be altered by Parlia 250 THE CONSTITUTION. Art. 5. nment without any confirmation or ratification by the people. Parliament is thus, says Mr. Fisher, a "Convention to amend the Constitution, duly appointed, always in existence, and always competent to entertain proposals for needed alterations, with full authority to decide them.: Ad It is a remarkable fact that, in conservative England, so steadfast in adhering to ancient usage, the power to make changes is always ready to act, without question or form or delay, and the organic law is thus pliable and responsive to the wishes of the people; whilst in democratic America, innovation is guarded against with such jealous care that it is doubtful whether the means provided by law for making needed changes can ever be employed."l Events show that this language is too strong; for, since it was written, in 1862, three Amendments have been made to the Constitution. Still it may admit of question whether the difficulties in the way of amending our organic law are not too great for the best good of the nation. These difficulties are forcibly presented in the work just quoted from. When an Amendment has been proposed by twothirds of both Houses of Congress, is the approval of the President necessary? It is only an expression of opinion by Congress that a certain Amendlment is desirable, which Article Fifth contemplates, while the final decision in regard to it is to be made by other bodies. Then, again, a vote of two-thirds is good against the President's veto. We should infer, therefore, that the approval of the President is not necessary. And the practice has been, for the most part, not to submit the resolutions to the President for approval. The First Congress proposed twelve Amendments. Nothing was said of the approval by the President.2 Fisher's Trial of the Constitution, p. 30. 2 Annals of Congress 1, p. 779. Art. 5. - AIMENDMENTS. 251 The Amendment of 1794-the Eleventh -was called in question because the President had not approved it; but the Supreme Court decided that his approval was not necessary.l When the Amendment of 1803the Twelfth - was before the Senate, they voted — twenty-three to seven that it be not submitted. That proposed at the second session of the Eleventh Congress was not sent to the President for his approval. The first instance in which an Amendment proposed by Congress was sent to the President for his approval, was in March, 1861. The Amendment proposed as to slavery in the United States wias approved by President Buchanan. The Amendment of 1865 — the Thirteenth -having been sent to the President through inadvertence, the Senate, without a division, decided that it should not constitute a precedent, and the Secretary of the Senate was instructed not to communicate to the House of Representatives the notice of the approval. The Amlendment of 1866 —tlle Fourteenth-was not submitted to President Johnson for his approval, of which he reminds Congress in a message and intimates that he would have vetoed it had the opportunity been offered.2 The Fifteenth Anendmlent-February 27th, 1869-was not sent to the President. With this uniformity of action by Congress, and the dcecision of the Supreme Court, wve may say that the approval of the President is not essential to a resolution of Congress proposing Amendments to the Constitution. An Amendment becomes valid when ratified by the legislatures of three-fourths of the States; that is, it becomes a part of the Constitution wlhen the ratification has been made by the last State necessary to complete the constitutional number. Thus, the first ten Alendments, proposed by the First Congress, Sepl 3 Dallas, 378. 2Sellate Jour., 39th Cong., 1st Sess., p. 563. 252 THE CONSTITUTION. Art. 5. tember 25th, 1789, were ratified by New Jersey November 20th of that year, then by others, till December 15th, 1791, when the ratification of Virginia took place, making eleven States, the whole number being fourteen. December 15th, 1791, is thus considered the date of these Amendments. The Eleventh Amendment was declared, in a nmessao'e from the President to Congress, dated January 8th, 1798, to have been adopted by the requisite number of States, and the Amendcment bears the date of the President's message. Of the adoption of the Twelfth Amendment public notice was given by the Secretary of State, September 25th, 1804. In 1818, an act was passed making it the duty of the Secretary of State, on receiving offici