ROB’T. E. PETERSON’S 
 Cheap Book Store, 
 Cor. Fifth & Arch sts. 
 
 PHILADELPHIA. 
 
 A 
 
 tr. 
 
 
 v '' *, 
 
 
 
 X, 
 
 < v 
 
 / " ? i 1 
 
 . ’ ' • •. 
 
 J- ,* ■• 
 
 ✓ - * . • - 
 
 v „ v 
 
 ; ; •; V: -' . , 1 ^ 
 
 '* , 
 
 ' ■ A ■ 
 
 / ^ 
 
 
 :f 
 
 ^^properTy 
 
 PEIHGET OH 
 
 htG, i£B i<jS3 
 
 THEOLOGICAL 
 
 % 
 
 * V 
 
 
 J '*wvi* * * 
 
 
 
 Division. 3 V\21 \ 
 Section * .S 0j£) 
 
 No l-a ..r. 
 
 
 
 V - 1 
 
 * 
 
 

 .. ; t t ■ t: . - 
 
 
 ' f/^ ^ V- , • 
 
 p C, 
 
 c 
 
 " 4 ** < ¥' * ^ ^ c ^ >-‘ /r ^ &*.t*-**» * 
 
 <M if' 
 
 
 
 * l! 
 
 
 
 •* 
 
 V 
 
 /- 
 
 ^ > 
 
 , 
 
 
 .f 
 
 
 
 * 
 
 
 
 * 
 
 
 
 
 
 
 
 
 \ 
 

J 
 
 - 
 
 f 
 
 A v 
 
 FAMILIAR 
 
 EXPOSITION OF THE CONSTITUTION 
 
 OF THE 
 
 UNITED STATES: 
 
 CONTAINING 
 
 A BRIEF COMMENTARY 
 
 ON EVERY CLAUSE, EXPLAINING THE TRUE NATURE, REASONS, AND OBJECTS 
 THEREOF; DESIGNED FOR THE USE OF SCHOOL LIBRARIES 
 AND GENERAL READERS. 
 
 WITH 
 
 AN APPENDIX, 
 
 CONTAINING IMPORTANT PUBLIC DOCUMENTS, ILLUSTRATIVE OF 
 
 THE CONSTITUTION. 
 
 BY JOSEPH^TORY, LL. D. 
 
 DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY. 
 
 u This Government, the offspring of our own choice, uninfluenced and unawed, 
 adopted upon full investigation and mature deliberation, completely free in its 
 principles, in the distribution of its powers uniting security with energy, and 
 containing, within itself, a provision for its own amendment, has a just claim to 
 your confidence and respect.” — President Washington's Farewell Address to the 
 People of the United States. 
 
 BOSTON: 
 
 TIIOMAS H. WEBB & CO. 
 
Entered according to Act of Congress, in the year 1840, by 
 Marsh, Capen, L^on, and Webb, 
 in the Clerk's Olhce of the District Court of Massachusetts. 
 
 EDUCATION PRESS 
 
> 
 
 TO 
 
 THE PEOPLE 
 
 OF THE 
 
 COMMONWEALTH OF MASSACHUSETTS, 
 
 THIS WORK, 
 
 DESIGNED TO AID 
 
 THE CAUSE OF EDUCATION, 
 
 AND 
 
 TO PROMOTE AND ENCOURAGE THE STUDY 
 
 OF THE 
 
 ' CONSTITUTION OF THE UNITED STATES, 
 
 BY HER INGENUOUS YOUTH, 
 
 IS RESPECTFULLY DEDICATED, 
 
 BY ONE 
 
 WHO GRATEFULLY ACKNOWLEDGES, THAT HER 
 
 TERRITORY IS 
 
 THE LAND OF HIS BIRTH, 
 
 AND THE 
 
 HOME OF HIS CHOICE, 
 
 THE AUTHOR. 
 
 Cambridge, January 1, 1840, 
 

 
 -•••*' cT* 
 
 # PRIH CjiTQIT n 
 
 ,«tC, FEB 1383 
 
 % 
 
 ^THaQLQGIC&LJ 
 
 Bh § mi ir&si 
 
 PREFACE. 
 
 The present Work is designed, not only for private 
 reading, but as a text book for the highest classes in our 
 Common Schools and Academies. It is also adapted 
 to the use of those, who are more advanced, and have 
 left school, after having passed through the common 
 branches of education. It may also be studied with ad¬ 
 vantage by those, who have arrived at maturer years, 
 but whose pursuits have not allowed them leisure to ac¬ 
 quire a thorough knowledge of the Republican Consti¬ 
 tution of Government, under which they live. Some 
 of the subjects, which are here treated of, may seem 
 remote from those topics, which ordinarily engage the 
 attention of our youth, and some of them may seem to 
 be of such an abstract political nature, that the full value 
 of them can scarcely be felt, except by persons, who have 
 had some experience of the duties and difficulties of so¬ 
 cial life. But, I think, that it will be found, upon closer 
 examination, that an objection of this sort can properly 
 apply to very few passages in the Work ; and that even 
 those, which fall within the scope of the objection, will 
 furnish sources of reflection, and means of knowledge, 
 which will essentially aid the student in his future progress, 
 and place him, as it were, upon the vantage ground, to 
 master the leading principles of politics, and public policy. 
 The Work has been framed upon the basis of my larger 
 
 1* 
 
6 
 
 PREFACE. 
 
 Commentaries on the Constitution, which are already be¬ 
 fore the Public. And one of the advantages, which it 
 possesses, is, that the reader will find every one of the 
 topics here discussed, examined almost in the same order, 
 far more completely in those Commentaries, if his curi¬ 
 osity or his leisure shall prompt him to more thorough 
 researches. I have endeavored, as far as practicable, to 
 make the remarks intelligible to every class of readers, by 
 embodying them in plain and unambitious language, so as 
 to give the Work a just claim to the title of being “ A 
 Familiar Exposition of the Constitution of the United 
 States.” If it shall tend to awaken in the bosoms of 
 American Youth, a more warm and devoted attachment 
 to the National Union, and a more deep and firm love of 
 the National Constitution, it will afford me very sincere 
 gratification, and be an ample compensation for the time, 
 which has necessarily been withdrawn from my other 
 pressing avocations, in order to prepare it. 
 
 An Appendix has been added, containing some im¬ 
 portant public Documents, which may serve to confirm 
 or illustrate the Text. 
 
 With these few suggestions, I submit the Work to the 
 indulgent consideration of the Public, adopting the ex¬ 
 pressive motto of the poet,— 
 
 “ Content, if here th’ unlearned their wants may view, 
 
 The learned reflect on what before they knew.” 
 
 Joseph Story. 
 
 Cambridge , January 1, 1840. 
 
V' 
 
 
 1 
 
 - 
 
 r* 
 
 
 CONTENTS. 
 
 Page 
 
 Q 
 
 Dedication,. a 
 
 * ) 
 
 Preface,. 
 
 CHAPTER I. 
 
 History of the Colonies,. H 
 
 CHAPTER II. 
 
 Colonial Governments,. 17 
 
 CHAPTER III. 
 
 Origin of the Revolution, . 22 
 
 CHAPTER IV. 
 
 Revolutionary Government,. 26 
 
 CHAPTER V. 
 
 History of the Confederation,. 28 
 
 CHAPTER VI. 
 
 Origin of the Constitution,. 33 
 
 CHAPTER VII. 
 
 Exposition of the Constitution.—The Preamble, . 36 
 
 CHAPTER VIII. 
 
 Distribution of Powers.— The Legislative Depart¬ 
 ment, . ^ 
 
 CHAPTER IX. 
 
 The House of Representatives,. 50 
 
8 
 
 CONTENTS. 
 
 CHAPTER X. 
 
 The Senate,. 64 
 
 CHAPTER XI. 
 
 Impeachments,. 76 
 
 CHAPTER XII. 
 
 Elections, and Meetings of Congress, .... 89 
 
 CHAPTER XIII. 
 
 Powers and Privileges of both Houses, .... 90 
 
 CHAPTER XIV. 
 
 Mode of Passing Laws, .. 96 
 
 CHAPTER XV. 
 
 Powers of Congress.—Taxation,.101 
 
 CHAPTER XVI. 
 
 Power to borrow Money and regulate Commerce, 107 
 
 CHAPTER XVII. 
 
 Naturalization, Bankruptcy, and Coinage of Mon¬ 
 ey, . 113 
 
 CHAPTER XVIII. 
 
 Post Office and Post Roads.—Patents for Inven¬ 
 tions, ./.117 
 
 CHAPTER XIX. 
 
 Punishment of Piracies and Felonies.—Declaration 
 
 of War,. 119 
 
 CHAPTER XX. 
 
 Power as to Army and Navy,.122 
 
 CPIAPTER XXI. 
 
 Power over Militia,.125 
 
 CHAPTER XXII. 
 
 Seat of Government, and other Ceded Places, . . 128 
 
CONTENTS. 
 
 9 
 
 CHAPTER XXIII. 
 
 General Power to make Necessary and Proper 
 
 Laws,.131 
 
 CHAPTER XXIV. 
 
 Punishment of Treason.—State Records, . . . 134 
 
 CHAPTER XXV. 
 
 Admission of New States.—Government of Territo¬ 
 ries, . . . 137 
 
 CHAPTER XXVI. 
 
 Prohibitions on the United States,.142 
 
 CHAPTER XXVII. 
 
 Prohibitions on the States,.146 
 
 CHAPTER XXVIII. 
 
 4 v 
 
 The Executive Department,.158 
 
 CHAPTER XXIX. 
 
 Powers and Duties of the President,.170 
 
 ' -v! &■* 
 
 CHAPTER XXX. 
 
 The Judicial Department, .179 
 
 CHAPTER XXXI. 
 
 Powers and Jurisdiction of the Judiciary, . . . 186 
 
 CHAPTER XXXII. 
 
 Trial by Jury, and its Incidents.—Definition of 
 
 Treason,.228 
 
 CHAPTER XXXIII. 
 
 Privileges of Citizens.—Fugitive Criminals and 
 
 Slaves,.242 
 
 CHAPTER XXXIV. 
 
 Guaranty of Republican Government.-^-Mode of 
 
 making Amendments, ..244 
 
10 
 
 CONTENTS. 
 
 CHAPTER XXXV. 
 
 Public Debt.—Supremacy of the Constitution and 
 
 Laws,.248 
 
 CHAPTER XXXVI. 
 
 Oath of Office.—Religious Test.—Ratification of 
 the Constitution,.251 
 
 CHAPTER XXXVII. 
 
 Amendments to the Constitution,.254 
 
 CHAPTER XXXVIII. 
 
 Concluding Remarks,. 267 
 
 APPENDIX. 
 
 Declaration of Rights by the Continental 
 
 Congress, 1774,. 271 
 
 Declaration of Independence,. 275 
 
 Articles of Confederation,. 279 
 
 Constitution of the United States, .... 289 
 
 Washington’s Farewell Address,. 306 
 
 Definitive Treaty of Peace between the Uni¬ 
 ted States of America and his Britannic 
 
 Majesty,.324 
 
 An Ordinance for the Government of the Ter¬ 
 ritory of the United States, Northwest of 
 the River Ohio,. 329 
 
 Glossary, ... *. 339 
 
 Index,. 351 
 
A 
 
 FAMILIAR EXPOSITION 
 
 OP THE 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 CHAPTER I. 
 
 History of the Colonies. 
 
 § 1. Before entering upon the more immediate ob¬ 
 ject of this work, which is, to present to the general 
 reader a familiar exposition of the nature and objects of 
 the different provisions of the Constitution of the United 
 States, it seems proper to take a brief review of the 
 origin and settlement of the various States, originally 
 composing the Union, and their political relations to each 
 other at the time of its adoption. This will naturally 
 conduct us back to the American Revolution, and to the 
 formation of the Confederation of tire States, consequent 
 thereon. But if we stop here, we shall still be surround¬ 
 ed by difficulties, unless we understand the political 
 organization of the various colonies during their common 
 dependence upon the sovereignty of Great Britain, and we 
 are in some degree made acquainted with the domestic 
 institutions, policy, and legislation, which impressed upon 
 each of them some peculiar habits, interests, opinions, 
 attachments, and even prejudices, which may still be 
 traced in the actual jurisprudence of each State, and are 
 openly or silently referred to in some of the provisions 
 of the Constitution of Government, by which they are 
 
12 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 now united. This review will, however, contain but a 
 rapid glance at these various important topics, and the 
 reader must be left to satisfy his further inquiries by the 
 study of works of a more large and comprehensive char¬ 
 acter. 
 
 § 2. The Thirteen American Colonies which, on the 
 fourth day of July, 1776, declared themselves free and 
 independent States, were New Hampshire, Massachu¬ 
 setts, Rhode Island, Connecticut, New York, New 
 Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
 North Carolina, South Carolina, and Georgia. All 
 these colonies were originally settled by British subjects, 
 under the express or implied authority of the government 
 of Great Britain, except New York, which was originally 
 settled by emigrants from Holland, and Delaware, which, 
 although at one time an appendage to the Government 
 of New York, was at first principally inhabited by the 
 Dutch and Swedes. The British government, however, 
 claimed the territory of all these colonies by the right of 
 original discovery, and at all times resisted the claim of 
 the Dutch to make any settlement in America. The 
 Colony of New York became, at an early period, subject 
 to British authority by conquest from the Dutch. Del¬ 
 aware was soon separated from New 7 York, and was 
 afterwards connected with, and a dependency upon, the 
 proprietary government of Pennsylvania. The other 
 States, now belonging to the Union, had no existence at 
 the time of the Declaration of Independence ; but have 
 since been established within the territory, which was 
 ceded to the United States by the Treaty of Peace with 
 Great Britain in 1783, or within the territory, which has 
 been since acquired by the United States, by purchase 
 from other nations ; ^ ' **- 
 
 § 3. At the time of the discovery of America, towards 
 the close of the fifteenth century, (1492,) the various 
 Indian tribes, which then inhabited it, maintained a claim 
 to the exclusive possession and occupancy of the terri¬ 
 tory within their respective limits, as sovereign proprie¬ 
 tors of the soil. They acknowledged no obedience, nor 
 allegiance, nor subordination to any foreign nation whatso- 
 
HISTORY OF THE COLONIES. 
 
 13 
 
 ever ; and, as far as they have possessed the means, 
 they have ever since constantly asserted this full right of 
 dominion, and have yielded it up only, when it has been 
 purchased from them by treaty, or obtained by force of 
 arms and conquest. In short, like all the civilized na¬ 
 tions of the earth, the Indian tribes deemed themselves 
 rightfully possessed, as sovereigns, of all the territories, 
 within which they were accustomed to hunt, or to exer¬ 
 cise other acts of ownership, upon the common principle, 
 that the exclusive use gave them an exclusive right to 
 the soil, whether it was cultivated or not. 
 
 § 4. It is difficult to perceive, why their title was not, 
 in this respect, as well founded as the title of any other 
 nation, to the soil within its own boundaries. How, 
 then, it may be asked, did the European nations acquire 
 the general title, which they have always asserted to the 
 whole soil of America, even to that in the occupancy of 
 the Indian tribes ? The only answer, which can be 
 given, is, their own assertion, that they acquired a gen¬ 
 eral title thereto in virtue of their being the first discover¬ 
 ers thereof, or, in other words, that their title was founded 
 upon the right of discovery. They established the doc¬ 
 trine, (whether satisfactorily or not is quite a different 
 question,) that discovery is a sufficient foundation for the 
 right to territory. As between themselves, with a view 
 to prevent contests, where the same land had been visit¬ 
 ed by the subjects of different European nations, each of 
 which might claim it as its own, there was no inconve¬ 
 nience in allowing the first discoverer to have the priority 
 of right, where the territory was at the time desert and un¬ 
 inhabited. But as to nations, which had not acceded to 
 the doctrine, and especially as to countries in the posses¬ 
 sion of native inhabitants and tribes at the time of the 
 discovery, it seems difficult to perceive, what ground of 
 right any discovery could confer. It would seem strange 
 to us, if, in the present times, the natives of the South 
 Sea Islands, or of Cochin China, should, by making a 
 voyage to, and a discovery of, the United States, on that 
 account set up a right to the soil within our boundaries. 
 
 § 5. The truth is, that the European nations paid not 
 2 xiii. 
 
14 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 the slightest regard to the rights of the native tribes. They 
 treated them as mere barbarians and heathens, whom, 
 if they were not at liberty to extirpate, they were entitled 
 to deem mere temporary occupants of the soil. They 
 might convert them to Christianity ; and, if they refus¬ 
 ed conversion, they might drive them from the soil, as 
 unworthy to inhabit it. They affected to be governed 
 by the desire to promote the cause of Christianity, and 
 were aided in this ostensible object by the whole in¬ 
 fluence of the Papal power. But their real object was, 
 to extend their own power, and increase their own wealth, 
 by acquiring the treasures, as well as the territory, of the 
 New World. Avarice and ambition were at the bottom 
 of all their original enterprises. 
 
 § 6. The right of discovery, thus asserted, has be¬ 
 come the settled foundation, on which the European na¬ 
 tions rest their title to territory in America ; and it is a 
 right, which, under our governments, must now be deem¬ 
 ed incontestable, however doubtful in its origin, or unsat¬ 
 isfactory in its principles. The Indians, indeed, have 
 not been treated as mere intruders, but as entitled to a 
 qualified right of property in the territory. They have 
 been deemed to be the lawful occupants of the soil, and 
 entitled to a temporary possession thereof, subject to the 
 superior sovereignty of the particular European nation, 
 which actually held the title of discovery. They have 
 not, indeed, been permitted to alienate their posses¬ 
 sory right to the soil, except to the nation, to whom they 
 were thus bound by a qualified dependence. But in 
 other respects, they have been left to the free exercise of 
 internal sovereignty, in regard to the members of their own 
 tribe, and in regard to their intercourse with other tribes ; 
 and their title to the soil, by way of occupancy, has been 
 generally respected, until it has been extinguished by 
 purchase, or by conquest, under the authority of the na¬ 
 tion, upon which they were dependent. A large portion 
 of the territory in the United States, to which the Indian 
 title is now extinguished, has been acquired by purchase ; 
 and a still larger portion by the irresistible power of arms, 
 over a brave, hardy, but declining race, whose destiny 
 
HISTORY OF THE COLONIES. 
 
 15 
 
 seems to be, to perish as fast as the white man advances 
 upon their footsteps. 
 
 § 7. Having thus traced out the origin of the title to the 
 soil of America, asserted by the European nations, we may 
 now enter upon a brief statement of the times and man¬ 
 ner, in which the different settlements were made, in the 
 different colonies, which originally composed the Union, at 
 the time of the Declaration of Independence. The first 
 permanent settlement made in America, under the aus¬ 
 pices of England, was under a charter granted by King 
 Janies L, in 1606. By this charter, he granted all the 
 lands lying on the seacoast between the thirty-fourth and 
 the forty-fifth degrees of north latitude, and the islands 
 adjacent, within one hundred miles, which were not then 
 belonging to, or possessed by, any Christian prince or peo¬ 
 ple. The associates were divided into two companies ; 
 one, the First, or Southern Colony, to which was grant¬ 
 ed all the lands between the thirty-fourth and forty-first 
 degrees of north latitude ; and the other, the Second, or 
 Northern Colony, to which was granted all the lands be¬ 
 tween the thirty-eighth and forty-fifth degrees of north lat¬ 
 itude, but not within one hundred miles of the prior Col¬ 
 ony. Each Colony was declared to have the exclusive 
 propriety or title in all the territory within fifty miles from 
 the seat of its first plantation. The name of Virginia 
 was in general confined exclusively to the Southern Col¬ 
 ony ; and the name of the Plymouth Company (from the 
 place of residence of the original grantees in England) 
 was assumed by the Northern Colony. From the for¬ 
 mer, the States south of the Potomac may be said to have 
 had their origin ; and from the latter, the States of New 
 England. 
 
 § 8. Some of the provisions of this charter deserve a 
 particular consideration, from the light, which they throw 
 upon the civil and political condition of the persons, who 
 should become inhabitants of the Colonies. The two 
 companies were authorized to engage, as colonists, any of 
 the subjects of England, who should be disposed to emi¬ 
 grate. All persons, being English subjects, and inhabit¬ 
 ants in the Colonies, and their children born therein, were 
 
16 CONSTITUTION OF THE UNITED STATES. 
 
 declared to have and possess all liberties, franchises, and 
 immunities of subjects within any dominions of the Crown 
 of England, to all intents and purposes, as if they were 
 born and abiding within the realm or other dominions of 
 that Crown. The original grantees, or patentees, W'ere to 
 hold the lands and other territorial rights in the Colonies, 
 of the King, his heirs and successors, in the same manner 
 as the manor of East Greenwich, in the county of Kent, 
 in England, was held of him, in free and common socage, 
 and not in capite, (as it was technically called,) that is 
 to say, by a free and certain tenure, as contradistinguished 
 from a military and a servile tenure,—a privilege of ines¬ 
 timable value, as those, who are acquainted with the his¬ 
 tory of the feudal tenures, well know.* The patentees 
 were also authorized to grant the same lands to the inhab¬ 
 itants of the Colonies in such form and manner, and for 
 such estates, as the Council of the Colony should direct.. 
 These provisions were, in substance, incorporated into all 
 the charters subsequently granted by the Crown to the dif¬ 
 ferent Colonies, and constituted also the basis, upon which 
 all the subsequent settlements were made. 
 
 § 9. The Colony of Virginia was the earliest in its 
 origin, being settled in 1606. The Colony of Plymouth 
 (which afterwards was united with Massachusetts, in 1692) 
 was settled in 1620 ; the Colony of Massachusetts in 
 1628 ; the Colony of New Hampshire in 1629 ; the Col¬ 
 ony of Maryland in 1632 ; the Colony of Connecticut in 
 1635 ; the Colony of Rhode Island in 1636 ; the Colony 
 of New York in 1662 ; the Colonies of North and South 
 Carolina in 1663 ; the Colony of New Jersey in 1664 ; 
 the Colony of Pennsylvania in 1681 ; the Colony of Del¬ 
 aware in 1682 ; and the Colony of Georgia in 1732. In 
 using these dates, we refer not to any sparse and discon¬ 
 nected settlements in these Colonies, (which had been 
 made at prior periods,) but to the permanent settlements 
 made under distinct and organized governments. 
 
 * On this subject, the reader can consult the history of the ancient 
 and modern English tenures in Blackstone’s Commentaries, vol. xL 
 chs. 5 and 6, p. 59 to p. 103.. 
 
COLONIAL GOVERNMENTS. 
 
 17 
 
 CHAPTER II. 
 
 Colonial Governments. 
 
 § 10. Let us next proceed to the consideration of the 
 political Institutions and forms of Government, which 
 were established in these different Colonies, and existed 
 here at the commencement of the Revolution. The 
 governments originally formed in these different Colonies 
 may be divided into three sorts, viz., Provincial, Propri¬ 
 etary, and Charter, Governments. First, Provincial 
 Governments. These establishments existed under the 
 direct and immediate authority of the King of England, 
 without any fixed constitution of government; the organ¬ 
 ization being dependent upon the respective commissions 
 issued from time to time by the Crown to the royal gov¬ 
 ernors, and upon the instructions, which usually accompa¬ 
 nied those commissions. The Provincial Governments 
 were, therefore, wholly under the control of the King, 
 and subject to his pleasure. The form of government, 
 however, in the Provinces, was at all times practically the 
 same, the commissions being issued in the same form. 
 The commissions appointed a Governor, who was the 
 King’s representative, or deputy ; and a Council, who, 
 besides being a part of the Legislature, were to assist the 
 Governor in the discharge of his official duties ; and both 
 the Governor and the Council held their offices during the 
 pleasure of the Crown. The commissions also contained 
 authority to the Governor to convene a general assembly 
 of the representatives of the freeholders and planters in 
 the Province ; and under this authority, Provincial As¬ 
 semblies, composed of the Governor, the Council, and 
 the Representatives, were, from time to time, constituted 
 and held. The Representatives composed the lower 
 house, as a distinct branch ; the Council composed the 
 upper house ; and the Governor had a negative upon all 
 their proceedings, and the power to prorogue and dis- 
 
CONSTITUTION OP THE UNITED STATES, 
 
 solve them. The Legislature, thus constituted, had 
 power to make all local laws and ordinances not repug¬ 
 nant to the laws of England, but, as near as might conve¬ 
 niently be, agreeable thereto, subject to the ratification or 
 disapproval of the Crown. The Governor appointed the 
 judges and magistrates, and other officers of the Province, 
 and possessed other general executive powers. Under 
 this form of government, New Hampshire, New York, 
 Virginia, North Carolina, South Carolina, and Georgia, 
 were governed, as provinces, at the commencement of the 
 American Revolution ; and some of them had been so 
 governed from an early period of their settlement. 
 
 § 11. Secondly, Proprietary Governments. These 
 were grants by letters patent (or open, written grants un¬ 
 der the great seal of the kingdom) from the Crown to 
 one or more persons as Proprietary or Proprietaries, con¬ 
 veying to them not only the rights of the soil, but also 
 the general powers of government within the territory so 
 granted, in the nature of feudatory principalities, or de¬ 
 pendent royalties. So that they possessed within their 
 own domains nearly the same authority, which the Crown 
 possessed in the Provincial Governments, subject, how¬ 
 ever, to the control of the Crown, as the paramount sov¬ 
 ereign, to whom they owed allegiance. In the Proprie¬ 
 tary Governments, the Governor was appointed by the 
 Proprietary or Proprietaries ; the Legislature was organ¬ 
 ized and convened according to his or their will ; and the 
 appointment of officers, and other executive functions and 
 prerogatives, were exercised by him or them, either per¬ 
 sonally, or by the Governors for the time being. Of 
 these Proprietary governments, three only existed at the 
 time of the American Revolution, viz., Maryland, held 
 by Lord Baltimore, as Proprietary, and Pennsylvania 
 and Delaware, held by William Penn, as Proprietary. 
 
 § 12. Thirdly, Charter Governments. These were 
 great political corporations, created by letters patent, or 
 grants of the Crown, which conferred on the grantees 
 and their associates not only the soil within their territorial 
 limits, but also all the high powers of legislation and gov¬ 
 ernment. The charters contained, in fact, a fundamental 
 
COLONIAL GOVERNMENTS. 
 
 19 
 
 constitution for the Colony, distributing the powers of 
 government into three great departments, legislative, 
 executive, and judicial ; providing for the mode, in which 
 these powers should be vested and exercised ; and se¬ 
 curing to the inhabitants certain political privileges and 
 rights. The appointment and authority of the Governor, 
 the formation and structure of the Legislature, and the es¬ 
 tablishment of courts of justice, were specially provided 
 for ; and generally the powers appropriate to each were 
 defined. The only Charter Governments existing at the 
 time of the American Revolution, were Massachusetts, 
 Rhode Island, and Connecticut. 
 
 § 13. The Charter Governments differed from the 
 Provincial, principally in this, that they were not imme¬ 
 diately under the authority of the Crown, nor bound by 
 any of its acts, which were inconsistent with their char¬ 
 ters ; whereas the Provincial Governments were entirely 
 subjected to the authority of the Crown. They differed 
 from the Proprietary Governments in this, that the latter 
 were under the control and authority of the Proprietaries, 
 as substitutes of the Crown, in all matters, not secured 
 from such control and authority by the original grants ; 
 whereas, in the Charter Governments, the powers were 
 parcelled out among the various departments of govern¬ 
 ment, and permanent boundaries were assigned by the 
 charter to each. 
 
 § 14. Notwithstanding these differences in their ori¬ 
 ginal and actual political organization, the Colonies, at the 
 time of the American Revolution, in most respects, enjoy¬ 
 ed the same general rights and privileges. In all of them, 
 there existed a Governor, a Council, and a Representative 
 Assembly, composed of delegates chosen by the people, by 
 whom the legislative and executive functions were exer¬ 
 cised according to the particular organization of the 
 Colony. In all of them, the legislative power extended to 
 all local subjects, and was subject only to this restriction, 
 that the laws should not be repugnant to, but, as far as con¬ 
 veniently might be, agreeable to, the laws and customs of 
 England. In all of them, express provision was made, 
 that all subjects, and their children, inhabiting in the 
 
20 CONSTITUTION OF THE UNITED STATES. 
 
 Colonies, should be deemed natural-born subjects, and 
 should enjoy all the privileges and immunities thereof. 
 In all of them, the common law of England, as far as it 
 was applicable to their situation, was made the basis of 
 their jurisprudence ; and that law was asserted at all times 
 by them to be their birthright and inheritance. 
 
 § 15. It may be asked, how the common law of 
 England came to be the fundamental law of all the Col¬ 
 onies. It may be answered in a few words, that, in all 
 the Proprietary and Charter Governments, there was an 
 express restriction, that no laws should be made repug¬ 
 nant to those of England, but, as near as they might 
 conveniently be, should be consonant and conformable 
 thereto, and, either expressly or by necessary implication, 
 it was provided, that the law of England, so far as it was 
 applicable to the state of the Colonies, should be in force 
 there. In the Provincial Governments the same pro¬ 
 visions were incorporated into all the royal commissions. 
 It may be added, that the common law of England was 
 emphatically the law of a free nation, and secured the 
 public and private rights and liberties of the subjects 
 against the tyranny and oppression of the Crown. Many 
 of these rights and liberties were proclaimed in Magna 
 Charta, (as it is called,) that instrument containing a de¬ 
 claration of rights by the peers and commons of England, 
 wrung from King John, and his son, Henry III., by the 
 pressure of stern necessity. But Magna Charta would 
 itself have been but a dead letter, if it had not been sus¬ 
 tained by the powerful influences of the common law, and 
 the right of trial by jury. Accordingly, our ancestors at 
 all times strenuously maintained, that the common law 
 w r as their birthright, and (as we shall presently see) in 
 the first revolutionary Continental Congress, in 1774, 
 unanimously resolved, that the respective Colonies are 
 entitled to the common law, and more especially to the 
 great and inestimable privilege of being tried by their 
 peers of the vicinage according to the course of that law. 
 
 § 16. Independently, however, of the special recog¬ 
 nitions of the Crown, there is a great conservative prin¬ 
 ciple in the common law of England, which would have 
 
COLONIAL GOVERNMENTS. 
 
 21 
 
 insured to our ancestors the right to partake of its pro¬ 
 tection, its remedial justice, and its extensive blessings. 
 It is a well-settled doctrine of that law, that, if an unin¬ 
 habited country is discovered and planted by British 
 subjects, the laws of England, so far as they are ap¬ 
 plicable, are there held immediately in force ; for, in all 
 such cases, the subjects, wherever they go, carry those 
 laws with them. This doctrine has been adopted, to 
 save the subjects, in such desert places, from being left 
 in a state of utter insecurity, from the want of all laws to 
 govern them, and from being thus reduced to a mere state 
 of nature. On the contrary, where new countries are 
 obtained by cession or conquest, a different rule exists. 
 The Crown has the sole and exclusive right to abrogate the 
 existing laws, and to prescribe, what new laws shall prevail 
 there ; although, until the pleasure of the Crown is made 
 known, the former laws are deemed to remain in force. 
 Attempts were made to hold the American Colonies to 
 be in this latter predicament, that is, to be territories 
 ceded by or conquered from the Indians. But the pre¬ 
 tension was always indignantly repelled ; and it w r as in¬ 
 sisted, that the sole claim of England thereto being 
 founded on the mere title of discovery, the colonists 
 brought thither all the laws of the parent country, which 
 were applicable to their situation. 
 
 § 17. We may thus see, in a clear light, the manner, 
 in which the common law was first introduced into the 
 Colonies, and also be better enabled to understand the 
 true nature and reason of the exceptions to it, which are 
 to be found in the laws and usages of the different Col¬ 
 onies. The general basis was the same in all the Colo¬ 
 nies. But the entire system was not introduced into any 
 one Colony, but only such portions of it, as were adapted 
 to its own wants, and were applicable to its own situation. 
 Hence the common law can hardly be affirmed to have 
 been exactly, in all respects, the same in all the Colonies. 
 Each Colony selected for itself, and judged for itself, 
 what was most consonant to its institutions, and best 
 adapted to its civil and political arrangements ; and, while 
 the main principles were every where the same, there 
 
22 CONSTITUTION OF THE UNITED STATES. 
 
 were endless minute usages and local peculiarities, in 
 which they differed from each other. 
 
 § 18. Thus limited and defined by the colonists 
 themselves, in its actual application, the common law 
 became the guardian of their civil and political rights ; it 
 protected their infant liberties ; it watched over their 
 maturer growth ; it expanded with their wants ; it nour¬ 
 ished in them that spirit of independence, which checked 
 the first approaches of arbitrary power ; it enabled them 
 to triumph in the midst of dangers and difficulties ; and 
 by the good providence of God, we, their descendants, 
 are now enjoying, under its bold and manly principles, the 
 blessings of a free and enlightened administration of public 
 justice. 
 
 § 19. Having made these preliminary observations, 
 we may now advance to the consideration of the political 
 state of the Colonies at the time of the Revolution ; and 
 trace its origin and causes. The natural inquiries here 
 are ; What, at this period, were their admitted rights and 
 prerogatives ? What were their civil and political relations 
 with the parent country ? To what extent were they 
 dependent upon the parent country ? What were the 
 limits of the sovereignty, which either Parliament, or the 
 King, might rightfully exercise over them ? These are 
 questions of deep importance ; but they are more easily 
 put, than answered. A full explanation of them is incom¬ 
 patible with the narrow limits prescribed to the present 
 work ; but a brief summary of some of the leading views 
 may not be without use. 
 
 CHAPTER III. 
 
 Origin of the Revolution. 
 
 § 20. The Colonies, at the time of the Revolution, 
 considered themselves, not as parcel of the realm of 
 Great Britain, but as dependencies of the British Crown, 
 and owing allegiance thereto, the King being their su- 
 
ORIGIN OF THE REVOLUTION. 
 
 23 
 
 preme and sovereign lord. In virtue of this supremacy, 
 the King exercised the right of hearing appeals from the 
 decisions of the courts of the last resort in the Colonies ; 
 of deciding controversies between the Colonies as to their 
 respective jurisdictions and boundaries ; and of requiring 
 each Colony to conform to the fundamental laws and con¬ 
 stitution of its own establishment, and to yield due obedi¬ 
 ence in all matters belonging to the paramount sovereignty 
 of the Crown. 
 
 § 21. Although the Colonies had a common origin 
 and common right, and owed a common allegiance, and 
 the inhabitants of all of them were British subjects, they 
 had no direct political connection with each other. 
 Each colony was independent of the others ; and there 
 was no confederacy or alliance between them. The 
 legislature of one could not make Jaws for another, nor 
 confer privileges to be enjoyed in another. They were 
 also excluded from all political connection with foreign 
 nations ; and they followed the fate and fortunes of the 
 parent country in peace and in war. Still the colonists 
 were not wholly alien to each other. On the contrary, 
 they were fellow subjects, and, for many purposes, one 
 people. Every colonist had a right to inhabit, if he 
 pleased, in any other Colony ; to trade therewith ; and to 
 inherit and hold lands there. 
 
 § 22. The nature and extent of their dependency 
 upon the parent country is not so easily stated ; or, rather, 
 it was left in more uncertainty ; the claims on either side 
 not being always' well defined, nor clearly acquiesced in. 
 The Colonies claimed exclusive authority to legislate on 
 all subjects of local and internal interest and policy. 
 But they did not deny the right of Parliament to regulate 
 their foreign commerce, and their other external concerns, 
 or to legislate upon the common interests of the whole em¬ 
 pire. On the other hand, the Crown claimed a right to ex¬ 
 ercise many of its prerogatives in the Colonies ; and the 
 British Parliament, although it practically interfered little 
 with their internal affairs, yet theoretically maintained the 
 right to legislate over them in all cases whatsoever. 
 
 § 23. As soon as any systematic effort was made by 
 
24 CONSTITUTION OF THE UNITED STATES. 
 
 the British Parliament practically to exert over the Colo¬ 
 nies the power of internal legislation and taxation, as was 
 attempted by the Stamp Act, in 1765, it was boldly re¬ 
 sisted ; and it brought on the memorable controversy, 
 which terminated in their Independence, first asserted by 
 them in 1776, and finally admitted by Great Britain by 
 the Treaty of 1783. At an early period of that contro¬ 
 versy, the first Continental Congress, in 1774, drew up 
 and unanimously adopted a declaration of the rights of 
 the Colonies, the substance of which is as follows : (1.) 
 That they are entitled to life, liberty, and property ; and 
 they have never ceded to any sovereign power, whatever, 
 a right to dispose of either without their consent. (2.) 
 That our ancestors, who first settled the Colonies, were, 
 at the time of their emigration from the mother country, 
 entitled to all the rights, liberties, and immunities of free 
 and natural-born subjects within the realm of England. 
 (3.) That by such emigration they by no means forfeited, 
 surrendered, or lost any of those rights ; but that they 
 were, and their descendants now are, entitled to the ex¬ 
 ercise and enjoyment of all such of them, as their local 
 and other circumstances enable them to exercise and en¬ 
 joy. (4.) That the foundation of English liberty is a 
 right in the people to participate in their legislative coun¬ 
 cils ; and as the English colonists are not represented, 
 and, from their local and other circumstances, cannot 
 properly be represented, in the British Parliament, they 
 are entitled to a free and exclusive power of legislation 1 
 in their several provincial assemblies, where their right of 
 representation can alone be preserved, in all cases of tax¬ 
 ation and internal polity, subject only to the negative of 
 their sovereign, in such manner as has been heretofore 
 used and accustomed. But from the necessity of the 
 case, and a regard to the mutual interests of both coun¬ 
 tries, they cheerfully consent to the operation of such 
 acts of the British Parliament, as are bond fide restrain- 
 ed to the regulation of their external commerce, for the 
 purpose of securing the commercial advantages of the 
 whole empire to the mother country, and the commercial 
 benefits of its respective members, excluding every action 
 
ORIGIN OF THE REVOLUTION. 
 
 25 
 
 of taxation, internal or external, for raising a revenue on 
 the subjects in America without their consent. (5.) That 
 the respective Colonies are entitled to the common law 
 of England, and more especially, the great and inestima¬ 
 ble privilege of being tried by their peers of the vicinage, 
 according to the course of that law 7 , (meaning the trial by 
 jury.) (6.) That the Colonies are entitled to the ben¬ 
 efit of such of the English statutes, as existed at the 
 time of their colonization, and which they have, by ex¬ 
 perience, respectively found applicable to their several 
 local and other circumstances. (7.) That they are like¬ 
 wise entitled to all the immunities and privileges granted 
 and confirmed to them by royal charters, or secured to 
 them by their several codes of provincial law. (8.) That 
 they have a right peaceably to assemble, consider of their 
 grievances, and petition the King ; and that all prosecu¬ 
 tions, prohibitory proclamations, and commitments for 
 the same, are illegal. (9.) That the keeping of a stand¬ 
 ing army in these Colonies in times of peace, without 
 the consent of the legislature of that Colony, in which 
 such army is kept, is against law. (10.) That it is in¬ 
 dispensably necessary to good government, and rendered 
 essential by the English constitution, that the constituent 
 branches of the legislature be independent of each other ; 
 that, therefore, the exercise of legislative power in several 
 Colonies by a Council appointed during pleasure by the 
 Crown, is unconstitutional, dangerous, and destructive to 
 the freedom of American legislation. 
 
 § 24. Such is, in substance, the Bill of Rights claim¬ 
 ed in behalf of all the Colonies by the Continental Con¬ 
 gress, the violation of which, constituted the main grounds, 
 upon which the American Revolution was founded ; and 
 the grievances, under which the Colonies labored, being 
 persisted in by the British government, a resort to arms 
 became unavoidable. The result of the contest is w 7 ell 
 known, and has been already stated ; and it belongs to 
 the department of history, and not of constitutional law 7 , 
 to enumerate the interesting events of that period. 
 
 3 
 
 XIII. 
 
26 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 CHAPTER IV. 
 
 Revolutionary Government. 
 
 § 25. But it may be asked, and it properly belongs 
 to this work to declare ; What was the political organiza¬ 
 tion, under which the Revolution was carried on and ac¬ 
 complished ? The Colonies being, as we have seen, 
 separate and independent of each other in their original 
 establishment, and dow T n to the eve of the Revolution, it 
 became indispensable, in order to make their resistance 
 to the British claims either formidable or successful, that 
 there should be harmony and unity of operations under 
 some common head. Massachusetts, in 1774, recom¬ 
 mended the assembling of a Continental Congress at 
 Philadelphia, to be composed of delegates chosen in all 
 the Colonies, for the purpose of deliberating on the com¬ 
 mon good, and to provide a suitable scheme of future 
 operations. Delegates were accordingly chosen in the 
 various Colonies, some by the legislative body, some by 
 the popular representative branch thereof, and some by 
 conventions of the people, according to the several means 
 and local circumstances of each Colony. This first great 
 Continental Congress assembled on the 4th of Septem¬ 
 ber, 1774, chose their own officers, and adopted certain 
 fundamental rules to regulate their proceedings. The 
 most important rule then adopted was, that each Colony 
 should have one vote only in Congress, whatever might be 
 the number of its delegates ; and this became the establish¬ 
 ed course throughout the whole Revolution. They adopted 
 such other measures, as the exigency of the occasion seem¬ 
 ed to require ; and proposed another Congress, to be as¬ 
 sembled for the like purpose, in May, 1775, which was 
 accordingly held. The delegates of this last Congress 
 were chosen in the same manner as the preceding ; but 
 principally by conventions of the people in the several 
 Colonies. It was the same Congress,.which, after vot- 
 
REVOLUTIONARY GOVERNMENT. 
 
 27 
 
 ing other great measures, all leading to open war, finally, 
 in 1776, made the Declaration of Independence, which 
 was unanimously adopted by the American people. Un¬ 
 der the recommendations of the same Congress, suitable 
 arrangements were made to organize the State govern¬ 
 ments, so as to supply the deficiencies in the former es¬ 
 tablishments ; and henceforth the delegates to the Conti¬ 
 nental Congress from time to time assembled, were ap¬ 
 pointed by the State legislatures. 
 
 § 26. The Continental Congress, thus organized by a 
 voluntary association of the States, and continued by the 
 successive appointments of the State legislatures, con¬ 
 stituted, in fact, the National Government, and conducted 
 the national affairs until near the close of the Revolution, 
 when, as we shall presently see, the Articles of Confeder¬ 
 ation were adopted by all the States. Their powers were 
 no where defined or limited. They assumed, among 
 others, the power to declare war and make peace, to 
 raise armies and equip navies, to form treaties and allian¬ 
 ces with foreign nations, to contract public debts, and to 
 do all other sovereign acts essential to the safety of the 
 United Colonies. Whatever powers they assumed were 
 deemed legitimate. These powers originated from ne¬ 
 cessity, and were only limited by events ; or, in other 
 words, they were revolutionary powers. In the exercise 
 of these powers, they were supported by the people, and 
 the exercise of them could not, therefore, be justly ques¬ 
 tioned by any inferior authority. In an exact sense, then, 
 the powers of the Continental Congress might be said to 
 be coextensive with the exigencies and necessities of the 
 public affairs ; and the people, by their approbation and 
 acquiescence, justified all their acts, having the most en¬ 
 tire reliance upon their patriotism, their integrity, and their 
 political wisdom. 
 
 § 27. Rut it was obvious to reflecting minds, upon the 
 slightest consideration, that the union thus formed, was 
 but of a temporary nature, dependent upon the consent 
 of all the Colonies, now become States, and capable of 
 being dissolved, at any time, by the secession of any one 
 of them. It grew out of the exigencies and dangers of 
 
28 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 the times ; and, extending only to the maintenance of the 
 public liberties and independence of all the States during 
 the contest with Great Britain, it would naturally termi¬ 
 nate with the return of peace, and the accomplishment of 
 the ends of the revolutionary contest. As little could it 
 escape observation, how great would be the dangers of 
 the separation of the confederated States into indepen¬ 
 dent communities, acknowledging no common head, and 
 acting upon no common system. Rivalries, jealousies, 
 real or imaginary wrongs, diversities of local interests 
 and institutions, would soon sever the ties of a common 
 attachment, which bound them together, and bring on a 
 state of hostile operations, dangerous to their peace, and 
 subversive of their permanent interests. 
 
 CHAPTER V. 
 j History of the Confederation. 
 
 § 28. One of the first objects, therefore, beyond that 
 of the immediate public safety, which engaged the atten¬ 
 tion of the Continental Congress, was to provide the means 
 of a permanent union of all the Colonies under a General 
 Government. The deliberations on this subject were co¬ 
 eval with the Declaration of Independence, and, after va¬ 
 rious debates and discussions, at different sessions, the 
 Continental Congress finally agreed, in November, 1777, 
 upon a frame of government, contained in certain Articles 
 of Confederation, which were immediately sent to all the 
 States for their approval and adoption. Various delays 
 and objections, however, on the part of some of the 
 States, took place ; and as the government was not to go 
 into effect, until the consent of all the States should be 
 obtained, the Confederation was not finally adopted until 
 March, 1781, when Maryland (the last State) acceded 
 to it. The principal objections taken to the Confedera¬ 
 tion were ; to the mode prescribed by it for apportioning 
 taxes among the States, and raising the quota or propor- 
 
HISTORY OF THE CONFEDERATION. 
 
 29 
 
 tions of the public forces ; to the power given to keep up 
 a standing arm)'' in time of peace ; and, above all, to the 
 omission of the reservation of all the public lands, owned 
 by the Crown, within the boundaries of the United States, 
 to the National Government, for national purposes. This 
 latter subject was one of a perpetually recurring and in¬ 
 creasing irritation ; and the Confederation would never 
 have been acceded to, if Virginia and New York had not 
 at last consented to make liberal cessions of the territory 
 within their respective boundaries for national purposes. 
 
 §29. The Articles of Confederation had scarcely been 
 adopted, before the defects of the plan, as a frame of 
 national government, began to manifest themselves. The 
 instrument, indeed, was framed under circumstances very 
 little favorable to a just survey of the subject in all its 
 proper bearings. The States, while colonies, had been 
 under the controlling authority of a foreign sovereignty, 
 whose restrictive legislation had been severely felt, and 
 whose prerogatives, real or assumed, had been a source 
 of incessant jealousy and alarm. Of course, they had 
 nourished a spirit of resistance to all external authority ; 
 and having had no experience of the inconveniences of 
 the want of some general government to superintend 
 their common affairs and interests, they reluctantly yield¬ 
 ed any thing, and deemed the least practicable delegation 
 of power quite sufficient for national purposes. Notwith¬ 
 standing the Confederation purported on its face to con¬ 
 tain articles of perpetual union, it was easy to see, that 
 its principal powers respected the operations of war, and 
 were dormant in times of peace ; and that even these 
 were shadowy and unsubstantial, since they were stripped 
 of all coercive authority. It was remarked, by an eminent 
 statesman, that by this political compact the Continental 
 Congress have exclusive power for the following purposes, 
 without being able to execute one of them :—They may 
 make and conclude treaties ; but can only recommend 
 the observance of them. They may appoint ambassa¬ 
 dors ; but they cannot defray even the expenses of their 
 tables. They may borrow money in their own name, on 
 the faith of the Union ; but thev cannot pay a dollar. 
 
 3 * 
 
30 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 They may coin money ; but they cannot import an ounce 
 of bullion. They may make war, and determine what 
 number of troops are necessary ; but they cannot raise a 
 single soldier. In short, they may declare every thing, 
 but they can do nothing. And, strong as this description 
 may seem, it was literally true ; for Congress had little 
 more than the power of recommending their measures to 
 the good will of the States. 
 
 § 30. The leading defects of the Confederation were 
 the following : In the first place, there was an utter want 
 of all coercive authority in the Continental Congress, to 
 carry into effect any of their constitutional measures. 
 They could not legislate directly upon persons ; and, 
 therefore, their measures were to be carried into effect 
 by the States ; and of course, whether they were execu¬ 
 ted or not, depended upon the sole pleasure of the legis¬ 
 latures of the latter. And, in point of fact, many of the 
 measures of the Continental Congress were silently disre¬ 
 garded ; many were slowly and reluctantly obeyed ; and 
 some of them were openly and boldly refused to be exe¬ 
 cuted. 
 
 § 31. In the next place, there was no power in the 
 Continental Congress to punish individuals for any breach¬ 
 es of their enactments. Their laws, if laws they might 
 be called, were without any penal sanction ; the Conti¬ 
 nental Congress could not impose a fine, or imprisonment, 
 or any other punishment, upon refractory officers, or even 
 suspend them from office. Under such circumstances, 
 it might naturally be supposed, that men followed their 
 own interests, rather than their duties. They obeyed, 
 when it was convenient, and cared little for persuasions, 
 and less for conscientious obligations. The wonder is, not 
 that such a scheme of government should fail; but, that it 
 should have been capable even of a momentary existence. 
 
 § 32. In the next place, the Continental Congress had 
 no power to lay taxes, or to collect revenue, for the pub¬ 
 lic service. All that they could do was, to ascertain the 
 sums necessary to be raised for the public service, and to 
 apportion its quota or proportion upon each State. The 
 power to lay and collect the taxes was expressly and ex- 
 
HISTORY OF THE CONFEDERATION. 
 
 31 
 
 clusively reserved to the States. The consequence was, 
 that great delays,took place in collecting the taxes ; and 
 the evils from this source were of incalculable extent, 
 even during the Revolutionary War. The Continental 
 Congress were often wholly without funds to meet the 
 exigencies of the public service ; and if it had not been 
 for their good fortune, in obtaining money by some loans 
 in foreign countries, it is far from being certain, that this 
 dilatory scheme of taxation would not have been fatal to 
 the cause of the Revolution. After the peace of 1783, 
 the States relapsed into utter indifference on this subject. 
 The requisitions of the Continental Congress for funds, 
 even for the purpose of enabling them to pay the inter¬ 
 est of the public debt, were openly disregarded ; and, 
 notwithstanding the most affecting appeals, made from 
 time to time by the Congress, to the patriotism, the sense of 
 duty, and the justice of the States, the latter refused to 
 raise the necessary supplies. The consequence was, 
 that the national treasury was empty ; the credit of the 
 Confederacy was sunk to a low ebb ; the public bur¬ 
 dens were increasing ; and the public faith was prostrated 
 and openly violated. 
 
 § 33. In the next place, the Continental Congress had 
 no power to regulate commerce, either with foreign na¬ 
 tions, or among the several States composing the Union. 
 Commerce, both foreign and domestic, was left exclu¬ 
 sively to the management of each particular State, accord¬ 
 ing to its views of its own interests, or its local prejudices. 
 The consequence was, that the most opposite regulations 
 existed in the different States ; and, in many cases, and 
 especially between neighboring States, there was a per¬ 
 petual course of retaliatory legislation, from their jealous¬ 
 ies and rivalries in commerce, in agriculture, or in man¬ 
 ufactures. Foreign nations did not fail to avail them¬ 
 selves of all the advantages accruing to themselves from 
 this suicidal policy, tending to the common ruin. And 
 as the evils grew more pressing, the resentments of the 
 States against each other, and the consciousness, that 
 their local interests were placed in opposition to each 
 other, were daily increasing the mass of disaffection, until 
 
32 CONSTITUTION OF THE UNITED STATES. 
 
 it became obvious, that the dangers of immediate warfare 
 between some of the States were imminent ; and thus, 
 the peace and safety of the Union were made dependent 
 upon measures of the States, over which the General 
 Government had not the slightest control. 
 
 § 34. But the evil did not rest here. Our foreign 
 commerce was not only crippled, but almost destroyed, 
 by this want of uniform laws to regulate it. Foreign na¬ 
 tions imposed upon our navigation and trade just such 
 restrictions, as they deemed best to their own interest and 
 policy. All of them had a common interest to stint our 
 trade, and enlarge their own ; and all of them were well 
 satisfied, that they might, in the distracted state of our 
 legislation, pass whatever acts they pleased on this sub¬ 
 ject, with impunity. They did not fail to avail themselves, 
 to the utmost, of their advantages. They pursued a sys¬ 
 tem of the most rigorous exclusion of our shipping from 
 all the benefits of their own commerce ; and endeavored 
 to secure, with a bold and unhesitating confidence, a mo¬ 
 nopoly of ours. The effects of this system of operations, 
 combined with our political weakness, were soon visible. 
 Our navigation was ruined ; our mechanics were in a 
 state of inextricable poverty ; our agriculture was with¬ 
 ered ; and the little money still found in the country was 
 gradually finding its way abroad, to supply our immediate 
 wants. In the rear of all this, there was a heavy public 
 debt, which there was no means to pay ; and a state of 
 alarming embarrassment, in that most difficult and delicate 
 of all relations, the relation of private debtors and cred¬ 
 itors, threatened daily an overthrow even of the ordinary 
 administration of justice. Severe, as were the calamities 
 of the war, the pressure of them was far less mischievous, 
 than this slow but progressive destruction of all our re¬ 
 sources, all our industry, and all our credit. 
 
 § 35. There were many other defects in the Con¬ 
 federation, of a subordinate character and importance. 
 But these were sufficient to establish its utter unfitness, as 
 a frame of government, for a free, enterprising, and in¬ 
 dustrious people. Great, however, and manifold as the 
 evils were, and, indeed, so glaring and so universal, it 
 
ORIGIN OF THE CONSTITUTION. 
 
 S3 
 
 was yet extremely difficult to induce the States to con¬ 
 cur in adopting any adequate remedies to redress them. 
 For several years, efforts were made by some of our 
 wisest and best patriots to procure an enlargement of 
 the powers of the Continental Congress ; but, from the 
 predominance of State jealousies, and the supposed in¬ 
 compatibility of State interests with each other, they all 
 failed. At length, however, it became apparent, that 
 the Confederation, being left without resources and with¬ 
 out powers, must soon expire of its own debility. It 
 had not only lost all vigor, but it had ceased even to be 
 respected. It had approached the last stages of its de¬ 
 cline ; and the only question, which remained, was, 
 whether it should be left to a silent dissolution, or an 
 attempt should be made to form a more efficient govern¬ 
 ment, before the great interests of the Union were buried 
 beneath its ruins. 
 
 ¥-jfl 
 
 CHAPTER VI. 
 
 Origin of the Constitution . 
 
 § 36. In 1785, commissioners were appointed by 
 the legislatures of Maryland and Virginia, to form a 
 compact, relative to the navigation of the rivers Potomac 
 and Roanoke, and the Chesapeake Ray. The com¬ 
 missioners met, accordingly, at Alexandria, in Virginia ; 
 but, feeling the want of adequate powers, they recommend¬ 
 ed proceedings of a more enlarged nature. The legis¬ 
 lature of Virginia accordingly, in January, 1786, pro¬ 
 posed a convention of commissioners from all the States, 
 for the purpose of taking into consideration the state of 
 trade, and the propriety of a uniform system of com¬ 
 mercial relations, for their permanent harmony and com¬ 
 mon interest. Pursuant to this proposal, commissioners 
 were appointed by five States, who met at Annapolis, 
 in September, 1786. They framed a Report, to be 
 laid before the Continental Congress, advising the latter 
 
34 CONSTITUTION OF THE UNITED STATES. 
 
 to call a General Convention, of commissioners from all 
 the States, to meet in Philadelphia, in May, 1787, for a 
 more effectual revision of the Articles of Confederation. 
 
 § 37. Congress adopted the recommendation of the 
 Report, and in February, 17S7, passed a resolution for 
 assembling a Convention accordingly. All the States, 
 except Rhode Island, appointed delegates ; and they 
 met at Philadelphia. After very protracted deliberations, 
 and great diversities of opinion, they finally, on the 17th 
 of September, 1787, framed the present Constitution of 
 the United States, and recommended it to be laid by the 
 Congress before the several States, to be by them con¬ 
 sidered and ratified, in conventions of the representa¬ 
 tives of the people, to be called for that purpose. The 
 Continental Congress accordingly took measures for this 
 purpose. Conventions were accordingly called in all 
 the States, except Rhode Island, and, after many warm 
 discussions, the Constitution was ratified by all of them, 
 except North Carolina and Rhode Island. 
 
 § 38. The assent of nine States only being required 
 to put the Constitution into operation, measures were ta¬ 
 ken for this purpose, by Congress, in September, 1788,. 
 as soon as the requisite ratifications were ascertained. 
 Electors of President and Vice President were chosen, 
 who subsequently assembled and gave their votes ; and 
 the necessary elections of Senators and Representatives 
 being made, the first Congress under the Constitution as¬ 
 sembled at New York, (the then seat of government,) on 
 Wednesday, the 4th day of March, 1789, for com¬ 
 mencing proceedings under the Constitution. A quorum, 
 however, of both Houses, for the transaction of business 
 generally, did not assemble until the 6th of April follow¬ 
 ing, when, the votes of the Electors being counted, it 
 was found, that George Washington was unanimously 
 elected President, and John Adams was elected Vice 
 President. On the 30th of April, President Washington 
 was sworn into office ; and the government immediately 
 went into full operation. North Carolina afterwards, 
 in a new convention, held in November, 17S9, adopted 
 the Constitution and Rhode Island, also, by. a con- 
 
HISTORY OF THE CONSTITUTION. 
 
 35 
 
 vention, held in May, 1790. So that all the thirteen 
 States, by the authority of the people thereof, finally be¬ 
 came parties under the new government. 
 
 ^ 39. Thus was achieved another, and still more 
 glorious, triumph, in the cause of liberty, even than that, 
 by which we were separated from the parent country. 
 It was not achieved, however, without great difficulties 
 and sacrifices of opinion. It required all the wisdom, 
 the patriotism, and the genius of our best statesmen, to 
 overcome the objections, which, from various causes, 
 were arrayed against it. The history of those times is 
 full of melancholy instruction, at once to admonish us of 
 the dangers, through which we have passed, and of the 
 necessity of incessant vigilance, to guard and preserve, 
 what has been thus hardly earned. The Constitution 
 was adopted unanimously in New Jersey, Delaware, and 
 Georgia. It was supported by large majorities in Con¬ 
 necticut, Pennsylvania, Maryland, and South Carolina. 
 In the remaining States, it was carried by small majori¬ 
 ties ; and especially, in Massachusetts, New York, and 
 Virginia, by little more than a mere preponderating vote. 
 What a humiliating lesson is this, after all our sufferings 
 and sacrifices, and after our long and sad experience of 
 the evils of disunited councils, and of the pernicious 
 influence of State jealousies, and local interests! It 
 teaches us, how slowly even adversity brings the mind to 
 a due sense of what political wisdom requires. It teach¬ 
 es us, how liberty itself may be lost, when men are found 
 ready to hazard its permanent blessings, rather than sub¬ 
 mit to the wdiolesome restraints, which its permanent 
 security demands. 
 
 § 40. To those great men, who thus framed the 
 Constitution, and secured the adoption of it, we owe a 
 debt of gratitude, which can scarcely be repaid. It was 
 not then, as it is now, looked upon, from the blessings, 
 which, under the guidance of Divine Providence, it has 
 bestowed, with general favor and affection. On the 
 contrary, many of those pure and disinterested patriots, 
 who stood forth, the firm advocates of its principles, did 
 so at the expense of their existing popularity. They 
 
36 CONSTITUTION OF THE UNITED STATES. 
 
 felt, that they had a higher duty to perform, than to flat¬ 
 ter the prejudices of the people, or to subserve selfish, or 
 sectional, or local interests. Many of them went to their 
 graves, without the soothing consolation, that their ser¬ 
 vices and their sacrifices were duly appreciated. They 
 scorned every attempt to rise to power and influence by 
 the common arts of demagogues ; and they were content 
 to trust their characters, and their conduct, to the de¬ 
 liberate judgement of posterity. 
 
 §41. If, upon a close survey of their labors, as de¬ 
 veloped in the actual structure of the Constitution, we 
 shall have reason to admire their wisdom and forecast, to 
 observe their profound love of liberty, and to trace their 
 deep sense of the value of political responsibility, and their 
 anxiety, above all things, to give perpetuity, as well as 
 energy, to the republican institutions of their country; 
 then, indeed, will our gratitude kindle into a holier rev¬ 
 erence, and their memories will be cherished among those 
 of the noblest benefactors of mankind. 
 
 CHAPTER VII. 
 
 Exposition of the Constitution .— The Preamble. 
 
 §42. Having given this general sketch of the origin 
 of the Colonies, of the rise and fall of the Confederation, 
 and of the formation and adoption of the Constitution of 
 the United States, we are now prepared to enter upon an 
 examination of the actual structure and organization of 
 that Constitution, and the powers belonging to it. We 
 shall treat it, not as a mere compact, or league, or confed¬ 
 eracy, existing at the mere will of any one or more of the 
 States, during their good pleasure ; but, (as it purports 
 on its face to be,) as a Constitution of Government, framed 
 and adopted by the people of the United States, and 
 obligatory upon all the States, until it is altered, amended, 
 or abolished by the people, in the manner pointed out in the 
 instrument itself. It is to be interpreted, as all other solemn 
 
EXPOSITION OF PREAMBLE. 
 
 37 
 
 instruments are, by endeavoring to ascertain the true sense 
 and meaning of all the terms ; and we are neither to nar¬ 
 row them, nor to enlarge them, by straining them from their 
 just and natural import, for the purpose of adding to, or 
 diminishing its powers, or bending them to any favorite 
 theory or dogma of party. It is the language of the peo¬ 
 ple, to be judged of according to common sense, and not 
 by mere theoretical reasoning. It is not an instrument for 
 the mere private interpretation of any particular men. The 
 people have established it and spoken their will; and their 
 will, thus promulgated, is to be obeyed as the supreme law. 
 Every department of the Government must, of course, in 
 the first instance, in the exercise of its own powers and 
 duties, necessarily construe the instrument. But, if the 
 case admits of judicial cognizance, every citizen has a 
 right to contest the validity of that construction before the 
 proper judicial tribunal ; and to bring it to the test of the 
 Constitution. And, if the case is not capable of judicial 
 redress, still the people may, through the acknowledged 
 means of new elections, or proposed amendments, check 
 any usurpation of authority, whether wanton, or uninten¬ 
 tional, and thus relieve themselves from any grievances 
 of a political nature. 
 
 § 43. For a right understanding of the Constitution of 
 the United States, it will be found most convenient to 
 examine the provisions, generally, in the order, in which 
 they are stated in the instrument itself; and thus, the dif¬ 
 ferent parts may be made mutually to illustrate each other. 
 This order will, accordingly, be adopted in the ensuing 
 commentaries. 
 
 § 44. We shall begin then, with the Preamble, which 
 is in the following words :— 
 
 “We, the people of the United^ States, in order to form 
 a more perfect union, establish justice, insure domestic 
 tranquillity, provide for the common defence, promote 
 the general welfare, and secure the blessings of liberty 
 to ourselves and our posterity, do ordain and establish 
 this Constitution for the United States of America.” 
 
 § 45. This Preamble is very important, not only as 
 explanatory of the motives and objects of framing the 
 
 4 xm. 
 
38 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 Constitution ; but, as affording the best key to the true 
 interpretation thereof. For it may well be presumed, 
 that the language used will be in conformity to the motives, 
 which govern the parties, and the objects to be attained 
 by the Instrument. Every provision in the instrument 
 may therefore fairly be presumed to have reference to 
 one or more of these objects. And consequently, il 
 any provision is susceptible of two interpretations, that 
 ought to be adopted, and adhered to, which best harmo¬ 
 nizes with the avowed intentions and objects of the au¬ 
 thors, as gathered from their declarations in the instrument 
 itself. 
 
 § 46. The first object is, u to form a more perfect 
 union. ” From what has been already stated, respecting 
 the defects of the Confederation, it is obvious, that a 
 further continuance of the Union was impracticable, un¬ 
 less a new government was formed, possessing more 
 powers and more energy. That the Union of the States 
 is in the highest degree desirable, nay, that it is almost 
 indispensable to the political existence of the States, is a 
 proposition, which admits of the most complete moral 
 demonstration, so far as human experience and general 
 reasoning can establish it. If the States were wholly 
 separated from each other, the very inequality of their 
 population, territory, resources, and means of protecting 
 their local interests, would soon subject them to injuri¬ 
 ous rivalries, jealousies, and retaliatory measures. The * 
 weak would be wholly unable to contend successfully 
 against the strong, and would be compelled to submit to 
 the terms, which the policy of their more powerful neigh¬ 
 bors should impose upon them. What could Rhode 
 Island, or New Jersey, or Delaware, accomplish against 
 the will, or the resentments, of the formidable States, 
 which surround them ? But, in a more general view, 
 the remark of the Abbe Mably may be appealed to, as 
 containing the result of all human experience. 4c Neighbor¬ 
 ing states (says he) are naturally enemies of each other, 
 unless their common weakness forces them to league in a 
 confederative republic, and their Constitution prevents the 
 differences, that neighborhood occasions, extinguishing 
 
EXPOSITION OF PREAMBLE. 
 
 39 
 
 that secret jealousy, which disposes all states to aggran¬ 
 dize themselves, at the expense of their neighbors.” 
 
 § 47. On the other hand, if the States should separate 
 into distinct confederacies, there could scarcely be less 
 than three, and most probably, there would be four ; an 
 Eastern, a Middle, a Southern, and a Western Confed¬ 
 eracy. The lines of division would be traced out by 
 geographical boundaries between the slave-holding and 
 the non-slave-holding States, a division, in itself, fraught 
 with constant causes of irritation and alarm. There 
 would also be marked distinctions between the commer¬ 
 cial, the manufacturing, and the agricultural States, which 
 would perpetually give rise to real or supposed grievan¬ 
 ces and inequalities. But the most important considera¬ 
 tion is, that, in order to maintain such confederacies, it 
 would be necessary to clothe the government of each of 
 them with summary and extensive powers, almost incom¬ 
 patible with liberty, and to keep up large and expensive 
 establishments, as well for defence as for offence, in order 
 to guard against the sudden inroads, or deliberate aggres¬ 
 sions of their neighbors and rivals. The evils of faction, 
 the tendencies to corrupt influence, the pressure of taxa¬ 
 tion, the necessary delegation of arbitrary powers, and the 
 fluctuations of legislation, would thus be immeasurably 
 increased. Foreign nations, too, would not fail to avail 
 themselves, in pursuit of their own interests, of every 
 .opportunity to foster our intestine divisions, since they 
 might thus more easily command our trade, or monopo¬ 
 lize our products, or crush our manufactures, or keep us in 
 a state of dependence upon their good will for our security, 
 
 § 48. The Union of the States, cc the more perfect 
 union” of them, under a National Government, is, then, 
 and for ever must be, invaluable to the whole country, in 
 respect to foreign and domestic concerns. It will dimin¬ 
 ish the causes of war, that scourge of the human race ; it 
 will enable the National Government to protect and secure 
 the rights of the whole people ; it will diminish public ex¬ 
 penditures ; it will insure respect abroad, and confidence 
 at home ; and it will unite in one common bond the in¬ 
 terests of agriculture, of commerce, and of manufactures. 
 
40 CONSTITUTION OF THE UNITED STATES. 
 
 §40. The next object is, u to establish justice.” 
 This, indeed, is the first object of all good and rational 
 forms of government. Without justice being fully, free¬ 
 ly, and impartially administered, neither our persons, 
 nor our rights, nor our property, can be protected. Call 
 the form of government whatever you may, if justice 
 cannot be equally obtained by all the citizens, high and 
 low, rich and poor, it is a mere despotism. Of what 
 use is it to have wise laws to protect our rights or prop¬ 
 erty, if there are no adequate means of enforcing them ? 
 Of what use are constitutional provisions or prohibitions, 
 if they may be violated with impunity ? If there are no 
 tribunals of justice established to administer the laws with 
 firmness and independence, and placed above the reach 
 of the influence of rulers, or the denunciations of mobs, 
 what security can any citizen have for his personal safety 
 or for his public or private rights ? It may, therefore, 
 be laid down as a fundamental maxim of all govern¬ 
 ments, that justice ought to be administered freely and 
 fully between private persons ; and it is rarely departed 
 from, even in the most absolute despotisms, unless under 
 circumstances of extraordinary policy or excitement. 
 Doubtless, the attainment of justice is the foundation, on 
 which all our State governments rest ; and, therefore, 
 the inquiry may naturally present itself, in what respects 
 the formation of a National Government would better tend 
 to establish justice. 
 
 § 50. The answer may be given in a few words. In 
 the administration of justice, citizens of the particular 
 State are not alone interested. Foreign nations, and 
 their subjects, as well as citizens of other States, may be 
 deeply interested., They may have rights to be protect¬ 
 ed ; wrongs to be redressed ; contracts to be enforced ; 
 and equities to be acknowledged. It may be presumed, 
 that the States will provide adequate means to redress 
 the grievances, and secure the rights of their own citizens. 
 But, it is far from being certain, that they will at all times, 
 or even ordinarily, take the like measures to redress the 
 grievances, and secure the rights of foreigners, and citi¬ 
 zens of other States. On the contrary, one of the rarest 
 
EXPOSITION OF PREAMBLE. 
 
 41 
 
 occurrences in human legislation is, to find foreigners, 
 and citizens of other States, put upon a footing of equali¬ 
 ty with the citizens of the legislating State. The natural 
 tendency of every government is, to favor its own citi¬ 
 zens ; and unjust preferences, not only in the administra¬ 
 tion, but in the very structure of the laws, have often 
 arisen, and may reasonably be presumed hereafter to 
 arise. It could not be expected, that all the American 
 States, left at full liberty, would legislate upon the sub¬ 
 ject of rights and remedies, preferences and contracts, 
 exactly in the same manner. And every diversity would 
 soon bring on some retaliatory legislation elsewhere. 
 Popular prejudices and passions, real or supposed injuries, 
 or inequalities, the common attachment to persons, whom 
 we know, as well as to domestic pursuits and interests, and 
 the common indifference to strangers and remote objects, 
 are often found to interfere with a liberal policy in legis¬ 
 lation. Now, precisely, what this reasoning would lead 
 us to presume as probable, actually occurred, not only 
 while we were colonies of Great Britain, but also under 
 the Confederation. The legislation of several of the 
 States gave a most unjust preference to the debts of 
 their own citizens in cases of insolvency, over those due 
 to the citizens of other States and to foreigners. 
 
 § 51. But there were other evils of a much greater mag¬ 
 nitude, which required a National Government, clothed 
 with powers adequate to the more effectual establishment 
 of justice. There were territorial disputes between the 
 States, as to their respective boundaries and jurisdiction, 
 constantly exciting mutual irritations, and introducing bor¬ 
 der warfare. Laws were perpetually made in the States, 
 interfering with the sacred rights of private contracts, sus¬ 
 pending the remedies in regard to them, or discharging 
 them by a payment or tender in worthless paper money, 
 or in some depreciated or valueless property. The debts 
 due to foreigners were, notoriously, refused payment; 
 and many obstructions were put in the way of the recov¬ 
 ery of them. The public debt was left wholly unpro¬ 
 vided for ; and a disregard of the public faith had become 
 so common a reproach among us, that it almost ceased 
 
 4* . 
 
42 
 
 CONSTITUTION OF THE UNITED STATE'S. 
 
 to attract observation. Indeed, in some of the States,, 
 the operation of private and public distresses was felt so 
 severely, that the administration, even of domestic jus¬ 
 tice, was constantly interfered with ; the necessity of 
 suspending it was boldly vindicated ; and in some cases, 
 even a resort to arms was encouraged to prevent it. 
 Nothing but a National Government, capable, from its 
 powers and resources, of overawing the spirit of rebel¬ 
 lion, and of aiding in the establishment of a sound curren¬ 
 cy, just laws, and solid public credit, could remedy the 
 existing evils. 
 
 §52. The next object is, ct to insure domestic tran¬ 
 quillity.” From what has been already stated, it is ap¬ 
 parent, how essential an efficient National Government 
 is, to the security of the States against foreign influence, 
 domestic dissensions, commercial rivalries, legislative re¬ 
 taliations, territorial disputes, and the perpetual irritations 
 of a border warfare, for privileges, or exemptions, or 
 smuggling. In addition to these considerations, it is well 
 known, that factions are far more violent in small than 
 in large communities ; and that they are even more dan¬ 
 gerous and enfeebling ; because success and defeat more 
 rapidly succeed each other in the changes of their local 
 affairs, and foreign influences can be more easily brought 
 into play to corrupt and divide them. A National Gov¬ 
 ernment naturally tends to disarm the violence of domes¬ 
 tic factions in small states, by its superior influence. 
 It diminishes the exciting causes, and it leaves fewer 
 chances of success to their operations. 
 
 § 53. The next object is, “ to provide for the common 
 defence.” One of the surest means of preserving peace 
 y is always to be prepared for war. One of the safest re¬ 
 liances against foreign aggression is the possession of 
 numbers and resources, capable of repelling any attack. 
 A nation of narrow territory, and small population, and 
 moderate resources, can never be formidable ; and must 
 content itself with being feeble and unenviable in its con¬ 
 dition. On the contrary, a nation or a confederacy, which 
 possesses large territory, abundant resources, and a dense 
 population, can always command respect, and is almost 
 
EXPOSITION OF PREAMBLE. 
 
 43 
 
 incapable, if true to itself, of being conquered. In pro¬ 
 portion to the size and population of a nation, its general 
 resources will be ; and the same expenditures, which 
 may be easily borne by a numerous and industrious peo¬ 
 ple, would soon exhaust the means of a scanty popula¬ 
 tion. What, for instance, would be more burdensome 
 to a State like New Jersey, than the necessity of keep¬ 
 ing up a large body of troops, to protect itself against the 
 encroachments of the neighboring States of Pennsylvania 
 and New York ? The same military force, which would 
 hardly be felt in either of the latter States, would press 
 heavily upon the resources of a small State, as a perma¬ 
 nent establishment. The ordinary expenditures, neces¬ 
 sary for the protection of the whole Union with its pres¬ 
 ent limits, are probably less than would be required for a 
 single State, surrounded by jealous and hostile neigh¬ 
 bors. 
 
 § 54. But, in regard to foreign powers, the States 
 separately would sink at once into the insignificance of 
 the small European principalities. In the present situa¬ 
 tion of the world, a few great powers possess the com¬ 
 mand of commerce, both on land and at sea. No effect¬ 
 ual resistance could be offered by any of the States singly, 
 against any monopoly, which the great European Pow¬ 
 ers might choose to establish, or any pretensions, which 
 they might choose to assert. Each State would be com¬ 
 pelled to submit its own commerce to all the burdens 
 and inequalities, which they might impose ; or purchase 
 protection, by yielding up its dearest rights, and, perhaps, 
 its own independence. A National Government, con¬ 
 taining, as it does, the strength of all the States, affords 
 to all of them a competent protection. Any navy, or 
 army, which could be maintained by a single State, would 
 be scarcely formidable to any second-rate power in Eu¬ 
 rope ; and yet it would be an intolerable public burden 
 upon the resources of that State. A navy, or army, 
 competent for all the purposes ol our home defence, and 
 even for the protection of our commerce on the ocean, is 
 within the compass of the actual means of the General 
 Government, without any severe exaction upon its finances. 
 
44 CONSTITUTION OF THE UNITED STATES. 
 
 §55. The next object is, <£ to promote the general 
 welfare.” If it should be asked, why this may not be 
 effectually accomplished by the States, it may be an¬ 
 swered ; first, that they do not possess the means ; and 
 secondly, if they did, they do not possess the powers ne¬ 
 cessary to carry the appropriate measures into execution. 
 The means of the several States will rarely be found to 
 exceed their actual domestic wants, and appropriations 
 to domestic improvements. Their resources by internal 
 taxation must necessarily be limited ; and their revenue 
 from imports would, if there were no national government, 
 be small and fluctuating. Their whole system would be 
 defeated by the jealousy, or competitions, or local interests 
 of their neighbors. The want of uniformity of duties in 
 all the States, as well as the facility of smuggling goods, 
 imported into one State, into the territory of another, would 
 render any efficient collection of duties almost impracti¬ 
 cable. This is not a matter of mere theory. It was 
 established by our own history and experience under the 
 Confederation. The duties imposed upon the importation 
 of goods by Massachusetts, were completely evaded or 
 nullified by their free admission into the neighboring State 
 of Rhode Island. 
 
 § 56. But, if the means were completely within the 
 reach of the several States, the jurisdiction would still 
 be wanting, completely to carry into effect any great or 
 comprehensive plan for the welfare of the whole. The 
 idea of a permanent and zealous co-operation of all the 
 States in any one scheme for the common welfare, is vis¬ 
 ionary. No scheme could be devised, which would not 
 bear unequally upon some particular sections of the coun¬ 
 try ; and these inequalities could not be, as they now are, 
 meliorated and corrected under the general government, 
 by other correspondent benefits. Each State would ne¬ 
 cessarily legislate singly ; and it is scarcely possible, that 
 various changes of councils should not take place, before 
 any scheme could receive the sanction of all of them. 
 Infinite delays would intervene, and various modifications 
 of measures would be proposed, to suit particular local 
 interests, which would again require reconsideration. 
 
EXPOSITION OF PREAMBLE. 
 
 45 
 
 After one or two vain attempts to accomplish any great 
 system of improvements, there would be a general aban¬ 
 donment of all efforts to produce a general system for the 
 regulation of our commerce, or agriculture, or manufac¬ 
 tures ; and each State would be driven to consult its own 
 peculiar convenience and policy only, in despair of any 
 common concert. And even if it w r ere practicable, from 
 any peculiar conjuncture of circumstances, to bring about 
 such a system at one time, it is obvious, that it would be 
 liable to be broken up, without a moment’s warning, at the 
 mere caprice, or pleasure, or change of policy, of a single 
 State. 
 
 § 57. The concluding object, stated in the Preamble, 
 is, u to secure the blessings of liberty to us, and our pos¬ 
 terity.” And surely nothing of mere earthly concern 
 is more worthy of the profound reflection of wise and 
 good men, than to erect structures of government, 
 which shall permanently sustain the interests of civil, po¬ 
 litical, and religious liberty, on solid foundations. The 
 great problem in human governments has hitherto been, 
 how to combine durability with moderation in powers, 
 energy with equality of rights, responsibility with a sense 
 of independence, steadiness in councils with popular elec¬ 
 tions, and a lofty spirit of patriotism with the love of per¬ 
 sonal aggrandizement ; in short, how to combine the great¬ 
 est happiness of the whole with the least practicable 
 restraints, so as to insure permanence in the public insti¬ 
 tutions, intelligent legislation, and incorruptible private 
 virtue. The Constitution of the United States aims at the 
 attainment of these ends, by the arrangements and distri¬ 
 butions of its powers ; by the introduction of checks and 
 balances in all its departments ; by making the existence 
 of the State governments an essential part of its own organ¬ 
 ization ; by leaving with the States the ordinary powers of 
 domestic legislation ; and, at the same time, by drawing to 
 itself those powers only, vvhich are strictly national, or con¬ 
 cern the general welfare. Its duties and its powers thus 
 naturally combine to make it the common guardian and 
 friend of all the States ; and in return, the States, while 
 they may exercise a salutary vigilance for their own self- 
 
46 CONSTITUTION OF THE UNITED STATES. 
 
 protection, are persuasively taught, that the blessings of 
 liberty, secured by the national government, are far 
 more certain, more various, and more extensive, than 
 they would be under their own distinct and independent 
 sovereignties. 
 
 § 58. Let us now enter upon a more close survey of 
 the structure and powers of the national Constitution, 
 that we may see, whether it is as wisely framed as its 
 founders believed ; so as to justify our confidence in its 
 durability, and in its adaptation to our wants, and the great 
 objects proposed in the Preamble. If it be so wisely 
 framed, then, indeed, it will be entitled to our most pro¬ 
 found reverence ; and we shall accustom ourselves to re¬ 
 pel with indignation every attempt to weaken its powers, 
 or obstruct its operations, or diminish its influence, as 
 involving our own degradation, and, ultimately, the ruin of 
 the States themselves. 
 
 CHAPTER VIII. 
 
 Distribution of Powers.—The Legislative' Department. 
 
 § 59. In surveying the general structure of the Consti¬ 
 tution of the United States, we are naturally led to an 
 examination of the fundamental principles, on which it is 
 organized, for the purpose of carrying into effect the ob¬ 
 jects disclosed in the Preamble. Every government must 
 include within its scope, at least if it is to possess suitable 
 stability and energy, the exercise of the three great pow¬ 
 ers, upon which all governments are supposed to rest, 
 viz., the executive, the legislative, and the judicial powers. 
 The manner and extent, in which these powers are to be 
 exercised, and the functionaries, in whom they are to be 
 vested, constitute the great distinctions, which are known 
 in the forms of government. In absolute governments, 
 the whole executive, legislative, and judicial powers are, 
 at least in their final result, exclusively confided to a sin¬ 
 gle individual; and such a form of government is denomi- 
 
LEGISLATIVE DEPARTMENT. 
 
 47 
 
 nated a Despotism, as the whole sovereignty of the State 
 is vested in him. If the same powers are exclusively 
 confided to a few persons, constituting a permanent sove¬ 
 reign council, the government may be appropriately de¬ 
 nominated an absolute or despotic Aristocracy. If they 
 are exercised by the people at large in their original sove¬ 
 reign assemblies, the government is a pure and absolute 
 Democracy. But it is more common to find these pow¬ 
 ers divided, and separately exercised by independent 
 functionaries, the executive power by one department, the 
 legislative by another, and the judicial by a third ; and in 
 these cases the government is properly deemed a mixed 
 one ; a mixed monarchy, if the executive power is he¬ 
 reditary in a single person ; a mixed aristocracy, if it is 
 hereditary in several chieftains or families ; and a mixed 
 democracy or republic, if it is delegated by election, and 
 is not hereditary. In mixed monarchies and aristocracies, 
 some of the functionaries of the legislative and judicial 
 powers are, or at least may be, hereditary. But in a 
 representative republic, all power emanates from the peo¬ 
 ple, and is exercised by their choice, and never extends 
 beyond the lives of the individuals, to whom it is intrusted. 
 It may be intrusted for any shorter period ; and then it 
 returns to them again, to be again delegated by a new 
 choice. 
 
 § 60 . The first thing, that strikes us, upon the slightest 
 survey of the national Constitution, is, that its structure 
 contains a fundamental separation of the three great de¬ 
 partments of government, the legislative, the executive, 
 and the judicial. The existence of all these departments 
 has always been found indispensable to due energy and 
 stability in a government. Their separation has always 
 been found equally indispensable, for the preservation of 
 public liberty and private rights. Whenever they are all 
 vested in one person or body of men, the government is 
 in fact a despotism, by whatever name it may be called, 
 whether a monarchy, or an aristocracy, or a democracy. 
 When, therefore, the Convention, which framed the Con¬ 
 stitution, determined on a more efficient system than the 
 Confederation, the first resolution adopted by them was, 
 
48 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 that u a national government ought to be established, 
 consisting of a supreme legislative, judiciary, and execu¬ 
 tive.” 
 
 § 61. In the establishment of free governments, the 
 division of the three great powers of government, the ex¬ 
 ecutive, the legislative, and the judicial, among different 
 functionaries, has been a favorite policy with patriots and 
 statesmen. It has by many been deemed a maxim of 
 vital importance, that these powers should for ever be 
 kept separate and distinct. And, accordingly, we find it 
 laid down, with emphatic care, in the Bill of Rights of sev¬ 
 eral of the State Constitutions. 
 
 § 62. The general reasoning, by which the maxim is 
 supported, independently of the just weight of the authori¬ 
 ty in its support, seems entirely satisfactory. What is 
 of far more value than any mere reasoning, experience 
 has demonstrated it to be founded in a just view of the 
 nature of government, and of the safety and liberty of the 
 people. It is no small commendation of the Consti¬ 
 tution of the United States, that, instead of adopting a 
 new theory, it has placed this practical truth, at the ba¬ 
 sis of its organization. It has placed the legislative, ex¬ 
 ecutive, and judicial powers in different hands. It has, 
 as we shall presently see, made the term of office and the 
 organization of each department different. For objects of 
 permanent and paramount importance, it has given to the 
 judicial department a tenure of office during good beha¬ 
 vior ; while it has limited each of the others to a term of 
 years. 
 
 § 63. But when we speak of a separation of the three 
 great departments of government, and maintain, that that 
 separation is indispensable to public liberty, we are to 
 understand this maxim in a limited sense. It is not meant 
 to affirm, that they must be kept wholly and entirely sep¬ 
 arate and distinct, and have no common link of connection 
 or dependence, the one upon the other, in the slightest 
 degree. The true meaning is, that the whole power of 
 one of these departments should not be exercised by the 
 same hands, which possess the whole power of either of 
 the other departments; and that such exercise of the 
 
LEGISLATIVE DEPARTMENT. 
 
 49 
 
 whole by the same hands would subvert the principles of 
 a free constitution. 
 
 § 64. How far the Constitution of the United States, 
 in the actual separation of these departments, and the oc¬ 
 casional mixtures of some of the powers of each, has 
 accomplished the great objects of the maxim, which we 
 have been considering, will appear more fully, when a 
 survey is taken of the particular powers confided to each 
 department. But the true and only test must, after all, 
 be experience, which corrects at once the errors of theo¬ 
 ry, and fortifies and illustrates the eternal judgements of 
 Nature. 
 
 § 65. The first section, of the first article, begins with 
 the structure of the Legislature. It is in these words :— 
 
 u All legislative powers, herein granted, shall be vested 
 in a Congress of the United States; which shall con¬ 
 sist of a Senate and House of Representatives.” Un¬ 
 der the Confederation, the whole legislative power of the 
 Union was confided to a single branch ; and, limited as 
 that power was, this concentration of it, in a single body, 
 was deemed a prominent defect. The Constitution, on 
 the other hand, adopts, as a fundamental rule, the exercise 
 of the legislative power by two distinct and independent 
 branches. The advantages of this division are, in the 
 first place, that it interposes a great check upon undue, 
 hasty, and oppressive legislation. In the next place, it 
 interposes a barrier against the strong propensity of all 
 public bodies to accumulate all power, patronage, and in¬ 
 fluence in their own hands. In the next place, it oper¬ 
 ates, indirectly, to retard, if not wholly to prevent, the 
 success of the efforts of a few popular leaders, by their 
 combinations and intrigues in a single body, to carry their 
 own personal, private, or party objects into effect, uncon¬ 
 nected with the public good. In the next place, it secures 
 a deliberate review of the same measures, by independent 
 minds, in different branches of government, engaged in the 
 same habits of legislation, but organized upon a different 
 system of elections. And, in the last place, it affords 
 great securities to public liberty, by requiring the co-oper¬ 
 ation of different bodies, which can scarcely ever, if prop- 
 
 5 xiii. 
 
50 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 erly organized, embrace the same sectional or local inter¬ 
 ests, or influences, in exactly the same proportion, as a 
 single body. The value of such a separate organization 
 will, of course, be greatly enhanced, the more the ele¬ 
 ments, of which each body is composed, differ from each 
 other, in the mode of choice, in the qualifications, and in 
 the duration of office of the members, provided due intel¬ 
 ligence and virtue are secured in each body. All these 
 considerations had great weight in the Convention, which 
 framed the Constitution of the United States. We shall 
 presently see, how far these desirable modifications have 
 been attained in the actual composition of the Senate and 
 House of Representatives. 
 
 CHAPTER IX. 
 
 The House of Representatives. 
 
 § 66. The second section, of the first article, contains 
 the structure and organization of the House of Represent¬ 
 atives. The first clause is—“The House of Repre¬ 
 sentatives shall be composed of members chosen every 
 second year by the people of the several States ; and 
 the electors in each State shall have the qualifications, 
 requisite for electors of the most numerous branch of 
 the State legislature.” 
 
 § 67. First, the principle of representation. The 
 Representatives are to be chosen by the people. No 
 reasoning was necessary, to satisfy the American people 
 of the advantages of a House of Representatives, which 
 should emanate directly from themselves, which should 
 guard their interests, support their rights, express their 
 opinions, make known their wants, redress their grievan¬ 
 ces, and introduce a pervading popular influence through¬ 
 out all the operations of the national government. Their 
 own experience, as colonists, as well as the experi¬ 
 ence of the parent country, and the general deductions 
 of theory, had settled it, as a fundamental principle of a 
 
HOUSE OF REPRESENTATIVES. 
 
 51 
 
 free government, and especially of a republican govern¬ 
 ment, that no laws ought to be passed without the con¬ 
 sent of the people, through representatives, immediately 
 chosen by, and responsible to them. 
 
 § 68. The indirect advantages, from this immediate 
 agency of the people in the choice of their Representatives, 
 are of incalculable benefit, and deserve a brief mention 
 in this place, because they furnish us with matter for 
 most serious reflection, in regard to the actual operations 
 and influences of republican governments. In the first 
 place, the right confers an additional sense of personal 
 dignity and duty upon the mass of the people. It gives 
 a strong direction to the education, studies, and pursuits 
 of the whole community. It enlarges the sphere of 
 action, and contributes, in a high degree, to the formation 
 of the public manners, and national character. It pro¬ 
 cures to the common people courtesy and sympathy from 
 their superiors, and diffuses a common confidence, as 
 well as a common interest, through all the ranks of so¬ 
 ciety. It awakens a desire to examine, and sift, and de¬ 
 bate all public proceedings ; and it thus nourishes a lively 
 curiosity to acquire knowledge, and, at the same time, 
 furnishes the means of gratifying it. The proceedings 
 and debates of the legislature ; the conduct of public 
 officers, from the highest to the lowest ; the character and 
 conduct of the Executive and his ministers ; the struggles, 
 intrigues, and conduct of different parties ; and the dis¬ 
 cussion of the great public measures and questions which 
 agitate and divide the community ;—are not only freely 
 canvassed, and thus improve and elevate conversation ; 
 but they gradually furnish the mind with safe and solid 
 materials for judgement upon all public affairs, and check 
 that impetuosity and rashness, to which sudden impulses 
 might otherwise lead the people, when they are artfully 
 misguided by selfish demagogues, and plausible schemes 
 of change. 
 
 § 69. Secondly, the qualifications of electors. These 
 were various in the different States. In some of them, 
 none but freeholders were entitled to vote ; in others, 
 only persons, who had been admitted to the privileges of 
 
52 CONSTITUTION OF THE UNITED STATES. 
 
 freemen ; in others, a qualification of property was re¬ 
 quired of voters ; in others, the payment of taxes ; and 
 in others, again, the right of suffrage was almost universal. 
 This consideration had great weight in the Convention ; 
 and the extreme difficulty of agreeing upon any uniform 
 rule of voting, which should he acceptable to all the 
 States, induced the Convention, finally, after much dis¬ 
 cussion, to adopt the existing rule in the choice of Repre¬ 
 sentatives in the popular branch of the State legislatures. 
 Thus, the peculiar wishes of each State, in the formation 
 of its own popular branch, were consulted ; and some 
 not unimportant diversities were introduced into the actual 
 composition of the national House of Representatives. 
 All the members would represent the people, hut not ex¬ 
 actly under influences precisely of the same character. 
 
 § 70. Thirdly, the term of service of the Representa¬ 
 tives. It is two years. This period, with reference to 
 the nature of the duties to be performed by the members, 
 to the knowledge and experience essential to a right per¬ 
 formance of them, and to the periods, for which the 
 members of the State legislatures are chosen, seems as short 
 as an enlightened regard to the public good could require. 
 A very short term of service would bring together a great 
 many new members, with little or no experience in the 
 national business ; the very frequency of the elections 
 would render the office of less importance to able men ; 
 and some of the duties to be performed would require 
 more time, and more mature inquiries, than could ho 
 gathered, in the brief space of a single session, from tho 
 distant parts of so extensive a territory. What might be 
 well begun by one set of men, could scarcely be carried 
 on, in the same spirit, by another. So that there would 
 be great danger of new and immature plans succeeding 
 each other, without any well-established system of opera¬ 
 tions. 
 
 § 71. But the very nature and objects of. the national 
 government require far more experience and knowledge, 
 than what may he thought requisite in the members of a 
 State legislature. For the latter, a knowledge of local 
 interests and opinions may ordinarily suffice. But it is 
 
HOUSE OF REPRESENTATIVES. 
 
 53 
 
 far different with a member of Congress. He is to legis¬ 
 late for the interest and welfare, not of one State only, 
 but of all the States. It is not enough, that he comes to 
 the task with an upright intention and sound judgement ; 
 but he must have a competent degree of knowledge of all 
 the subjects, on which he is called to legislate ; and he 
 must have skill, as to the best mode of applying it. The 
 latter can scarcely be acquired, but by long experience 
 and training in the national councils. The period of ser¬ 
 vice ought, therefore, to bear some proportion to the va¬ 
 riety of knowledge and practical skill, which the duties 
 of the station demand. 
 
 § 72. The most superficial glance at the relative du¬ 
 ties of a member of a State legislature and of those of a 
 member of Congress, will put this matter in a striking 
 light. In a single State, the habits, manners, institutions, 
 and laws, are uniform, and all the citizens are more or 
 less conversant with them. The relative bearings of the 
 various pursuits and occupations of the people are well 
 understood, or easily ascertained. The general affairs 
 of the State lie in a comparatively narrow compass, and 
 are daily discussed and examined by those, who have an 
 immediate interest in them, and, by frequent communica¬ 
 tion with each other, can interchange opinions. It is 
 very different with the general government. There, 
 every measure is to be discussed with reference to the 
 rights, interests, and pursuits of all the States. When* 
 the Constitution was adopted, there were thirteen, and 
 there are now twenty-six States, having different laws, 
 institutions, employments, products, and climates, and 
 many artificial, as well as natural differences in the struc¬ 
 ture of society, growing out of these circumstances. 
 Some of them are almost wholly agricultural ; some 
 commercial ; some manufacturing ; some have a mixture 
 of all ; and in no two of them are there precisely the 
 same relative adjustments of all these interests. No le¬ 
 gislation for the Union can be safe or wise, which is not 
 founded upon an accurate knowledge of these diversi¬ 
 ties, and their practical influence upon public measures. 
 What may be beneficial and politic, with reference to the 
 
54 CONSTITUTION OF THE UNITED STATES. 
 
 interests of a single State, may be subversive of those of 
 other States. A regulation of commerce, wise and just 
 for the commercial States, may strike at the foundation of 
 the prosperity of the agricultural or manufacturing States. 
 And, on the other hand, a measure beneficial to agricul¬ 
 ture or manufactures, may disturb, and even overwhelm 
 the shipping interest. Large and enlightened views, 
 comprehensive information, and a just attention to the 
 local peculiarities, and products, and employments of 
 different States, are absolutely indispensable qualifications 
 for members of Congress. Yet it is obvious, that if 
 very short periods of service are to be allowed to mem¬ 
 bers of Congress, the continual fluctuations in the public 
 councils, and the perpetual changes of members, will be 
 very unfavorable to the acquirement of the proper 
 knowledge, and the due application of it for the public 
 welfare. One set of men will just have mastered the 
 necessary information, when they will be succeeded by a 
 second set, who are to go over the same grounds, and 
 then are to be succeeded by a third. So that inexpe¬ 
 rience, instead of practical wisdom, hasty legislation, in¬ 
 stead of sober deliberation, and imperfect projects, in¬ 
 stead of well-constructed systems, would characterize the 
 national government. 
 
 § 73. Fourthly, the qualifications of Representatives. 
 The Constitution declares— u No person shall be a Repre¬ 
 sentative, who shall not have attained to the age of 
 twenty-five years ; and been seven years a citizen of the 
 United States ; and who shall not, when elected, be an 
 inhabitant of that State, in which he shall be chosen.” 
 These qualifications are few and simple. They respect 
 only age, citizenship, and inhabitancy. 
 
 § 74. First, in regard, to age. That some qualifica¬ 
 tion, as to age, is desirable, cannot well be doubted, if 
 knowledge, or experience, or wisdom, is of any value in 
 the administration of public affairs. And if any quali¬ 
 fication is required, what can be more suitable than 
 twenty-five years of age ? The character and principles 
 of young men can scarcely be understood at the moment 
 of their majority. They are then new to the rights even 
 
HOUSE OF REPRESENTATIVES. 
 
 55 
 
 of self-government; warm in their passions ; ardent in 
 their expectations ; and too eager in their favorite pur¬ 
 suits, to learn the lessons of caution, which riper years in¬ 
 culcate. Four years of probation, is but a very short 
 space, in which to try their virtues, to develope their 
 talents, to enlarge their intellectual resources, and to give 
 them a practical knowledge of the true principles of legis¬ 
 lation. Indeed, it may be safely said, that a much longer 
 period will scarcely suffice to furnish them with that thor¬ 
 ough insight into the business of human life, which is in¬ 
 dispensable to a safe and enlightened exercise of public 
 duties. 
 
 § 75. Secondly, in regard to citizenship. No person 
 will deny the propriety of excluding aliens from any share 
 in the administration of the affairs of the national govern¬ 
 ment. No persons, but citizens, can be presumed to feel 
 that deep sense of the value of our domestic institutions, and 
 that permanent attachment to the soil and interests of our 
 country, which are the true sources of a healthy patriot¬ 
 ism. The only practical question would seem to be, 
 whether foreigners, even after they were naturalized, 
 should be permitted to hold office. Most nations studi¬ 
 ously exclude them, from policy, or from jealousy. But 
 the peculiar circumstances of our country were supposed 
 to call for a less rigorous course ; and the period of 
 seven years was selected as one, which would enable 
 naturalized citizens to acquire a reasonable familiarity 
 with the principles of our institutions and with the inter¬ 
 ests of the people ; and which, at the same time, would 
 justify the latter in reposing confidence in their talents, 
 virtues, and patriotism. 
 
 § 76. Thirdly, in regard to inhabitancy. The Repre¬ 
 sentative is required to be an inhabitant of the State, at 
 the time when he is chosen. The object of this clause, 
 doubtless, is to secure, on the part of the Representative, 
 a familiar knowledge of the interests of the people whom 
 he represents, a just responsibility to them, and a per¬ 
 sonal share in all the local results of the measures, which 
 he shall support. It is observable, that inhabitancy is 
 required in the State only, and not in any particular elec- 
 
56 CONSTITUTION OF THE UNITED STATES. 
 
 tion district ; so that the Constitution leaves a wide field 
 of choice open to the electors. And if we consider, 
 how various the interests, pursuits, employments, pro¬ 
 ducts, and local circumstances of the different States are, 
 we can scarcely be surprised, that there should be a 
 marked anxiety to secure a just representation of all of 
 them in the national councils. 
 
 § 77. Subject to these reasonable qualifications, the 
 House of Representatives is open to persons of merit of 
 every description, whether native or adopted citizens, 
 whether young or old, whether rich or poor, without any 
 discrimination of rank, or business, or profession, or 
 religious opinion. 
 
 § 78. The next clause of the Constitution respects the 
 apportionment of Representatives among the States. It 
 declares,— u Representatives, and direct taxes, shall be 
 apportioned among the several States, which may be 
 included within this Union, according to their respec¬ 
 tive numbers, which shall be determined by adding to 
 the whole number of free persons, including those bound 
 to service for a term of years, and excluding Indians not 
 taxed, three fifths of all other persons. The actual enu¬ 
 meration shall be made within three years after the first 
 meeting of the Congress of the United States, and within 
 every subsequent term of ten years, in such manner, as 
 they shall by law direct. The number of Representa¬ 
 tives shall not exceed one for every thirty thousand ; but 
 each State shall have at least one Representative. And 
 until such enumeration shall be made, the State of New 
 Hampshire shall be entitled to choose three ; Massachu¬ 
 setts, eight; Rhode Island and Providence Plantations, 
 one ; Connecticut, five ; New York, six ; New Jersey, 
 four ; Pennsylvania, eight ; Delaware, one ; Maryland, 
 six ; Virginia, ten ; North Carolina, five ; South Caro¬ 
 lina, five ; and Georgia, three.” 
 
 §79. Under the Confederation, each State was en¬ 
 titled to one vote only, but might send as many delegates 
 to Congress, as it should choose, not less than two, nor 
 more than seven ; and of course, the concurrence of a 
 majority of its delegates was necessary to every vote of 
 
HOUSE OF REPRESENTATIVES. 
 
 57 
 
 each State. In the House of Representatives, each 
 member is entitled to one vote, and therefore the appor¬ 
 tionment of Representatives became, among the States, a 
 subject of deep interest, and of no inconsiderable diver¬ 
 sity of opinion in the Convention. The small States 
 insisted upon an equality of representation in the House 
 of Representatives, as well as in the Senate, which was 
 strenuously resisted by the large States. The slave¬ 
 holding States insisted on a representation strictly accord¬ 
 ing to the number of inhabitants, whether they were 
 slaves or free persons, within the State. The non¬ 
 slave-holding States contended for a representation ac¬ 
 cording to the number of free persons only. The con¬ 
 troversy was full of excitement, and was maintained with 
 so much obstinacy, on each side, that the Convention was 
 more than once on the eve of a dissolution. At length, 
 the present system was adopted, by way of compromise. 
 It was seen to be unequal in its operation, but was a 
 necessary sacrifice to that spirit of conciliation, on which 
 the Union was founded. The exception of Indians was 
 of no permanent importance ; and the persons bound to 
 service for a term of years were too few to produce any 
 sensible effect in the enumeration. The real difficulty 
 was, as to slaves, who were included under the mild ap¬ 
 pellation of u all other persons.” Three fifths of the 
 slaves are added to the number of free persons, as the 
 basis of the apportionment. 
 
 § 80 . In order to reconcile the non-slave-holding 
 States to this arrangement, it was agreed, that direct 
 taxes (the nature of which we shall hereafter consider) 
 should be apportioned in the same manner as Representa¬ 
 tives. This provision is more specious than solid ; for, 
 in reality, it exempts the remaining two fifths of the 
 slaves from direct taxation. But, in the practical ope¬ 
 rations of the government, a far more striking inequality 
 has been developed. The principle of representation is 
 uniform and constant : whereas, the imposition of direct 
 taxes is occasional and rare ; and, in fact, three direct 
 taxes only have been laid, at distant periods from each 
 other, since the adoption of the Constitution. The slave- 
 
58 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 holding States have, at the present time, in Congress, 
 twenty-five Representatives more than they would have 
 upon the basis of an enumeration of free persons only. 
 The apportionment, however, viewed as a matter of 
 compromise, is entitled to great praise, for its modera¬ 
 tion, its aim at practical utility, and its tendency to satis¬ 
 fy the people of every State in the Union, that the Con¬ 
 stitution ought to be dear to all, by the privileges, which 
 it confers, as well as by the blessings, which it secures. 
 It has sometimes been complained of as a grievance, found¬ 
 ed in a gross inequality and an unjustifiable surrender of 
 important rights. But whatever force there may be in 
 the suggestion, abstractly considered, it should never 
 be forgotten that it was a necessary price paid for the 
 Union ; and if it had been refused, the Constitution never 
 would have been recommended for the adoption of the 
 people, even by the Convention, which framed it. 
 
 § 81 . In order to carry into effect this principle of 
 apportionment, it was indispensable, that some provision 
 should be made for ascertaining, at stated times, the pop¬ 
 ulation of each State. Unless this should be done, it is 
 obvious, that, as the growth of the different States would 
 be in very unequal proportions, the representation would 
 soon be marked by a corresponding inequality. To 
 illustrate this, we need only to look at Delaware, which 
 now sends only one Representative, as it did in the first 
 Congress, and to New York, which then sent six, and 
 now sends forty Representatives. Similar, though not 
 as great, diversities exist in the comparative representa¬ 
 tion of several other States. Some have remained near¬ 
 ly stationary, and others have had a very rapid increase 
 of population. The Constitution has, therefore, wisely 
 provided, that there shall be a new enumeration of the 
 inhabitants of all the States, every ten years, which is 
 commonly called the decennial census. 
 
 § 82 . There is one question of great practical impor¬ 
 tance, as to the apportionment of Representatives, which 
 has constantly been found to involve much embarrassment 
 and difficulty ; and that is, how and in what manner the 
 apportionment is to be made. The language of the Con- 
 
HOUSE OF REPRESENTATIVES. 
 
 59 
 
 stitution is, that u Representatives and direct taxes shall 
 be apportioned among the several States, &c., according 
 to their respective numbers and at the first view it 
 would not seem to involve the slightest difficulty. A 
 moment’s reflection will dissipate the illusion, and teach 
 us, that there is a difficulty intrinsic in the very nature of 
 the subject. In regard to direct taxes, the natural course 
 would be to assume a particular sum to be raised, as three 
 millions of dollars ; and to apportion it among the States 
 according to their relative numbers. But even here, 
 there will always be a very small fractional amount inca¬ 
 pable of exact distribution, since the numbers in each 
 State will never exactly coincide with any common divi¬ 
 sor, or give an exact aliquot part for each State without 
 any remainder. But, as the amount may be carried 
 through a long series of descending money fractions, it 
 may be ultimately reduced to the smallest fraction of any 
 existing, or even imaginary coin. 
 
 § 83. But the difficulty is far otherwise in regard to 
 Representatives. Here, there can be no subdivision of 
 the unit; each State must be entitled to an entire Repre¬ 
 sentative, and a fraction of a Representative is incapable 
 of apportionment. Yet it will be perceived at once, that 
 it is scarcely possible, and certainly is wholly improbable, 
 that the relative numbers in each State should bear such 
 an exact proportion to the aggregate, that there should 
 exist a common divisor for all, which should leave no 
 fraction in any State. Such a case never yet has existed ; 
 and in all human probability it never will. Every com¬ 
 mon divisor, hitherto applied, has left a fraction, greater 
 or smaller, in every State ; and what has been, in the past, 
 must continue to be, for the future. Assume the whole 
 population to be three, or six, or nine, or twelve millions, 
 or any other number ; if you follow the injunctions of the 
 Constitution, and attempt to apportion the Representatives 
 according to the numbers in each State, it wi 11 be found 
 to be absolutely impossible. The theory, however true, 
 becomes practically false in its application. Each State 
 may have assigned to it a relative proportion of Representa¬ 
 tives, up to a given number, the whole being divisible by 
 
60 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 some common divisor ; but the fraction of population be¬ 
 longing to each beyond that point is left unprovided for. So 
 that the apportionment is, at best, only an approximation to 
 the rule laid down by the Constitution, and not a strict 
 compliance with the rule. The fraction in one State may 
 be ten times as great, as that in another ; and so may 
 differ in each State in any assignable mathematical pro¬ 
 portion. What then is to be done ? Is the Constitution 
 to be wholly disregarded on this point ? Or is it to be 
 followed out in its true spirit, though unavoidably differing 
 from the letter, by the nearest approximation to it ? If 
 an additional Representative can be assigned to one State 
 beyond its relative proportion to the whole population, it 
 is equally true, that it can be assigned to all, that are in 
 a similar predicament. If a fraction admits of represent¬ 
 ation in any case, what prohibits the application of the 
 rule to all fractions ? The only constitutional limitation 
 seems to be, that no State shall have more than one Rep¬ 
 resentative for every thirty thousand persons. Subject 
 to this, the truest rule seems to be, that the apportion¬ 
 ment ought to be the nearest practical approximation to 
 the terms of the Constitution ; and the rule ought to be 
 such, that it shall always work the same way in regard 
 to all the States, and be as little open to cavil, or contro¬ 
 versy, or abuse, as possible. 
 
 § 84. But it may be asked, What are the first steps to 
 be taken in order to arrive at a constitutional apportion¬ 
 ment ? Plainly, by taking the aggregate of population 
 in all the States, (according to the constitutional rule,) 
 and then ascertain the relative proportion of the popula¬ 
 tion of each State to the population of the whole. This 
 is necessarily so in regard to direct taxes ; and there is no 
 reason to say, that it can, or ought to be otherwise in re¬ 
 gard to Representatives ; for that would be to contravene 
 the very injunctions of the Constitution, which require the 
 like rule of apportionment in each case. In the one, the 
 apportionment may be run down below unity ; in the other, 
 it cannot. But this does not change the nature of the 
 rule, but only the extent of its application. 
 
 § 85. It is difficult to make this subject clear to the 
 
house of representatives. 
 
 61 
 
 common understanding, without introducing aorae tabular 
 statements, which the nature of this work seems absolute¬ 
 ly to prohibit. But it may be stated, as an historical 
 fact, that in every apportionment hitherto made of Rep¬ 
 resentatives, whatever has been the number of inhabi¬ 
 tants assumed as the ratio to govern the number of Rep¬ 
 resentatives, whether thirty thousand or any higher num¬ 
 ber, there has always been a fraction in each State less 
 than that number, and of course an unrepresented fraction. 
 In some of the States, the fraction has been very small ; 
 in others, very large ; and in others, intermediate numbers 
 constantly varying from each other. So that, in fact, there 
 never has been any representation of each State, appor¬ 
 tioned in exact proportion to its numbers, as the Consti¬ 
 tution requires. The rule adopted has been, to assume a 
 particular number of inhabitants as the ratio to give a sin¬ 
 gle Representative, and to give to each State as many 
 Representatives, as its population contained of that ratio 
 or particular number; and to disregard all fractions below 
 that. 
 
 § S6. There remained two important points to be set¬ 
 tled in regard to representation. First, that each State 
 should have at least one Representative ; for otherwise, it 
 might be excluded from any share of the legislative pow¬ 
 er in one branch ; and secondly, that there should be 
 some limitation of the number of Representatives ; for 
 otherwise, Congress might increase the House to an unrea¬ 
 sonable size. If Congress were left free to apportion the 
 Representatives according to any basis of numbers they 
 might select, half the States in the Union might be de¬ 
 prived of Representatives, if the whole number of their 
 inhabitants fell below that basis. On the other hand, if 
 the number selected for the basis were small, the House 
 might become too unwieldy for business. There is, 
 therefore, great wisdom in restricting the representation, 
 so that there shall not be more than one Representative 
 for every thirty thousand inhabitants in a State ; and on 
 the other hand, by a positive provision, securing to 
 each State a constitutional representation in the House, by 
 at least one Representative, however small its own popu- 
 
 6 xiii. 
 
62 CONSTITUTION OF THE UNITED STATES. 
 
 lation may be. It is curious to remark, that it was origi¬ 
 nally thought a great objection to the Constitution, that 
 the restriction of Representatives, to one for every thirty 
 thousand, would give too small a House to be a safe de¬ 
 pository of power ; and that, now the fear is, that a re¬ 
 striction to double that number will hardly, in the future, 
 restrain the size of the House within sufficiently moderate 
 limits, for the purposes of an efficient and enlightened 
 legislation. So much has the growth of the country, 
 under the auspices of the national Constitution, outstrip¬ 
 ped the most sanguine expectations of its friends. 
 
 § 87. The next clause is ; u When vacancies happen 
 in the representation of any State, the executive au¬ 
 thority thereof shall issue writs of election to fill such 
 vacancies.” It is obvious, that such a power ought to 
 reside in some public functionary. The only question is, 
 in whom it can, with most safety and convenience, be lodg¬ 
 ed. If vested in the general government, or in any 
 department of it, it was thought, that there might not be 
 as strong motives for an immediate exercise of the pow¬ 
 er, or as thorough a knowledge of local circumstances, 
 to guide the exercise of it wisely, as if vested in the 
 State government. It is, therefore, left to the latter, and 
 to that branch of it, the State Executive, which is best 
 fitted to exercise it with promptitude and discretion. 
 And thus, one source of State jealousy is effectually 
 dried up. 
 
 § 88. The next clause is ; u The House of Repre¬ 
 sentatives shall choose their Speaker, and other offi¬ 
 cers ; and shall have the sole power of impeachment.” 
 Each of these privileges is of great practical importance. 
 In Great Britain, the Speaker is elected by the House of 
 Commons ; but he must be approved by the King ; and 
 a similar power of approval belonged to some of the Gov¬ 
 ernors in the Colonies, before the Revolution. An inde¬ 
 pendent and unlimited choice by the House of Repre¬ 
 sentatives of all their officers is every way desirable. It 
 secures, on the part of their officers, a more efficient re¬ 
 sponsibility, and gives to the House a more complete 
 authority over them. It avoids all the dangers and in- 
 
HOUSE OF REPRESENTATIVES. 
 
 63 
 
 conveniences, which may arise from differences of opin¬ 
 ion between the House and the Executive, in periods of 
 high party excitement. It relieves the Executive from all 
 the embarrassments of opposing the popular will, and the 
 House from all the irritations of not consulting the wishes 
 of the Cabinet. 
 
 § 89. Next, the Power of Impeachment. u The 
 House of Representatives shall have the sole power of im¬ 
 peachment that is, the right to present a written accu¬ 
 sation against persons in high offices and trusts, for the 
 purpose of bringing them to trial and punishment for gross 
 misconduct. The power, and the mode of proceeding, 
 are borrowed from the practice of England. In that 
 Kingdom, the House of Commons (which answers to our 
 House of Representatives) has the right to present arti¬ 
 cles of impeachment against any person, for any gross 
 misdemeanor, before the House of Lords, which is the 
 court of the highest criminal jurisdiction in the realm. 
 The articles of impeachment, are a sort of indictment; 
 and the House, in presenting them, acts as a grand jury, 
 and also as a public prosecutor. The great object of this 
 power is, to bring persons to justice, who are so elevated 
 in rank or influence, that there is danger, that they might 
 escape punishment before the ordinary tribunals ; and the 
 exercise of the power is usually confined to political or 
 official offences. These prosecutions are, therefore, 
 conducted by the Representatives of the nation, in their 
 public capacity, in the face of the nation, and upon a re¬ 
 sponsibility, which is felt and reverenced by the whole 
 community. We shall have occasion, hereafter, to con¬ 
 sider the subject of impeachment more at large, in anoth¬ 
 er place ; and this may suffice here, as an explanation of 
 the nature and objects of the power. No one can well 
 doubt, that, if the power is to be exercised at all, by any 
 popular body, it is most appropriately confided to the 
 representatives of the people. 
 
64 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 CHAPTER X. 
 
 The Senate. 
 
 § 90. We come next to the organization and powers 
 of the Senate, which are provided for in the third section 
 of the first article of the Constitution. 
 
 § 91. We have already had occasion to refer, in a 
 brief manner, to the general reasoning, by which the divis¬ 
 ion of the legislative power between two distinct branch¬ 
 es has been justified in the actual organization of free 
 governments. And here seems the proper place to enter 
 somewhat more at large, into the reasonings, by which 
 the establishment of the Senate of the United States was 
 supported as an independent branch of the national gov¬ 
 ernment. In order to justify the existence of a Senate 
 with co-ordinate powers, it was said, first, that it was a 
 misfortune incident to republican governments, though in 
 a less degree than to other governments, that those, who 
 administer it, may forget their obligations to their constit¬ 
 uents, and prove unfaithful to their important trust. In 
 this point of view, a Senate, as a second branch of the 
 legislative assembly, distinct from, and dividing the pow¬ 
 er with a first, must be in all cases a salutary check on 
 the government. It doubles the security to the people 
 by requiring the concurrence of two distinct bodies, in 
 schemes of usurpation or perfidy ; whereas the ambition 
 or corruption of one would otherwise be sufficient. This 
 precaution, it was added, was founded on such clear 
 principles, and so well understood in the United States, 
 that it was superfluous to enlarge on it. As the improb¬ 
 ability of sinister combinations would be in proportion to 
 the dissimilarity in the genius of the two bodies, it must 
 be politic to distinguish them from each other by every 
 circumstance, which would consist with a due harmony 
 in all proper measures, and with the genuine principles 
 of republican government. 
 
THE SENATE. 
 
 65 
 
 § 92. Secondly. The necessity of a Senate was 
 not less indicated by the propensity of all single and nu¬ 
 merous assemblies to yield to the impulse of sudden and 
 violent passions, and to be seduced by factious leaders 
 into intemperate and pernicious resolutions. Examples 
 of this sort might be cited without number, and from pro¬ 
 ceedings in the United States, as well as from the history 
 of other nations. A body, which is to correct this infirm¬ 
 ity, ought to be free from it, and consequently ought to 
 be less numerous, and to possess a due degree of firm¬ 
 ness, and a proper tenure of office. 
 
 § 93. Thirdly. Another defect, to be supplied by 
 a Senate, lay in the want of a due acquaintance with the 
 objects and principles of legislation. A good government 
 implies two things ; first, fidelity to the objects of the gov¬ 
 ernment ; secondly, a knowledge of the means, by which 
 those objects can be best attained. It was suggested, 
 that in the American governments too little attention had 
 been paid to the last ; and that the establishment of a 
 Senate, upon a proper basis, would greatly increase the 
 chances of fidelity, and of wise and safe legislation. What 
 (it was asked) are all the repealing, explaining, and 
 amending laws, which fill and disgrace our voluminous 
 codes, but so many monuments of deficient wisdom ; so 
 many impeachments exhibited by each succeeding, against 
 each preceding, session ; so many admonitions to the peo¬ 
 ple of the value of those aids, which may be expected 
 from a well-constituted Senate ? 
 
 § 94. Fourthly. Such a body would prevent too great 
 a mutability in the public councils, arising from a rapid 
 succession of new members ; for, from a change of men, 
 there must proceed a change of opinions, and from a 
 change of opinions, a change of measures. Such insta¬ 
 bility in legislation has a tendency to diminish respect and 
 confidence abroad, as well as safety and prosperity at 
 home. It has a tendency to damp the ardor of industry 
 and enterprise ; to diminish the security of property ; and 
 to impair the reverence and attachment, which are indis¬ 
 pensable to the permanence of every political institu¬ 
 tion. 
 
 6 * 
 
66 CONSTITUTION OF THE UNITED STATES. 
 
 § 95. Fifthly. Another ground, illustrating the utility 
 of a Senate, was suggested to be the keeping alive of a 
 due sense of national character. In respect to foreign 
 nations, this was of vital importance ; for in our intercourse 
 with them, if a scrupulous and uniform adherence to just 
 principles was not observed, it must subject us to many 
 embarrassments and collisions. It is difficult to impress 
 upon a single body, which is numerous and changeable, a 
 deep sense of the value of national character. A small 
 portion of the praise, or blame, of any particular measure, 
 can fall to the lot of any particular person ; and the peri¬ 
 od of office is so short, that little responsibility is felt, and 
 little pride is indulged, as to the course of the govern¬ 
 ment. 
 
 § 96. Sixthly. It was urged, that, paradoxical as it 
 might seem, the want, in some important cases, of a due 
 responsibility in the government arises from that very fre¬ 
 quency of elections, which, in other cases, produces such 
 responsibility. In order to be reasonable, responsibility 
 must be limited to objects within the power of the respon¬ 
 sible party ; and in order to be effectual, it must relate to 
 operations of that power, of which a ready and proper 
 judgement can be formed by the constituents. Some 
 measures have singly an immediate and sensible operation ; 
 others again depend on a succession of well-connected 
 schemes, and have a gradual, and perhaps unobserved 
 operation. If, therefore, there be but one Assembly, 
 chosen for a short period, it will be difficult to keep up 
 the train of proper measures, or to preserve the proper 
 connexion between the past and the future. And the 
 more numerous the body, and the more changeable its 
 component parts, the more difficult it will be to preserve 
 the personal responsibility, as well as the uniform action, 
 of the successive members, to the great objects of the 
 public welfare. 
 
 § 97. Lastly. A Senate, duly constituted, would not 
 only operate as a salutary check upon the Representatives, 
 but occasionally upon the people themselves, against their 
 own temporary delusions and errors. The cool, deliber¬ 
 ate sense of the community ought, in all governments, and 
 
THE SENATE. 
 
 67 
 
 actually will, in all free governments, ultimately prevail 
 over the views of their rulers. But there are particular 
 moments in public affairs, when the people, stimulated by 
 some irregular passion, or some illicit advantage, or mis¬ 
 led by the artful misrepresentations of interested men, may 
 call for measures, which they themselves will afterwards 
 be the most ready to lament and condemn. In these 
 critical moments, how salutary will be the interference of 
 a body of respectable citizens, chosen without reference 
 to the exciting cause, to check the misguided career of 
 public opinion, and to suspend the blow, until reason, 
 justice, and truth can regain their authority over the pub¬ 
 lic mind. It was thought to add great weight to all these 
 considerations, that history has informed us of no long- 
 lived republic, which had not a senate. Sparta, Rome, 
 Carthage were, in fact, the only states, to whom that 
 character can be applied. 
 
 § 98. It will be observed, that some parts of the fore¬ 
 going reasoning apply to the fundamental importance of 
 an actual division of the legislative power ; and other 
 parts to the true principles, upon which that division 
 should be subsequently organized, in order to give full 
 effect to the constitutional check. Some parts go to show 
 the value of a Senate ; and others, what should be its 
 structure, in order to insure wisdom, experience, fidelity, 
 and dignity in its members. All of it, however, instructs 
 us, that, in order to give it fair play and influence, as a 
 co-ordinate branch of government, it ought to be less nu¬ 
 merous, more select, and more durable, than the other 
 branch ; and be chosen in a manner, which should com¬ 
 bine, and represent, different interests, with a varied force. 
 How far these objects are attained by the Constitution, 
 will be better seen, when the details belonging to each 
 department are successively examined. 
 
 § 99. The first clause of the third section is— u The 
 Senate of the United States shall be composed of two 
 Senators from each State, chosen by the Legislature 
 thereof for six years ; and each Senator shall have one 
 vote.” 
 
 § 100. First, the nature of the representation and vote 
 
68 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 in the Senate. Each State is entitled to two Senators ; 
 and each Senator is entitled to one vote. Of course, 
 there is a perfect equality of representation and vote of 
 the States in the Senate. In this respect it forms a 
 marked contrast to the House of Representatives. In 
 the latter, the representation is in proportion to the popi*- 
 lation of each State, upon a given basis ; in the former, 
 each State, whether it be great or be small, is, in its po¬ 
 litical capacity, represented upon the footing of equality 
 with every other, as it would be in a Congress of Ambas¬ 
 sadors, or in an Assembly of Peers. The only important 
 difference between the vote in the Senate, and that in the 
 old Continental Congress under the Confederation, is, that 
 in the latter, the vote was by States, each having but one 
 vote, whereas, in the Senate, each Senator has one vote. 
 So that, although the Senators represent States, they 
 vote as individuals ; thus combining the two elements of 
 individual opinion, and of State representation. A ma¬ 
 jority of the Senators must concur in every vote ; but 
 the vote need not be that of a majority of the States, 
 since the Senators from the same State, may vote on 
 different sides of the same question. The Senators from 
 fifteen States may divide in their votes ; and those from 
 eleven, may concur in their votes, and thus give a deci¬ 
 sive majority. 
 
 § 101. It is obvious, that this arrangement could only • 
 arise from a compromise between the great and the small 
 States, founded upon a spirit of amity, and mutual defer¬ 
 ence and concession, which the peculiarity of situation 
 of the United States rendered indispensable. There was, 
 for a long time, a very animated struggle in the Conven¬ 
 tion, between the great and the small States, on this sub¬ 
 ject ; the latter contending for an equality of representa¬ 
 tion in each branch of the Legislature ; the former for a 
 representation in each, proportionate to its population and 
 importance. In the discussions, the States were so nearly 
 balanced, that their union in any plan of government, 
 which should provide for a perfect equality, or an inequal¬ 
 ity, of representation in both Houses, became utterly hope¬ 
 less. A compromise became indispensable. The small 
 
THE SENATE. 
 
 69 
 
 States yielded up an equality of representation in the 
 House of Representatives, and the great States, in like 
 manner, conceded an equality in the Senate. This ar¬ 
 rangement, so vital to the peace of the Union, and to the 
 preservation of the separate existence of the States, is, at 
 the same time, full of wisdom, and sound political policy. 
 It introduces, and perpetuates, in the different branches 
 of the Legislature, different elements, which will make 
 the theoretical check, contemplated by the division of the 
 legislative power, more efficient and constant in its opera¬ 
 tion. The interests, passions, and prejudices of a par¬ 
 ticular representative district may thus be controlled by 
 the influence of a whole State ; the like interests, pas¬ 
 sions, and prejudices of a State, or of a majority of the 
 States, may thus be controlled by the voice of a majority 
 of the people of the Union. 
 
 § 102. Secondly, the mode of choosing Senators. 
 They are to be chosen by the Legislature of each State. 
 This mode has a natural tendency to increase the just 
 operation of the check, to which we have already alluded. 
 The people of the States directly choose the Representa¬ 
 tives ; the Legislature, whose votes are variously com¬ 
 pounded, and whose mode of election is different in dif¬ 
 ferent States, directly choose the Senators. So that it 
 is impossible, that exactly the same influences, interests, 
 and feelings, should prevail in the same proportions in 
 each branch. Three schemes were presented in the 
 Convention ; one was, a choice directly by the people 
 of the States ; another was, a choice by the national 
 House of Representatives ; and the third was, that which 
 aow exists. Upon mature deliberation, the last was 
 thought to possess a decided preference over either of the 
 other two. It was recommended by the double advantage 
 of favoring a select appointment, and of giving to the 
 State governments such an agency in the formation of the 
 national government, as might secure a due authority to 
 the former, and may well serve as a connecting link 
 between the two systems. Our past experience has fully 
 justified the wisdom of the choice. 
 
 § 103. The Constitution has not provided for the man- 
 
70 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 ner, in which the choice shall be made by the State Legis¬ 
 latures, whether by a joint vote, or by a concurrent vote ; 
 the former is, where both branches form one assembly, 
 and give a united vote numerically ; the latter is, where 
 each branch gives a separate and independent vote. 
 As each of the State Legislatures now consists of tw’O 
 branches, this is a very important practical question. 
 Generally, but not universally, the choice of Senators is 
 made by a concurrent vote. Another question might be 
 suggested, whether theTCxecutive constitutes a part of the 
 Legislature for such a purpose, in cases where the State 
 constitution gives him a qualified' negative upon the laws. 
 But this has been silehtly and universally settled against 
 the executive participation in the appointment. 
 
 §104. Thirdly, the number of Senators. Each State 
 is entitled to two Senators. To insure competent knowl¬ 
 edge and ability to discharge all the functions intrusted 
 to the Senate, and, at the same time, to give promptitude 
 and efficiency to their acts, the number should* not be un¬ 
 reasonably large or small. The numbed should be suffi¬ 
 ciently large to insure a sufficient variety of talents and 
 experience and practical skill for. the just discharge of ah 
 the duties of that important branch of the Legislature. 
 A very small body also is more easily overawed and 
 intimidated by external influences, than one of a reason¬ 
 able size, embracing weight of character, and dignity of 
 talents. Numbers, alone, in many cases, confer power, 
 and encourage firmness. If the number of the Senate were 
 confined to one for each State, there would be danger, 
 that it might be too small for a comprehensive knowledge 
 and diligence in all the business devolved upon the body. 
 And besides ; in such a case, the illness, or accidental 
 absence of a Senator might deprive a State of its vote 
 upon an important question, or of its influence in an inter¬ 
 esting debate. If, on the other hand, the number were 
 very large, the Senate might become Unwieldy, and want 
 despatch, and due responsibility. It could hardly exer¬ 
 cise due deliberation in some functions connected with 
 executive duties, which might, at the same time, require 
 prompt action. If any number beyond one be proper % 
 
THE SENATE. 
 
 71 
 
 two seems as convenient a number as any, which can be 
 devised. The Senate, upon its present organization, can¬ 
 not probably ever become too large or too small for the 
 fit discharge of all its functions. The benefit is retained, 
 of consultation, and mutual interchange of opinion between 
 the members from the same State ; and the number is 
 sufficient to guard against any undue influence over it by 
 the more popular branch of the Legislature. 
 
 § 105. Fourthly, the term of service of the Senators. 
 It is for six years, although, as we shall presently see, one 
 third of the members is changed every two years. What 
 is the proper duration of the office, is qertainly a matter, 
 upon which different minds may* arrive at different con¬ 
 clusions. The term should have reference to the nature 
 and extent of the duties to be performed, the experience 
 to be required, the independence to be secured, and the 
 objects to be attained. A very short duration of office, 
 diminishes responsibility, and energy, and public spirit, 
 and firmness of action, by diminishing the motives to 
 great efforts, an'd ' also, by diminishing the means of ma¬ 
 turing, and carrying into effect, wise measures. The 
 Senate has various highly-important functions to perform, 
 besides its legislative duties. It partakes of the execu¬ 
 tive power of appointment to office, of andnhe ratification 
 of public treaties. Tp perform these functions worthily, 
 the members should enjoy public confidence at home and 
 abroad ; and they should be beyond the reach of the sud¬ 
 den impulses of domestic factions, as well as of foreign 
 influences. They should not be subject to intimidation 
 by the mere seekers of office ; nor should they be deemed 
 by foreign nations', to have no permanent weight in the 
 administration of the government. They should be able, on 
 the one hand, to guard the States against usurpations of 
 authority on the part of the National Government ; and on 
 the other hand, to guard the people against the unconsti¬ 
 tutional projects of selfish demagogues. They should 
 have the habits of business, and the large experience in 
 the affairs of government, derived from a practical con¬ 
 cern in them for a considerable period. They should be 
 chosen for a longer period than the House of Represen- 
 
72 CONSTITUTION OF THE UNITED STATES. 
 
 tatives, in order to prevent sudden and total changes at 
 the same period of all the functionaries of the government, 
 which would necessarily encourage instability in the pub¬ 
 lic councils, and stimulate political agitations and rivalries. 
 In all these respects, the term of office of the Senators 
 seems admirably well adapted to the purposes of an effi¬ 
 cient, and.yet of a responsible body. It secures the 
 requisite qualifications of skill, experience, information, 
 and independence. It prevents any sudden changes in 
 the public policy. It induces foreign nations to treat 
 with the government with more confidence, from the con¬ 
 sciousness of the permanence of its councils. It com¬ 
 mands a respect at home, which enables it to resist any 
 undue inroads of the popular branch ; and, at the same 
 time, its duration is not so long, as to take away a pres¬ 
 sing sense of responsibility both to the people, and to the 
 States. 
 
 § 106. But, in order to quiet the last lingering scruples 
 of jealousy on this head, the next, clause of the Constitu¬ 
 tion provides for a change of one third of the members 
 every two years. It declares,— u Immediately after they 
 (the Senators) shall be assembled, in consequence of the 
 first election, they shall be divided, as equally as may be, 
 into three classes. The seats of the Senators of the first 
 class, shall be vacated at the expiration of every second 
 year ; of the second class, at the expiration of every fourth 
 year ; and of the third class, at the expiration of every 
 sixth year ; so that one third may be chosen every second 
 year.” Thus, the whole body is gradually changed in the 
 course of the six years, always retaining a large portion 
 of experience, and yet incapable of combining its mem¬ 
 bers together for any sinister purposes. No person 
 would probably propose a less duration of office for the 
 Senators, than double the period of that of the members 
 of the House. In effect, this provision changes, within 
 the same period, the composition of two thirds of the 
 body. 
 
 § 107. As vacancies may occur in the Senate during 
 the recess of the State Legislatures, it became indispen¬ 
 sable to provide for that exigency, in order to preserve 
 
the Senate. 73 
 
 the full right of representation of each State in that body. 
 Accordingly, the same clause declares—And if any 
 vacancies happen, by resignation, or otherwise, during the 
 recess of the Legislature of any State, the Executive 
 thereof may make temporary appointments, until the next 
 meeting of the Legislature, which shall then fill such va¬ 
 cancies.” This mode seems as unexceptionable, as any 
 which could be adopted. It enables the Executive of 
 the State to appoint a temporary Senator, when the 
 State Legislature is not in session. One of three courses, 
 only, seemed open ; either to allow the vacancy to remain 
 unfilled, which would deprive the State of its due vote ; 
 or to allow the State Legislature prospectively to pro¬ 
 vide for the vacancy by a contingent appointment, which 
 might be liable to some objections of a different charac¬ 
 ter ; or to confide a temporary appointment to the high¬ 
 est State functionary, who might well be presumed to 
 enjoy the public confidence, and be devoted to the pub¬ 
 lic interest, and to have very strong motives to make a 
 judicious appointment. 
 
 § 108. We next come to the qualifications of Sena¬ 
 tors. No person shall be a Senator, who shall not have 
 attained the age of thirty years, and been nine years a 
 citizen of the United States, and who shall not, when 
 elected, be an inhabitant of that State, for which he shall 
 be chosen.” As the nature of the duties of a Senator 
 requires more experience, knowledge, and stability of 
 character, than those of a Representative, the qualifica¬ 
 tion of age is accordingly raised. A person may be a 
 Representative, at twenty-five years ; but he cannot be a 
 Senator, until thirty years. Citizenship, also, is required, 
 the propriety of which qualification cannot well be doubt¬ 
 ed. The term of citizenship of a Representative is seven 
 years ; that of a Senator is nine years. The reason, for 
 increasing the term, in the latter case, is, the direct con¬ 
 nection of the Senate with foreign nations, in the appoint¬ 
 ment of ambassadors, and in the formation of treaties. 
 This prolonged term may well be required of a foreigner, 
 not only to give him a more thorough knowledge of the 
 interests of his adopted country ; but also to wean him 
 
 7 xiii. 
 
74 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 more effectually from those of his native country. The 
 next qualification, is, inhabitancy in the State ; and the 
 propriety of this, is almost self-evident, since an inhabit¬ 
 ant may not only be presumed to be better acquainted 
 with the local interests, and wants, and pursuits, of the 
 State ; but may, also, well be deemed to feel a higher 
 degree of responsibility to the State, than any stranger. 
 He will, also, personally, share more fully in the effects of 
 all measures, touching the sovereignty, rights, and influ¬ 
 ence, of the State. The only surprise, is, that provision 
 is not made for his ceasing to represent the State, in the 
 Senate, as soon as he should cease to be an inhabitant of 
 the State. 
 
 § 109. In concluding this topic, it is proper to re¬ 
 mark, that no qualification, whatever, as to property, is 
 required in regard to Senators, any more than in regard 
 to Representatives. Merit and talent have, therefore, the 
 freest access open to them into each branch of the Legis¬ 
 lature. Under such circumstances, if the choice of the 
 people is but directed by a suitable sobriety of judgement, 
 the Senate cannot fail of being distinguished for wisdom, 
 for learning, for exalted patriotism, for incorruptible in¬ 
 tegrity, and for inflexible independence. 
 
 § 110. The next clause respects the person who 
 shall preside in the deliberations of the Senate.— u The 
 Vice President of the United States shall be President 
 of the Senate, but shall have no vote, unless they be 
 equally divided. The Senate shall choose their other 
 officers, and also a President pro tempore, in the ab¬ 
 sence of the Vice President, or when he shall exercise 
 the office of President of the United States.” 
 
 § 111. The propriety of creating the office of Vice 
 President will be reserved for future consideration, when 
 the organization of the executive department shall come 
 under review. The reasons, why he is authorized to. 
 preside in the Senate, belong appropriately to this place. 
 The strong motive for this arrangement undoubtedly arose 
 from the desire to moderate State jealousy and to preserve 
 State equality in the Senate. If the presiding officer of 
 the Senate were to be chosen exclusively from its own 
 
THE SENATE. 
 
 75 
 
 members, it was supposed, that the State, upon which 
 the choice might fail, might possess either more or less, 
 than its due share of influence. If he were not allowed 
 to vote, except upon an equal division of the Senate, then 
 the State would be deprived of his vote ; if he were en¬ 
 titled to vote, and also, in such cases, to give a casting 
 vote, then the State would, in effect, possess a double 
 vote. If he could only vote as a member, then, in case 
 of an equality of votes, much inconvenience might arise 
 from the indecision of the Senate. It might give rise to 
 dangerous feuds, or intrigues, and create State, or na¬ 
 tional agitations. It would be far better, in such an 
 equality of votes, to refer the decision to a common arbi¬ 
 ter, like the Vice President, chosen by a vote of the 
 'States, and therefore to be deemed the representative of 
 all of them. The permanent appointment of any one of 
 the Senators, as President of the Senate, might give 
 him an undue influence and control over measures during 
 his official term. An appointment for a single session, 
 only, would subject the body to constant agitations, and 
 intrigues, incompatible with its own dignity and conveni¬ 
 ence, and might introduce irregularities, unfavorable to an 
 impartial course of proceedings, founded upon experience, 
 and an accurate knowledge of the duties of the office. 
 These views appear to have had great weight in the 
 Convention, and have been found entirely satisfactory to 
 the people. The appointment of the Vice President to 
 preside in the Senate has been greatly conducive to the 
 harmony of the States and the dignity of the General Gov¬ 
 ernment. As the Senate possess the power to make 
 rules to regulate their own proceedings, there is little 
 danger, that there ean ever arise any serious abuse of the 
 presiding power. The danger, if any, is rather the 
 other way, that the presiding power will be silently weak¬ 
 ened or openly surrendered, so as to leave to the office 
 little more than the barren honor of the place, without in¬ 
 fluence, and without action. 
 
 § 112. The propriety of intrusting the Senate with 
 the choice of its other officers, and also of a President 
 pro tempore in the absence of the Vice President, or 
 
76 CONSTITUTION OF THE UNITED STATES, 
 
 when he exercises the office of President, seems never 
 to have been questioned ; and indeed is so obvious, that 
 it is wholly unnecessary to vindicate it. Confidence be¬ 
 tween the Senate and its officers, and the power to make 
 a suitable choice, and to secure a suitable responsibility 
 for the faithful discharge of the duties of office, are so 
 indispensable for the public good, that the provision will 
 command universal assent, as soon as it is mentioned. It 
 has grown into a general practice for the Vice President 
 to vacate the Senatorial chair a short time before the 
 termination of each session, in order to enable the Senate 
 to choose a President pro tempore, who might already 
 be in office, if the Vice President, in the recess, should be 
 called to the chair of State. The practice is founded in 
 wisdom and sound policy, as it immediately provides for 
 an exigency, which may well be expected to occur at 
 any time ; and prevents the choice from being influenced 
 by temporary excitements or intrigues, arising from the 
 actual existence of a vacancy. As it is useful in peace 
 to provide for war ; so it is likewise useful in times of 
 profound tranquillity to provide for political agitations,, 
 which may disturb the public harmony. 
 
 CHAPTER XL 
 Impeachments.. 
 
 § 113. The next clause respects the judicial power 
 of the Senate to try impeachments. u The Senate 
 shall have the sole power to try all impeachments. 
 When sitting for that purpose, they shall be on oath, or 
 affirmation. When the President of the United States 
 is tried, the Chief Justice shall preside ; and no person 
 shall be convicted, without the concurrence of two thirds 
 of the members present.” The great objects to be at¬ 
 tained in the selection of a tribunal for the trial of im¬ 
 peachments, are impartiality, integrity, intelligence, and 
 independence. If either of these qualities is wanting,, 
 
IMPEACHMENTS. 
 
 77 
 
 the trial is essentially defective. To insure impartiality, 
 the body must be, in some degree, removed from popular 
 power and passions, from the influence of sectional pre¬ 
 judices, and from the still more dangerous influence of 
 party spirit. To secure integrity, there must be a lofty 
 sense of duty, and a deep responsibility to God, as well 
 as to future ages. To secure intelligence, there must be 
 age, experience, and high intellectual powers and attain¬ 
 ments. To secure independence, there must be numbers, 
 as w T ell as talents, and a confidence, resulting from per¬ 
 manency of place, dignity of station, and consciousness 
 of patriotism. The Senate, from its very organization, 
 must be presumed to possess all these qualities in a high 
 degree, and, certainly, in a degree not surpassed by any 
 other political body in the country. If it should be 
 asked, why the power to try impeachments might not 
 have been confided to a court of law of the highest grade, 
 it may be answered, that such a tribunal is not, on various 
 accounts, so fit for the purpose. In the first place, the 
 offences to be tried are generally of a political character, 
 such as a court of law is not ordinarily accustomed to 
 examine, and such as its common functions exclude. 
 The Senators, on the contrary, necessarily become fa¬ 
 miliar with such subjects. In the next place, the strict 
 course of proceedings, in courts of law, is ill adapted to 
 the searching out of political delinquencies. In the next 
 place, such political functions, are in no small degree 
 incompatible with the due discharge of other judicial 
 duties. They have a tendency to involve the Judges in 
 party interests and party contests, and thereby to with¬ 
 draw their minds from those studies and habits, which 
 are most important, in the ordinary administration of jus¬ 
 tice, to secure independence and impartiality. In the 
 next place, the Judges are themselves appointed by the 
 Executive, and may be called upon to try cases, in which 
 he, or some officer enjoying his confidence, and acting 
 under his orders, is the party impeached. In the last 
 place, a Judge may be the very party impeached ; and, 
 under such circumstances, a court of law may be pre¬ 
 sumed to labor under as strong feelings and sympathies 
 
 7# 
 
78 CONSTITUTION OF THE UNITED STATES. 
 
 for the accused, as any other body. It could never be 
 desirable to call upon the Supreme Court of the nation to 
 try an impeachment of one of its own members for an 
 official misdemeanor. So that, to say the least, the tri¬ 
 bunal selected by the Constitution is as unobjectionable, 
 as any, which could be pointed out. 
 
 § 114. The mode of trial is also provided for. The 
 Senate, when sitting as a Court of Impeachment, u shall 
 be on oath or affirmation.” This is required in all cases 
 of trials in the common courts of law. Jurymen, as 
 well as Judges, are always under oath or affirmation, in 
 the discharge of their respective duties. It is a sanction, 
 appealing to their consciences, and calling upon them to 
 reflect well upon their duties. The provision was deem¬ 
 ed the more necessary, because in trials of impeachment 
 in England, the House of Lords (which is the High 
 Court of Impeachment) is not under oath ; but each 
 Peer makes a declaration simply upon his honor ; al¬ 
 though if he were a witness in any common trial, he 
 must give his testimony on oath. 
 
 § 115. The next provision is; u When the Presi¬ 
 dent of the United States is tried, the Chief Justice shall 
 preside.” The object of this clause is, to preclude the 
 Vice President, who might be supposed to have a natural 
 desire to succeed to the office of President, from being 
 instrumental, or having any influence, in procuring a con¬ 
 viction of the Chief Magistrate. Under such circum¬ 
 stances, who could be deemed more suitable to preside 
 at the trial, than the highest Judicial magistrate of the na¬ 
 tion. His impartiality and independence would be as 
 little liable to suspicion, as those of any other person in 
 the country. The dignity of his station might well be 
 deemed an adequate pledge for his possession of the high¬ 
 est accomplishments ; and his various learning and great 
 experience in the law, might well be presumed to enable him 
 to give essential assistance to the Senate, not only in reg¬ 
 ulating their proceedings in such delicate matters, but 
 also in securing the just rights of the accused, by protect¬ 
 ing him against unintentional mistakes and errors of judge¬ 
 ment in that body. It is added ; u And no person shall 
 
IMPEACHMENTS, 
 
 be convicted, without the concurrence of two thirds of 
 the members present.” The reason for this restriction, 
 doubtless, is, that if a bare majority, only, were sufficient to 
 convict of political offences, there would be danger, in 
 times of high popular commotion, or party spirit, that the 
 influence of the House of Representatives would be 
 found irresistible. In cases of trials by jury, absolute 
 unanimity is required to the conviction of a criminal; in 
 cases of legislation, a majority only is required for a de¬ 
 cision ; and, here, an intermediate number, between an 
 entire unanimity and a bare majority, is adopted. If 
 any thing short of unanimity ought to be allowed, two 
 thirds seems a reasonable limitation. 
 
 § 116. The next clause respects the judgement to be 
 rendered in cases of impeachment.— u Judgement in 
 cases of impeachment shall not extend further than to 
 removal from office, and disqualification to hold and en¬ 
 joy any office of honor, trust, or profit, under the United 
 States. But the party convicted shall, nevertheless, be 
 liable and subject to indictment, trial, judgement, and 
 punishment according to law.” As the principal object 
 of the power of impeachment is to punish political crimes, 
 the restriction of the punishment to mere removal and 
 disqualification from office, seems appropriate, and suffi¬ 
 cient. Probably the abuses, to which an unlimited pow¬ 
 er of punishment might lead in times of popular excite¬ 
 ment, and party strife, introduced this restriction. And 
 the experience of the parent country had demonstrated, 
 that it could be applied against a particular victim with a 
 cruelty and harshness, wholly incompatible with national 
 justice, and public honor. Yet persons, who are guilty 
 of public offences, ought not wholly to escape the proper 
 punishment, affixed by law in other cases. And, there¬ 
 fore, they are made amenable, like their fellow-citizens, 
 to the common course of trial and punishment in the 
 courts of law. This provision was the more necessary, 
 because it might otherwise be contended, that they could 
 not, according to a known maxim of law, be twice tried 
 and punished for the same offence. And here, again, 
 the wisdom of the Constitution, in excluding the courts 
 
80 CONSTITUTION OF THE UNITED STATES. 
 
 of law from the trial of impeachments, is shown'. For, 
 if the same court should re-try the cause, they would 
 already have decided upon the party’s guilt; and, if an 
 inferior court should try it, the influence of the supe¬ 
 rior court would be apt to have an undue predominance 
 over it. 
 
 § 117. There is wisdom, and sound policy, and in¬ 
 trinsic justice in this separation of the offence, at least, so 
 far as the jurisdiction and trial are concerned, into its 
 proper elements, bringing the political part under the 
 power of the political department of the government, and 
 retaining the civil part for presentment and trial in the 
 ordinary forum. A jury might well be intrusted with 
 the latter ; while the former should meet its appropriate 
 trial and punishment before the Senate. If it should be 
 asked, why separate trials should thus be successively 
 had ; and why, if a conviction should take place in a 
 court of law, that court might not be intrusted with the 
 power to pronounce a removal from office, and the dis¬ 
 qualification to office, as a part of its sentence, the an¬ 
 swer has been already given in the reasoning against vest¬ 
 ing any court of law with merely political functions. In 
 the ordinary course of the administration of criminal 
 justice, no court is authorized to remove or disqualify an 
 offender, as a part of its regular judgement. If it results 
 at all, it results as a consequence, and not as a part, of 
 the sentence. But it may be properly urged, that the 
 vesting of such a high and delicate power, to be exercised 
 by a court of law at its discretion, would, in relation to 
 the distinguished functionaries of the government, be pe¬ 
 culiarly unfit and inexpedient. What could be more 
 embarrassing, than for a court of law to pronounce for a 
 removal upon the mere ground of political usurpation, or 
 malversation in office, admitting of endless varieties, from 
 the slightest guilt up to the most flagrant corruption ? 
 Ought a President to be removed from office at the mere 
 will of a court for political misdemeanors ? Is not a po¬ 
 litical body, like the Senate, from i;s superior informa¬ 
 tion in regard to executive functions, far better qualified 
 to judge, how far the public weal might be promoted by 
 
IMPEACHMENTS. 
 
 81 
 
 such a punishment in a given case, than a mere juridical 
 tribunal ? Suppose the Senate should still deem the 
 judgement irregular, or unjustihable, how is the removal 
 to take effect, and how is it to be enforced ? A separa¬ 
 tion of the removing power altogether from the appoint¬ 
 ing power might create many practical difficulties, which 
 ought not, except upon the most urgent reasons, to be 
 introduced into matters of government. Without at¬ 
 tempting to maintain, that the difficulties would be insu¬ 
 perable, it is sufficient to show, that they might be highly 
 inconvenient in practice. 
 
 § 1 IS. In order to complete our review of the subject 
 of impeachments, it is necessary to cite a clause to be 
 found in a subsequent part of the Constitution, (Art. 2, 
 Sect. 4,) declaring, who shall be liable to impeachment, 
 and for what offences. u The President, Vice Presi¬ 
 dent, and all civil officers of the United States, shall 
 be removed from office, on impeachment for, and con¬ 
 viction of, treason, bribery, or other high crimes and 
 misdemeanors.” 
 
 § 119. From this clause, it appears, that the power of 
 impeachment does not extend to any, but civil officers 
 of the United States, including the President, and Vice 
 President. In England, it extends to all persons, wheth¬ 
 er peers or commoners, and whether officers or not. 
 There seems a peculiar propriety, in a republican gov¬ 
 ernment, in confining the impeaching power to persons 
 holding office. In such a government, all the citizens are 
 equal, and ought to have the same security of a trial by 
 jury, for all crimes and offences laid to their charge, 
 when not holding any official character. They might, 
 otherwise, be subject to gross political oppressions, and 
 prosecutions, which might ruin their fortunes, or subject 
 them to unjustifiable odium. When a person accepts an 
 office, he may fairly be held to consent to a waiver of 
 this privilege ; and there can be no reasonable objec¬ 
 tion, on his part, to a trial by impeachment, since it can go 
 no further than to a removal from office, and a disqualifi¬ 
 cation to hold office. 
 
 § 120. Who are u civil officers,” within the meaning 
 
82 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 of this constitutional provision, is an inquiry, which natu¬ 
 rally presents itself; and the answer cannot, perhaps, be 
 deemed settled, by any solemn adjudication. The term 
 cc civil” has various significations. It is sometimes used, 
 in contradistinction to barbarous , or savage , to indicate 
 a state of society, reduced to order and regular govern¬ 
 ment. Thus, we speak of civil life, civil society, civil gov¬ 
 ernment, and civil liberty; in which cases, it is nearly equiv¬ 
 alent, in meaning, to political. It is sometimes used in 
 contradistinction to criminal , to indicate the private rights 
 and remedies of men, as members of the community, in 
 contrast to those, which are public, and relate to the gov¬ 
 ernment. Thus, we speak of civil process and criminal 
 process, civil jurisdiction and criminal jurisdiction. It 
 is sometimes used in contradistinction to military or eccle¬ 
 siastical , to natural or foreign. Thus, w*e speak of a 
 civil station, as opposed to a military or ecclesiastical 
 station ; a civil death, as opposed to a natural death ; a 
 civil war, as opposed to a foreign war. The sense, in 
 which the term is used in the Constitution, seems to be in 
 contradistinction to military , to indicate the rights and 
 duties relating to citizens generally, in contradistinction to 
 those of persons engaged in the land or naval service of 
 the government. It is in this sense, that Sir Wiffiam 
 Blackstone speaks of the laity in England, as divided in¬ 
 to three distinct states ; the civil, the military, and the 
 maritime ; the two latter embracing the land and naval 
 forces of the government. And in the same sense, the 
 expenses of the civil list of officers are spoken of, in con¬ 
 tradistinction to those of the army and navy. 
 
 § 121. All officers of the United States, therefore, 
 who hold their appointments under the national govern¬ 
 ment, whether their duties are executive or judicial, in 
 the highest or in the lowest departments of the govern¬ 
 ment, with the exception of officers, in the army and na¬ 
 vy, are properly civil officers, within the meaning of the 
 Constitution, and liable to impeachment. The reason 
 for excepting military and naval officers is, that they are 
 subject to trial and punishment according to a peculiar 
 military code, the laws, rules, and usages of war. The 
 
IMPEACHMENTS. 
 
 83 
 
 very nature and efficiency of military duties and discipline 
 require this summary and exclusive jurisdiction ; and the 
 promptitude of its operations is not only better suited 
 to the notions of military men ; but they deem their hon¬ 
 or and their reputation more safe in the hands of their 
 brother officers, than in any merely civil tribunal. In¬ 
 deed, in military and naval affairs, it is quite clear, that 
 the Senate could scarcely possess competent knowledge 
 or experience to decide upon the acts of military men ; 
 so much are these acts to be governed by mere usage 
 and custom, by military discipline, and military discre¬ 
 tion, that the Constitution has wisely committed the 
 whole trust to the decision of courts-martial. 
 
 § 122. It is observable, that the clause makes the 
 President and Vice President expressly liable to im¬ 
 peachment. And the question arose, upon an impeach¬ 
 ment, in 1799, whether a Senator is a civil officer of the 
 United States, in the sense of the Constitution, so as to 
 be liable to an impeachment. It was on that occasion de¬ 
 cided, by the Senate, that he is not ; and, of course, the 
 same principle would apply to a Representative in Con¬ 
 gress. The ground of this decision seems to have been 
 that a Senator does not derive his appointment from or 
 under the National Government, but from the State Le¬ 
 gislature ; and that the clause contemplated only such civil 
 officers, as derived their appointment from the National 
 Government, and were responsible for their conduct 
 thereto. Motives of public policy would also conduce to 
 the establishment of this same conclusion, since the im¬ 
 peachment of Legislators for their official acts might have 
 a tendency to overawe or intimidate them in the discharge 
 ol their public functions. In the whole history and prac¬ 
 tice of England and America, no example can be found, of 
 any attempt to introduce such a principle ; and this very 
 silence is expressive of the state of public opinion as to 
 the danger and impolicy of conferring such a power. 
 
 § 123. The offences, to which impeachments extend, 
 are, u treason, bribery, and other high crimes and mis¬ 
 demeanors.” No person can reasonably doubt the pro¬ 
 priety of the removal, and disqualification from office, of 
 
84 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 a person, who is guilty of treason, which aims at the 
 overthrow of the government, or of bribery, which cor¬ 
 rupts its due administration. x\nd doubtless there are 
 other high crimes and misdemeanors, to which the pow¬ 
 er of impeachment may properly be applied, since they 
 may be utterly incompatible with the public safety and 
 interests, or may bring the government itself into disgrace 
 and obloquy. 
 
 § 124. But an important inquiry still remains, as to the 
 nature and definition of these crimes. What is the crime of 
 treason ? What is the crime of bribery ? What are high 
 crimes and misdemeanors in the sense of the Constitution ? 
 For the definition of treason we may resort to the Consti¬ 
 tution itself. For the definition of bribery we must resort 
 to the common law, which alone furnishes the proper ex¬ 
 position of the nature and limits of the offence. But neither 
 the Constitution, nor the statutes of the United States, have 
 in any manner defined any other crimes to be high crimes 
 and misdemeanors, and as such, exposing the party to 
 impeachment. How then are we to ascertain, what of¬ 
 fences, besides treason and bribery, are within the scope 
 of the impeaching power ? If we say, that there are no 
 other offences, which are impeachable offences, until Con¬ 
 gress has enacted some law on the subject, then the Con¬ 
 stitution, as to all crimes except treason and bribery, has 
 remained a dead letter, up to the present hour. Such a 
 doctrine, would be truly alarming and dangerous. 
 
 § 125. Congress have unhesitatingly adopted the con¬ 
 clusion, that no previous statute is necessary to authorize 
 an impeachment for any official misconduct ; and the 
 rules of proceeding, and the rules of evidence, as well as 
 the principles of decision, have been uniformly regulated 
 by the known doctrines of the common law, and parlia¬ 
 mentary usage. In the few cases of impeachment, which 
 have hitherto been tried, no one of the charges has rested 
 upon any statutable misdemeanors. It seems, then, to 
 be the settled doctrine of the high court of impeachment, 
 that though the common law cannot be a foundation of a 
 jurisdiction not given by the Constitution, or laws, that 
 jurisdiction, when given, attaches, and is to be exercised, 
 
IMPEACHMENTS. 
 
 85 
 
 according to the rules of the common law ; and that, what 
 are, and what are not, high crimes and misdemeanors, is 
 to be ascertained by a recurrence to that great basis of 
 American jurisprudence. The reasoning, by which the 
 power of the House of Representatives to punish for 
 contempts (which are breaches of privileges, and offen¬ 
 ces not defined by any positive laws) has been upheld by 
 the Supreme Court, stands upon similar grounds ; for if 
 the House had no jurisdiction to punish for contempts, 
 until the acts had been previously defined, and ascertained 
 by positive law, it is clear, that the process of arrest 
 would be illegal. 
 
 § 126. This subject may be concluded by a summary 
 statement of the mode of proceeding in the institution and 
 trial of impeachments, as it is of rare occurrence, and is 
 not governed by the formalities of the ordinary prosecu¬ 
 tions in courts at law. 
 
 § 127. When, then, an officer is known or suspected 
 to be guilty of malversation in office, some member of 
 the House of Representatives usually brings forward a 
 resolution to accuse the party, or for the appointment of 
 a committee, to consider and report upon the charges 
 laid against him. The latter is the ordinary course ; and 
 the report of a committee usually contains, if adverse to 
 the party, a statement of the charges, and recommends 
 a resolution, that he be impeached therefor. If the res¬ 
 olution is adopted by the House, a committee is then 
 appointed to impeach the party at the bar of the Senate, 
 and to state, that the articles against him will be exhibit¬ 
 ed in due time, and made good before the Senate ; and 
 to demand, that the Senate take order for the appearance 
 of the party to answer to the impeachment. This being 
 accordingly done, the Senate signify their willingness to 
 take such order ; and articles are then prepared by a 
 committee, under the direction of the House of Repre¬ 
 sentatives, which, when reported to, and approved by, 
 the House, are then presented in the like manner to the 
 Senate ; and a committee of managers are appointed to 
 conduct the impeachment. As soon as the articles are 
 thus presented, the Senate issue a process, summoning 
 8 xiii. 
 
86 CONSTITUTION OF THE UNITED STATES. 
 
 % 
 
 the party to appear, at a given day, before them, to an¬ 
 swer the articles. The process is served by the sergeant- 
 at-arms of the Senate, and due return is made thereof 
 under oath. 
 
 § 128. The articles thus exhibited, need not, and in¬ 
 deed do not, pursue the strict form and accuracy of an 
 indictment. They are sometimes quite general in the 
 form of the allegations ; but always contain, or ought to 
 contain, so much certainty, as to enable the party to put 
 himself upon the proper defence, and also, in case of an 
 acquittal, to avail himself of it, as a bar to another im¬ 
 peachment. Additional articles may be exhibited, per¬ 
 haps, at any stage of the prosecution. 
 
 § 129. When the return day of the process for ap¬ 
 pearance has arrived, the Senate resolve themselves into 
 a court of impeachment, and the Senators are at that 
 time, or before, solemnly sworn, or affirmed, to do im¬ 
 partial justice upon the impeachment, according to the 
 Constitution and laws of the United States. The per¬ 
 son impeached is then called to appear and answer the 
 articles. If he does not appear in person, or by attor¬ 
 ney, his default is recorded, and the Senate may proceed 
 ex parte (that is, on the claim of one side) to the trial of 
 the impeachment. If he does appear in person, or by 
 attorney, his appearance is recorded. Counsel for the 
 parties are admitted to appear, and to be heard upon an 
 impeachment. 
 
 § 130. When the party appears, he is entitled to be 
 furnished with a copy of the articles of impeachment, and 
 time is allowed him to prepare his answer thereto. The 
 answer, like the articles, is exempted from the necessity 
 of observing great strictness of form. The party may 
 plead, that he is not guilty, as to part, and make a fur¬ 
 ther defence, as to the residue ; or he may, in a few 
 words, saving all exceptions, deny the whole charge or 
 charges ; or he may plead specially, in justification or 
 excuse of the supposed offences, all the circumstances 
 attendant upon the case. And he is also indulged with 
 the liberty of offering argumentative reasons, as well as 
 facts, against the charges, in support, and as part, of his 
 
IMPEACHMENTS. 
 
 87 
 
 answer, to repel them. It is usual to give a full and par¬ 
 ticular answer separately to each article of the accusation. 
 
 § 131. When the answer is prepared and given in, 
 the next regular proceeding is, for the House of Repre¬ 
 sentatives to file a replication to the answer in writing, 
 in substance denying the truth and validity of the defence 
 stated in the answer, and averring the truth and suffi¬ 
 ciency of the charges, and the readiness of the House to 
 prove them at such convenient time and place, as shall 
 be appointed for that purpose by the Senate. A time 
 is then assigned for the trial ; and the Senate, at that 
 period or before, adjust the preliminaries and other pro¬ 
 ceedings proper to be had, before and at the trial, by 
 fixed regulations ; which are made known to the House 
 of Representatives, and to the party accused. On the 
 day appointed for the trial, the House of Representatives 
 appear at the bar of the Senate, either in a body, or by 
 the managers selected for that purpose, to proceed with 
 the trial. Process to compel the attendance of witnesses 
 is previously issued at the request of either party, by or¬ 
 der of the Senate ; and at the time and place appointed, 
 they are bound to appear and give testimony. On the 
 day of trial, the parties being ready, the managers to con¬ 
 duct the prosecution open it on behalf of the House of 
 Representatives, one or more of them delivering an ex¬ 
 planatory speech, either of the whole charges, or of one 
 or more of them. The proceedings are then conducted 
 substantially, as they are upon common judicial trials, as 
 to the admission or rejection of testimony, the examina¬ 
 tion and cross-examination of witnesses, the rules of evi¬ 
 dence, and the legal doctrines, as to crimes and misde¬ 
 meanors. When the whole evidence has been gone 
 through, and the parties on each side have been fully 
 heard, the Senate then proceed to the consideration of 
 the case. If any debates arise, they are conducted in 
 secret ; if none arise, or after they are ended, a day is 
 assigned for a final public decision by yeas and nays 
 upon each separate charge in the articles of impeach¬ 
 ment. When the court is assembled for this purpose, 
 the question is propounded to each member of the Sen- 
 
88 CONSTITUTION OF THE UNITED STATES. 
 
 ate by name, by the President of the Senate, in the 
 following manner, upon each article, the same being 
 
 first read by the Secretary of the Senate. u Mr. -, 
 
 how say you, is the respondent guilty, or not guilty, 
 
 of a high crime and misdemeanor, as charged in the- 
 
 article of impeachment ?” Whereupon the member 
 rises in his place, and answers guilty, or not guilty, as 
 his opinion is. If upon no one article, two thirds of the 
 Senate decide, that the party is guilty, he is then entitled 
 to an acquittal, and is declared accordingly to be acquit¬ 
 ted by the President of the Senate. If he is convicted 
 of all, or any, of the articles, the Senate then proceed to 
 fix, and declare the proper punishment. The pardoning 
 power of the President does not, as will be presently 
 seen, extend to judgements upon impeachment ; and 
 hence, when once pronounced, they become absolute 
 and irreversible. 
 
 § 132. Having thus gone through the whole subject 
 of impeachments, it only remains to observe, that a close 
 survey of the system, unless we are egregiously deceived, 
 will completely demonstrate the wisdom of the arrange¬ 
 ments made in every part of it. The jurisdiction to im¬ 
 peach is placed, where it should be, in the possession 
 and power of the immediate representatives of the peo¬ 
 ple. The trial is before a body of great dignity, and 
 ability, and independence, possessing the requisite knowl¬ 
 edge and firmness to act with vigor, and to decide with 
 impartiality upon the charges. The persons subjected 
 to the trial are officers of the national government ; and 
 the offences are such, as may affect the rights, duties, 
 and relations of the party accused, to the public in his 
 political or official character, either directly or remotely. 
 The general rules of law and evidence, applicable to 
 common trials, are interposed, to protect the party against 
 the exercise of wanton oppression, and arbitrary power. 
 And the final judgement is confined to a removal from, 
 and disqualification for, office ; thus limiting the punish¬ 
 ment to such modes of redress, as are peculiarly fit for a 
 political tribunal to administer, and as will secure the pub¬ 
 lic against political injuries. In other respects, the offence 
 
ELECTIONS OF CONGRESS. 
 
 89 
 
 is left to be disposed of by the common tribunals of jus¬ 
 tice, according to the laws of the land, upon an indict¬ 
 ment found by a grand jury, and a trial by a jury of 
 peers, before whom the party is to stand for his final de¬ 
 liverance, like his fellow-citizens.' 
 
 CHAPTER XII. 
 
 Elections and Meetings of Congress. 
 
 § 133. We next come to the fourth section of the 
 first article, which treats of the elections and meetings of 
 Congress. The first clause is,—“ The time, places, and 
 manner of holding elections for Senators and Represen¬ 
 tatives, shall be prescribed in each State, by the Legisla¬ 
 ture thereof. But the Congress may, at any time, by 
 law, make or alter such regulations, except as to the 
 places of choosing Senators.” There is great propriety 
 in leaving to the State Legislatures the right, in the first 
 instance, of regulating the times and places of choosing the 
 members of Congress, as every State is thus enabled to 
 consult its own local convenience in the choice ; and it 
 would be difficult to prescribe any uniform time or place 
 of elections., which would, in all possible changes in the 
 situation of the States, be found convenient for all of 
 them. On the other hand, as the ability of the General 
 Government to carry on its own operations depends upon 
 these elections being duly had, it is plain, that it ought 
 not to be left to the State governments, exclusively, to 
 decide, whether such elections should be had, or not. 
 The«pnaxim of sound political wisdom is, that every gov¬ 
 ernment ought to contain in itself the means of its own 
 preservation. And, therefore, an ulterior and paramount 
 power is reserved to Congress, to make or alter the reg¬ 
 ulations as to such elections, so as to preserve the effi¬ 
 ciency of the General Government. But, inasmuch as 
 the State Legislatures are to elect Senators, the places 
 of their meetings are left to their own discretion, as most 
 
 8 * 
 
90 CONSTITUTION OF THE.UNITED STATES. 
 
 fit to be decided by themselves, with reference to their 
 ordinary duties and convenience. But Congress may 
 still prescribe the times, at which such elections shall be 
 made. 
 
 § 134. The next clause is,—“ The Congress shall 
 assemble at least once in every year ; and such meeting 
 shall be on the first Monday of December, unless they 
 shall, by law, appoint a different day-” The importance 
 of this provision can scarcely be overrated by a free peo¬ 
 ple, accustomed to know their rights, and jealous in the 
 maintenance of them. Unless some time were prescrib¬ 
 ed for the regular meetings of Congress, they would de¬ 
 pend upon the good will and pleasure of Congress itself, 
 or of some other department of the government. In times 
 of violent factions, or military usurpations, attempts might 
 be made to postpone such meetings for an unreasonable 
 length of time, in order to prevent the redress of griev¬ 
 ances, or secure the violators of the laws from condign 
 punishment. Annual meetings of the legislature have 
 long been deemed, both in England and America, a great 
 security to liberty and justice ; and it was true wisdom 
 to establish the duty of such annual meetings, by a polit¬ 
 ical provision in the Constitution, which could not be 
 evaded or disobeyed. 
 
 CHAPTER XIII. 
 
 Powers and Privileges of both Houses. 
 
 § 135. The fifth section of the first article contains 
 an enumeration of the powers, rights, and duties of%each 
 branch of the Legislature, in its separate and distinct or¬ 
 ganic character. The first clause is,— u Each House 
 shall be the judge of the elections, returns, and qualifica¬ 
 tions, of its own members ; and a majority of each shall 
 constitute a quorum to do business ; but a smaller num¬ 
 ber may adjourn, from day to day, and may be authorized 
 to compel the attendance of absent members, in such 
 
PRIVILEGES OF BOTH HOUSES. 
 
 91 
 
 manner, and under such penalties, as each House may 
 provide.” 
 
 § 136. These powers are common to all the legisla¬ 
 tive bodies of the States ; and, indeed, to those of other 
 free governments. They seem indispensable to the due 
 independence and efficiency of the body. The power to 
 judge of the elections, returns, and qualifications, of the 
 members of each House, must be lodged somewhere ; 
 for otherwise, any intruder, or usurper, might assume to 
 be a member. It can be safely lodged in no other body, 
 but that, in which the party claims a seat; for otherwise, 
 its independence, its purity, and even its existence, might 
 be under the control of a foreign authority. It is equally 
 important, that a proper quorum for the despatch of busi¬ 
 ness should be fixed, otherwise a cunning, or industrious, 
 minority might, by stratagem, usurp the functions of the 
 majority, and pass laws at their pleasure. On the other 
 hand, if a smaller number were not authorized to adjourn 
 from day to day, or to compel the attendance of other 
 members, all legislation might be suspended at the pleas¬ 
 ure of the absentees, and the Legislature itself be virtually 
 dissolved. 
 
 § 137. The next clause is,— u Each House may de¬ 
 termine the rules of its proceedings, punish its members 
 for disorderly behavior, and, with the concurrence of two 
 thirds, expel a member.” These powers, also, are usually 
 granted to legislative bodies. If they did not exist, it 
 would be utterly impracticable to transact the business of 
 the nation at all, or at least, to transact it with decency, 
 deliberation, and order. Without rules, no public body 
 can suitably perform its functions. If rules are made, 
 they are mere nullities, unless the persons on whom they 
 are to operate, can be compelled to obey them. But, if 
 an unlimited power to punish, even to the extent of ex¬ 
 pulsion, existed, it might, in factious times, be applied by 
 a domineering majority, to get rid of the most intelligent, 
 virtuous, and efficient of their opponents. There is, 
 therefore, a check interposed, which requires a concur¬ 
 rence of two thirds to expel ; and this number can hard¬ 
 ly be presumed to concur in exercising the power of ex- 
 
92 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 pulsion, except in cases of flagrant breaches of the rights 
 of the House. 
 
 § 138. The next clause is,—“ Each House shall keep 
 a journal of its proceedings, and from time to time pub¬ 
 lish the same, except such parts as may, in their judge¬ 
 ment, require secrecy. And the yeas and nays of the 
 members of either House, on any question, shall, at 
 the desire of one fifth of those present, be entered on 
 the journal.” Each of these provisions has the same 
 object, to insure publicity and responsibility in all the 
 proceedings of Congress, so that the public mind may be 
 enlightened, as to the acts of the members. But cases 
 may exist, where secrecy may be indispensable to the 
 complete operation of the intended acts, either at home or 
 abroad. And, on the other hand, an unlimited power to 
 call the yeas and nays on every question, at the mere will 
 of a single member, would interrupt and retard, and, in 
 many cases, wholly defeat, the public business. In each 
 case, therefore, a reasonable limitation is interposed. 
 
 § 139. The next clause is,— 44 Neither House, during 
 the session of Congress, shall, without the consent of the 
 other, adjourn for more than three days, nor to any other 
 place than that in which the two Houses shall be sitting.” 
 Here, again, the object of the clause is manifest, to pre¬ 
 vent either House from suspending, at its pleasure, the 
 regular course of legislation, and even of carrying the 
 power to the extent of a dissolution of the session. The 
 duration of the sessions of Congress, subject only to the 
 constitutional expiration of the term of office of the mem¬ 
 bers, thus depends upon their own pleasure, with the sin¬ 
 gle exception (as'we shall hereafter see) of the case, where 
 the two Houses disagree, in respect to the time of ad¬ 
 journment, when it is given to the President. So that 
 their independence is effectually guarded against any en¬ 
 croachment on the part of the Executive. In England, 
 the King may prorogue or dissolve Parliament at his plea¬ 
 sure ; and, before the Revolution, the same power was 
 generally exercised by the Governors in most of the Amer¬ 
 ican Colonies. 
 
 § 140. These are all the powers and privileges ex- 
 
PRIVILEGES OF BOTH HOUSES. 
 
 93 
 
 pressly enumerated, as belonging to the two Houses. 
 But other incidental powers may well be presumed to ex¬ 
 ist. Among these, the power to punish contempts, com¬ 
 mitted against either House by strangers, has been gener¬ 
 ally admitted, and insisted upon in practice, as indispensa¬ 
 ble to the freedom, the deliberative functions, and the 
 personal safety of the members. 
 
 § 141. The sixth section of the first article contains 
 an enumeration of the personal rights, privileges, and 
 disabilities of the members, as contradistinguished from 
 those of the Houses, of which they are members. The 
 first clause is,—“ The Senators and Representatives shall 
 receive a compensation for their services, to be ascer¬ 
 tained by law, and paid out of the Treasury of the 
 United States. They shall, in all cases, except treason, 
 felony, or breach of the peace, be privileged from arrest, 
 during their attendance at the session of the respective 
 Houses, and in going to, and returning from, the same. 
 And for any speech or debate in either House, they shall 
 not be questioned in any other place.” 
 
 § 142. First, Compensation. It has been greatly 
 questioned, whether, on the whole, it is best to allow 
 compensation to members of Congress, or not. On the 
 one hand, it has been said, that it tempts unworthy and 
 avaricious men to intrigue for office, and to defeat candi¬ 
 dates of higher talents and virtues. On the other hand, 
 it has been said, that unless compensation be allowed, 
 merit of the highest order may be excluded by poverty 
 from the national councils ; and in a republican govern¬ 
 ment nothing can be more impolitic than to give to wealth 
 superior encouragement, and facility in obtaining office. 
 The latter reasoning had its due force, and prevailed in 
 the Convention and with the people. 
 
 §143. Next, the privilege from arrest. This is given 
 in all cases, (except of crimes,) in going to, attending 
 upon, and returning from, any session of Congress. It 
 would be a great mistake to consider it, as in reality a 
 personal privilege, for the benefit of the member. It is 
 rather a privilege for the benefit of his constituents, that 
 they may not be deprived of the presence, services, and 
 
94 
 
 CUNsjTI TUTION OF THE UNITED STATES. 
 
 influence of their own Representative in the national 
 councils. It might otherwise happen, that he might be 
 arrested from mere malice, or from political pers6cution, 
 or upon some unfounded claim, and thus they might be 
 deprived of his aid and talents during the whole session. 
 
 § 144. Thirdly, the liberty of speech and debate. 
 This, too, is less to be regarded as a personal privilege, 
 than as a public right, to secure independence, firmness, 
 and fearlessness on the part of the members, so that, in 
 discharging their high trusts, they may not be overawed 
 by wealth, or power, or dread of prosecution. The 
 same privilege is enjoyed in the British Parliament, and 
 also in the several State Legislatures of the Union, found¬ 
 ed upon the same reasoning. 
 
 § 145. The next clause regards the disqualifications 
 of members of Congress. u No Senator or Represen¬ 
 tative shall, during the time for which he is elected, be 
 appointed to any civil office, under the authority of the 
 United States, which shall have been created, or the 
 emoluments whereof shall have been increased during 
 such time. And no person, holding any office under the 
 United States, shall be a member of either House of 
 Congress during his continuance in office.” The object 
 of these provisions is sufficiently manifest. It is, to se¬ 
 cure the Legislature against undue influence, and indirect 
 corruption, on the part of the Executive. Whether 
 much reliance can be placed upon guards of this disquali¬ 
 fying nature, has been greatly doubted. It is not easy, 
 by any constitutional or legislative enactments, to shut 
 out all, or even many, of the avenues of undue or corrupt 
 influence upon the human mind. The great securities for 
 society—-those, on which it must for ever rest in a free 
 government—are, responsibility to the people through 
 elections, and personal character, and purity of principle. 
 Where these are wanting, there never can be any solid 
 confidence, or any deep sense of duty. Where these exist, 
 they become a sufficient guarantee against all sinister influ¬ 
 ences, as well as all gross offences. It has been remarked, 
 with equal profoundness and sagacity, that, as there is a 
 degree of depravity in mankind, which requires a certain 
 
PRIVILEGES OF BOTH HOUSES. 
 
 95 
 
 degree of circumspection and distrust ; so there are other 
 qualities in human nature, which justify a certain portion 
 of esteem and confidence. Republican government pre¬ 
 supposes the existence of these qualities in a higher form, 
 than any other. It might well be deemed harsh to dis¬ 
 qualify an individual from any office, clearly required by 
 the exigencies of the country, simply because he bad done 
 his duty. And, on the other hand, the disqualification 
 might operate upon many persons, who might find their 
 way into the national councils, as a strong inducement to 
 postpone the creation of necessary offices, lest they should 
 become victims of their high discharge of duty. The 
 chances of receiving an appointment to a new office are 
 not so many, or so enticing, as to bewilder many minds ; 
 and if they are, the aberrations from duty are so easily 
 traced, that they rarely, if ever, escape the public re¬ 
 proaches. And if influence is to be exerted by the Ex¬ 
 ecutive, for improper purposes, it will be quite as easy, 
 and in its operation less seen, and less suspected, to give 
 the stipulated patronage in another form, either of office, 
 or of profitable employment, already existing. 
 
 § 146. The other part of the clause, which disquali¬ 
 fies persons, holding any office under the United States, 
 from being members of either House, during their continu¬ 
 ance in office, has been still more universally applauded ; 
 and has been vindicated upon the highest grounds of pub¬ 
 lic policy. It is doubtless founded in a deference to State 
 jealousy, and a sincere desire to obviate the fears, real or 
 imaginary, that the General Government would obtain an 
 undue preference over the State governments. It has 
 also the strong recommendation, that it prevents any undue 
 influence from office, either upon the party himself, or 
 those, with whom he is associated in legislative delibera¬ 
 tions. The universal exclusion of all persons holding 
 office, is (it must be admitted) attended with some incon¬ 
 veniences. The Heads of the Departments are, in fact, 
 thus precluded from proposing, or vindicating their own 
 measures in the face of the nation in the course of debate ; 
 and are compelled to submit them to other men, who are 
 either imperfectly acquainted with the measures, or are 
 
96 CONSTITUTION OF THE UNITED STATES. 
 
 indifferent to their success or failure. Thus, that open 
 and public responsibility for measures, which properly be¬ 
 longs to the Executive in all governments, and especially 
 in a republican government, as its greatest security and 
 strength, is completely done away. The Executive is 
 compelled to resort to secret and unseen influence, to pri¬ 
 vate interviews, and private arrangements, to accomplish 
 his own appropriate purposes ; instead of proposing and 
 sustaining his own duties and measures by a bold and manly 
 appeal to the nation in the face of its representatives. One 
 consequence of this state of things, is, that there never can 
 be traced home to the Executive any responsibility for the 
 measures, which are planned, and carried at his suggestion. 
 Patronage may be quite as effective under a different form. 
 It may confer office on a friend, or a relative, or a depen¬ 
 dent. The hope of office, in future, may seduce a man 
 from bis duty, as much as its present possession. And, 
 after all, the chief guards against venality, in all govern¬ 
 ments, must be placed in the high virtue, the unspotted 
 honor, and the pure patriotism of public men. On this 
 account, it has been doubted, whether the exclusion of the 
 Heads of Departments from Congress, has not led to the 
 use of indirect and irresponsible influence, on the part of 
 the Executive, over the measures of Congress, far more 
 than could exist, if the Heads of Departments held seats 
 in Congress, and might be there compelled to avow and 
 defend their own opinions. The provision, however, as 
 it stands, has hitherto been found acceptable to the Amer- 
 can people, and ought not lightly to be surrendered. 
 
 CHAPTER XIV. 
 t Mode of Passing Laics. 
 
 § 147. The seventh section of the first article, de¬ 
 clares the mode of passing laws. The first clause is,— 
 u All bills for raising revenue, shall originate in the House 
 of Representatives ; but the Senate may propose, or 
 
MODE OF PASSING LAWS. 
 
 97 
 
 concur with amendments, as in other bills.” This clause 
 had its origin in the known rule of the British Parliament, 
 that all money bills shall originate in the House of Com¬ 
 mons. And so jealous are the House of Commons of 
 this valuable privilege, that they will not suffer the House 
 of Lords to make the least alteration or amendment to 
 any such bill. The general reason, assigned for this priv¬ 
 ilege, in that kingdom, is, that all taxes and supplies, raised 
 upon the people, should originate with their immediate 
 representatives. But, in truth, it was intended by the pop¬ 
 ular branch of the legislature, by this course, to acquire a 
 permanent importance in the government; and to be able 
 to counterpoise the influence of the House of Lords, a 
 body having hereditary rights and dignity. The same 
 reason does not apply, with the same, force to our republi¬ 
 can forms of government. But still, as the same power 
 was exercised under some of the State governments, and 
 as the House of Representatives may be deemed pecu¬ 
 liarly well fitted to bring, to such subjects, a full knowledge 
 of the local interests, as well as of the wishes and opin¬ 
 ions of the people, there is no inconvenience in allowing 
 to the House the exclusive right to originate all such bills 
 in the course of legislation. But, as taxes and revenue 
 laws may bear with great inequality upon some of the 
 States, and, above all, as direct taxes are, and must, ac¬ 
 cording to the Constitution, be apportioned among the 
 States according to the ratio of their population, as al¬ 
 ready stated, a power to amend such laws is properly re¬ 
 served to the Senate, where all the States possess an 
 equal voice. The due influence of all the States is thus 
 preserved over a subject of such vital importance ; and 
 it might otherwise happen, that, from the overwhelming 
 representation of some of the large States, in the House 
 of Representatives, taxes might be levied, which would 
 bear, with peculiar severity and hardship, upon the agricul¬ 
 tural, commercial, or manufacturing, interests of the small¬ 
 er States ; and thus the equilibrium of power, of influence, 
 and of interest, of the several States, in the National coun¬ 
 cils, might be practically subverted. 
 
 § 148. The next clause respects the power of the 
 9 xiii. 
 
98 CONSTITUTION OF THE UNITED STATES. 
 
 President to approve and negative laws. It is as fol¬ 
 lows :— u Every bill, which shall have passed the House 
 of Representatives and the Senate, shall, before it be¬ 
 come a law, be presented to the President of the United 
 States. If he approve, he shall sign it; but if not, he 
 shall return it, with his objections, to that House, in which 
 it shall have originated, who shall enter the objections at 
 large, on their journal, and proceed to reconsider it. If, 
 after such reconsideration, two thirds of that House shall 
 agree to pass the bill, it shall be sent, together with the 
 objections, to the other House, by which it shall, like¬ 
 wise, he reconsidered ; and, if approved by two thirds of 
 that House, it shall become a law. But, in all such cases, 
 the votes of both Houses shall be determined by yeas and 
 nays, and the names of the persons voting for and against 
 the bill, shall be entered on the journal of each House re¬ 
 spectively. If any bill shall not be returned by the Pres¬ 
 ident within ten days (Sundays excepted) after it shall 
 have been presented to him, the same shall be a law, in 
 like manner, as if he had signed it, unless the Congress, 
 by their adjournment, prevent its return, in which case it 
 shall not be a law.” 
 
 § 149. The reasons, why the President should possess 
 a qualified negative, (for an absolute negative would be 
 highly objectionable,) are, if not quite obvious, at least, 
 when fairly expounded, entirely satisfactory. In the first 
 place, there is a natural tendency, in the legislative depart¬ 
 ment, to intrude upon the rights, and to absorb the pow¬ 
 ers, of the other departments of the government. If the 
 Executive did not possess this qualified negative, he might 
 gradually be stripped of all his authority, and become, 
 what the Governors of some of the States now are, a mere 
 pageant, and a shadow of magistracy. 
 
 § 150. In the next place, the power is important, as 
 an additional security against the enactment of rash, im¬ 
 mature, and improper laws. In the third place, the Pres¬ 
 ident may fairly be deemed the representative of the 
 whole nation, the choice being produced by a different 
 modification of interests and opinions and votes, from that 
 by which the choice of either branch of the National Le- 
 
MODE OF PASSING LAWS. 
 
 99 
 
 \ ) 
 
 gislature is produced, either that representing the People, 
 or that representing the States. His power, therefore, 
 of a qualified negative, being founded upon the supposition, 
 that lie truly represents all the interests and opinions of 
 the Union, introduces a useful element, to check any pre¬ 
 ponderating interest of any section, in a particular meas¬ 
 ure. It does not, like an absolute negative, suspend legis¬ 
 lation, but it merely refers the subject back, for a more 
 deliberate review of the Senate and House. If two thirds 
 of each branch still concur in favor of the measure, it be¬ 
 comes a law. Thus, a thorough revision of the measure 
 is guarantied ; and, at the same time, the deliberate wish¬ 
 es of the States, and of the people, cannot be disobeyed. 
 If two thirds of each branch do not dissent from the Pres¬ 
 ident’s opinion, the natural inference is, that the measure 
 is not so far beyond all reasonable objections, that it ought 
 ordinarily to prevail. The negative of the President was 
 undoubtedly designed by the Constitution to be applied 
 only on extraordinary occasions and exigencies; and if 
 it were to be applied to the common course of legislation, 
 it might be fraught with great public mischiefs, and weak¬ 
 en, if not overthrow, the just power of legislation by 
 Congress, since it may be presumed, that it can rarely 
 happen, in a country, having such a diversity of interests, 
 and pursuits, and opinions, as jours, that a clear majority 
 of two thirds of each House can be obtained against the 
 known wishes, and natural influence of the Executive de¬ 
 partment. On the other hand, if Congress should often 
 be driven, by the frequent use of it, to pass laws, in op¬ 
 position to the President’s negative, it would gradually 
 introduce a disregard of his opinions, and a hostile oppo¬ 
 sition to his authority. Such a state of things would, 
 certainly, in every view, he most inconvenient and unde¬ 
 sirable. The evil, however, could scarcely be of a very 
 long continuance ; for, if the President should abuse his 
 power, (as certainly he sometimes may,) the people have 
 the proper remedies in their own hands, and can compel 
 him to relinquish office at no distant period. 
 
 § 151. But the qualified negative is not left wholly 
 without restraint. The President must promptly exer- 
 
100 CONSTITUTION OF THE UNITED STATES. 
 
 cise it, within ten days, excluding Sunday ; otherwise^ the 
 bill becomes a law. And, on the other hand, Congress 
 are deprived of the power of preventing its due exercise 
 by a hasty adjournment within the ten days, so as to leave 
 the President without sufficient time for due deliberation. 
 If a qualified negative is to be allowed at all, it would 
 seem thus to be as much restrained, as the public good can 
 require, or, at least, as much, as its proper exercise can 
 justify. 
 
 § 152. The remaining clause provides a like regula¬ 
 tion in regard to orders, resolutions, and votes, to which 
 the concurrence of both Houses is necessary. It is,— 
 “ Every order, resolution, or vote, to which the concur¬ 
 rence of the Senate and House of Representatives may 
 be necessary, (except on a question of adjournment,) 
 shall be presented to the President of the United States ; 
 and, before the same shall take effect, shall be approved 
 by him, or, being disapproved by him, shall be repassed 
 by two thirds of the Senate and House of Representa¬ 
 tives, according to the rules and limitations prescribed in 
 the case of a bill.” If this provision had not been made, 
 Congress, by adopting the form of an order, or resolution, 
 or vote, instead of a bill, might have effectually defeated 
 the President's negative in many important portions of 
 legislation. The reason of the exception as to adjourn¬ 
 ments, is, that this power is peculiarly fit to be acted 
 upon by Congress, according to their own discretion ; and, 
 therefore, it is, (as we have seen,) by a preceding clause, 
 vested in both Houses, and devolves on the President, 
 only in cases of their disagreement. 
 
 § 153. We have now completed the review of the 
 structure and organization of the legislative department ; 
 and, it has been shown, that it is admirably adapted for a 
 wholesome and upright exercise of the powers confided 
 to it. All the checks, which human ingenuity has been 
 able to devise, or at least all, which, with reference to our 
 habits, our institutions, and our diversities of local inter¬ 
 ests, seem practicable, to give perfect operation to the 
 machinery, to adjust its movements, to prevent its ec¬ 
 centricities, and to balance its forces ; all these have 
 
POWERS OF CONGRESS.-TAXATION. 
 
 101 
 
 been introduced, with singular skill, ingenuity, and wis¬ 
 dom, into the arrangements. Yet, alter all, the fabric 
 may fall ; for the work of man is perishable. Nay, it 
 must fall, if there be not that vital spirit in the people, 
 which can alone nourish, sustain, and direct, all its move¬ 
 ments. If ever the day shall arrive, in which the best 
 talents, and the best virtues shall be driven from of¬ 
 fice, by intrigue, or corruption, by the denunciations of 
 the press, or by the persecutions of party factions, legis¬ 
 lation will cease to be national. It will be wise bv acci- 
 
 * 
 
 dent, and bad by system. 
 
 CHAPTER XV. 
 
 Powers of Congress .— Taxation. 
 
 § 154. We next come to the consideration of the legis¬ 
 lative powers conferred on Congress, which are contain¬ 
 ed in the eighth section of the first article. The first clause 
 is,—“ The Congress shall have power to lay and collect 
 taxes, duties, imposts, and excises, to pay the debts, and 
 provide for the common defence and general welfare of 
 the United States. But all duties, imposts, and excises 
 shall be uniform throughout the United States.” What 
 is the true interpretation of this clause, has been matter of 
 considerable controversy ; that is to say, whether the 
 words, “ Congress shall have power to lay and collect 
 taxes, duties, imposts, and excises,” constitute a distinct 
 clause and confer a substantive independent power ; and 
 the words, “ to pay the debts, and provide for the com¬ 
 mon defence and general welfare of the United States,” 
 constitute another, distinct clause, and substantive and 
 independent power ; or, whether these latter words are a 
 dependent clause, merely qualifying the former clause, 
 and so the whole to be read together, as if the words stood 
 thus,—“ Congress shall have power to lay and collect 
 taxes, duties, imposts, and excises,” in order “to pay the 
 public debts, and to provide for the common defence and 
 
 9 # 
 
102 CONSTITUTION OF THE UNITED STATES. 
 
 general welfare;” that is to say, Congress shall have pow¬ 
 er to lay taxes, &c., for the purpose of paying the public 
 debts, and providing for the common defence and general 
 welfare. If the former be the true interpretation, then it 
 is obvious, that the powers of the National Government, 
 under color of the authority of the clause to provide for 
 the common defence and general welfare, would be prac¬ 
 tically unlimited. If the latter be the true interpretation, 
 then the words properly amount to a limitation or qualifi¬ 
 cation of the power of taxation ; so that no taxes can be 
 laid by Congress, except to pay the debts, and to provide 
 for the common defence and general welfare. The latter 
 seems the more just and solid interpretation of the words, 
 and most conformable to the true spirit and objects of the 
 instrument. 
 
 § 155. The necessity of the power of taxation, to the 
 vigorous action of the National Government, would seem 
 to be self-evident. The want of it, was one of the prin¬ 
 cipal defects under the Confederation. A National Gov¬ 
 ernment, without the power of providing for its own ex¬ 
 penditures, charged with public burdens and duties, and 
 yet deprived of adequate means to sustain and perform 
 them, would soon become wholly inert and imbecile. It 
 would be almost as absurd, as to bind a man immovably to 
 the earth, and yet at the same time to require him to walk 
 abroad. If, then, there is to be a real, effective National 
 Government, there must be a power of taxation given to 
 it, adequate to its wants, its objects, and its duties. The 
 only proper remaining inquiry would be, whether the 
 power of taxation should be limited to particular speci¬ 
 fied objects and sources, or whether the power should 
 be general and unlimited. It is obvious, that if limited 
 to particular objects and sources, those objects and sour¬ 
 ces might be exhausted, or might become utterly inade- 
 equate to the public wants, or might be taxed to an 
 extent, which would be ruinous to particular employ¬ 
 ments and interests. Thus, for example, if the power 
 were limited to mere taxes on commerce, and the nation 
 should be engaged in war, or should otherwise be in¬ 
 volved in heavy expenditures in the course of unfortunate 
 
POWERS OF CONGRESS.—TAXATION. 103 
 
 events, the very attempt to defray the national expendi¬ 
 tures, and supply the national wants, by taxes on com¬ 
 merce, might amount to an utter annihilation of all its 
 value, and be equivalent to a total prohibition of all for¬ 
 eign trade. The same would be equally true, if the pow¬ 
 er of taxation were limited exclusively to lands, or to the 
 products of agriculture, or manufactures, or to taxes on 
 particular articles, such as wheat, corn, cotton, flour, rice, 
 or domestic animals. The power of taxation, on the 
 other hand, if general and unrestricted, will leave to Con¬ 
 gress a free choice, from time to time, to select such arti¬ 
 cles for taxation as shall be most productive, and least 
 burdensome, and thus to supply the public wants, without 
 endangering the interests, or depressing the products, of 
 every section of the Country. For these reasons, the 
 power has been given in unlimited terms ; and the wisdom 
 of the provision will scarcely now be called in question, 
 by any considerate mind. 
 
 §156. The words used, are, u taxes, duties, imposts, 
 and excises.” In a general sense, all contributions, im¬ 
 posed by the Government upon individuals for the service 
 of the State, are taxes, by whatever name they may be 
 called. In this sense, they are usually divided into two 
 classes;—direct taxes, under which head are included 
 taxes on land, and other real estate, and poll, or capita¬ 
 tion taxes, or taxes on the polls or persons of individuals ; 
 indirect taxes, under which head are classed those, which 
 are levied only upon articles of consumption, and, of 
 course, of which every person pays only so much, as he 
 consumes of the articles. The word u duties,” is often 
 used as synonymous with taxes ; but is more often used 
 as synonymous with u customs,” which are taxes levied 
 upon goods and merchandise, which are exported or im¬ 
 ported. In this sense, duties are equivalent to “ imposts,” 
 although the latter word is often restrained to duties on 
 goods and merchandise, which are imported from abroad. 
 u Excises,” is a word, generally used in contradistinction 
 to “ imposts,” in its restricted sense ; and is applied to 
 internal or inland impositions, levied sometimes upon the 
 consumption of a commodity, sometimes upon the retail 
 
104 CONSTITUTION OP THE UNITED STATES. 
 
 sale of it, and sometimes upon the manufacture of it. 
 Thus, a tax, levied upon goods imported from a foreign 
 country, is generally called an “ impost” duty ; and a tax, 
 levied upon goods manufactured or sold in a country, is 
 called an u excise” duty. The meanings of these words, 
 therefore, often run into each other ; and all of them are 
 used in the Constitution, to avoid any ambiguity, as to 
 any one of them being used in a general sense, or in a re¬ 
 stricted sense, which might involve endless doubts as to 
 the true extent of the constitutional power. 
 
 § 157. The power of taxation is not, however, unlim¬ 
 ited in its character. The taxes levied must be (as we 
 have seen) either to pay the public debts, or to provide 
 for the common defence and general welfare of the United 
 States. They cannot be levied solely for foreign pur¬ 
 poses, or in aid of foreign nations, or for purposes not na¬ 
 tional in their objects or character. In the next place, 
 all direct taxes (as we have also seen) are to be ap¬ 
 portioned among the several States, in the same manner 
 as Representatives, that is, according to the numbers of 
 the population, to be ascertained in the particular mode 
 pointed out in the Constitution. There is another clause 
 ol the Constitution, on the same subject, which declares, 
 IC That'no capitation, or other direct tax, shall be laid, un¬ 
 less in proportion to the census, or enumeration, herein 
 before directed to be taken.” There do not seem to be 
 any other cases, in which a direct tax can be laid accord¬ 
 ing to the sense of the Constitution, except by a direct 
 tax on land or other real estate, or a capitation or poll 
 tax ; for no other taxes seem capable of an apportion¬ 
 ment among the States. All other taxes, that is, all 
 u duties, imposts, and excises,” are required to be uni¬ 
 form throughout the United States. The reason of the 
 latter rule, is, to prevent Congress from giving any undue 
 preference to the pursuits or interests of one State over 
 those of any other. It might otherwise happen, that the 
 agriculture, commerce, or manufactures of one State 
 might be built up on the ruins of the interests of another ; 
 and, the combination of a few States in Congress might 
 secure a monopoly of certain branches of trade and busi¬ 
 ness exclusively to themselves. 
 
POWERS OF CONGRESS.-TAXATION. 
 
 105 
 
 § 158. And further, to enforce this uniformity, and to 
 preserve the equal rights of all the States, it is declared, 
 in a subsequent clause of the Constitution, that u No tax 
 or duty shall be laid on articles exported from any State. 
 No preference shall be given, by any regulation of com* 
 merce or revenue, to the ports of one State o_yer those of 
 another ; nor shall vessels, bound to or from one State, 
 be obliged to enter, clear, or pay duties in another.” 
 
 § 159. The obvious object of these provisions is, to 
 present any possibility of applying the power to lay taxes, 
 or regulate commerce, injuriously to the interests of any 
 one State, so as to favor or aid another. If Congress 
 were allowed to lay a duty on exports from any one State, 
 it might unreasonably injure, or even destroy, the staple 
 productions, or common articles o'f that State. The in¬ 
 equality of such a tax would be extreme. In some of the 
 States, the whole of their means result from agricultural 
 exports. In others, a great portion is derived from other 
 sources ; from external fisheries ; from freights ; and from 
 the profits of commerce in its largest extent. The bur¬ 
 den of such a tax would, of course, be very unequally dis¬ 
 tributed. The power is, therefore, wholly taken away to 
 intermeddle with the subject of exports. On the other 
 hand, preferences might be given to the ports of one State 
 by regulations, either of commerce or of revenue, which 
 might confer on them local facilities or privileges in regard 
 to commerce, or to revenue. And such preferences might 
 be equally fatal, if indirectly given under the milder form 
 of requiring an entry, clearance, or payment of duties in 
 the ports of any State, other than the ports of the State, 
 lo or from which the vessel was bound. The last clause, 
 therefore, does not prohibit Congress from requiring an 
 entry or clearance, or payment of duties at the custom¬ 
 house on importations in any port of a State, to or from 
 which the vessel is bound ; but cuts off the right to re¬ 
 quire such acts to be done in other States, to which the 
 vessel is not bound. In other words, it cuts oft' the power 
 to require that circuity of voyage, which, under the Brit¬ 
 ish colonial system, was employed to interrupt the Amer¬ 
 ican commerce before the Revolution. No American 
 
106 CONSTITUTION OF THE UNITED STATES. 
 
 vessel could then trade with Europe, unless through a eir 
 cuitous voyage to and from a British port. 
 
 § 160. But, as the power of taxation is not exclusive¬ 
 ly vested in the National Government, but may also be 
 concurrently exercised by the State Governments, it be¬ 
 came essential, in order fully to effectuate the same gen¬ 
 eral purposes, and to prevent any State from securing un¬ 
 due preferences and monopolies in its own favor, to lay 
 some restraints upon the exercise of this power by the 
 States. Accordingly another clause in the Constitution 
 declares,—“ No State shall, without the consent of Con¬ 
 gress, lay any imposts or duties on imports, or exports, 
 except what may be absolutely necessary for executing its 
 inspection laws. And the net produce of all duties and 
 imposts, laid by any State on imports and exports, shall 
 be for the use of the treasury of the United States ; and 
 all such laws shall be subject to the revision of Congress. 
 No State shall, without the consent of Congress, lay any 
 tonnage duty.” A petty warfare of regulation among the 
 States is thus prevented, which might otherwise rouse re¬ 
 sentments, and create dissensions, dangerous to the peace 
 and harmony of the Union. The exceptions in favor of 
 inspection laws, to a limited extent, is for the purpose of 
 enabling each State to improve the quality of articles, 
 produced by the labor and industry of its own inhabitants ; 
 and thus to fit them better for exportation, as well as for 
 domestic use. Yet, even here, the superintending power 
 of Congress is reserved, lest, under color of such laws, 
 attempts should be made to injure the interests of other 
 States. The net produce of all such duties and imposts 
 is to be for the use of the National treasury ; and the 
 laws themselves, by which they are imposed, are subject 
 to the revision of Congress. Thus, the temptations on the 
 part of any State to levy heavy inspection duties are ma¬ 
 terially diminished, and an effectual remedy is provided to 
 meet any intentional, or accidental excess. Having thus 
 brought together all the various, but scattered articles of 
 the Constitution, on the subject of taxation, the subject 
 may be dismissed with the single remark, that as no power 
 is more likely, in its abuse, to be detrimental to the public- 
 
POWER OVER COMMERCE. 
 
 107 
 
 welfare, so no one is guarded with more care, and adjust¬ 
 ed with more anxious deference to local and sectional in¬ 
 terests. 
 
 § 161. Notwithstanding, however, all the solicitude 
 manifested by the Constitution, on this subject, inasmuch 
 as the power of taxation is concurrent in the National and 
 State Governments, it is obvious, that many nice and del¬ 
 icate questions must perpetually arise (as indeed some have 
 already arisen) as to the time and boundaries of the power 
 and rights of each government. For, however true it 
 may be, that in a direct conflict between the constitu¬ 
 tional authority of the Union and that of a State, the for¬ 
 mer must be deemed paramount and superior in its obliga¬ 
 tory force ; yet the question when, and how far, such a 
 conflict does in fact exist, must often involve many diffi¬ 
 cult and embarrassing inquiries, which do not admit of any 
 universal solution. 
 
 CHAPTER XVI. 
 
 Power to Borrow Money , and Regulate Commerce . 
 
 § 162. The next power of Congress is, “to bor¬ 
 row money on the credit of the United States.” This 
 power, also, seems indispensable to the sovereignty and 
 existence of the National Government ; for otherwise, in 
 times of great public dangers, or severe public calamities, 
 it might be impossible to provide, adequately, for the pub¬ 
 lic exigencies. In times of peace, it may not, ordinarily, 
 be necessary for the expenditures of a nation to exceed its 
 revenues. But the experience of all nations must convince 
 us, that, in times of war, the burdens and expenses of a 
 single year may more than equal the ordinary revenue of 
 ten years. And, even in times of peace, there are occa¬ 
 sions, in which loans may be the most facile, convenient, 
 and economical means of supplying any extraordinary ex¬ 
 penditure. The experience of the United States, has 
 already shown the importance of the power, both in peace 
 
108 CONSTITUTION OF THE UNITED STATES. 
 
 and in war. Without this resource, neither the war of 
 Independence, nor the more recent war with Great Brit¬ 
 ain could have been successfully carried on, or terminated. 
 And the purchase of Louisiana was by the same means 
 promptly provided for, without being felt by the nation, in 
 its ordinary fiscal concerns. 
 
 § 163. The next power of Congress is, “ to regu¬ 
 late commerce with foreign nations, and among the several 
 States, and with the Indian tribes.” The want of this 
 power to regulate commerce was, as has been already 
 suggested, a leading defect of the Confederation. In the 
 different States, the most opposite and conflicting regula¬ 
 tions existed ; each pursued its own real or supposed local 
 interests ; each was jealous of the rivalry of its neighbors ; 
 and each was successively driven to retaliatory measures, 
 in order to satisfy public clamor, or to alleviate private 
 distress. In the end, however, all their measures became 
 utterly nugatory, or mischievous, engendering mutual hos¬ 
 tilities, and prostrating all their commerce at the feet of 
 foreign nations. It is hardly possible to exaggerate the 
 oppressed and degraded state of domestic commerce, man¬ 
 ufactures, and agriculture, at the time of the adoption of 
 the Constitution. Our ships were almost driven from the 
 ocean ; our work-shops were nearly deserted ; our me¬ 
 chanics were in a starving condition ; and our agriculture 
 was sunk to the lowest ebb. These were the natural re¬ 
 sults of the inability of the General Government to regu¬ 
 late commerce, so as to prevent the injurious monopolies 
 and exclusions of foreign nations, and the conflicting, and 
 often ruinous regulations of the different States. If du¬ 
 ties were laid by one State, they were rendered ineffec¬ 
 tual by the opposite policy of another. If one State gave 
 a preference to its own ships or commerce, it was coun¬ 
 teracted by another. If one State endeavored to foster 
 its own manufactures by any measures of protection, that 
 made it an object of jealousy to others ; and brought upon 
 it the severe retaliation of foreign governments. If one 
 State was peculiarly favored in its agricultural products, 
 that constituted an inducement with others to load them 
 with some restrictions, which should redress the inequality. 
 
POWER OVER COMMERCE. 
 
 109 
 
 It was easy to foresee, that this state of things could not 
 long exist, without bringing on a border warfare, and a 
 deep-rooted hatred, among neighboring States, fatal to the 
 Union, and, of course, fatal also to the liberty of every 
 member of it. 
 
 § 164. The power “ to regulate foreign commerce,’ 5 
 enabled the government at once to place the whole coun¬ 
 try upon an equality with foreign nations ; to compel them 
 to abandon their narrow and selfish policy towards us ; 
 and to protect our own commercial interests against their 
 injurious competitions. The power to regulate commerce 
 “among the several States,” in like manner, annihilated 
 the causes of domestic feuds and rivalries. It compelled 
 every State to regard the interests of each, as the inter¬ 
 ests of all; and thus diffused over all the blessings of a 
 free, active, and rapid exchange of commodities, upon 
 the footing of perfect equality. The power to regulate 
 commerce “with the Indian tribes,” w r as equally ne¬ 
 cessary to the peace and safety of the frontier States. 
 Experience had s ho urn the utter impracticability of escap¬ 
 ing from sudden wars, and invasions, on the part of these 
 tribes; and the dangers were immeasurably increased by 
 the want of uniformity of regulations and control in the 
 intercourse with them. Indeed, in nothing has the pro¬ 
 found wisdom of the framers of the Constitution been 
 more displayed, than in the grant of this power to the 
 Union. By means of it, the country has risen from pov¬ 
 erty to opulence ; from a state of narrow and scanty re¬ 
 sources to an ample national revenue ; from a feeble, and 
 disheartening intercourse and competition with foreign na¬ 
 tions, in agriculture, commerce, manufactures, and popu¬ 
 lation, to a proud, and conscious independence in arts, in 
 numbers, in skill, and in civil polity. 
 
 § 165. In considering this clause of the Constitution, 
 several important inquiries are presented. In the first 
 place, wdiat is the natural import of the terms ; in the 
 next place, how far the power is exclusive of that of 
 the States ; in the third place, to wdiat purposes and for 
 what objects the pow r er may be constitutionally applied ; 
 and in the fourth place, what are the true nature and ex- 
 
 10 XIII. 
 
110 CONSTITUTION OF THE UNITED STATES. 
 
 tent of the power to regulate commerce with the Indian 
 tribes. 
 
 § 166. In the first place, then, what is the constitutional 
 meaning of the words, u to regulate commerce for the 
 Constitution being (as has been aptly said) one of enu¬ 
 meration, and not of definition, it becomes necessary, in 
 order to ascertain the extent of the power, to ascertain 
 the meaning of the words. The power is, to regulate ; 
 that is, to prescribe the rule, by which commerce is to be 
 governed. The subject to be regulated, is commerce. Is 
 that limited to traffic, to buying and selling, or the inter¬ 
 change of commodities ? Or does it comprehend navi¬ 
 gation and intercourse ? If the former construction is 
 adopted, then a general term, applicable to many objects, 
 is restricted to one of its significations. If the latter, then 
 a general term is retained in its general sense. To adopt 
 the former, without some guiding grounds furnished by the 
 context, or the nature of the power, would be improper. 
 The words being general, the sense must be general, also, 
 and embrace all subjects comprehended under them, un¬ 
 less there be some obvious mischief, or repugnance to 
 other clauses, to limit them. In the present case, there i 3 
 nothing to justify such a limitation. Commerce undoubt¬ 
 edly is traffic ; but it is something more. It is inter¬ 
 course. It describes the commercial intercourse between 
 nations, and parts of nations, in all its branches ; and is 
 regulated by prescribing rules for carrying on that inter¬ 
 course. The mind can scarcely conceive a system for 
 regulating commerce between nations, which shall exclude 
 all laws concerning navigation ; which shall be silent on 
 the admission of the vessels of one nation into the ports of 
 another ; and be confined to prescribing rules for the con¬ 
 duct of individuals in the actual employment of buying and 
 selling, or barter. It may, therefore, be safely affirmed, 
 that the terms of the Constitution have, at all times, been 
 understood to include a power over navigation, as well as 
 over trade, over intercourse, as well as over traffic. It 
 adds no small strength to this interpretation, that the prac¬ 
 tice of all foreign countries, as well as of our own, has 
 uniformly conformed to this view of the subject. 
 
POWER OVER COMMERCE. 
 
 ill 
 
 § 167. The next inquiry is, whether this power to reg¬ 
 ulate commerce, is like that to lay taxes. The latter, 
 may well be concurrent, while the former, is exclusive, 
 resulting from the different nature of the two powers. 
 The power of Congress in laying taxes is not neces¬ 
 sarily, or naturally inconsistent with that of the States. 
 Each may lay a tax on the same property, without inter¬ 
 fering with the action of the other ; for taxation is but 
 taking small portions from the mass of property, which is 
 susceptible of almost infinite division. In imposing taxes 
 for State purposes, a State is not doing what Congress is 
 empowered to do. Congress is not empowered to tax 
 for those purposes, which are within the exclusive prov¬ 
 ince of the States. When, then, each government exer¬ 
 cises the power of taxation, neither is exercising the power 
 of the other. But when a State proceeds to regulate com¬ 
 merce with foreign nations, or among the several States, 
 it is exercising the very power, which is granted to Con¬ 
 gress ; and is doing the very thing, which Congress is au¬ 
 thorized to do. There is no analogy, then, between the 
 power of taxation, and the power of regulating commerce. 
 
 § 168. Nor can any power be inferred in the States, to 
 regulate commerce, from other clauses in the Constitution, 
 or the acknowledged rights exercised by the States. The 
 Constitution has prohibited the States from laying any im¬ 
 post or duty on imports or exports ; but this does not 
 admit, that the State might otherwise have exercised the 
 power, as a regulation of commerce. The laying of such 
 imposts and duties may be, and indeed often is, used, as 
 a mere regulation of commerce, by governments possess¬ 
 ing that power. But the laying of such imposts and du¬ 
 des is as certainly, and more usually, a right exercised as 
 a part of the power to lay taxes ; and with this latter 
 power the States are clearly intrusted. So that the pro¬ 
 hibition is an exception from the acknowledged power of 
 the State to lay taxes., and not from the questionable power 
 to regulate commerce. Indeed, the Constitution treats 
 these as distinct and independent powers. The same 
 remarks apply to a duty on tonnage. 
 
 § 169.. In the next place, to what extent, and for what 
 
112 CONSTITUTION OF THE UNITED STATES. 
 
 objects and purposes, the power to regulate commerce 
 may be constitutionally applied. 
 
 §170. And first, among the States. It is not doubted, 
 that it extends to the regulation of navigation, and to the 
 coasting trade and fisheries, within, as well as without 
 any State, wherever it is connected with the commerce or 
 intercourse with any other State, or with foreign nations. 
 It extends to the regulation and government of seamen 
 on board of American ships ; and to conferring privileges 
 upon ships built and owned in the United States, in do¬ 
 mestic, as well as in foreign trade. It extends to quarantine 
 laws, and pilotage laws, and wrecks of the sea. It ex¬ 
 tends, as w:ell to the navigation of vessels engaged in car¬ 
 rying passengers, and whether steam vessels or of any 
 other description, as to the navigation of vessels engaged 
 in traffic and general coasting business. It extends to 
 the laying of embargoes, as well on domestic, as on for¬ 
 eign voyages. It extends to the construction of light¬ 
 houses, the placing of buoys and beacons, the removal of 
 obstructions to navigation in creeks, rivers, sounds, and 
 bays, and the establishment of securities to navigation 
 against the inroads of the ocean. It extends also to the 
 designation of a particular port or ports of entry and deliv¬ 
 ery for the purposes of foreign commerce. These pow¬ 
 ers have been actually exerted by the National Government 
 under a system of laws, many of which commenced with 
 the early establishment of the Constitution ; and they have 
 continued unquestioned unto our day, if not to the utmost 
 range of their reach, at least to that of their ordinary ap¬ 
 plication. 
 
 § 171. Many of the like powers have been applied in 
 the regulation of foreign commerce. The commercial 
 system of the United States has also been employed some¬ 
 times for the purpose of revenue ; sometimes for the pur¬ 
 pose of prohibition ; sometimes for the purpose of retali¬ 
 ation and commercial reciprocity ; sometimes to lay em¬ 
 bargoes ; sometimes to encourage domestic navigation, 
 and the shipping and mercantile interest, by bounties, by 
 discriminating duties, and by special preferences and priv¬ 
 ileges ; and sometimes to regulate intercourse with a view 
 
POWER OVER COMMERCE. 
 
 113 
 
 to mere political objects, such as to repel aggressions, 
 increase the pressure of war, or vindicate the rights of 
 neutral sovereignty. In all these cases, the right and 
 duty have been conceded to the National Government by 
 the unequivocal voice of the people. 
 
 § 172. It may be added, that Congress have also, 
 from the earliest period of the government, applied the 
 same power of regulating commerce for the purpose of 
 encouraging and protecting domestic manufactures ; and 
 although this application of it has been recently contested, 
 yet Congress have never abandoned the exercise of it for 
 such a purpose. Indeed, if Congress does not possess 
 the power to encourage domestic manufactures, by regu¬ 
 lations of commerce, it is a power, that is utterly annihi¬ 
 lated ; for it is admitted, on all sides, that the States do 
 not possess it. And America would then present the 
 singular spectacle of a nation voluntarily depriving itself, 
 in the exercise of its admitted rights of sovereignty, of all 
 means of promoting some of its most vital interests. 
 
 § 173. In respect to trade with the Indian tribes. Ante¬ 
 cedently to the American Revolution, the authority to reg¬ 
 ulate trade and intercourse with the Indian tribes, whether 
 they were within, or without the boundaries of the Colo¬ 
 nies, was understood to belong to the prerogative of the 
 British crown. And after the American Revolution, the 
 like power would naturally fall to the Federal Government, 
 with a view to the general peace and interests of all the 
 States. Two restrictions, however, upon the power, were, 
 by express terms, incorporated into the Confederation, 
 which occasioned endless embarrassments and doubts. 
 The power of Congress was restrained to Indians, not 
 members of any of the States ; and was not to be exercised 
 so as to violate or infringe the legislative right of any State, 
 within its own limits. What description of Indians were 
 to be deemed members of a State, was never settled under 
 the Confederation ; and w T as a question of frequent per¬ 
 plexity and contention in the federal councils. And how 
 the trade with Indians, though not members of a State, 
 yet residing within its legislative jurisdiction, was to be 
 regulated bv an external authority, without so far intrud- 
 
 10 * 
 
114 CONSTITUTION OF THE UNITED STATES. 
 
 ing on the internal rights of legislation, was absolutely in¬ 
 comprehensible. In this case, as in some other cases, 
 the Articles of Confederation inconsiderately endeavored 
 to accomplish impossibilities ; to reconcile a partial sov¬ 
 ereignty in the Union, with complete sovereignty in the 
 States ; to subvert a mathematical axiom, by taking away 
 a part, and letting the whole remain. The Constitution 
 has wisely disembarrassed the power of these two limita¬ 
 tions ; and has thus given to Congress, as the only safe 
 and proper depositary, the exclusive power, which be¬ 
 longed to the Crown in the ante-revolutionary times ; a 
 power indispensable to the peace of the States, and to the 
 just preservation of the rights and territory of the Indians. 
 
 CHAPTER XVIL 
 
 Naturalization , Bankruptcy , and Coinage of Money . 
 
 § 174. The next power of Congress is, u to establish 
 a uniform rule of naturalization, and uniform laws on the 
 subject of bankruptcies throughout the States.” The 
 power of naturalization is, with great propriety, confided 
 to Congress, since, if left to the States, they might natu¬ 
 ralize foreigners upon very different, and even upon oppo¬ 
 site systems ; and, as the citizens of all the States have 
 common privileges in all, it would thus be in the power 
 of any one State to defeat the wholesome policy of all 
 the others in regard to this most important subject. Con¬ 
 gress alone can have power to pass uniform laws, obliga¬ 
 tory on all the States : and thus to adopt a system, which 
 shall secure all of them against any dangerous results from 
 the indiscriminate admission of foreigners to the right of 
 citizenship upon their first landing on our shores. And, 
 accordingly, this power is exclusive in Congress. 
 
 § 175. The power to pass bankrupt laws is equally 
 important, and proper to be intrusted to Congress, al¬ 
 though it is greatly to be regretted, that it has not, except 
 for a very brief period, been acted upon by Congress. 
 
NATURALIZATION.—BANKRUPTCY. 
 
 115 
 
 Bankrupt and insolvent laws, when properly framed, have 
 two great objects in view ; first, to secure to honest but 
 unfortunate debtors a discharge from debts, which they 
 are unable to pay, and thus to enable them to begin anew 
 in the career of industry, without the discouraging fear, 
 that it will be wholly useless ; secondly, to secure to cred¬ 
 itors a full surrender, and equal participation, of and in the 
 effects of their debtors, when they have become bank¬ 
 rupt, or failed in business. On the one hand, such laws 
 relieve the debtor from perpetual bondage to his creditors, 
 in the shape, either of an unlimited imprisonment for his 
 debts, or of an absolute right to appropriate all his future 
 earnings. The latter course obviously destroys all en¬ 
 couragement to future enterprise and industry, on the part 
 of the debtor ; the former is, if possible, more harsh, se¬ 
 vere, and indefensible ; for it makes poverty, in itself 
 sufficiently oppressive, the cause or occasion of penalties 
 and punishments. 
 
 § 176. It is obvious, that no single State is competent 
 to pass a uniform system of bankruptcy, which shall ope¬ 
 rate throughout all of them. It can have no power to 
 discharge debts, contracted in other States ; or to bind 
 creditors in other States. And it is hardly within the 
 range of probability, that the same system should be uni¬ 
 versally adopted, and persevered in permanently, by all 
 the States. In fact, before, as well as since the adoption 
 of the Constitution, the States have had very different 
 systems on the subject, exhibiting a policy as various and 
 sometimes as opposite, as could well be imagined. The 
 future will, in all human probability, be, as the past. And 
 the utter inability of any State to discharge contracts made 
 within its own territorial limits, before the passage of its 
 own laws, or to discharge any debts whatever, contracted 
 in other States, or due to the citizens thereof, must per¬ 
 petually embarrass commercial dealings, discourage indus¬ 
 try, and diminish private credit and confidence. The 
 remedy is in the hands of Congress. It has been given 
 for wise ends, and has hitherto been strangely left without 
 any efficient operation. 
 
 § 177. The next power of Congress is, to u coin mon- 
 
116 CONSTITUTION OF THE UNITED STATES. 
 
 ey, regulate the value thereof, and of foreign coins, and 
 fix the standard of weights and measures.” The object 
 of the power over the coinage and currency of the country 
 
 is, to produce uniformity in the value of money throughout 
 the Union, and thus to save us from the embarrassments 
 of a perpetually fluctuating and variable currency. If 
 each State might coin money, as it pleased, there would 
 be no security for any uniform coinage, or any uniform 
 standard of value ; and a great deal of base and false coin, 
 would constantly be thrown into the market. The evils 
 from this cause are abundantly felt among the small prin¬ 
 cipalities of continental Europe. The power to fix the 
 standard of weights and measures is a matter of great pub¬ 
 lic convenience, although it has hitherto remained in a 
 great measure dormant. The introduction of the decimal 
 mode of calculation, in dollars and cents, instead of the 
 old and awkward system of pounds, shillings, and pence, 
 has been found of great public convenience, although it 
 was at first somewhat unpopular. A similar system in 
 weights and measures has been thought by many statesmen 
 to have advantages equally great and universal. At all 
 events, the power is safe in the hands of Congress, and 
 may hereafter be acted upon, whenever either our foreign, 
 or our domestic intercourse, shall imperiously require a 
 new system. 
 
 § 178. The next power of Congress is, u to provide 
 for the punishment of counterfeiting the securities, and 
 current coin of the United States.” This is a natural, 
 and, in a just view, an indispensable appendage to the 
 power to borrow money, and to coin money. Without 
 
 it, there would be no adequate means for the General 
 Government to punish frauds or forgeries, detrimental to 
 its own interests, and subversive of public and private 
 confidence. 
 
POST OFFICE.-PATENTS FOR INVENTIONS. 117 
 
 CHAPTER XVIII. 
 
 Post Office and Post Roads.—Patents for Inventions . 
 
 § 179. The next power of Congress, is u to establish 
 post offices, and post roads.” This power is peculiarly 
 appropriate to the National Government, and would be 
 at once unwieldy, dilatory, and irregular in the hands of 
 the States, from the utter impracticability of adopting any 
 uniform system of regulations for the whole continent, and 
 from the inequality of the burdens, and benefits of any 
 local system, among the several States, in proportion to 
 their own expenditures. Under the auspices of the Gen¬ 
 eral Government, the post office has already become one 
 of the most beneficent, and useful of our national estab¬ 
 lishments. It circulates intelligence, of a commercial, 
 political, literary, and private nature, with incredible speed 
 and regularity. It thus administers, in a very high degree, 
 to the comfort, the interests, and the necessities of per¬ 
 sons in every rank and station of life. It is not less ef¬ 
 fective, as an instrument of the government ; enabling it, 
 in times of peace and war, to send its orders, execute its 
 measures, transmit its funds, and regulate its operations, 
 with a promptitude and certainty, which are of incalcula¬ 
 ble importance, in point of economy, as well as of ener¬ 
 gy. The rapidity of its movements has been, in a gen¬ 
 eral view, doubled within the last twenty years ; and there 
 were, at the close of the year 1838, twelve thousand 
 five hundred and fifty-three post offices in the United 
 States ; and mails then travelled, in various directions and 
 on various routes, more than one hundred and thirty-four 
 thousand miles. The net amount of postage, in the same 
 year, amounted to little short of three millions of dollars. 
 It seems wholly unnecessary to vindicate the grant of a 
 power, which has been thus demonstrated to be of the 
 highest value to all the people of the Union. 
 
 § 180. The next power of Congress is, a to promote 
 
118 CONSTITUTION OF THE UNITED STATES. 
 
 the progress of science, and the useful arts, by securing, 
 for limited times, to authors, and inventors, the exclusive 
 right to their respective writings, and discoveries.” The 
 utility of this power has never been questioned. Indeed, 
 if authors, or inventors, are to have any real property or 
 interest in their writings, or discoveries, it is manifest, 
 that the power of protection must be given to, and admin¬ 
 istered by, the General Government. A copy-right, or 
 patent, granted by a single State, might be violated with 
 impunity by every other ; and, indeed, adverse titles might 
 at the same time be set up in different States to the same 
 thing, each of which, according to the laws of the State, 
 in which it originated, might be equally valid. No class 
 of men are more meritorious, or are better entitled to 
 public patronage, than authors and inventors. They have 
 rarely obtained, as the histories of their lives sufficiently 
 establish, any due encouragement and reward for their in¬ 
 genuity and public spirit. They have often languished 
 in poverty, and died in neglect, while the world has de¬ 
 rived immense wealth from their labors, and science and 
 the arts have reaped unbounded advantages from their 
 discoveries. They have but too often possessed a barren 
 fame, and seen the fruits of their genius gathered by those, 
 who have not blushed to purloin, what they have been 
 unable to create. It is, indeed, but a poor reward, to 
 secure to authors and inventors, for a limited period, only, 
 an exclusive title to that, which is, in the noblest sense, 
 their own property ; and to require it ever afterwards to be 
 dedicated to the public. But, such as the provision is, it 
 is impossible to doubt its justice, or its policy, so far as 
 it aims at their protection and encouragement. 
 
 § 181. The power, in its terms, is confined to authors 
 and inventors ; and cannot be extended to the introducers 
 of any new works or inventions. This has been thought, 
 by some persons of high distinction, tq be a defect in the 
 Constitution. But perhaps the policy of further extending 
 the right is questionable ; and, at all events, the restriction 
 has not hitherto operated as any discouragement of science 
 or the arts. It has been doubted, whether Congress has 
 authority to decide the fact, that a person is an author or 
 
PUNISHMENT OF PIRACIES AND FELONIES. 119 
 
 inventor, in the sense of the Constitution, so as to preclude 
 that question from judicial inquiry. But, at all events, 
 such a construction ought never to be put upon the terms 
 of any general act in favor of a particular inventor, unless 
 : t be inevitable. 
 
 * § 182. The next power of Congress is, u to constitute 
 tribunals inferior to the Supreme Court.” But this will 
 hereafter properly come under review, in considering the 
 structure and powers of the Judicial department. 
 
 i 
 
 CHAPTER XIX. 
 
 Punishment of Piracies and Felonies.—Declaration of 
 
 War. 
 
 § 183. The next power of Congress is, c< to define, 
 and punish piracies and felonies, committed on the high 
 seas, and offences against the law of nations.” Piracy is 
 commonly defined to be robbery, or forcible depredation 
 upon the high seas with intent to steal. But u felony” 
 is a term, not so exactly understood or defined. It is 
 usually applied to designate capital offences, that is, of¬ 
 fences punishable with death ; but its true original mean¬ 
 ing seems to be, to designate such offences as are by the 
 common law punished by forfeiture of lands and goods. 
 u Offences against the law of nations” are still less clearly 
 defined ; and therefore, as to these, as well as to felonies, 
 the power to define, as well as to punish, is very properly 
 given. As the United States are responsible to foreign 
 governments for the conduct of our own citizens on the 
 high seas, and as the power to punish offences committed 
 there is also indispensable to the due protection and sup¬ 
 port of our navigation and commerce, and the States, 
 separately, are incapable of affording adequate redress in 
 such cases, the power is appropriately vested in the Gen¬ 
 eral Government. 
 
 § 184. What the true meaning of the phrase u high 
 seas,” is, within the intent of this clause, does not seem 
 
120 CONSTITUTION OF THE UNITED STATES. 
 
 to be matter of any serious doubt. In order to understand 
 it, resort must be had to the common law, in which, the 
 definition of “high seas” is, that the high seas embrace 
 not only all the waters of the ocean, which are out of sight 
 of land, but also all waters on the seacoast below low- 
 water mark, whether those waters be within the territorial 
 sovereignty of a foreign nation or of a domestic State. 
 It has accordingly been held, by our ablest law writers, 
 that the main or high seas properly begin at low-water 
 mark. 
 
 § 185. The next power of Congress is, u to declare 
 war, grant letters of marque and reprisal, and make rules 
 concerning captures on land and water.” That the power 
 to declare war should belong exclusively to the National 
 Government, would hardly seem matter of controversy. 
 If it belonged to the States severally, it would be in the 
 power of any one of them, at any time, to involve the 
 whole Union in hostilities with a foreign country, not only 
 against their interests, but against their judgement. Their 
 very existence might thus be Jeoparded without their con¬ 
 sent, and their liberties sacrificed to private resentment, 
 or popular prejudice. The power cannot, therefore, be 
 safely deposited, except in the General Government; and, 
 if in the General Government, it ought to belong to Con¬ 
 gress, where all the States and all the people of the States 
 are represented ; and where a majority of both Houses 
 must concur, to authorize the declaration. War, indeed, 
 is, in its mildest form, so dreadful a calamity ; it destroys 
 so many lives, wastes so much property, and introduces 
 so much moral desolation ; that nothing but the strongest 
 state of necessity can justify, or excuse it. In a repub¬ 
 lican government, it should never be resorted to, except 
 as a last expedient to vindicate its rights ; for military 
 power and military ambition have but too often fatally tri¬ 
 umphed over the liberties of the people. 
 
 §186. The power to declare war, if vested in the Gen¬ 
 eral Government, might have been vested in the President, 
 or in the Senate, or in both, or jn the House of Repre¬ 
 sentatives alone. In monarchies, the power is ordinarily 
 vested in the Executive. But certainly, in a republic, 
 
DECLARATION OF WAR. 
 
 121 
 
 the chief magistrate ought not to be clothed with a power 
 so summary, and, at the same time, so full of dangers to the 
 public interest and the public safety. It would be to com¬ 
 mit the liberties, as well as the rights of the people, to the 
 ambition, or resentment, or caprice, or rashness of a single 
 mind. If the power were confided to the Senate, either 
 alone, or in connection with the Executive, it might be 
 more safe in its exercise, and the less liable to abuse. 
 Still, however, in such a case, the people, who were to 
 bear the burdens, and meet the sacrifices and sufferings 
 of such a calamity, would have no direct voice in the mat¬ 
 ter. Yet the taxes and the loans, which would be required 
 to carry on the war, must be voted by their Representa¬ 
 tives, or there would be an utter impossibility of urging it 
 with success. If the Senate should be in favor of war, 
 and the House of Representatives against it, an immediate 
 conflict would arise between them, and in the distraction 
 of the public councils, nothing but disaster or ruin would 
 follow the nation. On the contrary, if the House of Rep¬ 
 resentatives were called upon by the Constitution to join 
 in the declaration of war, harmony in the public coun¬ 
 cils might fairly be presumed in carrying on all its opera¬ 
 tions ; for it would be a war sustained by the authority of 
 the voice of the people, as well as of the States. This 
 reasoning was decisive in confiding the power to Con¬ 
 gress. 
 
 § 187. u Letters of marque and reprisal” are commis¬ 
 sions, granted to private persons and ships, to make cap¬ 
 tures ; and are usually granted in times of general war. 
 The power to declare war would, of itself, carry the inci¬ 
 dental power to grant letters of marque and reprisal, and 
 to make rules concerning captures, in a general war. 
 But such letters are also sometimes granted by nations, 
 having no intention to enter into a general war, in order 
 to redress a grievance to a private citizen, which the offend¬ 
 ing nation refuses to redress. In such a case, a commis¬ 
 sion is sometimes granted to the injured individual, to make 
 a reprisal upon the property of the subjects of that nation 
 to the extent of his injury. It thus creates an imperfect 
 state of hostilities, not necessarily including a general war- 
 
 11 XIII 
 
122- CONSTITUTION OF THE UNITED STATES. 
 
 fare. Still, however, it is a dangerous experiment ; and 
 the more usual, and wise course is, to resort to negotia¬ 
 tions in such cases, and to wait until a favorable moment 
 occurs to press the claim. 
 
 § 183. If captures are to be made, as they necessarily 
 must be, to give efficiency to a declaration of war, it follows, 
 that the General Government ought to possess the power to 
 make rules and regulations concerning them, thereby to 
 restrain personal violence, intemperate cupidity, and de¬ 
 grading cruelty. 
 
 CHAPTER XX. 
 
 Power as to Army and Navy. 
 
 § 189. The next power of Congress is, “to raise and 
 support armies ; but no appropriation of money to that 
 use shall be for a longer term than two years.” The 
 power to raise armies would seem to be an indispensable 
 incident to the power to declare war, if the latter is not 
 to be a mere idle sound, or instrument of mischief. Un¬ 
 der the Confederation, however, the two powers were 
 separated ; Congress were authorized to declare war; 
 but they could not raise troops. They could only make 
 requisitions upon the States to raise them. The experi¬ 
 ence of the whole country, during the Revolutionary War, 
 established, to the satisfaction of every statesman, the 
 utter inadequacy and impropriety of this system of re¬ 
 quisition. It was equally at war with economy, efficiency, 
 and safety. It gave birth to a competition between the 
 States, which created a kind of auction of men. In order 
 to furnish the quotas required of them, they outbid each 
 other, till bounties grew to an enormous and insupportable 
 size. On this account, many persons procrastinated their 
 enlistment, or enlisted only for short periods. Hence, 
 there were but slow and scanty levies of men in the most 
 critical emergencies of our affairs ; short enlistments at 
 an unparalleled expense ; and continual fluctuations in the 
 
POWER AS TO ARMY AND NAVY. 
 
 123 
 
 troops, ruinous to their discipline, and subjecting the pub¬ 
 lic safety frequently to the perilous crisis of a disbanded 
 army. Hence also arose those oppressive expedients for 
 raising men, which were occasionally practised, and which 
 nothing, but the enthusiasm of liberty, could have induced 
 the people to endure. The burden was also very une¬ 
 qually distributed. The States near the seat of war, in¬ 
 fluenced by motives of self-preservation, made efforts to 
 furnish their quotas, which even exceeded their abilities ; 
 while those at a distance were exceedingly remiss in their 
 exertions. In short, the army was frequently composed 
 of three bodies of men ; first, raw recruits ; secondly, 
 persons, who were just about completing their term of 
 service ; and thirdly, of persons, who had served out half 
 their term, and were quietly waiting for its determination. 
 Under such circumstances, the wonder is not, that its 
 military operations were tardy, irregular, and often un¬ 
 successful ; but, that it was ever able to make headway 
 at all against an enemy, possessing a fine establishment, 
 well appointed, well armed, well clothed, and well paid. 
 The appointment, too, by the States, of all regimental 
 officers, had a tendency to destroy all harmony and sub¬ 
 ordination, so necessary to the success of military life. 
 The consequence was (as is well known) general ineffi¬ 
 ciency, want of economy, mischievous delays, and great 
 inequality of burdens. This is, doubtless, the reason, 
 why the power is expressly given to Congress. It in¬ 
 sures promptitude and unity of action, and, at the same 
 time, promotes economy and harmony of operations. 
 Nor is it in war only, that the power to raise armies may 
 be usefully applied. It is important to suppress domestic 
 rebellions and insurrections, and to prevent foreign ag¬ 
 gressions and invasions. A nation, which is prepared for 
 war in times of peace, will, thereby, often escape the ne¬ 
 cessity of engaging in war. Its rights will be respected, 
 and its wrongs redressed. Imbecility and want of prep¬ 
 aration invite aggression, and protract controversy. 
 
 § 190. But, inasmuch as the power to raise armies 
 may be perverted in times of peace to improper purposes, 
 a restriction is imposed upon the grant of appropriations 
 
124 CONSTITUTION OF THE UNITED STATES. 
 
 by Congress for the maintenance of them. So that, at 
 furthest, every two years, the propriety of retaining an ex¬ 
 isting army must regularly come before the Representa¬ 
 tives of the people in Congress for consideration ; and if 
 no appropriation is made, the army is necessarily dis¬ 
 banded. Thus, the army may, at any time within two 
 years, be in effect dissolved, by a majority of Congress, 
 without the consent of the President, by a simple refusal 
 to grant supplies. In point of fact, Congress have hith¬ 
 erto made the appropriations annual, as they have a con¬ 
 stitutional right to do, if it is deemed expedient. The 
 power, therefore, is surrounded by all reasonable restric¬ 
 tions, as to its exercise ; and it has hitherto been used in 
 a manner, which has conferred lasting benefits on the 
 country. 
 
 § 191. The next power of Congress is, u to provide, 
 and maintain a navy.” This power has the same general 
 object, as that to raise armies. But, in its own nature, 
 it is far more safe, and, for a maritime nation, quite as in¬ 
 dispensable. No nation was ever deprived of its liberty 
 by its navy. The same cannot be said of its army. 
 And a commercial nation would be utterly without its due 
 share of sovereignty upon the ocean, its means of self- 
 protection at home, and its power of efficient action 
 abroad, without the possession of a navy. Yet this 
 power, until a comparatively recent period, found little 
 favor with some of our statesmen of no mean celebrity. 
 It was not until the brilliant achievements of our little 
 navy, during the late war, (1812-1814,) had shed a 
 glory, as well as a protection, over our national flag in 
 every sea, that the country became alive to its vast im¬ 
 portance and efficiency. At present, it enjoys an exten¬ 
 sive public favor, which, having been earned by the most 
 gallant deeds, can scarcely fail of permanently engrafting 
 it into the solid establishments of our national strength. 
 
 § 192. The next power of Congress is, “to make 
 rules, for the government and regulation of the land and 
 naval forces.” Upon the propriety of this power, as an 
 incident to the preceding, it is unnecessary to enlarge. 
 It is equally beyond the reach of cavil and complaint. 
 
POWER OVER MILITIA. 
 
 125 
 
 CHAPTER XXI. 
 
 Power over Militia . 
 
 193. The next power of Congress is, u to provide 
 for calling forth the militia to execute the laws of the 
 Union, suppress insurrections, and repel invasions.” 
 This is a natural incident to the duty, devolved on the 
 General Government, of superintending the common de¬ 
 fence, and providing for the general welfare in matters 
 confided to it by the Constitution. There is but one of 
 two alternatives, which can be resorted to in cases of in¬ 
 surrections, invasions, or violent oppositions to the exe¬ 
 cution of the laws ; either to employ regular troops, or 
 to employ the militia In ordinary cases of riots and 
 public disturbances, the magistracy of the country, with 
 the assistance of the civil officers, and private individuals, 
 may be sufficient to restore the public peace. But when 
 force is contemplated by a discontented and lawless fac¬ 
 tion, it is manifest, that it must be met, and overthrown 
 by force. Among a free people, there is a strong objec¬ 
 tion to the keeping up of a large standing army. But this 
 will be indispensable, unless the power is delegated to 
 command the services of the militia in such exigencies. 
 The latter is, therefore, conferred on Congress, because 
 it is the most safe, and the least obnoxious to popular 
 jealousy. The employment of the militia is economical, 
 and will generally be found to be efficient, in suppressing 
 sudden and transitory insurrections, and invasions, and 
 resistances of the laws. 
 
 § 194. It is observable, that the power given to Con¬ 
 gress over the militia is not limited as to the time of ser¬ 
 vice, or as to the place of operation. And it is obvious, 
 that to be effective, the power could not safely be limited 
 in either respect; for it is impossible to foresee either the 
 nature, or extent, or place, or duration, of the exigency, for 
 which the militia might properly be called forth. It must 
 11 * 
 
126 CONSTITUTION OF THE UNITED STATES. 
 
 be left, therefore, to the sound discretion of Congress, 
 acting with a wise regard to the public interests and the 
 convenience of military operations. If Congress had no 
 authority to march the militia beyond the territorial bound¬ 
 aries of a particular State, either to execute the laws, or 
 to suppress insurrections, or to repel invasions, the power 
 over the militia might be perfectly nugatory for all the 
 purposes of common safety, or common defence. Sup¬ 
 pose there should be an invasion of Rhode Island by a 
 public enemy, if the militia of the neighboring States 
 could not be ordered into that State for military duty, it is 
 obvious, that the militia would be utterly worthless for 
 the general protection of the Union. Suppose a battle 
 to be fought on the confines of two States, and the militia 
 to stop at the boundary, and thus to lose all the advanta¬ 
 ges of mutual cooperation, and even of a victory almost 
 achieved ? In times of insurrection or invasion, it cannot 
 admit of a reasonable doubt, that it would be both natural 
 and proper, that the militia of the neighboring States should 
 be marched into the suffering State to repel the invaders, 
 or to suppress the insurgents. But it would rarely occur, 
 if ever, that the militia of any one State would be required 
 to march to a great distance from their homes, or for a long 
 period of service, since it would be at once the most in¬ 
 convenient, as well as the most expensive force, which could 
 be employed upon distant expeditions. And yet an occa¬ 
 sion might occur, when even such a service might be 
 indispensable to the public safety ; as it was in the late 
 war with Great Britain, (1814,) when the militia of Ten¬ 
 nessee and Kentucky were required to go to New Or¬ 
 leans ; and there saved the country from the dreadful ca¬ 
 lamity of having the mouth of the Mississippi in the hands 
 of the enemy. 
 
 § 195. The next power of Congress is, u to provide 
 for organizing, arming, and disciplining the militia, and 
 for governing such part of them, as may be employed in 
 the service of the United States ; reserving to the States, 
 respectively, the appointment of the officers, and the au¬ 
 thority of training the militia, according to the discipline 
 prescribed by Congress. 1 ’ And here, again, we have 
 
POWER OVER MILITIA. 
 
 127 
 
 another instance of the distribution of powers, between 
 the National and State Governments, over the same sub¬ 
 ject matter. Unless there is uniformity in the organiza¬ 
 tion, arming, and disciplining of the militia, there can be 
 little chance of any energy, or harmony of action, be¬ 
 tween the corps of militia of different States, when called 
 into the public service. Uniformity can alone be pre¬ 
 scribed by the General Government; and the power is 
 accordingly given to it. On the other hand, as a com¬ 
 plete control of the militia by the General Government 
 would deprive the States of their natural means of military 
 defence, even upon the most urgent occasions, and would 
 leave them absolutely dependent upon the General Gov¬ 
 ernment, the power of the latter is limited to a few cases ; 
 and the former retain the appointment of all the officers, 
 and also the authority to train the militia, according to the 
 discipline prescribed by Congress. With these limita¬ 
 tions, the authority of Congress would seem to be above 
 all reasonable objections. 
 
 § 196. Several questions, of great practical importance, 
 have arisen under these clauses of the Constitution re¬ 
 specting the power of the National Government over the 
 militia, which deserve mention in this place. Congress 
 are authorized “ to provide for calling forth the militia,” in 
 the particular exigencies above stated. And accordingly, 
 by an act passed in 1795, under President Washington’s 
 administration, authority was given to the President to 
 call forth the militia in case any of those exigencies oc¬ 
 curred. The delegation of this power to the President 
 would seem indispensable, since the exigency might occur 
 in the recess of Congress ; and by the Constitution, the 
 President is not only Commander-in-Chief of the army 
 and navy, and of the militia, when called into service, but 
 he is also (as we shall see) bound to see the laws duly 
 executed. But the question has arisen, whether the 
 President has the sole and exclusive authority to judge 
 and decide, whether the exigency has arisen, or not ; or, 
 in other words, whether any subordinate officer of the 
 militia, or any State magistrate, has a right to judge and 
 decide for himself, whether the exigency has arisen, and 
 
128 CONSTITUTION OF THE UNITED STATES. 
 
 whether, when called upon, he is bound to obey the re¬ 
 quisitions of the President or not. This question was 
 formerly a matter of heated controversy, and at last came 
 before the Supreme Court of the United States for de¬ 
 cision, where it was finally settled, upon full deliberation, 
 that, from the necessity of the case, the President is the 
 exclusive judge of the exigency ; and that his decision was 
 conclusive. The reasoning, which led to this conclusion, 
 cannot be repeated in this work ; but it deserves the at¬ 
 tentive consideration of every statesman. 
 
 § 197. Another question, of great practical importance, 
 is, Who, in the personal absence of the President, is to 
 command the militia called forth in the service of the 
 National Government ? Are the commanding officers of 
 the militia of each State, so in service, to command their 
 separate detachments during his absence, or has the 
 President a right to delegate his authority to any su¬ 
 perior military officer of the United States, or of the 
 militia, to act as commander of the whole force during his 
 absence ? This question was also formerly a matter of 
 great controversy ; and perhaps is not now definitively 
 settled. Practically, however, the National Government 
 has constantly insisted upon the right of the President, in 
 such cases, to appoint a person to act as his delegate in 
 the command ; and most of the States of the Union have 
 acquiesced in this decision, as indispensable to any effective 
 military operations. 
 
 CHAPTER XXII. 
 
 Seat of Government , and other Ceded Places. 
 
 § 198. The next power of Congress is, u to exercise 
 exclusive legislation, in all cases whatsoever, over such 
 District, not exceeding ten miles square, as may, by 
 cession of particular States, and the acceptance of Con¬ 
 gress, become the Seat of the Government of the 
 United States ; and to exercise like authority over all 
 places purchased by the consent of the Legislature of the 
 
SEAT OF GOVERNMENT. 
 
 129 
 
 State, in which the same shall be, for the erection of forts, 
 magazines, arsenals, dockyards, and other needful build¬ 
 ings. ” 
 
 § 199. A moment’s consideration will establish the 
 importance and necessity of this power. Without it, the 
 National Government would have no adequate means to 
 enforce its authority in the place, in which its public func¬ 
 tionaries should be convened. They might be insulted, 
 and their proceedings might be interrupted with impunity. 
 And if the State should array itself in hostility to the pro¬ 
 ceedings of the National Government, the latter might be 
 driven to seek another asylum, or be compelled to an hu¬ 
 miliating submission to the State authorities. It never 
 could be safe, to leave, in the possession of any one State, 
 the exclusive power to decide, whether the functionaries 
 of the National Government should have the moral or 
 physical power to perform their duties. Nor let it be 
 thought, that the evil is wholly imaginary. It actually 
 occurred to the Continental Congress, at the very close 
 of the Revolution, who were compelled to quit Philadel¬ 
 phia, and adjourn to Princeton, in order to escape from 
 the violence of some insolent mutineers of the Continental 
 army. 
 
 § 200. It is under this clause, that the cession of the 
 present District of Columbia was made, by the States of 
 Maryland and Virginia, to the National Government; and 
 the present seat of the National Government was estab¬ 
 lished at the city of Washington, in 1800. That con¬ 
 venient spot was selected by the exalted patriot, whose 
 name it bears, for this very purpose. And who, that 
 loves his country, does not desire, that it may for ever 
 remain a monument of his wisdom, and the eternal capital 
 of the republic ? 
 
 §201. The other clause, as to cessions for forts, 
 magazines, arsenals, dockyards, and other needful build¬ 
 ings, is dictated by a like policy. The public money 
 expended on such places, the public property deposited 
 there, the military, and other duties to be executed there, 
 all require, that the sovereignty of the United States 
 should have exclusive jurisdiction and control over them. 
 
130 CONSTITUTION OF THE UNITED STATES. 
 
 It would be wholly improper, that such places, on which 
 the security of the Union may materially depend, should 
 be subjected to the authority of any single member of it. 
 In order to guard against any possible abuse, the consent 
 of the State Legislature is necessary to divest its own 
 territorial jurisdiction ; and, of course, that consent will 
 never be given, unless the public good will be manifestly 
 promoted by the cession. 
 
 § 202. A great variety of cessions have been made 
 by the States under this power. And generally there 
 has been a reservation of the right to serve all State pro¬ 
 cess, civil and criminal, upon persons found therein. 
 This reservation has not been thought at all inconsistent 
 with the provision of the Constitution ; for the State pro¬ 
 cess, in this respect, becomes the process of the United 
 States, and the general power of exclusive legislation 
 remains with Congress. Thus, these places are not 
 capable of being made a sanctuary for fugitives, to exempt 
 them from acts done within, and cognizable by, the States, 
 to which the territory belonged ; and, at the same time, 
 Congress is enabled to accomplish the great objects of 
 the power. 
 
 § 203. The power of Congress to exercise exclusive 
 jurisdiction over these ceded places is conferred on that 
 body, as the Legislature of the Union ; and cannot be ex¬ 
 ercised in any other character. A law passed in pursu¬ 
 ance of it is the supreme law of the land, and binding on 
 all the States, and cannot be defeated by them. The 
 power to pass such a law carries with it all the incidental 
 powers to give it complete and effectual execution ; and 
 such a law may be extended in its operation incidentally 
 throughout the United States, if Congress think it neces¬ 
 sary so to do. But if intended to have efficiency beyond 
 the District, language must be used in the act expressive 
 of such an intention ; otherwise it will be deemed to be 
 purely local. 
 
 § 204. It follows from this review of the clause, that 
 the States cannot take cognizance of any acts done in the 
 ceded places after the cession ; and, on the other hand, 
 the inhabitants of those places cease to be inhabitants of 
 
GENERAL POWER TO MAKE LAWS. 
 
 131 
 
 the State, and can no longer exercise any civil or politi¬ 
 cal rights under the laws of the State. But if there has 
 been no cession by the State, of a particular place, although 
 it has been constantly occupied and used, under purchase, 
 or otherwise, by the United States, for a fort, arsenal, or 
 other constitutional purpose, the State jurisdiction still 
 remains complete and perfect. 
 
 § 205. Upon a recent occasion, the nature and effect 
 of the exclusive power of legislation, thus given by the 
 Constitution in these ceded places, came under the con¬ 
 sideration of the Supreme Court, and was much discussed. 
 It was argued, that all such legislation by Congress was 
 purely local, like that exercised by a territorial Legisla¬ 
 ture ; and was not to be deemed legislation by Congress 
 in the character of the Legislature of the Union. The 
 object of the argument was to establish, that a law, made 
 in or for such ceded places, had no extra-territorial force 
 or obligation, it not being a law of the United States. 
 The reasoning of the Court affirming, that such an act was 
 a law of the United States, and that Congress, in passing 
 it, acted as the Legislature of the Union, can be best 
 conveyed in their own language, and would be impaired 
 by an abridgement, and therefore is omitted as incompati¬ 
 ble with the design of the present work. 
 
 CHAPTER XXIII. 
 
 General Power to make Necessary and Proper Laws. 
 
 § 206. The next power of Congress is, u 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.” 
 
 § 207. This clause is merely declaratory of a truth, 
 which would have resulted by necessary implication from 
 the act of establishing a National Government, and invest¬ 
 ing it with certain powers. If a power to do a thing is 
 
132 CONSTITUTION OF THE UNITED STATES. 
 
 given, it includes the use of the means, necessary and 
 proper, to execute it. If it includes any such means, it 
 includes all such means ; for none can, more correctly 
 than others, be said exclusively to appertain to the pow¬ 
 er ; and the choice must depend upon circumstances, to 
 be judged of by Congress. What is a power, but the 
 ability or faculty of doing a thing ? What is the ability 
 to do a thing, but the power of employing the means 
 necessary to its execution ? What is a legislative pow¬ 
 er, but a power of making laws ? What are the means 
 to execute a legislative power, but laws ? What is the 
 power, for instance, of laying and collecting taxes, but a 
 legislative power, or a power to make laws to lay and 
 collect taxes ? What are the proper means of executing 
 such a power, but necessary and proper laws ? In truth, 
 the constitutional operation of the government would be 
 precisely the same, if the clause were obliterated, as if it 
 were repeated in every article. . It would otherwise re¬ 
 sult, that the power could never be exercised ; that is, 
 the end would be required, and yet no means allowed. 
 This would be a perfect absurdity. It would be to create 
 powers, and compel them to remain for ever in a torpid, 
 dormant, and paralytic state. It cannot, therefore, be 
 denied, that the powers, given by the Constitution, imply 
 the ordinary means of execution ; for, without the sub¬ 
 stance of the power, the Constitution would be a dead let¬ 
 ter. If it should be asked, why, then, was the clause 
 inserted in the Constitution ; the answer is, that it is pe¬ 
 culiarly useful, in order to avoid any doubt, which inge¬ 
 nuity or jealousy might raise upon the subject. There 
 was also a clause in the Articles of Confederation, which 
 restrained the authority of Congress to powers expressly 
 granted ; and, therefore, it was highly expedient to make 
 an explicit declaration, that that rule of interpretation, 
 which had been the source of endless embarrassments 
 under the Confederation, should no longer prevail. The 
 Continental Congress had been compelled, in numerous 
 instances, to disregard that limitation, in order to escape 
 from the most absurd and distressing consequences. They 
 had been driven to the dangerous experiment of violating 
 the Confederation, in order to preserve it. 
 
GENERAL POWER TO MAKE LAWS. 
 
 133 
 
 § 208. The plain import of the present clause is, that 
 Congress shall have all the incidental and instrumental 
 powers, necessary and proper to carry into execution the 
 other express powers ; not merely such as are indispensa¬ 
 bly necessary in the strictest sense, (for then the word 
 “proper” ought to have been omitted,) but such also as 
 are appropriate to the end required. Indeed, it would 
 otherwise be difficult to give any rational interpretation 
 to the clause ; for it can scarcely be affirmed, that one 
 means only exists to carry into effect any of the given 
 powers ; and if more than one should exist, then neither 
 could be adopted, because neither could be shown to be 
 indispensably necessary. The clause, in its just sense, 
 then, does not enlarge any other power, specifically grant¬ 
 ed ; nor is it the grant of any new power. It is merely 
 a declaration, to remove all uncertainty, that every power 
 is to be so interpreted, as to include suitable means to 
 carry it into execution. The very controversies, which 
 have since arisen, and the efforts, which have since been 
 made, to narrow down the just interpretation of the clause, 
 demonstrate its wisdom and propriety. The practice of 
 the government, too, has been in conformity to this view 
 of the matter. There is scarcely a law of Congress, which 
 does not include the exercise of implied powers and means. 
 This might be illustrated by abundant examples. Under 
 the power “to establish post offices and post roads,” Con¬ 
 gress have proceeded to make contracts for the carriage 
 of the mail, have punished offences against the establish¬ 
 ment, and have made an infinite variety of subordinate 
 provisions, not one of which is found expressly authorized 
 in the Constitution. A still more striking case of implied 
 power is, that the United States, as a government, have 
 no express authority given to make any contracts ; and yet 
 it is plain, that the government could not go on for an 
 hour without this implied power. 
 
 § 209. There are many other cases, in which Con¬ 
 gress have acted upon implied powers, some of which 
 have given rise to much political discussion, and contro¬ 
 versy ; but it is not within the design of this work to ex¬ 
 amine those cases, or to express any opinion respecting 
 
 12 xm. 
 
134 CONSTITUTION OF THE UNITED STATES. 
 
 them. It is proper, however, that the reader should be 
 apprized, that among them, are the questions respecting the 
 power of Congress to establish a national bank ; to make 
 national roads, canals, and other internal national improve¬ 
 ments ; to purchase cessions of foreign territory, (such, 
 for example, as Louisiana and Florida ;) to lay embar¬ 
 goes, without any fixed limitation of the time of their du¬ 
 ration ; and to prohibit intercourse or commerce with a for¬ 
 eign nation for an unlimited period. 
 
 § 210. And here terminates the eighth section of the 
 Constitution professing to enumerate the powers of Con¬ 
 gress. But there are other clauses, delegating express 
 powers, which, though detached from their natural con¬ 
 nection in that instrument, should be here brought under 
 review, in order to complete the enumeration. 
 
 CHAPTER XXIV. 
 
 Punishment of Treason.—State Records. 
 
 § 211. The third clause of the third article contains 
 a constitutional definition of the crime of treason, (which 
 will be reserved for a separate examination,) and then pro¬ 
 ceeds, in the same section, to provide,— u The Congress 
 shall have power to declare the punishment of treason. 
 But no attainder of treason shall work corruption of blood, 
 or forfeiture, except during the life of the person attaint¬ 
 ed.” The punishment of treason by the common law, par¬ 
 takes, in a high degree, of those savage and malignant 
 refinements in cruelty, which in former ages were the ordi¬ 
 nary penalties attached to state offences. The offender 
 is to be drawn to the gallows on a hurdle; hanged by the 
 neck, and cut down alive ; his entrails taken out, and burn¬ 
 ed, while he is yet alive ; his head cut off'; and his body 
 quartered. Congress are intrusted with the power to fix 
 the punishment, and have, with great wisdom and human¬ 
 ity, abolished these horrible accompaniments, and confin¬ 
 ed the punishment simply to death by hanging. The 
 
PUNISHMENT OF TREASON. 
 
 135 
 
 power to punish treason is exclusive in Congress ; and 
 the trial for the offence, as well as the award of the pun¬ 
 ishment, belongs, also, exclusively to the National tribu¬ 
 nals, and cannot be exercised by any State tribunals. 
 
 § 212. The other clause may require some explana¬ 
 tion, to those, who are not bred to the profession of the 
 law. By the common law, one of the regular incidents 
 to an attainder for treason, (that is, to a conviction and 
 judgement in court against the offender,) is, that he forfeits 
 all his estate, real and personal. His blood is also cor¬ 
 rupted, that is, it loses all inheritable qualities, so that he 
 can neither inherit any real estate himself, from any ances¬ 
 tor or relation bv blood, nor can his heirs inherit anv real 
 estate from him, or through him, from any ancestor or re¬ 
 lation by blood. So that, if the father should commit trea¬ 
 son, and be attainted of it in the life time of the grand¬ 
 father, and the latter should then die, the grandson could 
 not inherit any real estate from the grandfather, although 
 both were perfectly innocent of the offence ; for the 
 father could communicate no inheritable blood to the 
 grandson. Thus, innocent persons are made the victims 
 of the misdeeds of their ancestors ; and are punished, 
 even to the remotest generations, by incapacities derived 
 through them. The Constitution has abolished this cor¬ 
 ruption of blood, and general forfeiture ; and confined the 
 punishment exclusively to the offenders ; thus adopting a 
 rule, founded in sound policy, and as humane, as it is just. 
 
 § 213. The first section of the fourth article declares, 
 u Full faith and credit shall be given in each State to the 
 public acts, records, and judicial proceedings of every 
 other State. And the Congress may, by general laws, 
 prescribe the manner, in which such acts, records, and 
 proceedings shall be proved, and the effect thereof.” 
 
 § 214. It is well known, that the acts, records, and 
 judicial proceedings of foreign nations are not judicially 
 taken notice of by our courts ; that is, their genuineness, 
 validity, and authority are not admitted as of course by 
 our courts, as is the ease with the acts, records, and 
 judicial proceedings of the Legislature and judicial tri¬ 
 bunals of the State ; but they must he proved, like other 
 
136 CONSTITUTION OF THE UNITED STATES. 
 
 facts, whenever they are brought into controversy in any 
 suit. The nature and modes of such proof are different 
 in different countries ; and being wholly governed by the 
 municipal law of each particular nation, must present 
 many embarrassing questions. Independent of the proof , 
 another not less serious difficulty is, as to the effect to be 
 given to such acts, records, and proceedings, after they 
 are duly authenticated. For example, what effect is to 
 be given to the judgement of a court in one country, when 
 it is sought to be enforced in another country ? Is it to be 
 held conclusive upon the parties, without further inquiry ? 
 Or, is it to be treated like common suits, and its justice 
 and equity to be open to new proofs and new litigation ? 
 These are very serious questions, upon which different na¬ 
 tions hold very different doctrines. Even in the American 
 Colonies, before the Revolution, no uniform rules were 
 adopted, in regard to judgements in other colonies. In 
 some, they were held conclusive ; in others, not. Some 
 foreign nations hold the judgements of foreign courts be¬ 
 tween the parties, as of no validity or force out of the ter¬ 
 ritory, where the judgements are pronounced ; others hold 
 such judgements to be only prima facie or presumptively 
 valid and just, but open to be controverted and over¬ 
 thrown by any new proofs ; and others, again, hold such 
 judgements, either absolutely, or under certain limitations 
 and restrictions, to be binding and conclusive between the 
 parties and their heirs and other representatives. Now, 
 domestic judgements, that is, judgements rendered in the 
 same State, are uniformly held, in all the tribunals of that 
 State, to be conclusive between the parties and their heirs 
 and representatives, so that they cannot be controverted, 
 or their validity impeached, or new proofs offered to over¬ 
 throw them in the ordinary administration of justice. 
 
 § 215. We may readily perceive, upon a slight exam¬ 
 ination, how inconvenient it would be, to hold all the 
 judgements rendered in one State to be controverted 
 anew in any other State. Suppose a judgement in one 
 State, after a trial, and verdict by a jury, upon a contract, 
 or for a trespass, in the place where all the witnesses 
 lived ; and, afterwards, the defendant should remove into 
 
ADMISSION OF NEW STATES. 
 
 137 
 
 another State, and some of the material witnesses should 
 die, or remove, so that their testimony could not be had ; 
 if the defendant were then called upon to satisfy the judge¬ 
 ment in a new suit, and he might controvert anew all the 
 facts, there could be no certainty of any just redress to the 
 plaintiff. The Constitution, therefore, has wisely sup¬ 
 pressed this source of heart-burning and mischief between 
 the inhabitants of different States, by declaring, that full 
 faith and credit shall be given to the acts, records, and 
 judicial proceedings of every other State ; and by author¬ 
 izing Congress' to prescribe the mode of authentication, 
 and the effect of such authentication, when duly made. 
 Congress have accordingly declared the mode, in which 
 the records and judgements of the respective States shall 
 be authenticated, and have further declared, that, when so 
 authenticated, they shall have the same force and credit, 
 and, of course, the same effect, in every other State, that 
 they have in the State, where the records and judgements 
 were originally made and rendered. 
 
 CHAPTER XXV. 
 
 Admission of New States .— Government of Territories. 
 
 § 216 . The first clause of the fourth article declares, 
 u New States may be admitted by the Congress into this 
 Union. But no new State shall, be formed or erected 
 within the jurisdiction of any other State ; nor any State 
 be formed by the junction of two or more States, or parts 
 of States, without the consent of the Legislatures of the 
 States concerned, as well as of the Congress.” It was 
 early foreseen, from the extent of the territory of some 
 States, that a division thereof into several States might be¬ 
 come important and convenient to the inhabitants thereof, 
 as well as add to the security of the Union. And it was 
 also obvious, that new States would spring up in the then 
 vacant western territory, which had been ceded to the 
 Union, and that such new States could not long be re- 
 
 12 * 
 
138 CONSTITUTION OF THE UNITED STATES. 
 
 tained in a state of dependence upon the National Gov¬ 
 ernment. It was indispensable, therefore, to make some 
 suitable provisions for both these emergencies. On the 
 one hand, the integrity of any of the States ought not to 
 be severed without their own consent; for their sove¬ 
 reignty would, otherwise, be at the mere will of Congress. 
 On the other hand, it was equally clear, that no State 
 ought to be admitted into the Onion without the consent 
 of Congress ; for, otherwise, the balance, equality, and 
 harmony of the existing States might be destroyed. Both 
 of these objects are, therefore, united in the present clause. 
 To admit a new State into the Union, the consent of Con¬ 
 gress is necessary ; to form a new State within the boun¬ 
 daries of an old one, the consent of the latter is also ne¬ 
 cessary. Under this clause, besides Vermont, three new 
 States formed within the boundaries of the old States, 
 viz., Kentucky, Tennessee, and Maine ; and nine others, 
 viz., Ohio, Indiana, Illinois, Mississippi, Alabama, Louis¬ 
 iana, Missouri, Arkansas, and Michigan, formed within 
 the territories ceded to the United States, have been al¬ 
 ready admitted into the Union. Thus far, indeed, the 
 power has been most propitious to the general welfare of 
 the Union, and has realized the patriotic anticipation, that 
 the parents would exult in the glory and prosperity of 
 their children. 
 
 § 217. The second clause of the same section is, 
 c ‘ The Congress shall have power to dispose of, and 
 make all needful rules and regulations respecting the ter¬ 
 ritory, or other property, belonging to the United States. 
 And nothing in this Constitution shall be so construed, 
 as to prejudice any claims of the United States, or of any 
 particular State.” As the General Government possess¬ 
 es the right to acquire territory by cession and conquest, it 
 would seem to follow, as a natural incident, that it should 
 possess the power to govern and protect, what it had ac¬ 
 quired. At the time of the adoption of the Constitution, 
 it had acquired the vast region included in the Northwest¬ 
 ern Territory; and its acquisitions have since been great¬ 
 ly enlarged by the purchase of Louisiana and Florida. 
 The two latter Territories, (Louisiana and Florida,) sub- 
 
ADMISSION OF NEW STATES. 
 
 139 
 
 ject to the treaty stipulations, under which they were ac¬ 
 quired, are of course under the general regulation of 
 Congress, so far as the power has not been or may not be 
 parted with by erecting them into States. The Northwest¬ 
 ern Territory has been peopled under the admirable Ordi¬ 
 nance of the Continental Congress of the 13th of July, 
 3 787, which we owe to the wise forecast and political wis¬ 
 dom of a man, whom New England can never fail to rev¬ 
 erence.* 
 
 § 218. The main provisions of this Ordinance, which 
 constitute the basis of the Constitutions and Govern¬ 
 ments of all the States and Territories organized within 
 the Northwestern Territory, deserve here to be stated, as 
 the ordinance is equally remarkable for the beauty and 
 exactness of its text, and for its masterly display of the 
 fundamental principles of civil and religious and politi¬ 
 cal liberty. It begins, by providing a scheme for the 
 descent and distribution of estates equally among all the 
 children, and their representatives, or other relatives of 
 the deceased in equal degree, making no distinction be¬ 
 tween the whole and the half blood ; and for the mode of 
 disposing of real estate by will, and by conveyances. It 
 then proceeds to provide for the organization of the ter¬ 
 ritorial governments, according to their progress in pop¬ 
 ulation, confiding the whole power to a Governor and 
 Judges, in the first instance, subject to the control of Con¬ 
 gress. As soon as the Territory contains five thousand 
 inhabitants, it provides for the establishment of a general 
 Legislature, to consist of three branches, a Governor, a 
 Legislative Council, and a House of Representatives ; 
 with a power to the Legislature to appoint a delegate to 
 Congress. It then proceeds to state certain fundamental 
 articles of compact between the original States, and the 
 people and States in the Territory, which are to remain un¬ 
 alterable, unless by common consent. The first provides 
 for the freedom of religious opinion and worship. The 
 second provides for the right to the writ of habeas cor¬ 
 pus ; for the trial by jury ; for a proportionate represent¬ 
 ation in the Legislature ; for judicial proceedings accord- 
 
 * The late Hon. Nathan Dane s of Beverly, Massachusetts. 
 
140 CONSTITUTION OF THE UNITED STATES. 
 
 ing to the course of the common law ; for capital offences 
 being bailable ; for fines being moderate, and punishments 
 not being cruel or unusual ; for no man’s being deprived 
 of his liberty or property, but by the judgement of his 
 peers, or the law of the land ; for full compensation for 
 property taken, or services demanded, for the public exi¬ 
 gencies ; u and, for the just preservation of rights and 
 property, that no law ought ever to be made, or have 
 force in the said Territory, that shall, in any manner 
 whatever, interfere with , or affect private contracts or 
 engagements , bona ficle , and without fraud, previously 
 formed.” The third provides for the encouragement 
 of religion, and education, and schools, and for good 
 faith and due respect for the rights and property of the 
 Indians. The fourth provides, that the Territory, and 
 States formed therein, shall for ever remain a part of the 
 Confederacy, subject to the constitutional authority of 
 Congress ; that the inhabitants shall be liable to be taxed 
 proportionately for the public expenses ; that the Legisla¬ 
 tures in the Territory shall never interfere with the prima¬ 
 ry disposal of the soil by Congress, nor with their regula¬ 
 tions for securing the title to the soil to purchasers ; that 
 no tax shall be imposed on lands, the property of the 
 United States ; and non-resident proprietors shall not be 
 taxed more than residents ; that the navigable waters 
 leading into the Mississippi and St. Lawrence, and the 
 carrying places between the same, shall be common high¬ 
 ways, and for ever free. The fifth provides, that there 
 shall be formed in the Territory not less than three, nor 
 more than five States, with certain boundaries ; and when¬ 
 ever any of the said States shall contain sixty thousand 
 free inhabitants, such State shall (and may not before) be 
 admitted, by its delegates, into Congress, on an equal foot¬ 
 ing with the original States in all respects whatever, and 
 shall be at liberty to form a permanent Constitution and 
 State government, provided it shall be republican, and in 
 conformity to these articles of compact. The sixth and 
 last provides, that there shall be neither slavery nor in¬ 
 voluntary servitude in the said Territory, otherwise than 
 in the punishment of crimes ; but fugitives from other 
 
ADMISSION OF NEW STATES. 
 
 141 
 
 States, owing service therein, may be reclaimed. Such 
 is a brief outline of this most important ordinance, the 
 effects of which upon the destinies of the country have 
 already been abundantly demonstrated in the Territory, by 
 an almost unexampled prosperity and rapidity of popula¬ 
 tion, by the formation of republican governments, and by 
 an enlightened system of jurisprudence. Already five 
 States, composing a part of that Territory, have been ad¬ 
 mitted into the Union ; and others are fast advancing to¬ 
 wards the same grade of political dignity. 
 
 § 219.. The proviso, reserving the claims of the Union, 
 as well as of the several States, was adopted from abun¬ 
 dant caution, to quiet public jealousies upon the subject 
 of the contested titles, which were then asserted by some 
 of the States to some parts of the Western Territory. 
 Happily, these sources of alarm and irritation have long 
 since been dried up. 
 
 § 220. And here is closed our Review of the express 
 powers conferred upon Congress. There are other inci¬ 
 dental and implied powers, resulting from other provisions 
 of the Constitution, which will naturally present them¬ 
 selves to the mind in our future examination of those 
 provisions. At present, it may suffice to say, that, with 
 reference to due energy in the General Government, to 
 due protection of the national interests, and to due secu¬ 
 rity to the Union, fewer powers could scarcely have been 
 granted, without jeoparding the existence of the whole 
 •system. Without the power to lay and collect taxes, to 
 provide for the common defence, and promote the gen¬ 
 eral welfare, the whole system would have been vain and 
 illusory. Without the power to borrow money upon sud¬ 
 den or unexpected emergencies, the National Government 
 might have been embarrassed, and sometimes have been 
 incapable of performing its own proper functions and du¬ 
 ties. Without the power to declare war and raise armies, 
 and provide a navy, the whole country would have been 
 placed at the mercy of foreign nations, or of invading foes, 
 who should trample upon our rights and liberties. With¬ 
 out the power exclusively to regulate commerce, the inter¬ 
 course between the States would have been liable to con- 
 
142 CONSTITUTION OF THE UNITED STATES. 
 
 stant jealousies, rivalries, and dissensions ; and the inter¬ 
 course with foreign nations would have been liable to 
 mischievous interruptions, from secret hostilities, or open 
 retaliatory restrictions. The other powers are principally 
 auxiliary to these ; and are dictated by an enlightened pol¬ 
 icy, a devotion to justice, and a regard to the permanence 
 of the Union. The wish of every patriot must be, that 
 the system thus formed may be perpetual, and that the 
 powers thus conferred may be constantly used for the 
 purposes, for which they were originally given, for the 
 promotion of the true interests of all the States, and not 
 for the gratification of party spirit, or the aggrandizement 
 of rulers at the expense of the people. 
 
 CHAPTER XXVL 
 Prohibitions on the United States. 
 
 § 221. We next come to the consideration of the pro¬ 
 hibitions and limitations upon the powers of Congress* 
 which are contained in the ninth section of the first arti¬ 
 cle, passing by such, as have been already incidentally 
 discussed. 
 
 § 222. The first clause is, Ci The migration or im¬ 
 portation of such persons, as any of the States now ex¬ 
 isting shall think proper to admit, shall not be prohibited 
 by the Congress, prior to the year eighteen hundred and 
 eight. But a tax or duty may be imposed upon such 
 importation, not exceeding ten dollars for each person.” 
 
 § 223. This clause, as is manifest from its language* 
 was designed solely to reserve to the Southern States* 
 for a limited period, the right to import slaves. It is to 
 the honor of America, that she should have set the first 
 example of interdicting and abolishing the slave trade, in 
 modern times. It is well known, that it constituted a 
 grievance, of which some of the Colonies complained, 
 before the Revolution, that the introduction of slaves was. 
 encouraged by the parent country, and that the prohibi- 
 
PROHIBITIONS ON THE UNITED STATES. 143 
 
 tory laws, passed by the Colonies, were negatived by the 
 Crown, it was, doubtless, desirable, that the importation 
 of slaves should have been at once interdicted through¬ 
 out the Union. But it was indispensable to yield some¬ 
 thing to the prejudices, the wishes, and the supposed in¬ 
 terests of the South. And it ought to be considered as 
 a great point gained, in favor of humanity, that a period 
 of twenty years should enable Congress to terminate, in 
 America, (as Congress in fact have terminated the Afri¬ 
 can slave trade,) a traffic, which has so long and so loud¬ 
 ly upbraided the morals and justice of modern nations. 
 
 § 224. The next clause is, u The privilege of the 
 writ of habeas corpus shall not be suspended, unless 
 when, in cases of rebellion or invasion, the public safety 
 may require it.” In order to understand the exact mean¬ 
 ing of the terms here used, recourse must be had to the 
 common law. The writ of habeas corpus , here spoken 
 of, is a writ known to the common law, and used in all 
 cases of confinement, or imprisonment of any party, in 
 order to ascertain whether it is lawful or not. The writ 
 commands the person, who detains the party, to produce 
 his body, with the day and cause of his detention, before 
 the Court or Judge, who issues the writ, to do, submit 
 to, and receive, whatever the Court or Judge shall direct 
 at the hearing. It is hence called the writ of habeas cor¬ 
 pus ad subjiciendum , from the effective words of the writ, 
 (when it was issued, as it originally was, in the Latin 
 language) that you (the person, detaining the party,) have 
 the body ( habeas corpus ) to submit (ad subjiciendum) to 
 the order of the Court or Judge. And if the cause of de¬ 
 tention is found to be insufficient, or illegal, the party is 
 immediately set at liberty by the order of the Court or 
 Judge. It is justly, therefore, esteemed the great bul¬ 
 wark of personal liberty, and is grantable, as a matter of 
 right, to the party imprisoned. But as it had often, for 
 frivolous reasons of state, been suspended or denied in the 
 parent country, to the grievous oppression of the subject, 
 it is made a matter of constitutional right in all cases, ex¬ 
 cept when the public safety may, in cases of rebellion or 
 invasion, require it. The exception is reasonable, since 
 
144 CONSTITUTION OF THE UNITED STATES. 
 
 cases of great urgency may arise, in which the suspen¬ 
 sion may be indispensable for the preservation of the lib¬ 
 erties of the country against traitors and rebels. 
 
 § 225. The next clause is, u No bill of attainder, or 
 ex post facto law, shall be passed.” A bill of attainder, 
 in its technical sense, is an act passed by the legislature, 
 convicting a person of some crime, for which it inflicts 
 upon him, without any trial, the punishment of death. 
 If it inflicts a milder punishment, it is usually called a bill 
 of pains and penalties. Such acts are in the highest de¬ 
 gree objectionable, and tyrannical, since they deprive the 
 party of any regular trial by jury, and deprive him of 
 his life, liberty, and property, without any legal proof of 
 his guilt. In a republican government, such a proceed¬ 
 ing is utterly inconsistent with first principles. It would 
 be despotism in its worst form, by arming a popular Le¬ 
 gislature with the power to destroy, at its will, the most 
 virtuous and valuable citizens of the state. 
 
 § 226. To the same class, belong ex post facto laws, 
 that is, (in a literal interpretation of the phrase,) laws 
 made after the act is done. In a general sense, all ret 
 rospective laws are ex post facto ; but the phrase is here 
 used to designate laws to punish, as public offences, acts, 
 which, at the time when they were done, were lawful, or 
 were not public crimes, or, if crimes, which were not lia¬ 
 ble to so severe a punishment. It requires no reasoning 
 to establish the wisdom of a prohibition, which puts a 
 fixed restraint upon such harsh legislation. In truth, the 
 existence of such a power in a legislature is utterly in¬ 
 compatible with all just notions of the true ends and 
 objects of a republican government. 
 
 §227. The next clause (not already commented on) 
 is, u 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 expen¬ 
 ditures of all public money shall be published from time 
 to time.” The object of this clause is, to secure regu¬ 
 larity, punctuality, fidelity, and responsibility, in the keep¬ 
 ing and disbursement of the public money. No money 
 can be drawn from the treasury by any officer, unless 
 
PROHIBITIONS ON THE UNITED STATES. 145 
 
 under appropriations made by some act of Congress. As 
 ' all the taxes raised from the people, as well as the rev¬ 
 enues arising from other sources, are to be applied to the 
 discharge of the expenses, and debts, and other engage¬ 
 ments of the government, it is highly proper, that Con¬ 
 gress should possess the power to decide, how and when 
 any money should be applied for these purposes. If it 
 were otherwise, the Executive would possess an unbound¬ 
 ed power over the public purse of the nation ; and might 
 apply all its monied resources at his pleasure. The pow¬ 
 er to control and direct the appropriations, constitutes a 
 most useful and salutary check' upon profusion and ex¬ 
 travagance, as well as upon corrupt influence and public 
 peculation. In arbitrary governments, the prince lev¬ 
 ies what money he pleases from his subjects, disposes of 
 it, as he thinks proper, and is beyond responsibility or 
 reproof. It is wise, in a republic, to interpose every 
 restraint, by which the public treasure, the common fund 
 of all, should be applied, with unshrinking honesty, to 
 such objects, as legitimately belong to the common de¬ 
 fence, and the general welfare. Congress is made the 
 guardian of this treasure ; and, to make their responsibility 
 complete and perfect, a regular account of the receipts 
 and expenditures is required to be published, that the 
 people may know, what money is expended, for what 
 purposes, and by what authority. 
 
 § 228 . The next clause is, “ No title of nobility 
 shall be granted by the United States ; and no person, 
 holding any office of profit or trust under them, shall, 
 without the consent of the Congress, accept of any pres¬ 
 ent, emolument, office, or title, of any kind whatever, 
 from any king, prince, or foreign state.” A perfect 
 equality of rights, privileges, and rank, being contemplated 
 by the Constitution among all citizens, there is a manifest 
 propriety in prohibiting Congress from creating any titles 
 of nobility. The other prohibition, as to presents, emolu¬ 
 ments, offices, and titles from foreign governments, besides 
 aiding the same general object, subserves a more important 
 policy, founded on the just jealousy of foreign corruption 
 and undue influence exerted upon our national officers, it 
 
 13 , xiii. 
 
146 CONSTITUTION OF THE UNITED STATES. 
 
 seeks to destroy, in their origin, all the blandishments from 
 foreign favors, and foreign titles, and all the temptations 
 to a departure from official duty by receiving foreign re¬ 
 wards and emoluments. No officer of the United States 
 can without guilt wear honors borrowed from foreign sov¬ 
 ereigns, or touch for personal profit any foreign treasure. 
 
 CHAPTER XXVII. 
 
 Prohibitions on the States. 
 
 § 229. Such are the prohibitions upon the govern¬ 
 ment of the United States. And we next proceed to 
 the prohibitions upon the States, which are not less 
 important in themselves, or less necessary to the security 
 of the Union. They are contained in the tenth section 
 of the first article. 
 
 § 230. The first clause is, u No State shall enter into 
 any treaty; alliance, or confederation ; grant letters of 
 marque or reprisal; coin money ; emit bills of credit ; 
 make any thing but gold or silver coin a tender in payment 
 of debts ; pass any bill of attainder, ex post facto law, or 
 law impairing the obligation of contracts; or grant any 
 title of nobility.” 
 
 § 231. The prohibition against a State’s entering into 
 any treaty, alliance, or confederation, is indispensable to 
 the preservation of the rights and powers of the National 
 Government. A State might otherwise enter into engage¬ 
 ments with foreign governments, utterly subversive of 
 the policy of the National Government, or injurious to the 
 rights and interests of the other States. One State might 
 enter into a treaty or alliance with France, and another 
 with England, and another with Spain, and another with 
 Russia,—each in its general objects inconsistent with the 
 other ; and thus, the seeds of discord might be spread 
 over the whole Union. 
 
 §232. The prohibition to u grant letters of marque 
 and reprisal” stands on the same ground. This power 
 
PROHIBITIONS ON THE STATES. 
 
 147 
 
 would hazard the peace of the Union by subjecting it to 
 the passions, resentments, or policy of a single State. 
 If any State might issue letters of marque or reprisal at 
 its own mere pleasure, it might at once involve the whole 
 Union in a public war ; or bring on retaliatory measures 
 by the foreign government, which might cripple the 
 commerce, or destroy the vital interests of other States. 
 The prohibition is, therefore, essential to the public 
 safety. 
 
 § 233. The prohibition to u coin money” is necessary 
 to our domestic interests. The existence of the power 
 in the States would defeat the salutary objects intended, 
 by confiding the like power to the National Government. 
 It would have a tendency to introduce a base and varia¬ 
 ble currency, perpetually liable to frauds, and embarrass¬ 
 ing to the commercial intercourse of the States. 
 
 § 234. The prohibition to u emit bills of credit.”— 
 Bills of credit are a well-known denomination of paper 
 money, issued by the Colonies before the Revolution, 
 and afterwards by the States, in a most profuse degree. 
 These bills of credit had no adequate funds appropriated 
 to redeem them ; and though on their face they were 
 often declared payable in gold and silver, they were in 
 fact never so paid. The consequence was, that they 
 became the common currency of the country, in a con¬ 
 stantly depreciating state, ruinous to the commerce and 
 credit, and disgraceful to the good faith of the country. 
 The evils of the system were of a most aggravated nature, 
 and could not be cured, except by an entire prohibition 
 of any future issues of paper money. And, indeed, the 
 prohibition to coin money would be utterly nugatory, if 
 the States might still issue a paper currency for the same 
 purpose. 
 
 § 235. But the inquiry here naturally occurs ; What is 
 the true meaning of the phrase u bills of credit” in the 
 Constitution ? In its enlarged, and perhaps in its literal 
 sense, it may comprehend any instrument, by which a 
 State engages to pay money at a future day, (and, of 
 course, for which it obtains a present credit ;) and thus it 
 would include a certificate given for money borrowed. 
 
148 CONSTITUTION OF THE UNITED STATES. 
 
 But the language of the Constitution itself, and the mis¬ 
 chief to be prevented, which we know from the history 
 of our country, equally limit the interpretation of the 
 terms. The word “ emit” is never employed in de¬ 
 scribing those contracts, by which a State binds itself to 
 pay money at a future day for services actually received, 
 or for money borrowed for present use. Nor are instru¬ 
 ments, executed for such purposes, in common language 
 denominated “ bills of credit.” To emit bills of credit, 
 conveys to the mind the idea of issuing paper, intend¬ 
 ed to circulate through the community for ordinary pur¬ 
 poses, as money, which paper is redeemable at a future 
 day. This is the sense, in which the terms of the Con¬ 
 stitution have been generally understood. The phrase 
 (as we have seen) was well known, and generally used to 
 indicate the paper currency, issued by the States during 
 their colonial dependence. During the war of our Revo¬ 
 lution, the paper currency issued by Congress was con¬ 
 stantly denominated, in the acts of that body, bills of 
 credit; and the like appellation was applied to similar 
 currency issued by the States. The phrase had thus 
 acquired a determinate and appropriate meaning. At the 
 time of the adoption of the Constitution, bills of credit 
 were universally understood to signify a paper medium 
 intended to circulate between individuals, and between 
 government and individuals, for the ordinary purposes of 
 society. Such a medium has always been liable to con¬ 
 siderable fluctuation. Its value is continually changing ; 
 and these changes, often great and sudden, expose indi¬ 
 viduals to immense losses, are the sources of ruinous 
 speculations, and destroy all proper confidence between 
 man and man. In no country, more than our own, had 
 these truths been felt in all their force. In none, had 
 more intense suffering, or more wide-spreading ruin 
 accompanied the system. It was, therefore, the object 
 of the prohibition to cut up the whole mischief by the 
 roots, because it had been deeply felt throughout all the 
 States, and had deeply affected the prosperity of all. 
 The object of the prohibition was not to prohibit the 
 thing, when it bore a particular name ; but to prohibit the 
 
PROHIBITIONS ON THE STATES. 
 
 149 
 
 thing, whatever form or name it might assume. If the 
 words are not merely empty sounds, the prohibition must 
 comprehend the emission of any paper medium by a State 
 government for the purposes of common circulation. It 
 would be preposterous to suppose, that the Constitution 
 meant solemnly to prohibit an issue under one denomina¬ 
 tion, leaving the power complete to issue the same thing 
 under another. It can never be seriously contended, that 
 the Constitution means to prohibit names, and not things ; 
 to deal with shadows, and to leave substances. What 
 would be the consequence of such a construction ? That 
 a very important act, big with great and ruinous mischief, 
 and on that account forbidden by words the most appro¬ 
 priate for its description, might yet be performed by the 
 substitution of a name. That the Constitution, even in one 
 of its vital provisions, might be openly evaded by giving 
 a new name to an old thing. Call the thing a bill of credit, 
 and it is prohibited. Call the same thing a certificate, 
 and it is constitutional. 
 
 § 236. Connected with this, is the prohibition, No 
 State shall u make any thing but gold and silver coin a 
 tender in payment of debts.” The history of the State 
 laws on this subject, while we were Colonies, as well as 
 during the Revolution, and afterwards before the adoption 
 of the Constitution, is startling at once to our morals, to 
 our patriotism, and to our sense of justice. In the inter¬ 
 mediate period between the commencement of the Revo¬ 
 lutionary War, and the adoption of the Constitution, the 
 system had attained its most appalling character. Not 
 only was paper money declared to be a tender in payment 
 of debts ; but other laws, having the same general object, 
 and interfering with private debts, under the name of 
 appraisement laws, instalment laws, and suspension laws, 
 thickened upon the statute book of many States in the 
 Union, until all public confidence was lost, and all private 
 credit and morals were prostrated. The details of the 
 evils, resulting from this source, can scarcely be compre¬ 
 hended in our day. But they were so enormous, that 
 the whole country seemed involved in a general bank¬ 
 ruptcy ; and fraud and chicanery obtained an undisputed 
 
 13 * 
 
150 CONSTITUTION OF THE UNITED STATES. 
 
 mastery. Nothing but an absolute prohibition, like that 
 contained in the Constitution, could arrest the overwhelm¬ 
 ing flood ; and it was accordingly hailed with the most 
 sincere joy by ail good citizens. It has given us that 
 healthy and sound currency, and that solid private credit, 
 which constitute the true foundation of our prosperity, 
 industry, and enterprise. 
 
 § 237. The prohibition, to u pass any bill of attainder, 
 ex post facto law, or law impairing the obligation of con¬ 
 tracts,” requires scarcely any vindication or explanation, 
 beyond what has been already given. The power to 
 pass bills of attainder, and ex post facto laws, (the nature 
 of which has been already sufficiently explained,) is quite 
 as unfit to be intrusted to the States, as to the General 
 Government. It was exercised by the States during the 
 Revolutionary War, in the shape of confiscation laws, 
 to an extent, which, upon cool reflection, every sincere 
 patriot must regret. Laws u impairing the obligation of 
 contracts” are still more objectionable. They interfere 
 with, and disturb, and destroy, private rights, solemnly 
 secured by the plighted faith of the parties. They bring 
 on the same ruinous effects, as paper tender laws, instal¬ 
 ment laws, and appraisement laws, which are but varieties 
 of the same general noxious policy. And they have been 
 truly described, as contrary to the first principles of the 
 social compact and to every principle of sound legislation. 
 
 § 238. Although the language of this clause, “ law im¬ 
 pairing the obligation of contracts,” would seem, at first 
 view, to be free from any real ambiguity ; yet there is 
 not perhaps a single clause of the Constitution, which 
 has given rise to more acute and vehement controversy. 
 What is a contract. ? What is the obligation of a con¬ 
 tract ? What is impairing a contract ? To what classes 
 of laws does the prohibition apply ? To what extent does 
 it reach, so as to control prospective legislation on the 
 subject of contracts ? These and many other questions, 
 of no small nicety and intricacy, have vexed the legisla¬ 
 tive halls, as well as the judicial tribunals, with an uncount¬ 
 ed variety and frequency of litigation and speculation. 
 
 § 239. In the first place, What is to be deemed a con- 
 
PROHIBITIONS ON THE STATES. 
 
 151 
 
 tract, in the constitutional sense of this clause ? A con¬ 
 tract is an agreement to do, or not to do, a particular 
 thing ; or (as was said on another occasion) a contract is 
 a compact between two or more persons. A contract is 
 either executory, or executed. An executory contract 
 is one, in which a party binds himself to do, or not to do, 
 a particular thing. An executed contract is one, in which 
 the object of the contract is performed. This differs in 
 nothing from a grant ; for a contract executed conveys a 
 thing in possession ; a contract executory conveys only 
 a thing in action. Since, then, a grant is in fact a con¬ 
 tract executed, the obligation of which continues ; and 
 since the Constitution uses the general term, contract , 
 without distinguishing between those, which are executory, 
 and those, which are executed ; it must be construed to 
 comprehend the former, as well as the latter. A State 
 law, therefore, annulling conveyances between individu¬ 
 als, and declaring, that the grantors shall stand seized of 
 their former estates, notwithstanding those grants, W’ould 
 be as repugnant to the Constitution, as a State law, dis¬ 
 charging the vendors from the obligation of executing 
 their contracts of sale by conveyances. It would be 
 strange, indeed, if a contract to convey were secured by 
 the Constitution, while an absolute conveyance remained 
 unprotected. That the contract, while executory, was 
 obligatory ; but when executed, might be avoided. 
 
 § 240. Contracts, too, are express, or implied. Ex¬ 
 press contracts are, where the terms of the agreement are 
 openly avowed, and uttered at the time of the making of 
 them. Implied contracts are such, as reason and justice 
 dictate from the nature of the transaction, and which, 
 therefore, the law presumes, that every man undertakes to 
 perform. The Constitution makes no distinction between 
 the one class of contracts and the other. It then equally 
 embraces, and equally applies to both. Indeed, as by far 
 the largest class of contracts in civil society, in the ordinary 
 transactions of life, are implied, there would be very little 
 object in securing the inviolability of express contracts, 
 if those, which are implied, might be impaired by State 
 legislation. The Constitution is not chargeable with 
 
152 CONSTITUTION OF THE UNITED STATES. 
 
 such folly, or inconsistency. Every grant, in its own 
 nature, amounts to an extinguishment of the right of the 
 grantor, and implies a contract not to reassert it. A 
 party is, therefore, always estopped by his own grant. 
 How absurd would it be to provide, that an express 
 covenant by a party, as a muniment attendant upon the 
 estate, should bind him for ever, because executory, and 
 resting in action ; and yet, that he might reassert his 
 title to the estate, and dispossess his grantee, because 
 there was only an implied covenant not to reassert it. 
 
 § 241. In the next place, What is the obligation of a 
 contract ? It seems agreed, that, when the obligation of 
 contracts is spoken of in the Constitution, we are to un¬ 
 derstand, not the mere moral, but the legal obligation of 
 contracts. The moral obligation of contracts is, so far 
 as human society is concerned, of an imperfect kind, 
 which the parties are left free to obey or not, as they 
 please. It is addressed to the conscience of the parties, 
 under the solemn admonitions of accountability to the 
 Supreme Being. No human lawgiver can either impair, 
 or reach it. The Constitution has not in contemplation 
 any such obligations, but such only, as might be im¬ 
 paired by a State, if not prohibited. It is the civil obli¬ 
 gation of contracts, which it is designed to reach, that is, 
 the obligation, which is recognised by, and results from, 
 the law of the State, in which it is made. If, therefore, 
 a contract, when made, is by the law of the State de¬ 
 clared to be illegal, or deemed to be a nullity, or a naked 
 pact , or promise, it has no civil obligation ; because the 
 law, in such cases, forbids its having any binding efficacy, 
 or force. It confers no legal right on the one party, and 
 no correspondent legal duty on the other. There is no 
 means allowed, or recognised to enforce it ; for the max¬ 
 im is, that from a mere naked promise no action arises. 
 But when it does not fall within the predicament of being 
 either illegal, or void, its obligatory force is coextensive 
 with its stipulations. 
 
 § 242. Nor is this obligatory force so much the result 
 of the positive declarations of the municipal law, as of 
 the general principles of natural, or (as it is sometimes 
 
PROHIBITIONS ON THE STATES. 
 
 153 
 
 called) universal, law. In a state of nature, independent 
 of the obligations of positive law, contracts may be 
 formed, and their obligatory force be complete. Be¬ 
 tween independent nations, treaties and compacts are 
 formed, which are deemed universally obligatory ; and 
 yet in no just sense can they be deemed dependent on 
 municipal law. Nay, there may exist (abstractly speak¬ 
 ing) a perfect obligation in contracts, where there is no 
 known and adequate means to enforce them. As, for 
 instance, between independent nations, where their rela¬ 
 tive strength and power preclude the possibility, on the 
 side of the weaker party, of enforcing them. So, in the 
 same government, where a contract is made by a State 
 with one of its own citizens, which yet its laws do not 
 permit to be enforced by any action or suit. In this 
 predicament are the United States, who are not suable 
 on any contracts made by themselves ; but no one doubts, 
 that these are still obligatory on the United States. Yet 
 their obligation is not recognised by any positive muni¬ 
 cipal law, in a great variety of cases. It depends alto¬ 
 gether upon principles of public or universal law. Still, 
 in these cases, there is a right in the one party to have the 
 contract performed, and a duty on the other side to per¬ 
 form it. But, generally speaking, when we speak of the 
 obligation of a contract, we include in the idea some 
 known means acknowledged by the municipal law to en¬ 
 force it. Where all such means are absolutely denied, 
 the obligation of the contract is understood to be im¬ 
 paired, although it may not be completely annihilated. 
 Rights may, indeed, exist, without any present adequate 
 correspondent remedies between private persons. Thus, 
 a State may refuse to allow imprisonment for debt ; and 
 the debtor may have no property. But still the right of 
 the creditor remains ; and he may enforce it against the 
 future property of the debtor. So, a debtor may die 
 without leaving any known estate, or without any known 
 representative. In such cases, we should not say, that 
 the right of the creditor was gone ; but only, that there 
 was nothing, on which it could presently operate. But 
 suppose an administrator should be appointed, and prop- 
 
154 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 erty in contingency should fall in, the right might then be 
 enforced to the extent of the existing means. 
 
 § 243. The civil obligation of a contract, then, although 
 it can never arise, or exist, contrary to positive law, may 
 arise or exist independently of it ; and it may be, exist, 
 notwithstanding there may be no present adequate reme¬ 
 dy to enforce it. Wherever the municipal law recog¬ 
 nises an absolute duty to perform a contract, there the 
 obligation to perform it is complete, although there may 
 not be a perfect remedy. 
 
 § 244. In the next place, What may properly be 
 deemed impairing the obligation of contracts, in the sense 
 of the Constitution ? It is perfectly clear, that any law, 
 which enlarges, abridges, or in any manner changes the 
 intention of the parties, resulting from the stipulations in 
 the contract, necessarily impairs it. The manner or de¬ 
 gree, in which this change is effected, can in no respect 
 influence the conclusion ; for, whether the law affect the 
 validity, the construction, the duration, the discharge, or 
 the evidence of the contract, it impairs its obligation, al¬ 
 though it may not do so, to the same extent, in all the sup¬ 
 posed cases. Any deviation from its terms, by postpon¬ 
 ing, or accelerating the period of performance, which it 
 prescribes, or by imposing conditions not expressed in the 
 contract, or by dispensing with the performance of those, 
 which are a part of the contract, however minute, or ap¬ 
 parently immaterial in their effects upon it, impairs its 
 obligation. A fortiori , a law, which makes the contract 
 wholly invalid, or extinguishes, or releases it, is a law 
 impairing it. Nor is this all. Although there is a distinc¬ 
 tion between the obligation of a contract, and a remedy 
 upon it; yet if there are certain remedies existing at the 
 time, when it is made, all of which are afterwards wholly 
 extinguished by new laws, so that there remain no means 
 of enforcing its obligation, and no redress for its violation ; 
 such an abolition of all remedies, operating immediate¬ 
 ly, is also an impairing of the obligation of such contract. 
 But every change and modification of the remedy does 
 not involve such a consequence. No one will doubt, that 
 the Legislature may vary the nature and extent of reme- 
 
PROHIBITIONS ON THE STATES. 
 
 155 
 
 dies, so always, that some substantive remedy be in fact 
 left. Nor can it be doubted, that the Legislature may pre¬ 
 scribe the times and modes, in which remedies may be 
 pursued ; and bar suits, not brought within such periods, 
 and not pursued in such modes. Statutes of limitations 
 are of this nature ; and have never been supposed to de¬ 
 stroy the obligation of contracts, but to prescribe the 
 times, within which that obligation shall be enforced by a 
 suit ; and in default thereof, to deem it either satisfied, or 
 abandoned. The obligation to perform a contract is co¬ 
 eval with the undertaking to perform it. It originates 
 with the contract itself, and operates anterior to the time 
 of performance. The remedy acts upon the broken con¬ 
 tract, and enforces a preexisting obligation. And a 
 State Legislature may discharge a party from imprison¬ 
 ment upon a judgement in a civil case of contract, without 
 infringing the Constitution ; for this is but a modification 
 of the remedy, and does not impair the obligation of the 
 contract. So, if a party should be in jail, and give a 
 bond for the prison liberties, and to remain a true prison¬ 
 er, until lawfully discharged, a subsequent discharge by 
 an act of the Legislature would not impair the contract ; 
 for it would be a lawful discharge in the sense of the bond. 
 
 §245. These general considerations naturally conduct 
 us to some more difficult inquiries growing out of them ; 
 and upon which there has been a very great diversity of 
 judicial opinion. The great object of the framers of 
 the Constitution undoubtedly was, to secure the inviola¬ 
 bility of contracts. This principle was to be protected 
 in whatever form it might be assailed. No enumeration 
 was attempted to be made of the modes, by which con¬ 
 tracts might be impaired. It would have been unwise to 
 have made such an enumeration, since it might have been 
 defective ; and the intention was to prohibit every mode or 
 device for such purpose. The prohibition w r as universal. 
 
 § 246. The question has arisen, and has been most 
 elaborately discussed, how far the States may constitution¬ 
 ally pass an insolvent law, which shall discharge the obli¬ 
 gation of contracts. It is hot doubted, that the States 
 may pass insolvent laws, which shall discharge the per- 
 
156 CONSTITUTION OF THE UNITED STATES. 
 
 son, or operate in the nature of a cessio honor urn , or a 
 surrender of all the debtor’s property, provided such laws 
 do not discharge, or intermeddle with, the obligation of 
 contracts. Nor is it denied, that insolvent laws, which 
 discharge the obligation of contracts, made antecedently 
 to their passage, are unconstitutional. But the question 
 is, how far the States may constitutionally pass insolvent 
 laws, which shall operate upon, and discharge contracts, 
 which are made subsequently to their passage. After the 
 most ample argument, it has at length been settled, by 
 a majority of the Supreme Court, that the States may 
 constitutionally pass such laws operating upon future con¬ 
 tracts, although not upon past. 
 
 § 247. The remaining prohibition is, to u grant any title 
 of nobility,” which is supported by the same reasoning as 
 that already suggested, in considering the like prohibition 
 upon the National Government. 
 
 § 248. The next clause, omitting the prohibition (al¬ 
 ready cited) to lay any imposts or duties on imports or 
 exports, is, u No State shall, without the consent of Con¬ 
 gress, lay any duty on tonnage ; keep troops, or ships of 
 war, in time of peace ; enter into any agreement or com¬ 
 pact with another State, or with a foreign power ; or 
 engage in war unless actually invaded, or in such immi¬ 
 nent danger, as will not admit of delay.” That part, 
 which respects tonnage duties, has been already consid¬ 
 ered. The other parts have the same general policy in 
 view, which dictated the preceding restraints upon State 
 power. To allow the States to keep troops, or ships 
 of war, in time of peace, might be hazardous to the pub¬ 
 lic peace or safety, or compel the National Government 
 to keep up an expensive corresponding force. To allow 
 the States to enter into agreements with each other, or 
 with foreign nations, might lead to mischievous combina¬ 
 tions, injurious to the general interests, and bind them 
 into confederacies of a geographical or sectional charac¬ 
 ter. To allow the States to engage in war, unless com¬ 
 pelled so to do in self-defence and upon sudden emergen¬ 
 cies, would be (as has been already stated) to put the 
 peace and safety of all the States in the power and dis- 
 
PROHIBITIONS ON THE STATES. 
 
 157 
 
 cretion of any one of them. But an absolute prohibition 
 of all these powers might, in certain exigencies, be inex¬ 
 pedient, and even mischievous ; and, therefore, Congress 
 may, by their consent, authorize the exercise of any of 
 them, whenever, in their judgement, the public good shall 
 require it. 
 
 § 249. We have thus passed through the positive 
 prohibitions introduced upon the powers of the States. 
 It will be observed, that they divide themselves into tw T o 
 classes ; those, which are political in their character, as 
 an exercise of sovereignty ; and those, w 7 hich more espe¬ 
 cially regard the private rights of individuals. In the 
 latter, the prohibition is absolute and universal. In the 
 former, it is sometimes absolute, and sometimes subjected 
 to the consent of Congress. It will, at once, be per¬ 
 ceived, how full of difficulty and delicacy the task was, to 
 reconcile the jealous tenacity of the States over their own 
 sovereignty, with the permanent security of the National 
 Government, and the inviolability of private rights. The 
 task has been accomplished with eminent success. If 
 every thing has not been accomplished, which a wise 
 forecast might have deemed proper for the preservation 
 of our national rights and liberties in all political events, 
 much has been done to guard us against the most obvious 
 evils, and to secure a wholesome administration of private 
 justice. To have attempted more, would probably have 
 endangered the whole fabric ; and thus might have per¬ 
 petuated the dominion of misrule and imbecility. 
 
 § 250. It has been already seen, and it will hereafter 
 more fully appear, that there are implied, as well as ex¬ 
 press, prohibitions in the Constitution upon the power of 
 the States. Among the former, one clearly is, that no 
 State can control, or abridge, or interfere with the exer¬ 
 cise 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 contracts of the 
 United States. 
 
 § 251. And here end our commentaries upon the first 
 article of the Constitution, embracing the organization 
 
 14 xiii. 
 
158 CONSTITUTION OF THE UNITED STATES. 
 
 and powers of the Legislative department of the govern¬ 
 ment, and the prohibitions upon the State and National 
 Governments. If we here pause, but for a moment, we 
 cannot but be struck with the reflection, how admirably this 
 division and distribution of legislative powers between the 
 State and National Governments is adapted to preserve 
 of the liberty, and to promote the happiness of the people 
 of the United States. To the General Government are 
 assigned all those powers, which relate to the common 
 interests of all the States, as comprising one confederated 
 nation ; while to each State is reserved all those pow¬ 
 ers, which may affect, or promote its own domestic in¬ 
 terests, its peace, its prosperity, its policy, and its local 
 institutions. At the same time, such limitations and re¬ 
 straints are imposed upon each government, as experience 
 has demonstrated to be wise to control any public func¬ 
 tionaries, or as are indispensable to secure the harmonious 
 operations of the Union. 
 
 4l 
 
 CHAPTER XXVIII. 
 
 The Executive Department. 
 
 § 252. We next come to the second article of the 
 Constitution, which prescribes the structure, organization, 
 and powers of the Executive department. What is the 
 best constitution for the executive department, and what 
 are the powers, with which it should be intrusted, are 
 problems among the most important, and probably the 
 most difficult to be satisfactorily solved, of all, which are 
 involved in the theory of free governments. No man, 
 who has ever studied the subject with profound attention, 
 has risen from the labor without an increased and almost 
 overwhelming sense of its intricate relations, and perplex¬ 
 ing doubts. No man, who has ever deeply read the 
 human history, and especially the history of republics, 
 but has been struck with the consciousness, how little has 
 been hitherto done to establish a sate depositary of power 
 
EXECUTIVE DEPARTMENT. 
 
 159 
 
 in any hands ; and how often, in the hands of one, or a 
 few, or many,—of an hereditary monarch, or an elective 
 chief, or a national council, the executive power has 
 brought ruin upon the state, or sunk under the oppressive 
 burden of its own imbecility. Perhaps our own history 
 has not, as yet, established, that we shall wholly escape 
 all the dangers ; and that here will not be found, as has 
 been the case in other nations, the vulnerable part of the 
 republic. 
 
 § 253. The first clause of the first section is, u The 
 executive power shall be vested in a President of the 
 United States of America. He shall hold his office 
 during the term of four years ; and, together with the Vice 
 President, chosen for the same term, be elected as fol¬ 
 lows.” 
 
 § 254. In considering this clause, three practical ques¬ 
 tions may arise ; (1) whether there should be any execu¬ 
 tive department; (2) whether it should be composed of 
 more than one person ; (3) and what should be the dura¬ 
 tion of the term of office. Upon the first question, little 
 need now be said, to establish the propriety of an execu¬ 
 tive department. It is founded upon a maxim admitted 
 in all our State Constitutions, that the legislative, execu¬ 
 tive, and judicial departments ought to be kept separate, 
 and the power of one ought not to be exercised by either 
 of the others. The want of an executive department 
 was felt, as a great defect under the Confederation. 
 
 § 255. In the next place, in what manner should the 
 executive department be organized ? It may, in general 
 terms, be answered,—In such a manner as best to secure 
 energy in the Executive, and safety to the people. A 
 feeble Executive implies a feeble execution of the gov¬ 
 ernment ; and a feeble execution is but another phrase 
 fora bad execution. Unity in the Executive is favorable 
 to energy, promptitude, and responsibility. A division 
 of the power among several persons impairs each of these 
 qualities ; and introduces discord, intrigue, dilatoriness, 
 and, not unfrequently, personal rivalries, incompatible with 
 the public good. On the other hand, a single Executive 
 is quite as safe for the people. His responsibility is more 
 
160 CONSTITUTION OF THE UNITED STATES. 
 
 direct and efficient, as his measures cannot be disguised, 
 or shifted upon others ; and any abuse of authority can 
 be more clearly seen, and carefully watched, than when 
 it is shared by numbers. 
 
 § 256. In the next place, the duration of the term of 
 office of the Executive. It should be long enough to 
 enable a chief magistrate to carry fairly through a system 
 of government, according to the laws ; and to stimulate 
 him to personal firmness in the execution of his duties. 
 If the term is very short, he will feel very little of the 
 just pride of office, from the precariousness of its tenure. 
 He will act more with reference to immediate and tem¬ 
 porary popularity, than to permanent fame. His meas¬ 
 ures will tend to insure his own reelection, (if he desires 
 it,) rather than to promote the good of the country. He 
 will bestow offices upon mean dependants, or fawning 
 courtiers, rather than upon persons of solid honor and 
 distinction. He will fear to encounter opposition by a 
 lofty course ; and his wishes for office, equally with his 
 fears, will debase his fortitude, weaken his integrity, and 
 enhance his irresolution. 
 
 § 257. On the other hand, the period should not be so 
 long, as to impair the proper dependence of the Execu¬ 
 tive upon the people for encouragement and support ; or 
 to enable him to persist in a course of measures, deeply 
 injurious to the public interests, or subversive of the pub¬ 
 lic faith. His administration should be known to come 
 under the review of the people at short periods ; so that 
 its merits may be decided, and its errors be corrected by 
 the sober exercise of the electoral vote by the people. 
 
 § 25S. For all of these purposes, the period, actually 
 assigned for the duration of office of the President, by the 
 Constitution, seems adequate and satisfactory. It is four 
 years, a period intermediate between the term of office 
 of the Representatives, and that of the Senators. By 
 this arrangement, too, the whole organization of the legis¬ 
 lative departments is not dissolved at the same moment. 
 A part of the functionaries are constantly going out of 
 office, and as constantly renewed, while a sufficient num¬ 
 ber remain, to carry on the same general system with in- 
 
EXECUTIVE DEPARTMENT. 
 
 161 
 
 telligence and steadiness. The President is not precluded 
 from being reeligible to office ; and thus with a just 
 estimate of the true dignity and true duties of his office, 
 he may confer lasting benefits on his country, as well 
 as acquire for himself the enviable fame of a statesman 
 and patriot. 
 
 § 259. The like term of office is fixed for the Vice 
 President ; and in case of the vacancy of the office of 
 President, he is to succeed to the same duties and pow¬ 
 ers. In the original scheme of the government, the Vice 
 President was an equal candidate for the office of Presi¬ 
 dent. But that provision has been altered (as we shall 
 presently see) by an amendment of the Constitution. As 
 President of the Senate, it seems desirable, that the Vice 
 President should have the experience of at least four 
 years service, to perfect him in the forms of business, 
 and secure to him due distinction, and weight of charac¬ 
 ter. 
 
 § 260. The next clause provides for the mode of 
 choice of the President and Vice President. u Each 
 State shall appoint, in such manner as the Legislature 
 thereof may direct, a number of Electors, equal to the 
 whole number of Senators and Representatives, to which 
 the State may be entitled in the Congress. But no Sen¬ 
 ator or Representative, or person holding an office of 
 trust or profit under the United States, shall be appointed 
 an Elector.” 
 
 § 261. Various modes were suggested as to the choice 
 of these high officers ; first, the choice was proposed to 
 be made by the National Legislature ; secondly, by the 
 State Legislatures ; thirdly, by the people at large ; 
 fourthly, by the people in districts ; and lastly, by Elect¬ 
 ors. Upon consideration of the whole subject, the last 
 was deemed the most eligible course, as it would secure 
 the united action and wisdom of a select body of distin¬ 
 guished citizens in the choice, and would be attended 
 with less excitement, and more deliberation, than a mere 
 popular election. Such a body would also have this 
 preference over any mere Legislature, that it would not be 
 chosen for the ordinary functions of legislation, but singly 
 
 14* 
 
162 CONSTITUTION OF THE UNITED STATES. 
 
 and solely for this duty. It was supposed from these 
 circumstances, that the choice would be more free and 
 independent, more wise and cautious, more satisfactory, 
 and more unbiased by party spirit, than in either of the 
 other modes. The State Legislatures would still have 
 an agency in the choice, by prescribing the mode, in 
 which the Electors should be chosen, whether it should 
 be by the people at large, or in districts, or by the Legis¬ 
 lature itself. For the purpose of excluding all undue 
 influence in the electoral colleges, the Senators and 
 Representatives in Congress, and all officers under the 
 National Government are disqualified from being Electors. 
 
 § 262. The remaining clause regulates the conduct of 
 the Electors, in giving and certifying their votes ; the 
 manner of ascertaining and counting the votes in Congress ; 
 and the mode of choice, in case there is no choice made 
 by the Electors. The original clause was as follows :— 
 tc The Electors shall meet in their respective States, and 
 vote by ballot for two persons, of whom 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 Presi¬ 
 dent of the Senate. The President of the Senate shall, 
 in the presence of the Senate and House of Representa¬ 
 tives, 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 majori¬ 
 ty of the whole number of electors appointed ; and if 
 there be more than one who have such majority, and have 
 an equal number of votes, then the House of Representa¬ 
 tives shall immediately choose by ballot one of them for 
 President ; and if no person have a majority, then, from 
 the five highest on the list, the said House shall in like 
 manner choose the President. But in choosing the Presi¬ 
 dent the votes shall be taken by States, the representation 
 from each State having one vote ; a quorum for this pur¬ 
 pose shall consist of a member or members from two 
 thirds of the States, and a majority of all the States shall 
 
EXECUTIVE DEPARTMENT. 
 
 163 
 
 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 Pres¬ 
 ident.” 
 
 § 263. This clause is now repealed, (whether wisely or 
 not, has been a matter of grave question among statesmen,) 
 and the following substituted in its stead :— u The Elec¬ 
 tors shall meet in their respective States, and vote by 
 ballot for President and Vic£ President, one of whom, at 
 least, shall not be an inhabitant of the same State with 
 themselves. They shall name in their ballots the per¬ 
 son voted for as President, and in distinct ballots the 
 person voted for as Vice President. And they shall 
 make distinct 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 government of 
 the United States, directed to the President of the Sen¬ 
 ate. The President of the Senate shall, in 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 for President, 
 shall be the President, if such number be a majority of 
 the whole number of Electors appointed ; and if no per¬ 
 son have such majority, then, from the persons having the 
 highest numbers, not exceeding three, on the list of those 
 voted for as President, the House of Representatives shall 
 choose immediately, by ballot, the President. But in 
 choosing the President, the votes shall be taken by States, 
 the Representation from 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. And 
 if the House of Representatives shall not choose a Pres¬ 
 ident, whenever the right of choice shall devolve upon 
 them, before the fourth day of March next following, then 
 the Vice President shall act as President, as in the case 
 of the death, or other constitutional disability of the 
 
164 CONSTITUTION OF TIIE UNITED STATES. 
 
 President. The person, having the greatest number of 
 votes as Vice President, shall be the Vice President, if 
 such number be a majority of the whole number of Elect¬ 
 ors appointed. And if no person have a majority, then, 
 from the two highest numbers on the list, the Senate shall 
 choose the Vice President. A quorum for the purpose 
 shall consist of two thirds of the whole number of Sena¬ 
 tors, and a majority of the whole number shall be neces¬ 
 sary to a choice. But no person, constitutionally ineligi¬ 
 ble to the office of President, shall be eligible to that of 
 Vice President of the United States.” 
 
 § 26-4. The principal differences between the original 
 plan, and this amendment to the Constitution, are the fol¬ 
 lowing : First, by the original plan, two persons were voted 
 for as President ; and after the President was chosen, the 
 person, having the greatest number of votes of the Elect¬ 
 ors was to be Vice President ; but if two or more had 
 equal votes, the Senate were to choose the Vice Presi¬ 
 dent from them by ballot. By the present plan, the votes 
 for President and Vice President are distinct. Second¬ 
 ly, by the original plan, in case of no choice of President 
 by the Electors, the .choice was to be made by the House 
 of Representatives, from the five highest on the list. It 
 is now reduced to three. Thirdly, by the original plan, 
 the Vice President need not have a majority of all the 
 electoral votes, but only a greater number than any other 
 person. It is now necessary, that he should have a ma¬ 
 jority of all the votes. Fourthly, by the original plan, 
 the choice of Vice President could not be made until af¬ 
 ter a choice of President. It can now be made by the 
 Senate, as soon as it is ascertained, that there is no choice 
 by the Electors. Fifthly, no provision was made for the 
 case of no choice of President by the House of Represent¬ 
 atives, before the fourth day of March next. It is now 
 provided that the Vice President in such a case shall act 
 as President. 
 
 § 265. A few words, only, will be necessary, to explain 
 the main provisions, respecting the choice of these high 
 functionaries, since the adoption of this amendment, as an 
 elaborate examination of the subject would occupy too 
 
EXECUTIVE DEPARTMENT. 
 
 165 
 
 much space. In the first place, the Electors, as well as 
 the House of Representatives, are to vote by ballot, and 
 not viva voce , or by oral declaration. The object of this 
 provision, is, to secure the Electors from all undue influ¬ 
 ence, and undue odium for their vote, as it was supposed, 
 that perfect secrecy could be maintained. In the next 
 place, both candidates cannot be an inhabitant of the same 
 State, as the Electors. The object of this clause is to 
 suppress local partialities and combinations. In the next 
 place, the votes are to be certified by the Electors them¬ 
 selves, in order to insure the genuineness of the vouchers. 
 In the next place, they are to be sealed, and opened and 
 counted only in presence of the Senate and House of 
 Representatives, in order to prevent any frauds or altera¬ 
 tions in their transmission. In the next place, a majority 
 of all the electoral votes is, in the first instance, required 
 for a choice, and not a mere plurality ; thus enabling the s 
 people, in case there is no choice, to exercise through 
 their Representatives a sound discretion, in selecting from 
 the three highest candidates. It might otherwise happen, 
 if there were many candidates, that a person, having a 
 very small number of votes over any one of the others, 
 might succeed against the wishes of a great majority of 
 the people. In the next place, the House of Represent¬ 
 atives are to vote by States, each having one vote in the 
 choice. The choice is, as we have seen, in the first in¬ 
 stance to be by the people of each State, according to 
 the number of their Senators and Representatives. But 
 if no choice is thus made, then the choice devolves on 
 the House of Representatives, and each State is to have 
 an equal voice in the election, and to have but a single 
 vote, whatever may be the number of its Representatives. 
 Thus, the primary election is in effect surrendered to the 
 large States ; and if that fails, then it is surrendered to 
 the small States. So that an important motive is thus 
 suggested for union among the large States in the first 
 instance ; and for union among the small States in the 
 last resort. 
 
 § 266. There probably is no part of the plan of the 
 framers of the Constitution, which, practically speaking, 
 
166 CONSTITUTION OF THE UNITED STATES. 
 
 has so little realized the expectations of its friends, as that 
 which regards the choice of President. They undoubt¬ 
 edly intended, that the Electors should be left free to make 
 the choice according to their own judgement of the rel¬ 
 ative merits and qualifications of the candidates for this 
 high office ; and that they should be under no pledge to 
 any popular favorite, and should be guided by no sectional 
 influences. In both respects, the event has disappointed 
 all these expectations. The Electors are now almost uni¬ 
 versally pledged to support a particular candidate, before 
 they receive their own appointment ; and they do little 
 more than register the previous decrees, made by public 
 and private meetings of the citizens of their own State. 
 The President is in no just sense the unbiassed choice of 
 the people, or of the States. He is commonly the rep¬ 
 resentative of a party, and not of the Union ; and the dan¬ 
 ger, therefore, is, that the office may hereafter be filled by 
 those, who will gratify the private resentments, or preju¬ 
 dices, or selfish objects of their particular partisans, rather 
 than by those, who will study to fulfil the high destiny 
 contemplated by the Constitution, and be the impartial 
 patrons, supporters, and friends of the great interests of the 
 ' whole country. 
 
 § 267. It is observable, that the mode, in which the 
 electoral vote of each State is to be given, is confided to 
 the State Legislature. The mode of choice has never 
 been uniform since the Constitution was adopted. In 
 some States, the choice is by the people by a general 
 ticket ; in others, by the people in electoral districts ; 
 and in others, by the immediate choice of the State Le¬ 
 gislature. This want of uniformity has been deemed a 
 serious defect by many statesmen ; but, hitherto, it has 
 remained unredressed by any constitutional amendment. 
 
 § 26S. The next clause is, u The Congress may de¬ 
 termine the time of choosing the Electors, and the day, 
 on which they shall give their votes ; which day shall be 
 the same throughout the United States.” This measure 
 is undoubtedly the result of sound policy. A fixed peri¬ 
 od, at which all the electoral votes shall be given on the 
 same day, has a tendency to repress political intrigues and 
 
EXECUTIVE DEPARTMENT. 
 
 167 
 
 speculations, by rendering a combination among all the 
 electoral colleges, as to their votes, more difficult, if not 
 unavailing. This object would be still more certainly 
 obtained, by fixing the choice of the electors themselves 
 on the same day, and at so short a period, before they 
 gave their votes, as to render any general negotiations and 
 arrangements among them nearly impracticable. Prac¬ 
 tically speaking, however, this provision, as well as the 
 preceding, has had far less influence than was expected ; 
 for the votes of the Electors are now, in consequence of 
 their pledges, almost as well known before, as after, their 
 votes are counted. 
 
 § 269. The next clause respects the qualifications of the 
 President ; and the qualifications of the Vice President 
 are (as we have seen) to be the same. u No person 
 except a natural born citizen, or a citizen of the United 
 States at the time of the adoption of this Constitution, shall 
 be eligible to the office of President. Neither shall any 
 person be eligible to the office, who shall not have attained 
 to the age of thirty-five years, and been fourteen years a 
 resident within the United States.” 
 
 § 270. Considering the nature of the duties, the extent 
 of the information, and the solid wisdom and experience, 
 required in the Executive department, no one can reason¬ 
 ably doubt the propriety of some qualification of age of the 
 President. That, which is selected, is the middle age of 
 life, by which period, the character and talents of individ¬ 
 uals are generally known, and fairly developed ; the pas¬ 
 sions of youth have become moderated ; and the faculties 
 are fast advancing to their highest state of maturity. An 
 earlier period could scarcely have afforded sufficient pledg¬ 
 es of talents, wisdom, and virtue, adequate to the dignity 
 and importance of the office. 
 
 § 271. The other qualifications respect citizenship and 
 inhabitancy. It is not too much to say, that no one, but 
 a native citizen, ought ordinarily to be intrusted with an 
 office so vital to the safety and liberties of the people. 
 But an exception was, from a deep sense of gratitude, 
 made in favor of those distinguished men, who, though not 
 natives, had, with such exalted patriotism, and such per- 
 
16S CONSTITUTION OF THE UNITED STATES. 
 
 sonal sacrifices, united their lives and fortunes with ours 
 during the Revolution. But even a native citizen might, 
 from long absence, and voluntary residence abroad, be¬ 
 come alienated from, or indifferent to his country ; and, 
 therefore, a residence for fourteen years within the United 
 States is made indispensable, as a qualification to the 
 office. This, of course, does not exclude persons, who 
 are temporarily abroad in the public service, or on their 
 private affairs, and who have not intentionally given up 
 their domicile here. 
 
 §272. The next clause is, “ In case of the removal 
 of the President from office, or of his death, resignation, 
 or inability to discharge the powers and duties of the said 
 office, the same shall devolve on the Vice President. 
 And the Congress may by law provide for the case of 
 removal, death, resignation, or inability of the President 
 and Vice President ; declaring what officer shall then act 
 as President ; and such officer shall act accordingly, until 
 the disability be removed, or a President shall be elect¬ 
 ed.” The propriety of this power is manifest. It pro¬ 
 vides for cases, which may occur in the progress of the 
 government ; and it prevents in such cases a total sus¬ 
 pension of the executive functions, which would be in¬ 
 jurious, and might even be fatal to the interests of the 
 country. 
 
 § 273. What shall be the proper proof of the resigna¬ 
 tion of the President or Vice President, or of their refu¬ 
 sal to accept the office, is left open by the Constitution. 
 But Congress, with great wisdom and foresight, have pro¬ 
 vided, that the only evidence of a refusal to accept the 
 office, or of a resignation of the office, shall be an instru¬ 
 ment in writing, declaring the same, subscribed by the 
 party and delivered into the office of the Secretary of 
 State. No provision has as yet been made for the case 
 of the inability of the President or Vice President to 
 perform the duties of his office, nor has any mode of 
 proof been prescribed, to ascertain the fact of inability, 
 or what shall be deemed an inability. 
 
 § 274. The next clause provides for the compensation 
 of the President. u The President shall, at stated times, 
 
EXECUTIVE DEPARTMENT. 
 
 169 
 
 receive for his services a compensation, which shall nei¬ 
 ther be increased nor diminished, during the period for 
 which he shall have been elected ; and he shall not receive, 
 within that period, any other emolument from the United 
 States, or any of them. ” 
 
 §275. The propriety of granting to the President a 
 suitable compensation, cannot well be doubted. The Con¬ 
 stitution would, otherwise, exclude all persons of moder¬ 
 ate fortune from the office ; or expose them to gross 
 temptations, to sacrifices of duty, and perhaps to direct 
 corruption. The compensation should be adequate to 
 the just expenditures of the office. If the Legislature 
 should possess a discretionary authority to increase or 
 diminish it at their pleasure, the President would become 
 an humble dependent upon their bounty, or a mean sup¬ 
 pliant for their favor. It would give them a complete 
 command of his independence, and perhaps of his integ¬ 
 rity. And on the other hand, if the actual incumbent 
 could procure an augmentation of it during his official 
 term to any extent he might desire, he might be induced, 
 from mere avarice, to seek this as his highest reward, and 
 undermine the virtue of Congress, in order to accomplish 
 it. The prohibition equally forbids any increase or dimi¬ 
 nution. And, to exclude all exterior influences, it equal¬ 
 ly denies to him all emoluments arising from any other 
 sources, State or National. He is thus secured, in a great 
 measure, against all sinister foreign influences. And he 
 must be lost to all just sense of the high duties of his 
 station, if he does not conduct himself with an exclusive 
 devotion to the good of the whole people, unmindful at 
 once of the blandishments of courtiers, who seek to 
 deceive him, and of partisans, who aim to govern him, 
 and thus to accomplish their own selfish purposes. 
 
 § 276. The next clause is, u Before he enters on 
 the execution of his office, he shall take the following 
 oath or affirmation : I do solemnly swear (or affirm) that 
 I will faithfully execute the office of President of the 
 United States, and will, to the best of my ability, pre¬ 
 serve, protect, and defend, the Constitution of the United 
 States. 7 ’ There is little need of commentary here. No 
 
 15 xiii. 
 
170 CONSTITUTION OF THE UNITED STATES. 
 
 man can doubt the propriety of placing the President 
 under the sanction of an oath of office, to preserve, pro¬ 
 tect, and defend, the Constitution, who would require an 
 oath or solemn affirmation on any other occasion. If a 
 judge, or a juryman, or a witness, ought to take a solemn 
 oath or affirmation, to bind his conscience, surely a Pres¬ 
 ident, holding in his hands the destiny of the nation, ought 
 so to do. Let it not be deemed a vain or idle form. In 
 all these things, God will bring us into judgement. A 
 President, who shall dare to violate the obligations of his 
 solemn oath or affirmation of office, may escape human 
 censure, nay, may even receive applause from the giddy 
 multitude. But he will be compelled to learn, that there 
 is a watchful Providence, that cannot be deceived ; and 
 a righteous Being, the searcher of all hearts, who will 
 render unto all men according to their deserts. Consid¬ 
 erations of this sort will necessarily make a conscientious 
 man more scrupulous in the discharge of his duty ; and 
 will even make a man of looser principles pause, when 
 he is about to enter upon a deliberate violation of his 
 official oath. 
 
 CHAPTER XXIX. 
 
 Powers and Duties of the President. 
 
 § 277. We next come to the consideration of the pow¬ 
 ers and duties of the President. The first clause of the 
 second section is, cc The President shall be commander- 
 in-chief of the army and navy of the United States, and 
 of the militia of the several States, when called into the 
 actual service of the United States. He may require 
 the opinion in writing of the principal officer in each of 
 the executive departments, upon any subject relating to 
 the duties of their respective offices ; and he shall have 
 power to grant reprieves and pardons for offences against 
 the United States, except in cases of impeachment.” 
 
 § 278. The command, direction, and application, of 
 
POWERS AND DUTIES OF THE PRESIDENT. 171 
 
 the public forces, to execute the laws, maintain peace, 
 resist invasion, and carry on war, are powers obviously 
 belonging to the executive department, and require the 
 exercise of qualifications, which cannot properly be pre¬ 
 sumed to exist in any other department of the govern¬ 
 ment. Promptitude of action, unity of design, and har¬ 
 mony of operations, are in such cases indispensable to 
 success. Timidity, indecision, obstinacy, pride, and slug¬ 
 gishness, must mingle, in a greater or less degree, in all 
 numerous bodies, and render their councils inert and im¬ 
 becile, and their military operations slow and uncertain. 
 There is, then, true wisdom and policy in confiding the 
 command of the army and navy to the President, since it 
 will insure activity, responsibility, and firmness, in public 
 emergencies. 
 
 § 279. The President is also authorized to require 
 the opinions of the Heads of Departments, in writing, on 
 subjects relative to their official duties. This, perhaps, 
 might have been deemed an incidental right to his gener¬ 
 al authority. But it was desirable to make it a matter of 
 constitutional right, so as to enforce responsibility in crit¬ 
 ical times. 
 
 § 280. To the President, also, is confided the power 
 “to grant reprieves and pardons.” Without this power, 
 no government could be deemed to be suitably organized 
 for the purposes of administering human justice. The 
 criminal code of every country must necessarily partake, 
 in some of its punishments, of a high degree of severity ; 
 and it is not possible to fix the exact degree of punish¬ 
 ment, for every kind of offence, under every variety of 
 circumstances. There are so many things, which may 
 extenuate, as well as inflame the atrocity of crimes, and 
 so many infirmities, which belong to human nature in 
 general, which may furnish excuses, or mitigations for 
 the commission of them, that any code, which did not 
 provide for any pardoning or mitigating power, would be 
 universally deemed cruel, unjust, and indefensible. It 
 would introduce the very evils, which it would seek to 
 avoid, by inducing the community to connive at an escape 
 from punishment, in all cases, where the latter would be 
 
172 CONSTITUTION OF THE UNITED STATES. 
 
 disproportionate to the offence. The power of pardon 
 and reprieve is better vested in a single person, than in a 
 numerous body. It brings home a closer responsibility ; 
 it can be more promptly applied ; and, by cutting off de- 
 lavs, it will, on the one band, conduce to certaintv of 
 punishment, and, on the other hand, enable the Execu¬ 
 tive, at critical moments, to apply it as a means of detect¬ 
 ing, or of suppressing gross offences. But if the power 
 of pardon extended to impeachments, it is obvious, that 
 the latter might become wholly inefficient, as a protection 
 against political offences. The party accused might be 
 acting under the authority of the President, or be one of 
 his corrupt favorites. It is, therefore, wisely excepted 
 from his general authority. 
 
 § 281. The next clause respects the power to make 
 treaties and appointments to office. tc He (the Presi¬ 
 dent) shall have power, by and with the advice and con¬ 
 sent of the Senate, to make treaties, provided two thirds 
 of the Senators present concur. And he shall nominate, 
 and, by and with the advice and consent of the Senate, 
 shall appoint, ambassadors, other public ministers and 
 consuls, judges of the Supreme Court, and all other offi¬ 
 cers of the United States, whose appointments are not 
 herein otherwise provided for, and which shall be estab¬ 
 lished by law. But the Congress may by law vest the 
 appointment of such inferior officers, as they think proper, 
 in the President alone, in the Courts of Law, or in the 
 Heads of Departments.” 
 
 § 282. The power to make treaties is general, and, 
 of course, it embraces treaties for peace, or war ; for 
 commerce, or cessions of territory ; for alliance, or suc¬ 
 cors ; for indemnity for injuries, or payment of debts ; 
 for the recognition or establishment of principles of pub¬ 
 lic law ; and for any other purposes, which the policy, 
 necessities, or interests of independent nations may dic¬ 
 tate. Such a power is so large, and so capable of abuse, 
 that it ought not to be confided to any one man, nor even 
 to a mere majority of any public body, in a republican 
 government. There should be some higher pledge for 
 the sound policy or necessity of a treaty. It should re- 
 
POWERS AND DUTIES OF THE PRESIDENT. 173 
 
 ceive the sanction of such a number of public functiona¬ 
 ries, as would furnish a sufficient guaranty of such policy 
 or necessity. Two thirds of the Senate, therefore, are 
 required to give validity to a treaty. It would seem to 
 be perfectly safe in such a body, under such circumstan¬ 
 ces, representing, as it does, all the States of the Union. 
 The House of Representatives would not have been so 
 eligible a body, because it is more numerous, more popu¬ 
 lar in its structure, more short in its duration, more unfit 
 to act upon sudden emergencies, more under the control 
 of a few States ; and, from its organization, it may fairly 
 be presumed to have less experience in public affairs, 
 and less knowledge of foreign relations, than the Senate. 
 
 § 283. The power of appointment, one of the most 
 important and delicate in a republican government, is 
 next provided for. Upon its fair and honest exercise, 
 must, in a great measure,, depend the vigor, the public 
 virtue, and even the safety, of the government. If it shall 
 ever be wielded by any Executive, exclusively to gratify 
 his own ambition or resentments, to satisfy his own per¬ 
 sonal favorites, or to carry his own political measures, 
 and, still more, if it shall ever interfere with the freedom 
 of elections by the people, or suppress the honest expres¬ 
 sion of opinion and judgement by voters, it will become 
 one of the most dangerous and corrupt engines t6 destroy 
 private independence and public liberty, which can assail 
 the republic. It should, therefore, be watched in every 
 free government with uncommon vigilance, as it may, 
 otherwise, soon become as secret, as it will be irresisti¬ 
 ble, in its mischievous operations. If the time shall ever 
 arrive, when no citizen can obtain any appointment to 
 office, unless he submits to sacrifice all personal indepen¬ 
 dence and opinion, and to become the mere slave of 
 those, who can confer it, it is not difficult to foresee, that 
 the power of appointment will then become the fittest in¬ 
 strument of artful men to accomplish the worst purposes. 
 The framers of the Constitution were aware of this danger, 
 and have sedulously interposed certain guards to check, if 
 not wholly to prevent, the abuse of the power. The ad¬ 
 vice and consent of the Senate is required to the appoint- 
 
 15 * 
 
I 
 
 174 CONSTITUTION OF THE UNITED STATES. 
 
 ment of ambassadors, other public ministers, consuls, 
 judges of the Supreme Court, and other high officers. 
 
 § 284. The mode of appointment of inferior officers 
 is left in a good measure to the discretion of Congress ; 
 and the power may be vested by them in the President, 
 in the Courts of Law, or in the Heads of Departments. 
 The propriety of this grant of discretionary power, in 
 certain cases, cannot well be doubted. But it is very 
 questionable, if Congress have not permitted its exercise, 
 in some departments of the government, to an extent, 
 which may be highly alarming, and even incompatible 
 with the sound policy and interests of the government. 
 Some departments possess only the unenviable power 
 of appointing their own clerks ; whilst others possess a 
 power of patronage, which almost rivals that of the Pres¬ 
 ident himself; and the exercise of it is left, in a great 
 measure, without the check of the constitutional advice 
 or consent of the Senate. 
 
 § 285. It is observable, that the Constitution makes 
 no mention of any power of removal of any officer by the 
 President, or by any other body. As, however, the 
 tenure of office is not provided for in the Constitution, 
 except in the judicial department, (where it is during good 
 behavior,) the natural inference is, that all other officers 
 are to hold their offices during pleasure, or during such 
 period, as Congress shall prescribe. But if the power of 
 removal exists, in cases where the term of office is not 
 thus limited by Congress, the question is, in whom does 
 it reside ? Does it reside in the President alone ? Or 
 does it reside in the body intrusted with the particular 
 appointment ? It was maintained, with great earnestness 
 and ability, by some of the ablest statesmen, who assisted 
 in framing the Constitution, that it belonged to the latter ; 
 and that, in all cases where the advice and consent of the 
 Senate are necessary to an appointment, the same advice 
 and consent are also necessary to a removal from office. 
 In short, they maintained, with great force of argument 
 and reasoning, that the power of removal was but an inci¬ 
 dent to the power of appointment, and that, consequently, 
 the removal could only take place by the appointing pow- 
 
POWERS AND DUTIES OF THE PRESIDENT. 175 
 
 er, and was consummated only by a new appointment. It 
 is singular enough, that in the first Congress, jealous, 
 as it was, of executive power, a different doctrine was 
 maintained, viz., that it is an incident to the executive 
 department. This doctrine arose (it has been said) partly 
 from a just deference to the great man (Washington) 
 then in the office of President, and partly from a belief, 
 that a removal from office without just cause would be an 
 impeachable offence in the President; and, therefore, 
 that there could be no danger of its exercise, except in 
 flagrant cases of malversation, or incapacity of the officer. 
 This latter doctrine has ever since prevailed in practice ; 
 and the President is accordingly now permitted to exer¬ 
 cise the power of removal, without any restraint from the 
 Senate, although the Constitution, in the enumeration of 
 his powers, is wholly silent on the subject. If we con¬ 
 nect this power of removal, thus practically expounded, 
 with another power, which is given in the succeeding 
 clause, to fill up vacancies in the recess of the Senate, 
 the chief guards, intended by the Constitution, over the 
 power of appointment, may become utterly nugatory. A 
 President of high ambition and feeble principles may re¬ 
 move all officers, and make new appointments, in the 
 recess of the Senate ; and if his choice should not be 
 confirmed by the Senate, he may reappoint the same 
 persons in the recess, and thus set at defiance the salu¬ 
 tary check of the Senate in all such cases. 
 
 § 286 . The clause to which we have alluded is, u The 
 President shall have power to fill up all vacancies, that 
 may happen during the recess of the Senate, by granting 
 commissions, which shall expire at the end of their next 
 session.” This is a provision almost indispensable to 
 secure a due performance of public duties by officers of 
 the government, during the recess of the Senate ; and as 
 the appointments are but temporary, the temptation to any 
 abuse of the power would seem to be sufficiently guarded, 
 if it might not draw in its train the dangerous consequen¬ 
 ces, which have been before^ stated. 
 
 § 287 . The third section*of the second article enume¬ 
 rates the duties of the President. u He shall from time * 
 
176 CONSTITUTION OF THE UNITED STATES. 
 
 to time give to the Congress information of the state of 
 the Union, and recommend to their consideration such 
 measures, as he shall judge necessary and expedient. He 
 may, on extraordinary occasions,- convene both Houses, 
 or either of them ; and in case of disagreement between 
 them, with respect to the time of adjournment, he may 
 adjourn them to such time, as he shall think proper. He 
 shall receive ambassadors, and other public ministers. He 
 shall take care, that the laws be faithfully executed ; and 
 shall commission all the officers of the United States.” 
 
 § 288. The duty of giving information by the Presi¬ 
 dent to Congress, of the state of the Union, and of re¬ 
 commending measures, would seem almost too clear to 
 require any express provision. But it is not without its 
 use. It fixes the responsibility on the President; and, 
 on the other hand, it disables Congress from taking any 
 objection, that he is impertinently interfering with their 
 appropriate duties. His knowledge of public affairs may 
 be important to them ; and the people ought consequently 
 to have a right to demand it. His recommendation of 
 measures may give Congress the benefit of his large expe¬ 
 rience ; and, at all events, may compel them to a just dis¬ 
 charge of their legislative powers. So that, in this way, 
 each department may be brought more fully before the 
 public, both as to what each does, and what each omits 
 to do, and each will share the responsibility accordingly. 
 
 § 289. The power to convene Congress on extraordi¬ 
 nary occasions is founded on the wisest policy. Sudden 
 emergencies may arise in the recess of Congress, and be 
 wholly beyond any previous foresight, yet indispensable 
 to be met with promptitude and vigor. The power to 
 adjourn Congress, in cases of disagreement between the 
 two Houses, is a quiet way of disposing of a practical 
 difficulty in cases of irritation or obstinate differences of 
 opinion between them. 
 
 § 290. The power to receive ambassadors and other 
 public ministers, is a very important and delicate function ; 
 and far more so, than it seems to have been deemed even 
 by the framers of the Constitution. In times of profound 
 tranquillity throughout the world, it may properly be con- 
 
POWERS AND DUTIES OF THE PRESIDENT. 177 
 
 fided to the Executive alone. But it is not so clear, that 
 the Senate ought not, in cases of revolutions in foreign 
 governments, to partake of the functions, by their advice 
 and consent. The refusal to receive an ambassador or 
 minister, is sometimes a source of discontent to foreign 
 nations, and may even provoke public hostilities. But 
 in cases of revolution, or the separation of a kingdom into 
 two or more distinct governments, the acknowledgement 
 of an ambassador or minister, of either party, is often treat¬ 
 ed as an interference in the contest, and may lead to an 
 open rupture. There would therefore seem to be a pecu¬ 
 liar propriety, in all such cases, to require greater caution 
 on the part of the Executive, by interposing some check 
 upon his own unlimited discretion. Our own times have 
 furnished abundant examples of the critical nature of the 
 trust ; but it has hitherto been exercised with such sound 
 judgement, that the power has been felt to be practically 
 safe, and eminently useful. 
 
 § 201. Another duty of the President is, ct to take care 
 that the laws be faithfully executed . ” And by the laws 
 we are here to understand, not merely the acts of Con¬ 
 gress, but all the obligations of treaties, and all the requi¬ 
 sitions of the Constitution, as the latter are, equally with 
 the former, the u supreme law of the land.” The great 
 object of the establishment of the executive department 
 is, to accomplish, in this enlarged sense, a faithful execu¬ 
 tion of the laws. Without it, be the form of government 
 whatever it may, it will be utterly worthless for confidence, 
 or defence, for the redress of grievances, or the protec¬ 
 tion of rights, for the happiness and good order of citi¬ 
 zens, or for the public and political liberties of the peo¬ 
 ple. 
 
 § 292. But we are not to understand, that this clause 
 confers on the President any new and substantial power 
 to cause the laws to be faithfully executed, by any means, 
 which he shall see fit to adopt, although not prescribed by 
 the Constitution, or by the acts of Congress. That would 
 be to clothe him with an absolute despotic power over the 
 lives, the property, and the rights of the whole people. 
 A tyrannical President might, under a pretence of this 
 
178 CONSTITUTION OF THE UNITED STATES. 
 
 sort, punish for a crime, without any trial by jury, or 
 usurp the functions of other departments of the govern¬ 
 ment. The true interpretation of the clause is, that the 
 President is to use all such means as the Constitution and 
 laws have placed at his disposal, to enforce the due exe¬ 
 cution of the laws. As, for example, if crimes are com¬ 
 mitted, he is to direct a prosecution by the proper public 
 officers, and see, that the offenders are brought to justice. 
 If treaties are violated by foreign nations, he is to make 
 suitable demands for a due enforcement of them ; but he 
 cannot employ the public force, or make war, to accom¬ 
 plish the purpose. If public officers refuse or neglect to 
 perform their appropriate duties, he is bound to remove 
 them, and appoint others who will honestly and faithfully 
 perform them. 
 
 § 293. The remaining duty is, u to commission all the 
 officers of the United States.” The President cannot 
 lawfully refuse, or neglect it in any case, where it is re¬ 
 quired by law. It is not designed, as some have incor¬ 
 rectly supposed, to give him a control over all appoint¬ 
 ments ; but to give to the officers a perfect voucher of 
 their right to office. In this view, it is highly important, 
 as it introduces uniformity and regularity into all the de¬ 
 partments of the government, and furnishes an indisputa¬ 
 ble evidence of a rightful appointment. 
 
 § 294. The remaining section of this article contains 
 an enumeration of the persons, who shall be liable to be 
 removed from office by impeachment, and for what of¬ 
 fences. It is, c ‘ The President, Vice President, and all 
 civil officers of the United States, shall be removed from 
 office, on impeachment for, and conviction of, treason, 
 bribery, or other high crimes and misdemeanors.” The 
 true objects and interpretation of this clause have been 
 already sufficiently considered. 
 
 § 295. There are other incidental powers, belonging 
 to the executive department, which are necessarily im¬ 
 plied from the nature of the functions, which are confided 
 to it. Among these, must necessarily be included the 
 power to perform them, without any obstruction or im¬ 
 pediment whatsoever. The President cannot, therefore, 
 
THE JUDICIAL DEPARTMENT. 
 
 179 
 
 be liable to arrest, imprisonment, or detention, while be 
 is in the discharge of the duties of his office ; and for this 
 purpose his person must be deemed, in civil cases at least, 
 to possess an official inviolability. In the exercise of his 
 political powers, he is to use his own discretion, and is 
 accountable only to his country, and to his own conscience. 
 His decision, in relation to these powers, is subject to no 
 control; and his discretion, when exercised, is conclusive. 
 But he has no authority to control other officers of the 
 government, in relation to the duties imposed upon them 
 by law, in cases not touching his own political powers. 
 
 § 296. Thus is closed the examination of the rights, 
 powers, and duties of the Executive department. Unless 
 my judgement has been unduly biased, I think it will be 
 found impossible to withhold from this part of the Consti¬ 
 tution a tribute of profound respect, if not of the liveliest 
 admiration. All, that seems desirable in order to gratify 
 the hopes, secure the reverence, and sustain the dignity 
 the nation, is, that it should always be occupied by a man 
 of elevated talents, of ripe virtues, of incorruptible integ¬ 
 rity, and of tried patriotism ; one, who shall forget his 
 own interests, and remember, that he represents not a 
 party, but the whole nation ; one, whose fame may be 
 rested with posterity, not upon the false eulogies of favor¬ 
 ites, but upon the solid merit of having preserved the glo¬ 
 ry, and enhanced the prosperity of the country. 
 
 CHAPTER XXX. 
 
 The Judicial Department. 
 
 § 297. Having finished our examination of the struc¬ 
 ture and organization of the Legislative and Executive 
 Departments, we next come to an examination of the 
 remaining coordinate department, the Judiciary. No 
 one, who has duly reflected, can doubt, that the existence 
 of such a department, with powers coextensive with those 
 of the Legislative and Executive departments, is indispen- 
 
180 CONSTITUTION OF THE UNITED STATES. 
 
 sable to the safety of a free government. Where there 
 is no Judiciary department to interpret, pronounce, and 
 execute the laws, to decide controversies, to punish offen¬ 
 ces, and to enforce rights, the government must either 
 perish from its own weakness, or the other departments 
 of government must usurp powers for the purpose of 
 commanding obedience, to the utter extinction of civil and 
 political liberty. The will of those who govern, must, 
 under such circumstances, become absolute and despotic ; 
 and it is wholly immaterial, whether absolute power be 
 vested in a single tyrant, or in an assembly of tyrants. No 
 remark is better founded in human experience than that 
 of Montesquieu, that u there is no liberty, if the judiciary 
 be not separated from the legislative and executive pow¬ 
 ers.” It is no less true, that personal security and pri¬ 
 vate property depend entirely upon the wisdom, integrity, 
 and stability of courts of justice. How, otherwise, are 
 the innocent to be protected against unjust accusations, or 
 the injured to obtain redress for their wrongs ? If that 
 government can be truly said to be despotic and intolera¬ 
 ble, in which the law is vague and uncertain ; it cannot 
 but be rendered still more oppressive and more mischiev¬ 
 ous, when the actual administration of justice is depend¬ 
 ent upon caprice, or favor, upon the will of rulers, or the 
 influence of popularity. When power becomes right, it 
 is of little consequence, whether decisions rest upon cor¬ 
 ruption, or weakness, upon the accidents of chance, or 
 upon deliberate wrong. In every well-organized govern¬ 
 ment, therefore, with reference to the security both of 
 public rights and private rights, it is indispensable, that 
 there should be a judicial department, to ascertain, and 
 decide, rights, to punish crimes, to administer justice, and 
 to protect the innocent from injury and usurpation. 
 
 § 298. In the National Government, the judicial power 
 is equally as important, as it is in the States. The want 
 of it was a vital defect in the Confederation ; and led to 
 the most serious embarrassments during the brief existence 
 of that ill-adjusted instrument. Without it, the laws of 
 the Union would be perpetually in danger of being con¬ 
 travened by the laws of the States. The National Gov- 
 
THE JUDICIAL DEPARTMENT. 
 
 181 
 
 ernment would be reduced to a servile dependence upon 
 the latter for the due execution of its powers ; and we 
 should have reacted over the same solemn mockery, 
 which began in the neglect, and ended in the ruin of the 
 Confederation. Power without adequate means to en¬ 
 force it, is like a body in a state of suspended animation. 
 For all practical purposes, it is, as if its faculties were 
 extinguished. A single State might, under such circum¬ 
 stances, at its mere pleasure, suspend the w ? hole opera¬ 
 tions of the Union. 
 
 § 299. Two ends, of paramount importance, and fun¬ 
 damental to a free government, are to be attained by a 
 National Judiciary. The first is, a due execution of the 
 powers of the government ; the second is, a uniformity 
 of interpretation and operation of those powers, and of 
 the laws made in pursuance of them. The power of in¬ 
 terpreting the laws, necessarily involves the power to 
 decide, whether they are conformable to the Constitution, 
 or not; and in a conflict between the laws, State or 
 National, and the Constitution, no one can doubt, that the 
 latter is, and ought to be, of paramount obligation and 
 force. And, accordingly, it has always been deemed a 
 function indispensable to the safety and liberty of the peo¬ 
 ple, that courts of justice should have a right to declare 
 void such laws, as violate the Constitution. The framers 
 of the Constitution, having these great principles in view, 
 unanimously adopted two fundamental resolutions on this 
 subject ; first, that a National Judiciary ought to be estab¬ 
 lished ; and secondly, that it ought to possess powers co¬ 
 extensive with those of the legislative department. 
 
 § 300. The third article of the Constitution shows the 
 manner, in which these great principles are carried into 
 effect. The first section is, u The judicial power of the 
 United States shall be vested in one Supreme Court, and 
 in such inferior courts, as the Congress may from time 
 to time ordain and establish. The judges, both of the 
 supreme and inferior courts, shall hold their offices during 
 good behavior; and shall at stated times receive for their 
 services a compensation, which shall not be diminished 
 during their continuance in office.” The establishment 
 
 16 
 
 XIII. 
 
182 CONSTITUTION OF THE UNITED STATES. 
 
 of a Supreme Court is positively required ; the establish¬ 
 ment of inferior courts is left to the discretion of Congress. 
 Unless a Supreme Court were established, there would 
 be no adequate means to insure uniformity in the inter¬ 
 pretation and operations of the Constitution and laws. 
 Inferior tribunals, whether State, or National, might con¬ 
 strue them in very different manners ; and, thus their 
 full obligation might be admitted in one State, and de¬ 
 nied in another State. The existence of a Supreme 
 Court is, therefore, at all times indispensable for the pur¬ 
 poses of public justice ; and it is accordingly made the 
 imperative and absolute duty of Congress to establish such 
 a Court. But the establishment of inferior courts may 
 not, in all cases, and under all circumstances, be as indis¬ 
 pensable. And, at all events, the nature and extent of 
 the organization and jurisdiction of these inferior courts, 
 may properly vary, at different times, to suit the public 
 convenience and exigencies. The power, therefore, to 
 establish these courts, as well as prescribe their organiza¬ 
 tion and jurisdiction, is confided to the discretion of Con¬ 
 gress. 
 
 § 301. The next consideration is, the mode of appoint¬ 
 ment, and tenure of office, of the judges. We have already 
 seen, that the judges of the Supreme Court are to be ap¬ 
 pointed by the President, by and with the advice and 
 consent of the Senate. The appointment of inferior 
 judges is not expressly provided for. But it has either 
 been left to the discretion of Congress, or silently belongs 
 to the President, by and with the advice and consent of 
 the Senate, under the clause already considered, author¬ 
 izing him to appoint all other officers, whose appointments 
 are not otherwise, in the Constitution, provided for. 
 
 § 302. The tenure of office of the judges, both of the 
 Supreme and the inferior courts, is during good behavior. 
 This tenure of office seems indispensable to a due degree 
 of independence and firmness on their part, in the dis¬ 
 charge of the duties of their office ; and to a due security 
 to the people for their fidelity and impartiality, in admin¬ 
 istering private rights, and preserving the public liberties. 
 Such was the opinion of the framers of the Constitution, 
 
THE JUDICIAL DEPARTMENT. 
 
 183 
 
 who unanimously agreed to this tenure of office. Let 
 us briefly consider some of the reasoning, by which it is 
 supported. 
 
 § 303. In the first place, factions and parties are quite 
 as common in republics, as in monarchies ; and the same 
 safeguards are as indispensable in the former, as in the 
 latter, against the encroachments of party spirit, and the 
 tyranny of faction. Laws, however wholesome or neces¬ 
 sary, are sometimes the objects of temporary aversion, 
 of popular odium, and even of popular resistance. Noth¬ 
 ing is more easy in republics, than for demagogues, under 
 artful pretences, to stir up combinations against the regu¬ 
 lar exercise of authority, in order to advance their own 
 selfish projects. The independence and impartiality of 
 upright magistrates often interpose barriers to the success 
 of their schemes, which make them the secret enemies 
 of any regular and independent administration of justice. 
 If, under such circumstances, the tenure of office of the 
 judges were for a short period, they could easily intimi¬ 
 date them in the discharge of their duties, or, by render¬ 
 ing them odious, easily displace them. And thus the 
 minority in the state, whose sole reliance for protection, 
 in all free governments, must be upon the Judiciary, would 
 be deprived of their natural protectors. 
 
 § 304. In the next place, the independence of the 
 Judiciary is indispensable, to secure the people against 
 the unintentional, as well as the intentional usurpations of 
 authority, in the Executive and Legislative departments, 
 it has been observed, with great sagacity, that power is 
 perpetually stealing from the many to the few ; and that 
 there is a perpetual tendency in the Legislative and Exe¬ 
 cutive departments to absorb all power. If the judges are 
 appointed at short intervals, either by the Legislative or 
 by the Executive authority, they will naturally, and almost 
 necessarily, become mere dependents upon the appoint¬ 
 ing power. If they have a desire to obtain, or to hold 
 office, they will at all times evince a desire to follow, and 
 obey the will of the predominant power in the state. 
 Public justice will be administered with a faltering and 
 feeble hand. The Judiciary will under such circum- 
 
184 CONSTITUTION OF THE UNITED STATES. 
 
 t 
 
 stances seek little but the possession of office, and the 
 approbation of those who value, because they can con¬ 
 trol it. It will be apt to decree, what best suits the 
 opinions of the day ; and to forget, that the precepts of 
 the law rest on eternal foundations, and are not to be 
 changed at the arbitrary will of the judges. The rulers 
 and the citizens will not stand upon an equal ground in 
 litigations. The favorites of the day will overcome by 
 their power, or seduce by their influence. And thus the 
 fundamental maxim of a republic, that it ought to be a 
 Government of laws, and not of men, will be silently 
 disproved, or openly abandoned. 
 
 § 305. In the next place, all these considerations ac¬ 
 quire still more cogency and force, when applied to con¬ 
 stitutional questions. These questions may arise, not 
 merely between citizen and citizen, but between State 
 and State, and between the United States and the States. 
 Can it be supposed, for a moment, that men, who hold 
 their offices for two, or four, or even six years, would be 
 generally found firm enough to resist the will of those, 
 who have appointed them, and can so soon displace them ? 
 If they are to administer the Constitution, according to its 
 true spirit and principles, to support the weak against the 
 strong, the humble against the powerful, the few against 
 the many ; how can they be expected to possess the 
 requisite independence and impartiality, unless they hold 
 their offices by a tenure beyond the reach of the power 
 of the Legislature and Executive ? He is ill read in 
 the history of human experience, who does not foresee, 
 as well as provide for, such exigencies. In republics, the 
 other departments of the government may sometimes, if 
 not frequently, be found combined in hostility against the 
 Judiciary ; and even the people, for a while, under the 
 influence of party spirit and turbulent factions, may be 
 ready to abandon the judges to their fate. Few men 
 possess the firmness to resist the torrent of popular opin¬ 
 ion, or popular prejudice. Still fewer are content to 
 sacrifice present ease and popular favor, in order to earn 
 the slow rewards of a conscientious discharge of their 
 duty. If we would preserve the Constitution from inter- 
 
THE JUDICIAL DEPARTMENT. 
 
 185 
 
 nal, as well as from external perils, from the influences of 
 the great, and the corruptions of the selfish and ambitious, 
 we must place around it every guard, which experience 
 has shown will encourage good men in their integrity, and 
 will awe bad men in their intrigues. If the Constitution 
 ever perishes, it will be, when the Judiciary shall have 
 become feeble and inert, and either unwilling or unable 
 to perform the solemn duties imposed upon it by the ori¬ 
 ginal structure of the Government. Hitherto, no attempts 
 have been made to alter the Constitution, in respect to the 
 tenure of office. The views of the framers of it have, in 
 all the vicissitudes of party, still been supported by the 
 general approbation of the people. And, if any changes 
 shall hereafter be proposed, which shall diminish the just 
 authority of this, as an independent department, they will 
 only be matters of regret, so far as they may take away 
 any checks to the exercise of arbitrary power by either of 
 the other Departments of the Government. 
 
 § 306. But the tenure of office during good behavior, 
 would be of little consequence, if Congress possessed an 
 unlimited power over the compensation of the judges. It 
 has been well remarked, that, in the course of human af¬ 
 fairs, a power over a man’s subsistence is a power over 
 Ills will. If Congress could diminish at pleasure the sal¬ 
 aries of the judges, they could reduce it to a mere pit¬ 
 tance, and thus might sink them into an abject dependence. 
 The Constitution has, therefore, wisely provided, that the 
 compensation of the judges shall not be diminished during 
 their continuance in office, and shall be paid at stated 
 times. 
 
 § 307. It is almost unnecessary to add, that, although 
 the Constitution has thus sedulously endeavored, from 
 motives of public good, to place the independence of the 
 Judiciary upon a solid basis ; yet, the judges are not be¬ 
 yond the reach of the law. Th'ey hold, their offices du¬ 
 ring good behavior only ; and for misconduct, they may 
 be removed from office upon impeachment. Thus, per¬ 
 sonal responsibility is brought home to them ; and, like 
 all other public functionaries, they are also bound by an 
 oath to obey the laws, and support the Constitution. 
 
 16* 
 
186 CONSTITUTION OF THE UNITED STATES. 
 
 CHAPTER XXXL 
 
 POWERS AND JURISDICTION OF THE JUDICIARY. 
 
 § 308. The next, the second section of the third arti¬ 
 cle, contains an exposition of the jurisdiction appertaining 
 to the National Judiciary. “ The judicial power shall 
 extend to all cases in law and equity, arising under this 
 Constitution, the laws of the United States, and treaties 
 made, or which shall be made, under their authority ; to 
 all cases affecting ambassadors, other public ministers, 
 and consuls ; to all cases of admiralty and maritime juris¬ 
 diction ; to controversies, to which the United States 
 shall be a party ; to controversies between two or more 
 States ; between a State and citizens of another State ; 
 between citizens of different States ; between citizens of 
 the same State, claiming lands under grants of different 
 States ; and between a State, or the citizens thereof, and 
 foreign states, citizens, or subjects.” 
 
 § 309. In a work like the present, it is impossible to 
 present a lull exposition of the reasons for conferring the 
 different portions of this jurisdiction, all having the same 
 general object, the promotion of harmony, good order, 
 and justice at home, and the preservation of peace and 
 commercial intercourse abroad. In a general summary, 
 it may be said, that the jurisdiction extends to cases arising 
 under the Constitution, laws, and treaties, of the United 
 States, because the judicial power ought to be coexten¬ 
 sive with the legislative and executive powers, in order 
 to ensure uniformity of interpretation and operation of the 
 Constitution, laws, and treaties, and the means of enforc¬ 
 ing rights, duties, and remedies, arising under them. It 
 extends to cases affecting ambassadors, public ministers, 
 and consuls, because they are officers of foreign nations, 
 entitled by the law of nations to the protection of our Gov¬ 
 ernment ; and any misconduct towards them might lead 
 to private retaliations, or open hostilities, on the part of 
 
JURISDICTION OF THE JUDICIARY. 
 
 187 
 
 the offended Government. It extends to cases of admi¬ 
 ralty and maritime jurisdiction, because such cases grow 
 out of, and are intimately connected with, foreign com¬ 
 merce and navigation, with offences committed on the 
 ocean, and with the right of making captures, and carry¬ 
 ing on the operations of war. It extends to controver¬ 
 sies, to which the United States are a party, because the 
 Government ought to possess a right to resort to National 
 courts, to decide all controversies and contracts, to which 
 it is a party. It extends to controversies between two or 
 more States, in order to furnish a peaceable and impartial 
 tribunal, to decide cases, where different States claim 
 conflicting rights, in order to prevent gross irritations, and 
 border warfare. It extends to controversies between a 
 State and the citizens of another State ; because a State 
 ought not to be the sole judge of its own rights, as against 
 the citizens of other States. It extends to controversies 
 between citizens of different States ; because these con¬ 
 troversies may embrace questions, upon which the tribu¬ 
 nals of neither State could be presumed to be perfectly 
 impartial, from the peculiar public interests involved in 
 them. It extends to controversies between citizens of 
 the same State, claiming lands under grants of different 
 States ; because a similar doubt of impartiality may arise, 
 [t extends to controversies between a State, or its citizens, 
 and foreign States, citizens, or subjects ; because foreign 
 States and citizens have a right to demand an impartial 
 tribunal for the decision of cases, to which they are a par¬ 
 ty ; and want of confidence in the tribunals of one par¬ 
 ty may be fatal to the public tranquillity, or at least, may 
 create a discouraging sense of injustice. Even this cur¬ 
 sory view cannot fail to satisfy reasonable minds of the 
 importance of the powers of the National Judiciary to the 
 tranquillity and sovereignty of the States, and to the pre¬ 
 servation of the rights and liberties of the people. 
 
 § 310. But the subject is so important, and has so often 
 become matter of political discussion, and constitutional 
 inquiry, that it deserves to be examined more at large in 
 this place. We shall, therefore, proceed to examine 
 each of these cases, in which jurisdiction is conferred, in 
 
188 CONSTITUTION OF THE UNITED STATES. 
 
 the order, in which it stands, in order more fully to com¬ 
 prehend the particular reasons, on which it is founded. 
 
 § 311. And first : The judicial power extends to all 
 cases in law and equity, arising under the Constitution, the 
 laws, and the treaties, of the United States. And, by 
 cases in this clause, we are to understand criminal, as well 
 as civil, cases. 
 
 § 312. The propriety of the delegation of jurisdiction, 
 in u cases arising under the Constitution,” rests on the 
 obvious consideration, that there ought always to be some 
 constitutional method of giving effect to constitutional 
 provisions. What, for instance, would avail restrictions 
 on the authority of the State Legislatures, without some 
 constitutional mode of enforcing the observance of them ? 
 The States are, by the Constitution, prohibited from doing 
 a variety of things ; some of which are incompatible with 
 the interests of the Union ; others, with its peace and 
 safety ; others, with the principles of good government. 
 The imposition of duties on imported articles, the declar¬ 
 ation of war, and the emission of paper money, are ex¬ 
 amples of each kind. No man of sense will believe, that 
 such prohibitions would be scrupulously regarded, without 
 some effectual power in the Government to restrain, or 
 correct the infractions of them. The power must be 
 either a direct negative on the State laws, or an authority 
 in the National courts to overrule such, as shall manifestly 
 be in contravention to the Constitution. The latter course 
 was thought by the Convention to be preferable to the 
 former ; and it is, without question, by far the most ac¬ 
 ceptable to the States. 
 
 § 313. The same reasoning applies, with equal force, 
 to u cases arising under the laws of the United States.” 
 In fact, the necessity of uniformity, in the interpretation 
 of these laws, would of itself settle every doubt, that could 
 be raised on the subject. u Thirteen independent courts 
 of final jurisdiction over the same causes, (it was said,) is 
 a Hydra in government, from which nothing but contra¬ 
 diction and confusion can proceed.” The number is now 
 increased to twenty-six. 
 
 § 314. There is still more cogency, if it be possible, 
 
JURISDICTION OF THE JUDICIARY. 
 
 189 
 
 in the reasoning, as applied to “ cases arising under trea¬ 
 ties made, or which shall be made, under the authority 
 of the United States.” Without this power, there would 
 be perpetual danger of collision, and even of war, with 
 foreign powers, and an utter incapacity to fulfil the ordi¬ 
 nary obligations of treaties. The want of this power was 
 (as we have seen) a most mischievous defect in the Con¬ 
 federation ; and subjected the country, not only to viola¬ 
 tions of its plighted faith, but to the gross, and almost 
 proverbial, imputation of punic insincerity. 
 
 § 315. It is observable, that the language is, that “the 
 judicial power shall extend to all cases in law and equity ,” 
 arising under the Constitution, laws, and treaties, of the 
 United States. What is to be understood by “cases in 
 law and equity,” in this clause ? Plainly, cases at the 
 common law, as contradistinguished from cases in equity, 
 according to the known distinction in the jurisprudence 
 of England, which our ancestors brought with them upon 
 their emigration, and with which all the American States 
 were familiarly acquainted. Here, then, at least, the 
 Constitution of the United States appeals to, and adopts, 
 the common law, to the extent of making it a rule in the 
 pursuit of remedial justice in the courts of the Union. If 
 the remedy must be in law, or in equity, according to the 
 course of proceedings at the common law, in cases arising 
 under the Constitution, laws, and treaties of the United 
 States, it would seem irresistibly to follow, that the prin¬ 
 ciples of decision, by which these .remedies must be 
 administered, must be derived from the same source. 
 Hitherto, such has been the uniform interpretation and 
 mode of administering justice, in civil suits, in the courts 
 of the United States, in this class of cases. 
 
 § 316. Another inquiry may be, what constitutes a 
 case , within the meaning of this clause. It is clear, that 
 the Judicial department is authorized to exercise jurisdic¬ 
 tion to the full extent of the Constitution, laws, and trea¬ 
 ties, of the United States, whenever any question respect¬ 
 ing them shall assume such a form, that the judicial pow¬ 
 er is capable of acting upon it. When it has assumed 
 such a form, it then becomes a case ; and then, and not 
 
190 CONSTITUTION OF THE UNITED STATES. 
 
 till then, the judicial power attaches to it. A case, then, 
 in the sense of this clause of the Constitution, arises, when 
 some subject, touching the Constitution, laws, or treaties, 
 of the United States, is submitted to the court by a par¬ 
 ty, who asserts his rights in the form prescribed by law. 
 In other words, a case is a suit in law or equity, instituted 
 according to the regular course of judicial proceedings ; 
 and, when it involves any question arising under the Con¬ 
 stitution, laws, or treaties, of the United States, it is within 
 the judicial power confided to the Union. 
 
 § 317. Cases arising under the Constitution, as contra¬ 
 distinguished from those, arising under the laws of the 
 United States, are such as arise from the powers conferred, 
 or privileges granted, or rights claimed, or protection se¬ 
 cured, or prohibitions contained, in the Constitution itself, 
 independent of any particular statute enactment. Many 
 cases of this sort may easily be enumerated. Thus, if a 
 citizen of one State should be denied the privileges of a 
 citizen in another State ; if a State should coin money, 
 or make paper money a tender ; if a person, tried for a 
 crime against the United States, should be denied a trial 
 by jury, or a trial in the State, where the crime is charged 
 to be committed ; if a person, held to labor, or service, 
 in one State, under the laws thereof, should escape into 
 another, and there should be a refusal to deliver him up 
 to the party, to whom such service or labor may be due ; in 
 these, and many other cases, the question, to be judicially 
 decided, would be a case arising under the Constitution. 
 On the other hand, cases arising under the laws of the 
 United States, are such as grow out of the legislation of 
 Congress, within the scope of their constitutional autho¬ 
 rity, whether they constitute the right, or privilege, or 
 claim, or protection, or defence, of the party, in whole 
 or in part, by whom they are asserted. The same rea¬ 
 soning applies to cases arising under treaties. Indeed, 
 wherever, in a judicial proceeding, any question arises, 
 touching the validity of a treaty, or statute, or authority, 
 exercised under the United States, or touching the con¬ 
 struction of any clause of the Constitution, or any statute, 
 or treaty, of the United States ; or touching the validity 
 
JURISDICTION OF THE JUDICIARY. 
 
 191 
 
 of any statute, or authority exercised under any State, on 
 the ground of repugnancy to the Constitution, laws, or 
 treaties, of the United States, it has been invariably held 
 to be a case, to which the judicial power of the United 
 States extends. 
 
 § 31S. It has sometimes been suggested, that a case, 
 to be within the purview of this clause, must be one, in 
 which a party comes into court to demand something con¬ 
 ferred on him by the Constitution, or a law, or a treaty, 
 of the United States. But this construction is clearly too 
 narrow. A case in law or equity consists of the right of 
 the one party, as well as of the other, and may truly be 
 said to arise under the Constitution, ora law, or a treaty, 
 of the United States, whenever its correct decision de¬ 
 pends on the construction of either. This is manifestly 
 the construction given to the clause by Congress, by the 
 25th section of the Judiciary act, (which was almost 
 contemporaneous with the Constitution,) and there is no 
 reason to doubt its solidity or correctness. Indeed, the 
 main object of this clause would be defeated by any nar¬ 
 rower construction ; since the power was conferred for 
 the purpose, in an especial manner, of producing a uni¬ 
 formity of construction of the Constitution, laws, and trea¬ 
 ties, of the United States. 
 
 § 319. Cases may also arise under laws of the United 
 States by implication, as well as by express enactment ; 
 so that due redress may be administered by the judicial 
 power of the United States. It is not unusual for a le¬ 
 gislative act to involve consequences, which are not ex¬ 
 pressed. An officer, for example, is ordered to arrest 
 an individual. It is not necessary, nor is it usual, to say, 
 that he shall not be punished for obeying this order. Iiis 
 security is implied in the order itself. It is no unusual 
 thing for an act of Congress to imply, without expressing, 
 this very exemption from State control. The collectors 
 of the revenue, the carriers of the mail, the mint estab¬ 
 lishment, and all those institutions, which are public in 
 their nature, are examples in point. It has never been 
 doubted, that all, who are employed in them, are protect¬ 
 ed, while in the line of their duty ; and yet this protec- 
 
192 CONSTITUTION OF THE UNITED STATES. 
 
 tion is not expressed in any act of Congress. It is inci¬ 
 dental to, and is implied in, the several acts, by which 
 those institutions are created ; and it is secured to the in¬ 
 dividuals, employed in them, by the judicial power alone ; 
 that is, the judicial power is the instrument employed by 
 the Government in administering this security. 
 
 § 320. It has also been asked, and may again be asked, 
 why the words, u cases in equity,” are found in this 
 clause ? What equitable causes can grow out of the Con¬ 
 stitution, laws, and treaties, of the United States? To 
 this, the general answer seems at once clear and satisfac¬ 
 tory. 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, 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 some undue and unconscionable advan¬ 
 tage taken of the 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 ju¬ 
 risdiction. Agreements to convey lands, claimed under 
 the grants of different States, may afford another example 
 of the necessity of an equitable jurisdiction in the Federal 
 courts. This reasoning may not be so palpable in those 
 States, where the formal and technical distinction between 
 law and equity is not maintained, as in other States, 
 where it is exemplified by every day’s practice. 
 
 §321. The next clause, extends the judicial power 
 <c to all cases affecting ambassadors, other public min¬ 
 isters, and consuls.” The propriety of this delegation 
 of power to the National Judiciary will scarcely be ques¬ 
 tioned by any persons, who have duly reflected upon the 
 subject. There are various grades of public ministers, 
 
JURISDICTION OF THE JUDICIARY. 
 
 193 
 
 from ambassadors, (which is the highest grade,) down to 
 common resident ministers, whose rank, and diplomatic 
 precedence, and authority, are well known, and well as¬ 
 certained, in the law and usages of nations. But what¬ 
 ever may be their relative rank and grade, public minis¬ 
 ters of every class are the immediate representatives of 
 their sovereigns. As such representatives, they owe no 
 subjection to any laws, but those of their own country, 
 any more than their sovereign ; and their actions are not 
 generally deemed subject to the control of the private 
 law of that State, wherein they are appointed to reside. 
 He, that is subject to the coercion of laws, is necessarily 
 dependent on that power, by whom those laws were mader 
 But public ministers ought, in order to perform their du¬ 
 ties to their own sovereign, to be independent of every 
 power, except that by which they are sent ; and, of con¬ 
 sequence, ought not to be subject to the mere municipal 
 law of that nation, wherein they are to exercise their 
 functions. The rights, the powers, the duties, and the 
 privileges, of public ministers, are, therefore, to be deter¬ 
 mined, not by any municipal constitutions, but by the law 
 of nature and nations, which is equally obligatory upon 
 all sovereigns, and all states. What these rights, powers, 
 duties, and privileges are, are inquiries properly belong¬ 
 ing to a treatise on the law of nations, and need not be 
 discussed here. But it is obvious, that every question, 
 in which these rights, powers, duties, and privileges are 
 involved, is so intimately connected with the public peace, 
 and policy, and diplomacy, of the nation, and touches the 
 dignity and interest of the sovereigns of the ministers 
 concerned so deeply, that it would be unsafe, that they 
 should be submitted to any other, than the highest judica¬ 
 ture of the nation. 
 
 § 322. Consuls, indeed, have not in strictness a diplo¬ 
 matic character. They are deemed to be mere commer¬ 
 cial agents : and, therefore, partake of the ordinary char¬ 
 acter of such agents ; and are subject to the municipal 
 laws of the countries, where they reside. Yet, as they 
 are the public agents of the nation, to which they belong, 
 and are often entrusted with the performance of very deli- 
 
 17 XIII. 
 
194 CONSTITUTION OF THE UNITED STATES. 
 
 cate functions of state, and as they might be greatly em¬ 
 barrassed by being subject to the ordinary jurisdiction of 
 inferior tribunals, State and National, it was thought 
 highly expedient to extend the original jurisdiction of the 
 Supreme Court to them also. The propriety of vesting 
 jurisdiction, in such cases, in some of the National courts, 
 seems hardly to have been questioned by the most zeal¬ 
 ous opponents of the Constitution. And in cases against 
 ambassadors, and other foreign ministers, and consuls, 
 the jurisdiction has been deemed exclusive. 
 
 § 323. The next clause extends the judicial power 
 “ to all cases of admiralty and maritime jurisdiction.” 
 
 § 324. The admiralty and maritime jurisdiction, (and 
 the word, “ maritime,” was doubtless added to guard 
 against any narrow interpretation of the preceding word, 
 “admiralty,”) conferred by the Constitution, embraces 
 two great classes of cases ; one dependent upon locality, 
 and the other upon the nature of the contract. The first, 
 respects acts, or injuries, done upon the high sea, where 
 all nations claim a common right and common jurisdic¬ 
 tion ; or acts, or injuries, done upon the coast of the sea ; 
 or, at farthest, acts and injuries done within the ebb and 
 flow of the tide. The second, respects contracts, claims, 
 and services purely maritime, and touching rights and du¬ 
 ties appertaining to commerce and navigation. The for¬ 
 mer is again divisible into two great branches, one embrac¬ 
 ing captures, and questions of prize arising by the rights of 
 war ; the other embracing acts, torts, and injuries, strictly 
 of civil cognizance, independent of belligerent operations. 
 
 § 325. By the law of nations, the cognizance of all 
 captures, jure belli , or, as it is more familiarly phrased, 
 of all questions of prize, and their incidents, belongs ex¬ 
 clusively to the courts of the country, to which the cap- 
 tors belong, and from whom they derive their authority 
 to make the capture. No neutral nation has any right to 
 inquire into, or to decide upon, the validity of such cap¬ 
 ture, even though it should concern property belonging 
 to its own citizens or subjects, unless its own sovereign 
 or territorial rights are violated ; but the sole and exclu¬ 
 sive jurisdiction belongs to the courts of the capturing bel- 
 
JURISDICTION OF THE JUDICIARY. 
 
 195 
 
 ligerent. And this jurisdiction, by the common consent 
 of nations, is vested exclusively in courts of admiralty, pos¬ 
 sessing an original, or appellate jurisdiction. The courts 
 of common law are bound to abstain from any decision of 
 questions of this sort, whether they arise directly or indi¬ 
 rectly in judgement. The remedy for illegal acts of cap¬ 
 ture is, by the institution of proper prize proceedings in the 
 prize courts of the captors. If justice be there denied, the 
 nation itself becomes responsible to the parties aggrieved ; 
 and if every remedy is refused, it then becomes a subject 
 for the consideration of the nation, to which the parties 
 aggrieved belong, which may vindicate their rights, either 
 by a peaceful appeal to negotiation, or by a resort to arms. 
 
 § 326. It is obvious, upon the slightest consideration, 
 that the cognizance of all questions of prize, made under 
 the authority of the United States, ought to belong exclu¬ 
 sively to the National courts. How, otherwise, can the 
 legality of the captures be satisfactorily ascertained, or de¬ 
 liberately vindicated ? It seems not only a natural, but a 
 necessary, appendage to the power of war, and of negotia¬ 
 tion with foreign nations. It would otherwise follow, that 
 the peace of the whole nation might be put at hazard, at 
 any time, by the misconduct of one of its members. It. 
 could neither restore, upon an illegal capture ; nor, in many 
 cases, afford any adequate redress for the wrong ; nor 
 punish the aggressor. It would be powerless and palsied. 
 It could not perform, or compel the performance, of the 
 duties required by the law of nations. It would be a 
 sovereign, without any solid attribute of sovereignty ; and 
 move in chains, only to betray its own imbecility. Even 
 under the Confederation, the power to decide upon ques¬ 
 tions of capture and prize was exclusively conferred, in 
 the last resort, upon the National court of appeals. But, 
 like all other powers conferred by that instrument, it was 
 totally disregarded, wherever it interfered with State 
 policy, or with extensive popular interests. We have 
 seen, that the sentences of the National prize court of 
 appeals were treated as mere nullities ; and were incapa¬ 
 ble of being enforced, until after the establishment of the 
 present Constitution. The same reasoning, which con- 
 
196 CONSTITUTION OF THE UNITED STATES. 
 
 ducts us to the conclusion, that the National courts ought 
 to have jurisdiction of this class of admiralty cases, con¬ 
 ducts us equally to the conclusion, that, to be effectual 
 for the administration of international justice, it ought to 
 be exclusive. And, accordingly, it has been constantly 
 held, that this jurisdiction is exclusive in the courts of 
 the United States. 
 
 § 327. The other branch of admiralty jurisdiction, 
 dependent upon locality, respects civil acts, torts, and 
 injuries done on the sea, or, in certain cases, on waters 
 of the sea, where the tide ebbs and flows, without any 
 claim of exercising the rights of war. Such are cases of 
 assaults, and other personal injuries ; cases of collision, 
 or running of ships against each other ; cases of spoliation 
 and damage, (as they are technically called,) such as ille¬ 
 gal seizures, or depredations upon property ; cases of 
 illegal dispossession, or withholding possession from the 
 owners of ships, commonly called possessory suits ; cases 
 of seizures under municipal authority for supposed breach¬ 
 es of revenue, or other prohibitory laws ; and cases of 
 salvage for meritorious services performed, in saving 
 property, whether derelict, or wrecked, or captured, or 
 otherwise in imminent hazard from extraordinary perils. 
 
 § 328. It is obvious, that this class of cases has, or 
 may have, an intimate relation to the rights and duties of 
 foreigners, in navigation and maritime commerce. It may 
 materially affect our intercourse with foreign states ; and 
 may raise many questions of international law, not merely 
 touching private claims, but national sovereignty, and 
 national reciprocity. Thus, for instance, if a collision 
 should take place at sea between an American and a for¬ 
 eign ship, many important questions of public law might 
 be connected with its just decision ; for it is obvious, that 
 it could not be governed by the mere municipal law of 
 either country. So, if a case of recapture, or other 
 salvage service, performed to a foreign ship, should occur, 
 it must be decided by the general principles of maritime 
 law, and the doctrines of national reciprocity. Where a 
 recapture is made of a friendly ship from the hands of its 
 enemy, the general doctrine now established is, to restore 
 
JURISDICTION OF THE JUDICIARY. 
 
 197 
 
 it upon salvage, if the foreign country, to which it belongs, 
 adopts a reciprocal rule; or to condemn it to the recap¬ 
 tors, if the like rule is adopted in the foreign country. 
 And, in other cases of salvage, the doctrines of internation¬ 
 al and maritime law come into full activity, rather than 
 those of any mere municipal code. There is, therefore, 
 a peculiar fitness in appropriating this class of cases to 
 the National tribunals ; since they will be more likely to 
 be there decided upon large and comprehensive princi¬ 
 ples, and to receive a more uniform adjudication ; and 
 thus to become more satisfactory to foreigners. 
 
 § 329. The remaining class respects contracts, claims, 
 and services purely maritime. Among these, are the claims 
 of material-men and others, for repairs and outfits of ships 
 belonging to foreign nations, or to other States ; bottom¬ 
 ry bonds, for moneys lent on ships in foreign ports, to 
 relieve their distresses, and enable them to complete their 
 voyages ; surveys of vessels damaged by perils of the 
 seas ; pilotage on the high seas ; and suits for mariners’ 
 wages. These, indeed, often arise in the course of the 
 commerce and navigation of the United States ; and 
 seem emphatically to belong, as incidents, to the power 
 to regulate commerce. But they may also affect the 
 commerce and navigation of foreign nations. Repairs 
 may be done, and supplies be furnished, to foreign ships ; 
 money may be lent on foreign bottoms ; pilotage and 
 mariners’ wages may become due in voyages in foreign 
 employment ; and in such cases, the general maritime law 
 enables the courts of admiralty to administer a wholesome 
 and prompt justice. Indeed, in many of these cases, as 
 the courts of admiralty entertain suits in rem, (that is, 
 upon the thing,) as well as in personam , (that is, upon 
 the person,) they are often the only courts, in which an 
 effectual redress can be afforded, especially when it is 
 desirable to enforce a specific maritime lien, or claim, in 
 the nature of a pledge. 
 
 § 330. So that we see, that the admiralty jurisdiction 
 naturally connects itself, on the one hand, with our diplo¬ 
 matic relations and duties to foreign nations, and their 
 subjects ; and, on the other hand, with the great interests 
 
 17 * 
 
198 CONSTITUTION OF THE UNITED STATES. 
 
 of navigation and commerce, foreign and domestic. There 
 is, then, a peculiar wisdom in giving to the National Govern¬ 
 ment a jurisdiction of this sort, which cannot be wielded, 
 except for the general good ; and which multiplies the 
 securities for the public peace abroad, and gives to com¬ 
 merce and navigation the most encouraging support at 
 home. It may be added, that, in many of the cases 
 included in these latter classes, the same reasons do not 
 exist, as in cases of prize, for an exclusive jurisdiction ; 
 and, therefore, whenever the common law is competent 
 to give a remedy in the State courts, they may retain 
 their accustomed concurrent jurisdiction in the adminis¬ 
 tration of it. 
 
 § 331. We have been thus far considering the admi¬ 
 ralty and maritime jurisdiction in civil cases only. But it 
 also embraces all public offences, committed on the high 
 seas, and in creeks, havens, basins, and bays, within the 
 ebb and flow of the tide ; at least, in such as are out of 
 the body of any county of a State. In these places, the 
 jurisdiction of the courts of admiralty over offences is 
 exclusive ; for that of the courts of common law is limi¬ 
 ted to such offences, as are committed within the body of 
 some county. And on the seacoast, there is an alter¬ 
 nate, or divided jurisdiction of the courts of common law, 
 and admiralty, in places between high and low water 
 mark ; the former having jurisdiction when, and as far as 
 the tide is out, and the latter when, and as far as the tide 
 is in, or to high water mark. This criminal jurisdiction 
 of the admiralty is therefore exclusively vested in the 
 National Government ; and may be exercised over such 
 crimes and offences, as Congress may, from time to time, 
 delegate to the cognizance of the National courts. The 
 propriety of vesting this criminal jurisdiction in the Nation¬ 
 al Government depends upon the same reasoning, and is 
 established by the same general considerations, as have 
 been already suggested in regard to civil cases. It is 
 essentially connected with the due regulation, and pro¬ 
 tection of our commerce and navigation on the high seas, 
 and with our rights and duties in regard to foreign nations, 
 and their subjects, in the exercise of common sovereignty 
 
JURISDICTION OF THE JUDICIARY. 
 
 199 
 
 on the ocean. The States, as such, are not known in our 
 intercourse with foreign nations, and are not recognized 
 as common sovereigns on the ocean. And if they were 
 permitted to exercise criminal or civil jurisdiction there¬ 
 on, there would be endless embarrassments, arising from 
 the conflict of their laws, and the most serious dangers 
 of perpetual controversies with foreign nations. In short, 
 the peace of the Union would be constantly put at hazard 
 by acts, over which it had no control ; and by assertions 
 of right, which it might wholly disclaim. 
 
 § 332. The next clause extends the judicial power 
 u to controversies, to which the United States shall be a 
 party.” It scarcely seems possible to raise a reasonable 
 doubt, as to the propriety of giving to the National courts 
 jurisdiction of cases, in which the United States are a 
 party. It would be a perfect novelty in the history of 
 national jurisprudence, as well as of public law, that a 
 sovereign had no authority to sue in his own courts. Un¬ 
 less this power were given to the United States, the en¬ 
 forcement of all their rights, powers, contracts, and privi¬ 
 leges, in their sovereign capacity, would be at the mercy 
 of the States. They must be enforced, if at all, in the 
 State tribunals. And there would not only not be any 
 compulsory power over those courts to perform such func¬ 
 tions ; but there would not be any means of producing 
 uniformity in their decisions. A sovereign, without the 
 means of enforcing civil rights, or compelling the perfor¬ 
 mance, either civilly or criminally, of public duties, on 
 the part of the citizens, would be a most extraordinary 
 anomaly. It would prostrate the Union at the feet of 
 the States. It would.compel the National Government 
 to become a supplicant for justice before the judicature of 
 those, who were by other parts of the Constitution placed 
 in subordination to it. 
 
 § 333. The next clause extends the judicial power 
 cc to controversies between two or more States ; between 
 a State and the citizens of another State ; between citi¬ 
 zens of different States, claiming lands under grants of 
 different States ; and between a State, or the citizens 
 thereof, and foreign States, citizens, or subjects.” Of 
 
200 CONSTITUTION OF THE UNITED STATES. 
 
 these, we will speak in their order. And, first, u Contro¬ 
 versies between two or more States.” This power seems 
 to be essential to the preservation of the peace of the 
 Union. History gives us a horrid picture of the dis¬ 
 sensions and private wars, which distracted and desolated 
 Germany, prior to the institution of the imperial chamber 
 by Maximilian, towards the close of the fifteenth century ; 
 and informs us, at the same time, of the vast influence of 
 that institution, in appeasing the disorders, and establish¬ 
 ing the tranquillity, of the empire. This was a court in¬ 
 vested with authority to decide finally all differences among 
 the members of the Germanic body. But we need not 
 go for illustrations to the history of other countries. Our 
 own has presented, in past times, abundant proofs of the 
 irritating effects resulting from territorial disputes, and in¬ 
 terfering claims of boundary between the States. And 
 there are yet controversies of this sort, which have brought 
 on a border warfare, at once dangerous to public repose, 
 and incompatible with the public interests. 
 
 § 334. Under the Confederation, authority was given 
 to the National Government, to hear and determine, (in 
 the manner pointed out in the article,) in the last resort, 
 on appeal, all disputes and differences between two or 
 more States concerning boundary, jurisdiction, or any 
 other cause whatsoever. Before the adoption of this in¬ 
 strument, as well as afterwards, very irritating and vexa¬ 
 tious controversies existed between several of the States, 
 in respect to soil, jurisdiction, and boundary; and threat¬ 
 ened the most serious public mischiefs. Some of these 
 controversies were heard and determined by the court of 
 commissioners, appointed by Congress. But, notwith¬ 
 standing these adjudications, the conflict was maintained 
 in some cases, until after the establishment of the present 
 Constitution. 
 
 § 335. Before the Revolution, controversies between 
 the colonies, concerning the extent of their rights of soil, 
 territory, jurisdiction, and boundary, under their respec¬ 
 tive charters, were heard and determined before the King 
 in council, who exercised original jurisdiction therein, 
 upon the principles of feudal sovereignty. This jurisdic- 
 
JURISDICTION OF THE JUDICIARY. 
 
 201 
 
 tion was often practically asserted, as in the case of the 
 dispute between Massachusetts and New Hampshire, de¬ 
 cided by the Privy Council, in 1679 ; and in the case of 
 the dispute between New Hampshire and New York, in 
 1764. Lord Hardwicke recognised this appellate juris¬ 
 diction in the most deliberate manner, in the great case of 
 William Penny. Lord Baltimore. The same necessity, 
 which gave rise to it in our colonial state, must continue to 
 operate through all future time. Some tribunal, exercis¬ 
 ing such authority, is essential to prevent an appeal to 
 the sword, and a dissolution of the government. That it 
 ought to be established under the National, rather than 
 under the State, Government; or, to speak more properly, 
 that it can be safely established under the former only, 
 would seem to be a position self-evident, and requiring no 
 reasoning to support it. It may justly be presumed, that 
 under the National Government, in all controversies of this 
 sort, the decision will be impartially made, according to 
 the principles of justice ; and all the usual and most ef¬ 
 fectual precautions are taken to secure this impartiality, 
 by confiding it to the highest judicial tribunal. 
 
 § 336. Next : “ Controversies between a State and 
 “ the citizens of another State.” There are other sourc¬ 
 es, besides interfering claims of boundary, from which 
 bickerings and animosities may spring up among the mem¬ 
 bers of the Union. The past experience of the Country 
 has furnished some melancholy instances of this truth. 
 Under the Confederation, laws, of a character utterly in¬ 
 defensible in point of justice and principle, were passed in 
 some of the States, affecting the rights of citizens of other 
 States. And though the Constitution establishes particu¬ 
 lar guards against the repetition of those instances, which 
 have hitherto made their appearance ; yet it is warranta¬ 
 ble to apprehend, that the spirit, which produced them, 
 will assume new shapes, that could not be foreseen, nor 
 specifically provided against. Whatever practices may 
 have a tendency to distract the harmony of the States, are 
 proper objects of national superintendence and control. 
 It may be esteemed the basis of the Union, that c the 
 citizens of each State shall be entitled to all the privileges 
 
202 CONSTITUTION OF THE UNITED STATES. 
 
 and immunities of citizens of the several States.’ And 
 if it be a just principle, that every government ought to 
 possess the means of executing its own provisions by its 
 own authority, it will follow, that, in order to the inviola¬ 
 ble maintenance of that equality of privileges and immuni¬ 
 ties, to which the citizens of the Union will be entitled, the 
 National Judiciary ought to preside in all cases, in which 
 one State, or its citizens, are opposed to another State, 
 or its citizens. To secure the full effect of so fundamen¬ 
 tal a provision against all evasion and subterfuge, it is 
 necessary, that its interpretation should be committed to 
 that tribunal, which, having no local attachments, will be 
 likely to be impartial between the different States and 
 their citizens, and which, owing its official existence to 
 the Union, will never be likely to feel any bias inauspi¬ 
 cious to the principles, - on which it is founded. It may be 
 added, that the reasonableness of the agency of the Na¬ 
 tional courts in cases, in which the State tribunals cannot 
 be supposed to be impartial, speaks for it. No man 
 ought certainly to be a judge in his own cause, or in any 
 cause, in respect to which he has the least interest or 
 bias. This principle had no inconsiderable weight in 
 designating the national courts, as the proper tribunals for 
 the determination of controversies between different States 
 and their citizens. 
 
 § 337. And here a most important question of a con¬ 
 stitutional nature was formerly litigated ; and that is, wheth¬ 
 er the jurisdiction, given by the Constitution, in cases, 
 in which a State is a party, extended to suits brought 
 against a State, as well as by it, or was exclusively con¬ 
 fined to the latter. It is obvious, that, if a suit could be 
 brought, by any citizen of one State against another State, 
 upon any contract, or matter of property, the State would 
 be constantly subjected to judicial action, to enforce pri¬ 
 vate rights against it in its sovereign capacity. Accord¬ 
 ingly, at a very early period, numerous suits were brought 
 against particular States by their creditors, to enforce the 
 payment of debts, or other claims. The question was 
 made, and most elaborately considered, in the celebrated 
 case of Chisholm v. Georgia ; and the majority of the 
 
JURISDICTION OF THE JUDICIARY. 
 
 203 
 
 Supreme Court held, that the judicial power, under the 
 Constitution, applied equally to suits brought and suits 
 brought against a State. All the learned judges, on that 
 occasion, delivered opinions, containing the grounds of 
 their respective judgements. It is not my intention to go 
 over these grounds, although they are stated with great 
 ability and legal learning, and exhibit a very thorough 
 mastery of the whole subject. The decision created 
 general alarm among the States ; and an amendment was 
 proposed, and ratified by the States, by which the pow¬ 
 er was entirely taken away, so far as it regards suits 
 brought against a State. It is in the following words : 
 u The judicial power of the United States shall not be 
 construed to extend to any suit in law, or equity, com¬ 
 menced or prosecuted against one of the United States, 
 by citizens of another State, or by citizens, or subjects 
 of any foreign State.” This amendment was construed 
 to include suits then pending, as well as suits to be com¬ 
 menced thereafter ; and, accordingly, all the suits then 
 pending were dismissed, without any further adjudication. 
 
 § 338. Since this amendment has been made, a ques¬ 
 tion of equal importance has arisen ; and that is, whether 
 the amendment applies to original suits only, brought 
 against a State, leaving the appellate jurisdiction of the 
 Supreme Court in its full vigor over all constitutional 
 questions, arising in the progress of any suit brought by a 
 State, in any State court, against any private citizen or 
 alien. But this question will more properly come under 
 review, when we are considering the nature and extent 
 of the appellate jurisdiction of the Supreme Court. At 
 present, it is only necessary to state, that it has been sol¬ 
 emnly adjudged, that the amendment applies only to orig¬ 
 inal suits against a State ; and does not touch the appel¬ 
 late jurisdiction of the Supreme Court to re-examine, on 
 an appeal or writ of error, a judgement or decree render¬ 
 ed in any State court, in a suit brought originally by a 
 State against any private person. 
 
 § 339. Another inquiry, suggested by the original 
 clause, as well as by the amendment, is, when a State is 
 properly to be deemed a party to a suit, so as to avail 
 
204 CONSTITUTION OF THE UNITED STATES. 
 
 itself of, or to exempt itself from, the operation of the 
 jurisdiction conferred by the Constitution. To such an 
 inquiry, the proper answer is, that a State, in the sense 
 of the Constitution, is a party only, when it is on the rec¬ 
 ord as such ; and it sues, or is sued in its political capaci¬ 
 ty. It is not sufficient, that it may have an interest in a 
 suit between other persons, or that its rights, powers, priv¬ 
 ileges, or duties, may come therein incidentally in ques¬ 
 tion. It must be in terms a plaintiff or defendant, so that 
 the judgement, or decree, may be binding upon it, as it is 
 in common suits, binding upon parties and privies. The 
 point arose in an early stage of the government, in a suit 
 between private persons, where one party asserted the 
 land in controversy to be in Connecticut, and the other 
 in New York ; and the court held, that neither State 
 could be considered as a party. It has been again dis¬ 
 cussed in some late cases ; and the doctrine now firmly 
 established is, that a State is not a party in the sense of 
 the Constitution, unless it appears on the record, as such, 
 either as plaintiff or defendant. It is not sufficient, that 
 it may have an interest in the cause, or that the parties 
 before the Court are sued for acts done, as agents of the 
 State. In short, the very immunity of a State from be¬ 
 ing made a party, constitutes, or may constitute, a solid 
 ground, why the suit should be maintained against other 
 parties, who act as its agents, or claim under its title ; 
 although otherwise, as the principal, it might be fit, that 
 the State should be made a party upon the common 
 principles of a court of equity. 
 
 § 340. The same principle applies to cases, where a 
 State has an interest in a corporation ; as, when it is a 
 stockholder in an incorporated bank, tbe corporation is 
 still suable, although the State, as such, is exempted 
 from any action. The State does not, by becoming a 
 corporator, identify itself with the corporation. The 
 bank, in such a case, is not the State, although the State 
 holds an interest in it. Nor will it make any'difference 
 in the case, that the State has the sole interest in the cor¬ 
 poration, if in fact it creates other persons corporators. 
 An analogous case will be found in the authority, given 
 
JURISDICTION OF THE JUDICIARY. 
 
 205 
 
 by an act of Congress to the postmaster-general, to bring 
 suits in his official capacity. In such suits, the United 
 States are not understood to be a party, although the 
 suits solely regard their interests. The postmaster-gener¬ 
 al does not, in such cases, sue under the clause giving ju¬ 
 risdiction, u in controversies, to which the United States 
 shall be a party ;” but under the clause extending the juris¬ 
 diction to cases arising under the laws of the United States. 
 
 § 341. It may, then, be laid down, as a rule, which 
 admits of no exception, that, in all cases under the Con¬ 
 stitution of the United States, where jurisdiction depends 
 upon the party, it is the party named on the record. 
 Consequently the amendment, above referred to, which 
 restrains the jurisdiction granted by the Constitution over 
 suits against States, is of necessity limited to those suits, in 
 which a State is a party on the record. The amendment 
 has its full effect, if the Constitution is construed, as it 
 would have been construed, had the jurisdiction never 
 been extended to suits brought against a State by the 
 citizens of another State, or by aliens. 
 
 § 342. Next: ct Controversies between citizens of 
 different States.” Although the necessity of this power 
 may not stand upon grounds quite as strong, as some of 
 the preceding, there are high motives of state policy and 
 public justice, by which it can be clearly vindicated. 
 There are many cases, in which such a power may be 
 indispensable, or in the highest degree expedient, to carry 
 into effect some of the privileges and immunities con¬ 
 ferred, and some of the prohibitions upon States expressly 
 declared, in the Constitution. For example : It is de¬ 
 clared, that u the citizens of each State shall be entitled to 
 all the privileges and immunities of citizens of the several 
 States.” Suppose an attempt is made to evade, or with¬ 
 hold these privileges and immunities, would it not be 
 right to allow the party aggrieved an opportunity of claim¬ 
 ing them, in a contest with a citizen ol the State, before 
 a tribunal, at once national and impartial ? Suppose a 
 State should pass a tender law, or law impairing the obli¬ 
 gation of private contracts, or should, in the course of its 
 legislation, grant unconstitutional preferences to its own 
 
 IS xiii. 
 
206 CONSTITUTION OF THE UNITED STATES. 
 
 citizens, is it not clear, that the jurisdiction to enforce the 
 obligations of the Constitution, in such cases, ought to be 
 confided to the national tribunals ? These cases are not 
 purely imaginary. They have actually occurred ; and may 
 again occur, under peculiar circumstances, in the course 
 of State legislation. What was the fact under the Con¬ 
 federation ? Each State was obliged to acquiesce in the 
 degree of justice, which another State might choose to 
 yield to its citizens. There was not only danger of ani¬ 
 mosities growing up from this source ; but, in point of 
 fact, there did grow up retaliatory legislation, to meet 
 such real or imagined grievances. 
 
 § 343. Nothing can conduce more to general harmony 
 and confidence among all the States, than a conscious¬ 
 ness, that controversies are not exclusively to be decided 
 by the State tribunals ; but may, at. the election of the 
 party, be brought before the National tribunals. Besides ; 
 it cannot'"escape observation, that the judges in different 
 States hold their offices by a very different tenure. Some 
 hold during good behavior ; some for a term of years ; 
 some for a single year ; some are irremovable, except 
 upon impeachment ; and others may be removed upon 
 address of the Legislature. Under such circumstances, it 
 cannot but be presumed, that there may arise a course 
 of State policy, or State legislation, exceedingly injurious 
 to the interests of the citizens of other States, both as to 
 real and to personal property. It would require an un¬ 
 common exercise of candor or credulity to affirm, that, in 
 cases of this sort, all the State tribunals would be whollv 
 without State prejudice, or State feelings ; or, that they 
 would be as earnest in resisting the encroachments of 
 State authority upon the just rights, and interests of the 
 citizens of other States, as a tribunal differently consti¬ 
 tuted, and wholly independent of State authority. And, 
 if justice should be as fairly and as firmly administered in 
 the former, as in the latter, still the mischiefs would be 
 most serious, if the public opinion did not indulge such a 
 belief. Justice, in cases of this sort, should not only be 
 above all reproach, but above all suspicion. The sources 
 of State irritations and State jealousies are sufficiently 
 
JURISDICTION OF THE JUDICIARY. 
 
 207 
 
 numerous, without leaving open one so copious and con¬ 
 stant, as the belief, or the dread, of wrong in the adminis¬ 
 tration of State justice. Besides ; if the public confidence 
 should continue to follow the State tribunals, (as in many 
 cases it doubtless will,) the provision will become inert 
 and harmless ; for, as the party will have his election of 
 the forum, he will not be inclined to desert the State 
 courts, unless for some sound reason, founded either in 
 the nature of his cause, or in the influence of State pre¬ 
 judices. On the other hand, there can be no real danger 
 of injustice to the other side in the decisions of the Na¬ 
 tional tribunals ; because the cause must still be decided 
 upon the true principles of the local law, and not by any 
 foreign jurisprudence. There is another circumstance of 
 no small importance, as a matter of policy; and that is, 
 the tendency of such a power to increase the confidence 
 and credit between the commercial and agricultural States. 
 No man can be insensible to the value, in promoting credit, 
 of the belief of there being a prompt, efficient, and impar¬ 
 tial administration of justice in enforcing contracts. 
 
 § 344. The next inquiry, growing out of this part of 
 the clause, is, who are to be deemed citizens of different 
 States, within the meaning of it. Are all persons born 
 within a State to be always deemed citizens of that State, 
 notwithstanding any change of domicil ? Or does their 
 citizenship change with their change of domicil ? The 
 answer to this inquiry is equally plain and satisfactory. 
 The Constitution having declared, that the citizens of 
 each State shall be entitled to all privileges and immu¬ 
 nities of citizens in the several States, every person, who 
 is a citizen of one State, and removes into another, with 
 the intention of taking up his residence and inhabitancy 
 there, becomes ipso facto a citizen of the State, where 
 he resides ; and he- then ceases to be a citizen of the 
 State, from which he has removed his residence. Of 
 course, when he gives up his new residence, or domicil, 
 and returns to his native, or other State residence or dom¬ 
 icil, he reacquires the character of the latter. What cir¬ 
 cumstances shall constitute such a change of residence or 
 domicil, is an inquiry, more properly belonging to a trea- 
 
203 CONSTITUTION OF THE UNITED STATES. 
 
 tise upon public or municipal law, than to commentaries 
 upon constitutional law. In general, however, it may be 
 said, that a removal from one State into another, with an 
 intention of residence, or with a design of becoming an in¬ 
 habitant, constitutes a change of domicil, and of course a 
 change of citizenship. But a person, who is a native citi¬ 
 zen of one State, never ceases to be a citizen thereof, until 
 he has acquired a new citizenship elswhere. Residence in 
 a foreign country has no operation upon his character, as 
 a citizen, although it may, for purposes of trade and com¬ 
 merce, impress him with the character of the country. 
 To change allegiance is one thing ; to change inhabitancy 
 is quite another thing. The right and the power are not 
 coextensive in each case. Every citizen of a State is 
 ipso facto a citizen of the United States. 
 
 § 345. And a person, who is a naturalized citizen of 
 the United States, by a like residence in any State in the 
 Union, becomes ipso facto a citizen of that State. So a 
 citizen of a Territory of the Union, by a like residence, 
 acquires the character of the State, where he resides. 
 But a naturalized citizen of the United States, or a citizen 
 of a Territory, is not a citizen of a State, entitled to sue 
 in the courts of the United States, in virtue of that char¬ 
 acter, while he resides in any such Territory, nor until he 
 has acquired a residence or domicil in the particular State. 
 
 § 346. A corporation, as such, is not a citizen of a 
 State, in the sense of the Constitution. But, if all the 
 members of the corporation are citizens, their character 
 will confer jurisdiction ; for then it is substantially a suit 
 by citizens, suing in their corporate name. And a citizen 
 of a State is entitled to sue, as such, notwithstanding he 
 is a trustee for others, or sues in autre droit , as it is 
 technically called, that is, as representative of another. 
 Thus, a citizen may sue, who is a trustee at law, for the 
 benefit of the person entitled to the trust. And an ad¬ 
 ministrator, and an executor, may sue for the benefit of the 
 estate, which they represent; for, in each of these cases, 
 it is their personal suit. But if citizens, who are parties 
 to a suit, are merely nominally so ; as, for instance, if ma¬ 
 gistrates are officially required to allow suits to be brought 
 
JURISDICTION OF THE JUDICIARY. 
 
 209 
 
 in their names for the use or benefit of a citizen or alien, 
 the latter are deemed the substantial parties entitled to 
 sue. 
 
 § 347. Next: a Controversies between citizens of 
 the same State, claiming lands under grants of different 
 States.” This clause was not in the first draft of the 
 Constitution, but was added without an}' known objection 
 to its propriety. It is the only instance, in which the 
 Constitution directly contemplates the cognizance of dis¬ 
 putes between citizens of the same State ; but certainly 
 not the only one, in which they may indirectly, upon Con¬ 
 stitutional questions, have the benefit of the judicial power 
 of the Union. It has been already remarked, that the rea¬ 
 sonableness of the agency of the National courts, in cases 
 in which the State tribunals cannot be supposed to be im¬ 
 partial, speaks for itself. No man ought certainly to be 
 a judge in his own cause, or in any cause, in respect to 
 which he has the least interest or bias. This principle 
 has no inconsiderable weight in designating the National 
 courts, as the proper tribunals for the determination of 
 controversies between different States and their citizens. 
 And it ought to have the same operation, in regard to some 
 cases between citizens of the same State. Claims to land 
 under grants of different States, founded upon adverse 
 pretensions of boundary, are of this description. The 
 courts of neither of the granting States could be expected 
 to be unbiassed. The laws may even have prejudged 
 the question, and tied the courts down to decisions in 
 favor of the grants of the State, to which they belonged. 
 Where this has not been done, it would be natural, 
 that the judges, as men, should feel a strong predilection 
 for the claims of their own government. And, at all 
 events, the providing of a tribunal, having no possible in¬ 
 terest on the one side, more than the other, would have 
 a most salutary tendency in quieting the jealousies, and 
 disarming the resentments of the State, whose grant should 
 be held invalid. This jurisdiction attaches not only to 
 grants made by different States, which were never united ; 
 but also to grants made by different States, which were 
 originally united under one jurisdiction, if made since the 
 
 18 * 
 
210 CONSTITUTION OF THE UNITED STATES. 
 
 separation, although the origin of the title may be traced 
 back to an antecedent period. 
 
 § 348. Next: u Controversies between a State, or the 
 citizens thereof, and foreign states, citizens, or subjects.” 
 This provision has been vindicated in the following brief, 
 but powerful manner. The peace of the whole ought 
 not to be left at the disposal of a part. The Union will 
 undoubtedly be answerable to foreign powers for the con¬ 
 duct of its members. And the responsibility for an injury 
 ought ever to be accompanied with the faculty of pre¬ 
 venting it. As the denial or perversion of justice, by the 
 sentences of courts, is with reason classed among the just 
 causes of war, it will follow, that the National Judiciary 
 ought to have cognizance of all causes, in which the citi¬ 
 zens of other countries are concerned. This is not less 
 essential to the preservation of the public faith, than to 
 the security of the public tranquillity. A distinction may 
 perhaps be imagined between cases arising upon treaties 
 and the laws of nations, and those, which may stand merely 
 on the footing of the ijjpnicipal law. The former kind 
 may be supposed proper for the National jurisdiction ; the 
 latter for that of the States. But it is at least problemat¬ 
 ical, whether an unjust sentence against a foreigner, where 
 the subject of controversy was wholly relative to the lex 
 loci , as it is called, that is, to the local law, would not, if 
 unredressed, be an aggression upon his sovereign, as well 
 as one, which violated the stipulations of a treaty, or the 
 general law of nations. And a still greater objection to 
 the distinction would result from the immense difficulty, if 
 not impossibility, of a practical discrimination between the 
 cases of one complexion, and those of the other. So 
 great a proportion of the controversies, in which foreign¬ 
 ers are parties, involve national questions, that it is by far 
 the most safe, and most expedient, to refer all those, in 
 which they are concerned, to the National tribunals. 
 
 § 349. In addition to these suggestions, it may be re¬ 
 marked, that it is of great national importance to advance 
 public, as well as private credit, in our intercourse with 
 loreign nations and their subjects. Nothing can be more 
 beneficial in this respect, than to create an impartial tri- 
 
JURISDICTION OF THE JUDICIARY. 
 
 211 
 
 bunal, to which they may have resort upon all occasions, 
 when it may be necessary to ascertain, or enforce their 
 rights. Besides ; it is not wholly immaterial, that the law, 
 to be administered in cases of foreigners, is often very dis¬ 
 tinct from the mere municipal code of a State, and de¬ 
 pendent upon the law merchant, or the more enlarged 
 consideration of international rights and duties, in a case 
 of conflict of the foreign and domestic laws. And it may 
 fairly be presumed, that the National tribunals will, from, 
 the nature of their ordinary functions, become better ac¬ 
 quainted with the general principles, which regulate sub¬ 
 jects of this nature, than other courts, however enlighten¬ 
 ed, which are rarely required to discuss them. 
 
 § 350. In regard to controversies between an American 
 state and a foreign state, it is obvious, that the suit must, 
 on one side at least, be wholly voluntary. No foreign 
 state can be compelled to become a party, plaintiff or de¬ 
 fendant, in any of our tribunals. If, therefore, it chooses 
 to consent to the institution of any suit, it is its consent 
 alone, which can give effect to the jurisdiction of the 
 court. It is certainly desirable, to furnish some peaceable 
 mode of appeal in cases, where any controversy may exist 
 between an American state and a foreign state, sufficiently 
 important to require the grievance to be redressed by any 
 other mode, than through the instrumentality of negotia¬ 
 tions. 
 
 § 351. The inquiry may here be made, who are to be 
 deemed aliens, entitled to sue in the courts of the United 
 States. The general answer is, any person, who is not 
 a citizen of the United States. A foreigner, w r ho is nat¬ 
 uralized, is no longer entitled to the character of an alien. 
 And when an alien is the substantial party, it matters not, 
 whether he is a suitor in his own right ; or whether he 
 acts, as a trustee, or a personal representative ; or whether 
 he is compellable, by the local law, to sue through some 
 official organ. A foreign corporation, established in a 
 foreign country, all of whose members are aliens, is en¬ 
 titled to sue in the same manner, that an. alien may per¬ 
 sonally sue in the courts of the Union. It is not suffi¬ 
 cient to vest the jurisdiction, that an alien is a party to 
 
212 CONSTITUTION OF THE UNITED STATES. 
 
 the suit, unless the other party be a citizen. British sub¬ 
 jects, born before the American Revolution, are to be 
 deemed aliens ; and may sue American citizens, born be¬ 
 fore the Revolution, as well as those born since that pe¬ 
 riod. The Revolution severed the ties of allegiance ; and 
 made the inhabitants of each country aliens to each other. 
 In relation to aliens, however, it should be stated, that 
 they have a right to sue only, while peace exists between 
 their country and our own. For, if a war break out, and 
 they thereby become alien' enemies, their right to sue is 
 suspended, until the return of peace. 
 
 § 352. We have now finished our review of all the 
 classes of cases, to which the judicial power of the United 
 States extends ; and this review will (we trust) amply 
 establish the reasonableness, the sound policy, and in many 
 cases, the indispensable necessity, of confining this juris¬ 
 diction on the National Government. The next inquiry 
 naturally presented, is in what mode this jurisdiction is to 
 be exercised, and in what courts it is to be vested. The 
 next clause of the third article, answers the inquiry. It 
 is as follows : “ 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 jurisdiction, both as 
 to law and fact, with such exceptions, and under such 
 regulations, as the Congress shall make.” 
 
 § 353. By original jurisdiction, is here meant, that the 
 party may commence his suit directly, and in the first in¬ 
 stance, in the Supreme Court ; by appellate jurisdiction 
 is meant, a right to revise the decision or judgement, 
 made by some other court, in which the suit has been in¬ 
 stituted. For reasons of the highest public policy, original 
 jurisdiction is given to the Supreme Court in cases, in 
 which foreign nations and the States are concerned, as 
 more appropriate to their dignity, and, under all circum¬ 
 stances, more fit to receive the decision of the highest 
 tribunals. Othe;* cases may conveniently be left to the 
 inferior tribunals, and be brought by appeal for revision 
 before the Supreme Court, if either party should require 
 
JURISDICTION OF THE JUDICIARY. 
 
 213 
 
 it, leaving to Congress the authority to regulate the right 
 of appeal, in the exercise of a sound discretion. 
 
 § 354. There are some additional suggestions upon this 
 clause, which may, perhaps, be useful to that class of read¬ 
 ers who desire to comprehend the full force and opera¬ 
 tion of this clause, in its various practical bearings.* 
 
 § 355. The first remark, arising out of this clause, is, 
 that, as the judicial power of the United States extends 
 to all the cases enumerated in the Constitution, it may ex¬ 
 tend to all such cases, in any form, in which judicial power 
 may be exercised. It may, therefore, extend to them in 
 the shape of original, or of appellate jurisdiction, or of 
 both ; for there is nothing in the nature of the cases, 
 which binds to the exercise of the one in preference to the 
 other. But it is clear, from the language of the Consti¬ 
 tution, that, in one form or the other, it is absolutely obli¬ 
 gatory upon Congress, to vest all the jurisdiction in the 
 National courts, in that class of cases, at least, where it 
 lias declared, that it shall extend to u all cases.” 
 
 § 356. In the next place, the jurisdiction, which is 
 by the Constitution to be exercised by the Supreme Court 
 in an original form, is very limited, and extends only to 
 cases affecting ambassadors, and other public ministers, 
 and consuls, and cases, where a State is a party. And 
 Congress cannot constitutionally confer on it any other, or 
 further original jurisdiction. This is one of the appropri¬ 
 ate illustrations of the rule, that the affirmation of a power 
 in particular cases, excludes it in all others. The clause 
 itself would otherwise be wholly inoperative and nugatory. 
 If it had been intended to leave it to the discretion of Con¬ 
 gress, to apportion the judicial power between the Su¬ 
 preme and inferior courts, according to the will of that 
 body, it would have been useless to have proceeded fur¬ 
 ther, than to define the judicial power, and the tribunals, 
 in which it should be vested. Affirmative words often, 
 in their operation, imply a negative of other objects, than 
 those affirmed ; and in this case, a negative, or exclusive 
 sense, must be given to the w r ords, or they have no oper- 
 
 * The following sections of this chapter can be omitted by those, 
 whose studies may not enable them fully to understand this compli¬ 
 cated subject. 
 
214 CONSTITUTION OF THE UNITED STATES. 
 
 ation at all. If the solicitude of the Convention, respect¬ 
 ing our peace with foreign powers, might induce a provis¬ 
 ion to be made, that the Supreme Court should have 
 original jurisdiction in cases, which might be supposed to 
 affect them ; yet the clause would have proceeded no fur¬ 
 ther, than to provide for such cases, unless some further re¬ 
 striction upon the powers of Congress had been intended. 
 The direction, that the Supreme Court shall have appel¬ 
 late jurisdiction, in all cases, with such exceptions, as Con¬ 
 gress shall make, will be no restriction, unless the words 
 are to be deemed exclusive of original jurisdiction. And 
 accordingly, the doctrine is firmly established, that the 
 Supreme Court cannot constitutionally exercise any orig¬ 
 inal jurisdiction, except in the enumerated cases. If Con¬ 
 gress should confer it, it would be a mere nullity. 
 
 § 357. But, although the Supreme Court cannot ex¬ 
 ercise original jurisdiction, in any cases, except those 
 specially enumerated, it is certainly competent for Con¬ 
 gress to vest, in any inferior courts of the United States, 
 original jurisdiction of all other cases, not thus specially 
 assigned to the Supreme Court ; for there is nothing in 
 the Constitution, which excludes such inferior courts from 
 the exercise of such original jurisdiction. Original juris¬ 
 diction, so far as the Constitution gives a rule, is coexten¬ 
 sive with the judicial power ; and except, so far as the 
 Constitution has made any distribution of it among the 
 courts of the United States, it remains to be exercised in 
 an original, or an appellate form, or in both, as Congress 
 may, in their wisdom, deem fit. Now, the Constitution has 
 made no distribution, except of the original and appellate 
 jurisdiction of the Supreme Court. It has nowhere in¬ 
 sinuated, that the inferior tribunals shall have no original 
 jurisdiction. It has nowhere affirmed, that they shall have 
 appellate jurisdiction. Both are left unrestricted and un¬ 
 defined. Of course, as the judicial power is to be vested 
 in the Supreme and inferior courts of the Union, both are 
 under the entire control and regulation of Congress. 
 
 § 358. Another question, of a very different nature, is, 
 whether the Supreme Court can exercise appellate juris¬ 
 diction in the class of cases, of which original jurisdiction is 
 
JURISDICTION OF THE JUDICIARY. 
 
 215 
 
 delegated to it by the Constitution ; in other words, wheth¬ 
 er the original jurisdiction excludes the appellate ; and 
 so, on the other hand, whether the latter implies a negative 
 of the former. It has been said, that the very distinction, 
 taken in the Constitution, between original and appellate 
 jurisdiction, presupposes, that, where the one can be ex¬ 
 ercised, the other cannot. For example, since the orig¬ 
 inal jurisdiction extends to cases, where a State is a party, 
 this is the proper form, in which such cases are to be 
 brought before the Supreme Court; and, therefore, a case, 
 where a State is a party, cannot be brought before the 
 Court, in the exercise of its appellate jurisdiction ; for the 
 affirmative here, as well as in the cases of original jurisdic¬ 
 tion, includes a negative of the cases not enumerated. 
 
 § 359. If the correctness of this reasoning were ad¬ 
 mitted, it would establish no more, than that the Supreme 
 Court could not exercise appellate jurisdiction in cases, 
 where a State is a party. But it would by no means 
 establish the doctrine, that the judicial power of the Uni¬ 
 ted States did not extend, in an appellate form, to such 
 cases. The exercise of appellate jurisdiction is far from 
 being limited, by the terms of the Constitution, to the 
 Supreme Court. There can be no doubt, that Congress 
 may create a succession of inferior tribunals, in each of 
 which it may vest appellate, as well as original jurisdic- 
 diction. This results from the very nature of the dele¬ 
 gation of the judicial power in the Constitution. It is 
 delegated in the most general terms ; and may, therefore, 
 be exercised under the authority of Congress, under every 
 variety of form of original and of appellate jurisdiction. 
 There is nothing in the instrument, which restrains or 
 limits the power ; and it must, consequently, subsist in the 
 utmost latitude, of which it is in its nature susceptible. 
 The result, then, would be, that, if the appellate jurisdic¬ 
 tion over cases, to which a State is a party, could not, ac¬ 
 cording to the terms of the Constitution, be exercised by the 
 Supreme Court, it might be exercised exclusively by an 
 inferior tribunal. The soundness of any reasoning, which 
 would lead us to such a conclusion, may well be questioned. 
 
 § 360. But the reasoning itself is not well founded. 
 
216 CONSTITUTION OF THE UNITED STATES. 
 
 It proceeds upon the ground, that, because the character 
 of the party alone, in some instances, entitles the Su¬ 
 preme Court to maintain original jurisdiction, without any 
 reference to the nature of the case, therefore, the char¬ 
 acter of the case, which in other instances is made the very 
 foundation of appellate jurisdiction, cannot attach. Now, 
 that is the very point of controversy. It is not only not 
 admitted, but it is solemnly denied. The argument might 
 just as well, and with quite as much force, be pressed in 
 the opposite direction. It might be said, that the appel¬ 
 late jurisdiction is expressly extended by the Constitution 
 to all cases in law and equity, arising under the Constitu¬ 
 tion, laws, and treaties of the United States, and, there¬ 
 fore, in no such cases could the Supreme Court exercise 
 original jurisdiction, even though a State were a party. 
 
 § 361. The next inquiry is, whether the eleventh 
 amendment to the Constitution has effected any change 
 of the jurisdiction, thus confided to the judicial power of 
 the United States. The words of the amendment, are, 
 u The judicial power of the United States shall not be 
 construed to extend to any suit in law or equity, com¬ 
 menced or prosecuted against one of the States, by citizens 
 of another State, or by citizens or subjects of any foreign 
 state.” It is a part of our history, that, at the adoption 
 of the Constitution, all the States were greatly indebted ; 
 and the apprehension, that these debts might be prosecu¬ 
 ted in the National courts, formed a very serious objection 
 to that instrument. Suits were instituted ; and the Supreme 
 Court maintained its jurisdiction. The alarm was general; 
 and, to quiet the apprehensions, that were so extensively 
 entertained, this amendment was proposed in Congress, 
 and adopted by the State Legislatures. That its motive 
 was not to maintain the sovereignty of a State from the 
 degradation, supposed to attend a compulsory appearance 
 before the tribunal of the Nation, may be inferred from the 
 terms of the amendment. It does not comprehend con¬ 
 troversies between two or more States, or between a 
 State and a foreign state. The jurisdiction of the Court 
 still extends to these cases ; and in these, a State may 
 still be sued. We must ascribe the amendment, then, to 
 
JURISDICTION OF THE JUDICIARY. 
 
 217 
 
 some other cause, than the dignity of a State. There is 
 no difficulty in finding this cause. Those, who were in¬ 
 hibited from commencing a suit against a State, or from 
 prosecuting one, which might be commenced before the 
 adoption of the amendment, were persons, who might 
 probably be its creditors. There was not much reason to 
 fear, that foreign or sister States would be creditors to any 
 considerable amount; and there was reason to retain the 
 jurisdiction of the Court in those cases, because it might 
 be essential to the preservation of peace. The amend¬ 
 ment, therefore, extended to suits commenced, or prose¬ 
 cuted by individuals, but not to those brought by States. 
 
 § 362. The first impression, made on the mind by this 
 amendment, is, that it was intended for those cases, and 
 for those only, in which some demand against a State is 
 made by an individual in the courts of the Union. If we 
 consider the cause, to which it is to be traced, we are 
 conducted to the same conclusion. A general interest 
 might well be felt, in leaving to a State the full powder of 
 consulting its convenience in the adjustment of its debts, 
 or of other claims upon it; but no interest could be felt 
 in so changing the relations between the whole and its 
 parts, as to strip the Government of the means of pro¬ 
 tecting, by the instrumentality of its courts, the Consti¬ 
 tution and laws from active violation. 
 
 § 363. This amendment, then, was designed to prevent 
 any suit being originally commenced by any private per¬ 
 son against a State ; but it w 7 as not designed to control 
 or interfere with the appellate jurisdiction of the Supreme 
 Court, in cases to which that appellate jurisdiction ex¬ 
 tended before the amendment. A case, therefore, orig¬ 
 inally commenced by a State against a private person in 
 any other Court, which involved any question arising 
 under the Constitution, laws, or treaties, of the United 
 States, might still be revised by the Supreme Court, upon 
 an appeal, or writ of error, as the case might require. 
 
 § 364. Another inquiry, touching the appellate juris¬ 
 diction of the Supreme Court, of a still more general char¬ 
 acter, is, whether it extends only to the inferior courts of 
 the Union, constituted by Congress, or reaches to cases 
 
 19 xiii. 
 
218 CONSTITUTION OF THE UNITED STATES. 
 
 decided in the State courts. This question has been 
 made on several occasions; and it has been most deliber¬ 
 ately and solemnly decided by the Supreme Court, that 
 it reaches the latter cases. 
 
 § 365. We have already seen, that appellate jurisdic¬ 
 tion is given by the Constitution to the Supreme Court, 
 in all cases, where it has not original jurisdiction ; subject, 
 however, to such exceptions and regulations, as Congress 
 may prescribe. It is, therefore, capable of embracing 
 every case enumerated in the Constitution, which is not 
 exclusively to be decided by way of original jurisdiction. 
 But the exercise of appellate jurisdiction is far from being 
 limited, by the terms of the Constitution, to the Supreme 
 Court. There can be no doubt, that Congress may cre¬ 
 ate a succession of inferior tribunals, in each of which it 
 may vest appellate, as well as original jurisdiction. The 
 judicial power is delegated by the Constitution in the most 
 general terms, and may, therefore, be exercised by Con¬ 
 gress, under every variety of form of appellate, or of ori¬ 
 ginal jurisdiction. And as there is nothing in the Con¬ 
 stitution, which restrains, or limits this power, it must, 
 therefore,in all these cases, subsist in the utmost latitude, 
 of which, in its own nature, it is susceptible. 
 
 § 366. If the Constitution meant to limit the appellate 
 jurisdiction to cases pending in the courts of the United 
 States, it would necessarily follow, that the jurisdiction 
 of these courts would, in all the cases enumerated in the 
 Constitution, be exclusive of State tribunals. How, 
 otherwise, could the jurisdiction extend to all cases , aris¬ 
 ing under the Constitution, laws, and treaties, of the Uni¬ 
 ted States, or, to all cases of admiralty and maritime ju¬ 
 risdiction ? If some of these cases might be entertained 
 by State tribunals, and no appellate jurisdiction, as to 
 them, should exist, then the appellate power would not 
 extend to a/Z, but to some, cases. If State tribunals 
 might exercise concurrent jurisdiction over all, or some 
 of the other classes of cases in the Constitution, without 
 control, then the appellate jurisdiction of the United States 
 might, as to such cases, have no real existence, contrary 
 to the manifest intent of the Constitution. Under such 
 
JURISDICTION OF THE JUDICIARY. 
 
 219 
 
 circumstances, to give effect to the judicial power, it 
 must be construed to be exclusive ; and this, not only 
 when the very question should arise directly ; but when it 
 should arise incidentally, in cases pending in State courts. 
 This construction would abridge the jurisdiction of such 
 courts far more, than has been ever contemplated in any 
 act of Congress. 
 
 § 367. But it is plain, that the framers of the Consti¬ 
 tution did contemplate, that cases within the judicial cog¬ 
 nizance of the United States, not only might, but would 
 arise in the State courts, in the exercise of their ordinary 
 jurisdiction. With this view, the sixth article declares, 
 that, “ This Constitution, and the law r s of the United 
 States, which shall be made in pursuance thereof, and all 
 treaties made, or which shall be made, under the author¬ 
 ity of the United States, shall be the supreme law of the 
 land, and the judges, in every State, shall be bound 
 thereby, any thing, in the Constitution or laws of any 
 State, to the contrary notwithstanding.” It is obvious, 
 that this obligation is imperative upon the State judges in 
 their official, and not merely in their private capacities. 
 From the very nature of their judicial duties, they would 
 be called upon to pronounce the law, applicable to the 
 case in judgement. They were not to decide, merely 
 according to the laws, or Constitution, of the State, but 
 according to the Constitution, laws, and treaties, of the 
 United States,—“the supreme law of the land.” 
 
 § 368. A moment’s consideration will show us the 
 necessity and propriety of this provision, in cases, where 
 the jurisdiction of the State courts is unquestionable. 
 Suppose a contract, for the payment of money, is made 
 between citizens of the same State, and performance 
 thereof is sought in the courts of that State ; no person 
 can doubt, that the jurisdiction completely and exclusively 
 attaches, in the first instance, to such courts. Suppose 
 at the trial, the defendant sets up, in his defence, a tender 
 under a State law, making paper money a good tender, 
 or a State law, impairing the obligation of such contract, 
 which law, if binding, would defeat the suit. The Con¬ 
 stitution of the United States has declared, that no State 
 
220 CONSTITUTION OF THE UNITED STATES. 
 
 shall make any thing but gold or silver coin a tender in 
 payment of debts, or pass a law impairing the obligation 
 of contracts. If Congress shall not have passed a law, 
 providing for the removal of such a suit to the courts of the 
 United States, must not the State court proceed to hear, 
 and determine it ? Can a mere plea in defence be, of 
 itself, a bar to further proceedings, so as to prohibit an 
 inquiry into its truth, or legal propriety, when no other 
 tribunal exists, to which judicial cognizance of such cases 
 is confided ? Suppose an indictment for a crime in a 
 State court, and the defendant should allege in his de¬ 
 fence, that the crime was created by an ex post facto act 
 of the State, must not the State court, in the exercise of 
 a jurisdiction, which has already rightfully attached, have 
 a right to pronounce on the validity, and sufficiency of 
 the defence ? It would be extremely difficult, upon any 
 legal principles, to give a negative answer to these inqui¬ 
 ries. Innumerable instances of the same sort might be 
 stated, in illustration of the position ; and unless the State 
 courts could sustain jurisdiction in such cases, this clause 
 of the sixth article would be without meaning or effect ; 
 and public mischiefs, of a most enormous magnitude, 
 would inevitably ensue. 
 
 § 369. It must, therefore, be conceded, that the Con¬ 
 stitution not only contemplated, but meant to provide for, 
 cases within the scope of the judicial power of the United 
 States, which might yet be brought before State tribunals. 
 It was foreseen, that, in the exercise of their ordinary 
 jurisdiction, State courts would, incidentally, take cogni¬ 
 zance of cases arising under the Constitution, the laws, 
 and treaties, of the United States. Yet, to all these cases 
 the judicial power, by the very terms of the Constitution, 
 is to extend. It cannot extend, by original jurisdiction, 
 if that has already rightfully and exclusively attached in 
 the State courts, which (as has been already shown) may 
 occur ; it must, therefore, extend by appellate jurisdic¬ 
 tion, or not at all. It would seem to follow, that the 
 appellate power of the United States must, in such cases, 
 extend to State tribunals ; and, if in such cases, there is 
 no reason, why it should not equally attach upon all others 
 within the purview of the Constitution. 
 
JURISDICTION OF THE JUDICIARY. 221 
 
 § 370. It is manifest, that the Constitution has pro¬ 
 ceeded upon a theory of its own, and given and withheld 
 powers according to the judgement of the American peo¬ 
 ple, by whom it was adopted. We can only construe its 
 powers, and cannot here inquire into the policy, or princi¬ 
 ples, which induced the grant of them. The Constitution 
 has presumed, (whether rightly or wrongly, we do not here 
 inquire,) that State attachments, State prejudices, State 
 jealousies, and State interests, might sometimes obstruct, 
 or control, or be supposed to obstruct, or control, the reg¬ 
 ular administration of justice. Hence, in controversies 
 between States ; between citizens of different States ; be¬ 
 tween citizens, claiming grants under different States ; be¬ 
 tween a State and its citizens, or foreigners ; and between 
 citizens and foreigners ; it enables the parties, under the 
 authority of Congress, to have the controversies heard, 
 tried, and determined, before the National tribunals. No 
 other reason, than that, which has been stated, can be 
 assigned, why some, at least, of these cases should not 
 have been left to the cognizance of the State courts. In 
 respect to the other enumerated cases,—cases arising 
 under the Constitution, laws, and treaties, of the United 
 States ; cases affecting ambassadors, and other public 
 ministers ; and cases of admiralty and maritime jurisdic¬ 
 tion,—reasons of a higher and more extensive nature, 
 touching the safety, peace, and sovereignty, of the Nation, 
 might well justify a grant of exclusive jurisdiction. 
 
 § 371. This is not all. A motive of another kind, 
 perfectly compatible with the most sincere respect for 
 State tribunals, might induce the grant of appellate power 
 over their decisions. That motive is the importance, 
 and even necessity, of uniformity of decisions throughout 
 the whole United States, upon all subjects within the pur¬ 
 view of the Constitution. Judges of equal learning and 
 integrity, in different States, might differently interpret a 
 statute, or a treaty, of the United States, or even the Con¬ 
 stitution itself. If there were no revising authority to 
 control these jarring and discordant judgements, and har¬ 
 monize them into uniformity, the laws, the treaties, and 
 the Constitution, of the United States, would be different 
 
 19* 
 
222 CONSTITUTION OF THE UNITED STATES. 
 
 m different States ; and might, perhaps, never have pre¬ 
 cisely the same construction, obligation, or efficacy, in 
 any two States. The public mischiefs, which would 
 attend such a state of things, would be truly deplorable ; 
 and it cannot be believed, that they could have escaped 
 the enlightened Convention, which formed the Constitu¬ 
 tion, What, indeed, might then have been only proph¬ 
 ecy, has now become fact; and the appellate jurisdiction 
 must continue to be the only adequate remedy for such 
 evils. 
 
 § 372. There is an additional consideration, which is 
 entitled to great weight. The Constitution of the United 
 States was designed for the common and equal benefit of 
 all the people of the United States. The judicial power 
 was granted for the same benign and salutary purpose. 
 It was not to be exercised exclusively for the benefit of 
 parties, who might be plaintiffs, and would elect the Na¬ 
 tional forum ; but also for the protection of defendants, 
 who might be entitled to try their rights, or assert their 
 privileges, before the same forum. Yet, if the appellate 
 jurisdiction does not extend to such cases, it will follow, 
 that, as the plaintiff may always elect the State courts, 
 the defendant may be deprived of all the security, which 
 the Constitution intended in aid of his rights. Such a 
 state of things can, in no respect, be considered as giving 
 equal rights. 
 
 § 373. Strong as this conclusion stands upon the gen¬ 
 eral language of the Constitution, it may still derive sup¬ 
 port from other sources. It is an historical fact, that this 
 exposition of the Constitution, extending its appellate pow¬ 
 er to State courts, was, previous to its adoption, uniformly 
 and publicly avowed by its friends, and admitted by its 
 enemies, as the basis of their respective reasonings, both 
 in and out of the State conventions. It is an historical fact, 
 that, at the time, when the Judiciary Act was submitted 
 to the deliberations of the first Congress, composed, as it 
 was, not only of men of great learning and ability, but of 
 men, who had acted a principal part in framing, support¬ 
 ing, or opposing, that Constitution, the same exposition 
 was explicitly declared, and admitted by the friends, and 
 
JURISDICTION OF THE JUDICIARY. 
 
 223 
 
 by the opponents of that system. It is an historical fact, 
 that the Supreme Court of the United States have, from 
 time to time, sustained this appellate jurisdiction, in a great 
 variety of cases, brought from the tribunals of many of 
 the most important States in the Union ; and that no 
 State tribunal ever breathed a judicial doubt on the sub¬ 
 ject, or declined to obey the mandate of the Supreme 
 Court, until a comparatively recent period. This weight 
 of contemporaneous exposition, by all parties, this acqui¬ 
 escence of enlightened State courts, and these judicial de¬ 
 cisions of the Supreme Court, through so long a period, 
 places the doctrine upon a foundation of authority, which 
 cannot be shaken, without delivering over the subject to 
 perpetual, and irremediable doubts. 
 
 § 374. It would be difficult, and perhaps not desira¬ 
 ble, to lay down any general rules in relation to the cases, 
 in which the judicial power of the courts of the United 
 States is exclusive of the State courts, or in which it may 
 be made so by Congress, until they shall be settled by 
 some positive adjudication of the Supreme Court. That 
 there are some cases, in which that power is exclusive, 
 cannot well be doubted ; that there are others, in which 
 it may be made so by Congress, admits of as little doubt; 
 and that, in other cases, it is concurrent in the State courts, 
 at least until Congress shall have passed some act, ex¬ 
 cluding the concurrent jurisdiction, will scarcely be de¬ 
 nied. It seems to be admitted, that the jurisdiction of 
 the courts of the United States is, or at least may be, 
 made exclusive in all cases arising under the Constitution, 
 laws, and treaties, of the United States ; in all cases 
 affecting ambassadors, other public ministers, and consuls ; 
 in all cases of admiralty and maritime jurisdiction, (which 
 are exclusive in their character ;) in controversies, to 
 which the United States shall be a party ; in controver¬ 
 sies between two or more States ; in controversies be¬ 
 tween a State and citizens of another State ; and in con¬ 
 troversies between a State and foreign States, citizens, or 
 subjects. And it is only in those cases, where, previous 
 to the constitution, State tribunals possessed jurisdiction, 
 independent of National authority, that they can now con¬ 
 stitutionally exercise a concurrent jurisdiction. 
 
224 CONSTITUTION OF THE UNITED STATES. 
 
 § 375. In the exercise of the jurisdiction confided 
 respectively to the State courts, and those courts of the 
 United States, (where the latter have not appellate juris¬ 
 diction,) it is plain, that neither can have any right to in¬ 
 terfere with, or control, the operations of the other. It 
 has accordingly been settled, that no State court can issue 
 an injunction upon any judgement in a court of the United 
 States ; the latter having an exclusive authority over its 
 own judgements and proceedings. Nor can any State 
 court, or any State legislature, annul the judgements of 
 the courts of the United States, or destroy the rights ac¬ 
 quired under them ; nor in any manner deprive the Su¬ 
 preme Court of its appellate jurisdiction ; nor in any 
 manner interfere with, or control, the process (whether 
 mesne or final) of the courts of the United States ; nor 
 prescribe the rules or forms of proceeding ; nor affect a 
 process in the courts of the United States ; nor issue a 
 mandamus to an officer of the United States, to compel 
 him to perform duties, devolved on him by the laws of 
 the United States. And, although writs of habeas corpus 
 have been issued by State judges, and State courts, in 
 cases where the party has been in custody, under the au¬ 
 thority of process of the courts of the United States, 
 there has been considerable diversity of opinion, whether 
 such an exercise of authority is constitutional ; and it yet 
 remains to be decided, whether it can be maintained. 
 
 § 376. On the other hand, the National courts have no 
 authority (in cases not within the appellate jurisdiction of 
 the United States) to issue injunctions to judgements in 
 the State courts ; or in any other manner to interfere with 
 their jurisdiction or proceedings. 
 
 § 377. Having disposed of these points, we may again 
 recur to the language of the Constitution, for the purpose 
 of some further illustrations. The language is, that “the 
 Supreme Court shall have appellate jurisdiction, both as 
 to law and fact, with such exceptions, and under such 
 regulations, as the Congress shall make.” 
 
 § 37S. In the first place, it may not be without use to 
 ascertain, what is here meant by appellate jurisdiction ; 
 and what is the mode, in which it may be exercised. The 
 
JURISDICTION OF THE JUDICIARY. 
 
 225 
 
 essential criterion of appellate jurisdiction is, that it revises 
 and corrects the proceedings in a cause already instituted, 
 and does not create that cause. In reference to judicial 
 tribunals, an appellate jurisdiction, therefore', necessarily 
 implies, that the subject matter has been already instituted 
 in, and acted upon by, some other court, whose judge¬ 
 ment or proceedings are to be revised. This appellate 
 jurisdiction may be exercised in a variety of forms, and 
 indeed in any form, which the Legislature may choose to 
 prescribe ; but, still, the substance must exist, before the 
 form can be applied to it. To operate at all, then, un¬ 
 der the Constitution of the United States, it is not suffi¬ 
 cient, that there has been a decision by some officer, or 
 Department, of the United States ; but it must be by one 
 clothed with judicial authority, and acting in a judicial 
 capacity. A power, therefore, conferred by Congress 
 on the Supreme Court, to issue a mandamus to public 
 officers of the United States generally, is not warranted 
 by the Constitution ; for it is, in effect, under such cir¬ 
 cumstances, an exercise of original jurisdiction. But 
 where the object is to revise a judicial proceeding, the 
 mode is wholly immaterial ; and a writ of habeas corpus , 
 or of mandamus, a writ of error, or an appeal, may be 
 used, as the Legislature may prescribe. 
 
 § 379. The most usual modes of exercising appellate 
 jurisdiction, at least, those, which are most known in the 
 United States, are, by a writ of error, or by an appeal, 
 or by some process of removal of a suit from an inferior 
 tribunal. An appeal is a process of civil law origin, and 
 removes a cause entirely, subjecting the fact, as well as 
 the law, to a review and a re-trial. A writ of error is a 
 process of common law origin ; and it removes nothing 
 for re-examination, but the law. The former mode is 
 usually adopted in cases of equity and admiralty jurisdic¬ 
 tion ; the latter, in suits at common law tried by a jury. 
 
 § 3S0. It is observable, that the language of the Con¬ 
 stitution is, that u the Supreme Court shall have appellate 
 jurisdiction, both as to law and fact.” This provision 
 was a subject of no small alarm and misconstruction at the 
 time of the adoption of the Constitution, as it was sup- 
 
226 CONSTITUTION OF THE UNITED STATES. 
 
 posed to confer on the Supreme Court, in the exercise 
 of its appellate jurisdiction, the power to review the de¬ 
 cision of a jury in mere matters of fact; and thus, in 
 effect, to destroy the validity of their verdict, and to re¬ 
 duce to a mere form, the right of a trial by jury in civil 
 cases. The objection was at once seized hold of by the 
 enemies of the Constitution ; and it was pressed with an 
 urgency and zeal, which were well nigh preventing its 
 ratification. There is certainly some foundation, in the 
 ambiguity of the language, to justify an interpretation, that 
 such a review might constitutionally be within the reach 
 of the appellate power, if Congress should choose to car¬ 
 ry it to that extreme latitude. But, practically speaking, 
 there was not the slightest danger, that Congress would 
 ever adopt such a course, even if it were within their con¬ 
 stitutional authority ; since it would be at variance with 
 all the habits, feelings, and institutions, of the whole coun¬ 
 try. At least, it might be affirmed, that Congress would 
 scarcely take such a step, until the people were prepared 
 to surrender all the great securities of their civil, as well 
 as of their political rights and liberties ; and in such an 
 event, the retaining of the trial by jury would be a mere 
 mockery. The real object of the provision was, to retain 
 the power of reviewing the fact, as well as the law, in cases 
 of equity, and of admiralty, and maritime jurisdiction. And 
 the manner, in which it is expressed, was probably occa¬ 
 sioned by the desire to avoid the introduction of the subject 
 of a trial by jury, in civil cases, upon which the Conven¬ 
 tion were greatly divided in opinion. 
 
 § 381. These views, however reasonable they may 
 seem to considerate minds, did not wholly satisfy the pop¬ 
 ular opinion ; and as the objection had a vast influence 
 upon public opinion, and amendments were proposed by 
 various State conventions on this subject, Congress, at its 
 first session, under the guidance of the friends of the Con¬ 
 stitution, proposed an amendment, which was ratified by 
 the people, and is now incorporated into the Constitution. 
 It is in these words : “In suits at common law, where 
 the value in controversy shall exceed twenty dollars, the 
 right of a trial by jury shall be preserved. And no fact, 
 
JURISDICTION OF THE JUDICIARY. 
 
 227 
 
 tried by a jury, shall be otherwise re-examined in any court 
 of the United States, than according to the rules of the 
 common law.” This amendment completely struck down 
 the objection ; and has secured the right of a trial by jury, 
 in civil cases, in the fullest latitude of the common law. 
 It is a most important and valuable amendment; and 
 places upon the high ground of constitutional right, the 
 inestimable privilege of a trial by jury in civil cases, a 
 privilege scarcely inferior to that in criminal cases, which 
 is conceded by all persons to be essential to political and 
 civil liberty. 
 
 § 382. The appellate jurisdiction is to be, u with such 
 exceptions, and under such regulations, as the Congress 
 shall prescribe.” But, here, a question is presented 
 upon the construction of the Constitution, whether the 
 appellate jurisdiction attaches to the Supreme Court, 
 subject to be withdrawn and modified by Congress ; or, 
 whether an act of Congress is necessary to confer the 
 jurisdiction upon the court. If the former be the true con¬ 
 struction, then the entire appellate jurisdiction, if Congress 
 should make no exceptions or regulations, would attach, 
 by force of the terms, to the Supreme Court. If the lat¬ 
 ter, then, notwithstanding the imperative language of the 
 Constitution, the Supreme Court is lifeless, until Con¬ 
 gress have conferred power on it. And if Congress may 
 confer power, they may repeal it. So that the whole 
 efficiency of the judicial power is left by the Constitution 
 wholly unprotected and inert, if Congress shall refrain to 
 act. There is certainly very strong ground to maintain, 
 that the language of the Constitution meant to confer the 
 appellate jurisdiction absolutely on the Supreme Court,, 
 independent of any action by Congress ; and to require 
 this action to divest or regulate it. The language, as to 
 the original jurisdiction of the Supreme Court, admits of 
 no doubt. It confers it without any action of Congress. 
 Why should not the same language, as to the appellate 
 jurisdiction, have the same interpretation ? It leaves the 
 power of Congress complete, to make exceptions and reg¬ 
 ulations ; but it leaves nothing to their inaction. This 
 construction was asserted in argument at an early period 
 
228 CONSTITUTION OF THE UNITED STATES. 
 
 of the Constitution, and it has since been deliberately con¬ 
 firmed by the Supreme Court. 
 
 § 383. The functions of the judges of the courts of 
 the United States are strictly and exclusively judicial. 
 They cannot, therefore, be called upon to advise the 
 President in any Executive measures ; or to give extra¬ 
 judicial interpretations of law ; or to act as commissioners 
 in cases of pensions, or other like proceedings. 
 
 CHAPTER XXXII. 
 
 Trial by Jury , and its Incidents.—Definition of Trea¬ 
 son. 
 
 § 384. The next clause of the second section of the 
 third article is, u The trial of ^11 crimes, except in cases 
 of impeachment, shall be by jury; and such trial shall 
 be held in the State, where the said crimes shall have been 
 committed. But when not committed within any State, 
 the trial shall be at such place or places, as the Congress 
 may by law have directed.” It seems hardly necessary, in 
 this place, to expatiate upon the antiquity, or importance, 
 of the trial by jury in criminal cases. It was, from very 
 early times, insisted on by our ancestors in the parent 
 country, as the great bulwark of their civil and political 
 liberties, and watched with an unceasing jealousy and so¬ 
 licitude. The right constitutes a fundamental article of 
 Magna Charta, in which it is declared, u that no man shall 
 be arrested, nor imprisoned, nor banished, nor deprived 
 of life, &c., but by the judgement of his peers, or by the 
 law of the land.” The judgement of his peers here allud¬ 
 ed to, and commonly called, in the quaint language of for¬ 
 mer times, a trial per pais , or trial by the country, is the 
 trial by a jury, who are called the peers of the party ac¬ 
 cused, being of the like condition and equality in the state. 
 When our more immediate ancestors removed to Ameri¬ 
 ca, they brought this great privilege with them, as their 
 birthright and inheritance, as a part of that admirable 
 
TRIAL BY JURY. 
 
 229 
 
 common law, which had fenced round, and interposed 
 barriers on every side against the approaches of arbitrary 
 power. It is now incorporated into all our State Consti¬ 
 tutions, as a fundamental right; and the Constitution of 
 the United States would have been justly obnoxious to 
 the most conclusive objection, if it had not recognised 
 and confirmed it, in the most solemn terms. 
 
 § 385. The great object of a trial by jury, in criminal 
 cases, is to guard against a spirit of oppression and ty¬ 
 ranny, on the part of rulers, and against a spirit of violence 
 and vindictiveness, on the part of the people. Indeed, it 
 is often more important to guard against the latter, than 
 the former. The sympathies of all mankind are enlisted 
 against the revenge and fury of a single despot; and 
 every attempt will be made to screen his victims from 
 punishment. Bui. it is difficult to escape from the ven¬ 
 geance of an indignant people, roused into hatred by un¬ 
 founded calumnies, or stimulated to cruelty by political 
 enmity, and party jealousy. The appeal for safety, under 
 such circumstances, can scarcely be made by the innocent, 
 in any other manner, than by the strict control of a court 
 of justice, and the firm and impartial verdict of a jury, 
 sworn to do right, and guided solely by legal evidence, 
 and a sense of duty. 
 
 § 386. It is observable, that the trial of all crimes is 
 not only to be by jury, but to he held in the State, where 
 they are committed. The object of this clause is, to se¬ 
 cure the party accused from being dragged to a trial in 
 some distant State, far away from his friends, and wit¬ 
 nesses, and neighborhood ; and thus subjected to the ver¬ 
 dict of mere strangers, who may feel no common sympa¬ 
 thy, or who may even cherish animosities, or prejudices, 
 against him. Besides this, a trial in a distant State or 
 Territory might subject the party to the most oppressive 
 expenses, or perhaps even to the inability of procuring 
 the proper witnesses to establish his innocence. There 
 is little danger, indeed, that Congress would ever exert 
 their power in so oppressive and unjustifiable a man¬ 
 ner. But upon a subject, so vital to the security of the 
 citizen, it was fit to leave as little as possible to mere dis- 
 
 20 xiii. 
 
230 CONSTITUTION OF THE UNITED STATES. 
 
 cretion. By the common law, the trial of all crimes is 
 required to be in the county, where they are committed. 
 Nay, it originally carried its jealousy still farther, and re¬ 
 quired, that the jury itself should come from the vicinage 
 of the place, where the crime was alleged to be commit¬ 
 ted. This was certainly a precaution, which, however 
 justifiable in an early and barbarous state of society, is lit¬ 
 tle commendable in its more advanced stages. It has 
 been justly remarked, that in such cases, to summon a 
 jury, laboring under local prejudices, is laying a snare for 
 their consciences ; and, though they should have virtue 
 and vigor of mind sufficient to keep them upright, the 
 parties will grow suspicious, and indulge many doubts of 
 the impartiality of the trial. It was doubtless by analogy 
 to this rule of the common law, that all criminal trials are 
 required to be in the State, where the crimes are com¬ 
 mitted. But, as crimes may be committed on the high 
 seas, and elsewhere, out of the territorial jurisdiction of a 
 State, it was indispensable, that, in such cases, Congress 
 should be enabled to provide the place of trial. But even 
 here we may perceive, from the language used, that the 
 trial is to be in the place, which Congress may have di¬ 
 rected ; not in one, which they shall direct after the 
 commission of the offence. 
 
 § 387. In order to secure this great palladium of lib¬ 
 erty, the trial by jury, in criminal cases, from all possi¬ 
 bility of abuse, certain amendments have since been made 
 to the Constitution, which add greatly to the original con¬ 
 stitutional barriers against persecution and oppression. 
 They are as follows : “No person shall be held to an¬ 
 swer for a capital, or otherwise infamous crime, unless 
 on a presentment or indictment of a grand jury, except 
 in cases arising in the land or naval forces, or in the mili¬ 
 tia, when in actual service, in time of war, or public dan¬ 
 ger. Nor shall any person be subject for the same of¬ 
 fence to be twice put in jeopardy of life or limb ; nor 
 shall be compelled, in any criminal case, to be a witness 
 against himself; nor be deprived of life, liberty, or prop¬ 
 erty, without due process of law ; nor shall private prop¬ 
 erty be taken for public use, without just compensation. 
 
TRIAL BY JURY. 
 
 231 
 
 In all criminal prosecutions, the accused shall enjoy the 
 right to a speedy and public trial by an impartial jury 
 of the State and district, wherein the crime shall have 
 been committed ; which district shall have been pre¬ 
 viously ascertained by law ; and to be informed of the 
 nature and cause of the accusation ; to be confronted 
 with the witnesses against him ; to have compulsory pro¬ 
 cess for obtaining witnesses in his favor; and to have the 
 assistance of counsel for his defence.’ 5 
 
 § 388. Upon the main provisions of these articles, a 
 few remarks only will be made, since they are almost 
 self-evident, and can require few illustrations to establish 
 their utility and importance. 
 
 § 389. The first clause requires the interposition of a 
 grand jury, by way of presentment or indictment, before 
 the party accused can be required to answer to any capi¬ 
 tal and infamous crime, charged against him. iVnd this 
 is regularly true at the common law, of all offences, above 
 the grade of common misdemeanors. A grand jury, it is 
 well known, are selected in the manner prescribed by law, 
 and duly sworn to make inquiry, and present all offences 
 committed against the authority of the State government, 
 within the body of the county, for which they are impan- 
 nelled. In the National courts, they are sworn to inquire, 
 and present all offences committed against the authority 
 of the National Government, within the State or district, 
 for which they are impannelled, or elsewhere within the 
 jurisdiction of the National Government. The grand 
 jury may consist of any number, not less than twelve, nor 
 more than twenty-three ; and twelve at least must concur 
 in every accusation. They* sit in secret, and examine 
 the evidence laid before them by themselves. A pre¬ 
 sentment, properly speaking, is an accusation, made by 
 a grand jury of their own mere motion, of an offence upon 
 their own observation and knowledge, or upon evidence 
 before them, and without any bill of indictment laid before 
 them at the suit of the government. An indictment is a 
 written accusation of an offence preferred to, and pre¬ 
 sented, upon oath, as true, by a grand jury, at the suit of 
 the government. Upon a presentment, the proper officer 
 
232 CONSTITUTION OF THE UNITED STATES. 
 
 of the court must frame an indictment, before the party ac¬ 
 cused can be put to answer it. But an indictment is usually, 
 in the first instance, framed by the officers of the govern¬ 
 ment, and laid before the grand jury. When the grand jury 
 have heard the evidence, if they are of opinion, that the 
 indictment is groundless, or not supported by evidence, 
 they used formerly to endorse on the back of the bill, 
 “ ignoramus,” or we know nothing of it, whence the bill 
 w r as said to be ignored. But now, they assert, in plain 
 English, “not a true bill,” or, which is a better way, 
 “not found and then the party is entitled to be dis¬ 
 charged, if in custody, without further answer. But a 
 fresh bill may be preferred against him by another grand 
 jury. If the grand jury are satisfied of the truth of the 
 accusation, then they write on the back of the bill, “ a 
 true bill,” (or anciently, “ billa vera .”) The bill is then 
 said to be found, and is publicly returned into court ; the 
 party stands indicted, and may then be required to answer 
 the matters charged against him. 
 
 § 390. From this summary statement, it is obvious, that 
 the grand jury perform most important public functions ; 
 and are a great security to the citizens against vindictive 
 prosecutions, either by the government, or by political 
 partisans, or by private enemies. Nor is this all : the 
 indictment must charge the time, and place, and nature, 
 and circumstances, of the offence, with clearness and cer¬ 
 tainty ; so that the party may have full notice of the charge, 
 and be able to make his defence with all reasonable knowl¬ 
 edge and ability. 
 
 § 391. Another clause declares, that no person shall 
 be subject, “for the same'offence, to be twice put in 
 jeopardy of life and limb.” This, again, is another great 
 privilege secured by the common law. The meaning of 
 it is, that a party shall not be tried a second time, for the 
 same offence, after he has once been convicted, or ac¬ 
 quitted of the offence charged, by the verdict of a jury, 
 and judgement has passed thereon for or against him. But 
 it does not mean, that he shall not be tried for the offence 
 a second time, if the jury have been discharged without 
 giving any verdict; or, if, having given a verdict, judge- 
 
TRIAL BY JURY. 
 
 233 
 
 ment has been arrested upon it, or a new trial has been 
 granted in his favor ; for, in such a case, his life or limb 
 cannot judicially be said to have been put in jeopardy. 
 
 § 392. The next clause prohibits any person from be¬ 
 ing compelled, in any criminal case, to be a witness against 
 himself, or from being deprived of life, liberty, or property, 
 without due process of law. This also is but an affirm¬ 
 ance of a common-law privilege. But it is of inestimable 
 value. It is well known, that in some countries, not only 
 are criminals compelled to give evidence against them¬ 
 selves ; but they are subjected to the rack or torture, in or¬ 
 der to procure a confession of guilt. And what is worse, it 
 has been (as if in mockery or scorn) attempted to excuse 
 or justify it, upon the score of mercy and humanity to the 
 accused. It has been contrived, (it is pretended,) that 
 innocence should manifest itself by a stout resistance, or 
 guilt by a plain confession ; as if a man’s innocence were 
 to be tried by the hardness of his constitution, and his 
 guilt by the sensibility of his nerves ! Cicero, many ages 
 ago, although he lived in a state, wherein it was usual to 
 put slaves to the torture, in order to furnish evidence, has 
 denounced the absurdity and wickedness of the measure 
 in terms of glowing eloquence, as striking, as they are 
 brief. They are conceived in the spirit of Tacitus, and 
 breathe all his pregnant and indignant sarcasm. Ulpian, 
 also, at a still later period in Roman jurisprudence, 
 stamped the practice with severe reproof. 
 
 § 393. The other part of the clause is but an enlarge¬ 
 ment of the language of Magna Charta ; cc Neither will we 
 pass upon him, or condemn him, but by the lawful judge¬ 
 ment of his peers, or by the law of the land.” Lord Coke 
 says, that these latter words, ct by the law of the land,” 
 mean, by due process of law ; that is, without due pre¬ 
 sentment or indictment, and being brought in to answer 
 thereto by due process of the common law. So that this 
 clause, in effect, affirms the right of trial, according to the 
 process and proceedings of the common law. 
 
 § 394. The concluding clause is, that private property 
 shall not be taken for public use without just compensa¬ 
 tion. This is an affirmance of a great doctrine established 
 
 20 * 
 
234 CONSTITUTION OF THE UNITED STATES. 
 
 by the common law, for the protection of private proper¬ 
 ty. It is founded in natural equity, and is laid down by 
 jurists as a principle of universal law 7 . Indeed, in a free 
 government, almost all other rights would become utterly 
 worthless, if the government possessed an uncontrollable 
 power over the private fortune of every citizen. One of 
 the fundamental objects of every good government must 
 be, the due administration of justice ; and how vain it 
 would be, to speak of such an administration, where all 
 property is subject to the will or caprice of the legislature 
 and the rulers ! 
 
 § 395. The other article, in declaring, that the accused 
 shall enjoy the right to a speedy and public trial, by an 
 impartial jury of the State or district, wherein the crime 
 shall have been committed, (which district shall be pre¬ 
 viously ascertained by law,) and to be informed of the 
 nature and cause of the accusation, and to be confronted 
 with the witnesses against him, does but follow out the 
 established course of the common law in all trials for 
 crimes. The trial is always public ; the witnesses are 
 sworn, and give in their testimony, (at least in capital ca¬ 
 ses,) in the presence of the accused ; the nature and cause 
 of the accusation is accurately laid down in the indictment; 
 and the trial is at once speedy, impartial, and in the dis¬ 
 trict where the offence is charged to be committed. With¬ 
 out in any measure impugning the propriety of these pro¬ 
 visions, it may be suggested, that there seems to have been 
 an undue solicitude to introduce into the Constitution some 
 of the general guards and proceedings of the common law 
 in criminal trials, (truly admirable in themselves,) without 
 sufficiently adverting to the consideration, that, unless the 
 whole system is incorporated, and especially the law of 
 evidence, a corrupt legislature, or a debased and servile 
 people, may render the whole little more than a solemn 
 pageantry. If, on the other hand, the people are enlight¬ 
 ened, and honest, and zealous in defence of their rights and 
 liberties, it will be impossible to surprise them into a sur¬ 
 render of a single valuable appendage of the trial by jury. 
 
 § 396. The remaining clauses are of more direct sig¬ 
 nificance, and necessity. The accused is entitled to have 
 
TRIAL BY JURY. 
 
 235 
 
 compulsory process for obtaining witnesses in his favor, 
 and to have the assistance of counsel. A very short re¬ 
 view of the state of the common law, on these points, will 
 put their propriety beyond question. In the first place, 
 it was an anciently and commonly-received practice, de¬ 
 rived from the civil law, and which Mr. Justice Black- 
 stone says, in his day, still obtained in France, although, 
 since the Revolution, it has been swept away, not to suffer 
 the party accused in capital cases to exculpate himself 
 by the testimony of any witnesses. Of this practice, the 
 courts grew so heartily ashamed from its unreasonable and 
 oppressive character, that another practice was gradually 
 introduced, of examining witnesses for the accused, but 
 not upon oath ; the consequence of which was, that the ju¬ 
 ry gave less credit to this latter evidence, than to that pro¬ 
 duced by the government. Sir Edward Coke denounced 
 the practice as tyrannical and unjust; and contended that, 
 in criminal cases, the party accused was entitled to have 
 witnesses sworn for him. The House of Commons, soon 
 after the accession of the house of Stuart to the throne of 
 England, insisted, in a particular bill then pending, and, 
 against the efforts both of the Crown and the House of 
 Lords, carried a clause affirming the right, in cases tried 
 under that act, of witnesses being sworn for, as well as 
 against, the accused. By the statute of 7 Will. 3, ch. 
 3, the same measure of justice was established throughout 
 the realm in cases of treason ; and afterwards, in the 
 reign of Queen Anne, the like rule was extended to all 
 cases of treason and felony. The right seems never to 
 have been doubted, or denied, in cases of mere misde¬ 
 meanors. For what causes, and upon what grounds, this 
 distinction was maintained, or even excused, it is impos¬ 
 sible to assign any satisfactory, or even plausible reason¬ 
 ing. Surely, a man’s life must be of infinitely more value 
 than any subordinate punishment ; and if he might protect 
 himself against the latter, by proofs of his innocence, there 
 would seem to be irresistible reasons for permitting him 
 to do the same in capital offences. The common sug¬ 
 gestion has been, that, in capital cases, no man could, or 
 rather ought, to be convicted, unless upon evidence so 
 
236 CONSTITUTION OF THE UNITED STATES. 
 
 conclusive and satisfactory, as to be above contradiction 
 or doubt. But who can say, whether it be in any case 
 so high, until all the proofs in favor, as well as against, 
 the party have been heard ? Witnesses for the govern¬ 
 ment may swear falsely, and directly to the matter in 
 charge ; and, until opposing testimony is heard, there may 
 not be the slightest ground to doubt its truth ; and yet, 
 when such is heard, it may be incontestable, that it is 
 wholly unworthy of belief. The real fact seems to be, 
 that the practice was early adopted into the criminal law 
 in capital eases, in which the crown was supposed to take 
 a peculiar interest, in base subserviency to the wishes of 
 the latter. It is a reproach to the criminal jurisprudence 
 of England, which the State trials, antecedently to the 
 revolution of 1683, but too strongly sustain. They are 
 crimsoned with the blood of persons, who were condemned 
 to death, not only against law, but against the clearest 
 rules of evidence. 
 
 § 397. Another anomaly in the common law, is, that in 
 capital cases, the prisoner is not, upon his trial upon the 
 general issue, entitled to have counsel, unless some mat¬ 
 ter of law shall arise, proper to be debated. That is, in 
 other words, that he shall not have the benefit of the tal¬ 
 ents and assistance of counsel in examining the witnesses 
 or making his defence before the jury. Mr. Justice 
 Blackstone, with all his habitual reverence for the institu¬ 
 tions of English jurisprudence, as they actually exist, 
 speaks out upon this subject with the free spirit of a pa¬ 
 triot and a jurist. This (he says) is u a rule, which, how¬ 
 ever it may be palliated under cover of that noble declar¬ 
 ation of the law, when rightly understood, that the judge 
 shall be counsel for the prisoner, that is, shall see, that 
 the proceedings against him are legal, and strictly regular, 
 seems to be not all of a piece with the rest of the humane 
 treatment of prisoners by the English law. For, upon 
 what face of reason, can that assistance be denied to save 
 the life of a man, which is yet allowed him in prosecu¬ 
 tions for every petty trespass.” The defect has indeed 
 been cured in England in cases of treason ; but it remain¬ 
 ed unprovided for in all other cases, to, what one can 
 
SEARCH WARRANTS. 
 
 237 
 
 hardly help deeming, the discredit of the free genius of 
 the English Constitution, until a very recent period. 
 
 § 393. The wisdom of both of these provisions is, 
 therefore, manifest, since they make matter of constitu¬ 
 tional right, what the common law had left in a most im¬ 
 perfect and questionable state. The right to have wit¬ 
 nesses sworn, and counsel employed for the prisoner, are 
 scarcely less important privileges, than the right of a trial 
 by jury. The omission of them in the Constitution is a 
 matter of surprise ; and their present incorporation into it 
 is matter of honest congratulation among all the friends 
 of rational liberty. 
 
 § 399. We may bring also into view, in this place, two 
 other amendments of the Constitution, connected with 
 the subject of crimes. One is designed to guard the 
 citizens from unreasonable and illegal searches of their 
 persons, houses, papers, and effects, without probable 
 cause of the commission of any offence ; the other is, to 
 prevent Congress, as well as the courts, from inflicting 
 excessive and cruel punishments. The first is ; u The 
 right of the people to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and 
 seizures, shall not be violated. And no warrants shall 
 issue, but upon probable cause, supported by oath or af¬ 
 firmation, and particularly describing the place to be 
 searched, and the person or things to be seized.” A 
 warrant is a writ, or process under seal, issued by some 
 court or magistrate, for the arrest of a person, who is ac¬ 
 cused on oath of some public offence or misdemeanor, 
 requiring the officer, to whom it is directed, to arrest the 
 offender, and to bring him before the court or magistrate, 
 to answer for the offence, and otherwise to be dealt with 
 according to law. Sometimes such warrants include, not 
 only an authority to arrest the person, but also, in cases 
 where the accusation is for stealing goods, authority to 
 search the dwelling house, or other place of abode, of the 
 party, for the stolen goods, and hence the latter are com¬ 
 monly called search-warrants. Formerly, search-war¬ 
 rants, in a general form, were issued from the State De¬ 
 partment in England, authorizing officers to search houses 
 
238 CONSTITUTION OF THE UNITED STATES. 
 
 and persons, without naming any persons or places in par¬ 
 ticular, so that, under color of such warrants, every man’s 
 house in the kingdom might, at the mere discretion of such 
 officers, he searched, without any ground of accusation. 
 Such warrants were, however, held illegal by the courts 
 of justice in England. And this amendment not only 
 pronounces them illegal ; but prohibits Congress from 
 passing any laws to give them effect. 
 
 § 400. The second amendment is ; u Excessive bail 
 shall not be required ; nor excessive fines imposed ; nor 
 cruel and unusual punishments inflicted.” This amend¬ 
 ment may, at first sight, be thought superfluous. It is, 
 however, an exact transcript of a clause in the Bill of 
 Rights, passed and ratified in the great Revolution of 
 1688, in England. It was thought, at that time, to be a 
 most important constitutional provision for the security 
 of the people against the wilful oppression of their rulers. 
 The history of former ages had, indeed, taught the people 
 the necessity of some such guards against the vindictive¬ 
 ness and the cruelty of the supple dependents of the 
 Crown. In the arbitrary reigns of some of the princes 
 of the house of Stuart, demands had often been made of 
 excessive bail against persons, who were odious to the 
 Court or its favorites ; and on failing to procure such bail, 
 (as often occurred,) they w T ere committed to prison, and 
 remained there for long periods, and always during the 
 pleasure of the Crown. Enormous fines and assessments 
 were also sometimes imposed by judges and magistrates, 
 and cruel and vindictive punishments were inflicted, with a 
 view to gratify the resentments of the prosecutors, or to 
 subdue the unhappy victims to the will of their oppressors. 
 The provision may now seem to be unnecessary, under 
 our free Constitution, since it may be thought scarcely 
 possible, that any department of our Government should 
 authorize or justify such atrocious conduct. But the 
 clause holds out a wise admonition to all departments of 
 the National Government, to warn them against such vio¬ 
 lent proceedings, and to instruct them in the duties of 
 clemency and moderation. A barrier is thus interposed 
 against the use of those vindictive and atrocious punish- 
 
TREASON. 
 
 239 
 
 ments, which in former ages have disgraced the annals of 
 many nations. 
 
 § 401. The third section of the third article, contains 
 the definition of treason, a crime, which is very apt to rouse 
 public resentment, and, in times of party and political ex¬ 
 citement, to be extended by construction to embrace acts 
 of very slight misconduct, and even of an innocent char¬ 
 acter. Free governments, as well as despotic govern¬ 
 ments, have too often been guilty of the most outrageous 
 injustice to their own citizens and subjects, upon accusa¬ 
 tions of this sort. They have been ready to accuse, upon 
 the most unsatisfactory evidence, and to convict, upon the 
 most slender proofs, some of their most distinguished and 
 virtuous statesmen, as well as persons of inferior char¬ 
 acter. They have inflamed into the criminality of treason 
 acts of just resistance to tyranny ; and tortured a manly 
 freedom of opinion into designs subversive of the govern¬ 
 ment. To guard against the recurrence of these evils, 
 the Constitution has declared, u Treason against the 
 United States shall consist only in levying war against 
 them, or in adhering to their enemies, giving them aid 
 and comfort. No person shall be convicted of treason, 
 unless on the testimony of two witnesses to the same overt 
 act, or on confession in open court.” “ The Congress 
 shall have power to declare the punishment of treason. 
 But no attainder of treason shall work corruption of blood, 
 or forfeiture, except during the life of the person attainted.” 
 
 § 402. Treason is generally deemed the highest crime, 
 which can be committed in civil society, since its aim is 
 an overthrow of the government, and a public resistance 
 of its powers by force. Its tendency is to create univer¬ 
 sal danger and alarm ; and on this account, it is peculiarly 
 odious, and often visited with the deepest public resent¬ 
 ment. Even a charge of this nature, made against an 
 individual, is deemed so opprobrious, that, whether just 
 or unjust, it subjects him to suspicion and hatred ; and, 
 in times of high political excitement, acts of a very sub¬ 
 ordinate nature are often, by popular prejudices, as well 
 as by royal resentment, magnified into this fatal enormity. 
 It is, therefore, of very great importance, that its true 
 
240 CONSTITUTION OF THE UNITED STATES. 
 
 nature and limits should be exactly ascertained ; and Mon¬ 
 tesquieu was so sensible of it, that he has not scrupled 
 to declare, that if the crime of treason be indeterminate, 
 that alone is sufficient to make any government degen¬ 
 erate into arbitrary power. The history of England it¬ 
 self is full of melancholy instruction on this subject. By 
 the ancient common law, it was left very much to discre¬ 
 tion to determine, what acts were, and what were not, trea¬ 
 son ; and the judges of those times, holding office at the 
 pleasure of the Crown, became but too often the instru¬ 
 ments, in its hands, of foul injustice. At the instance of 
 tyrannical princes, they had abundant opportunities to cre¬ 
 ate constructive treasons ; that is, by forced and arbitrary 
 constructions, to raise offences into the guilt and punishment 
 of treason, which were not suspected to be such. The 
 grievance of these constructive treasons was so enormous, 
 and so often weighed down the innocent, and the patriotic, 
 that it was found necessary, as early as the reign of Ed¬ 
 ward the Third, for Parliament to interfere, and arrest it, 
 by declaring and defining all the different branches of 
 treason. This statute has ever since remained the pole 
 star of English jurisprudence upon this subject. And, 
 although, upon temporary emergencies, and in arbitrary 
 reigns, since that period, other treasons have been crea¬ 
 ted, the sober sense of the nation has generally abrogated 
 them, or reduced their power within narrow limits. 
 
 § 403. Nor have republics been exempt from violence 
 and tyranny of a similar character. It has been justly 
 remarked, that new-fangled and artificial treasons have 
 been the great engines, by which violent factions, the 
 natural offspring of free governments, have usually wreak¬ 
 ed their alternate malignity on each other. 
 
 § 404. It was under the influence of these admonitions, 
 furnished by history and human experience, that the Con¬ 
 vention deemed it necessary to interpose an impassable 
 barrier against arbitrary constructions, either by the courts, 
 or by Congress, upon the crime of treason. It confines 
 it to two species ; first, the levying of war against the 
 United States ; and, secondly, adhering to their enemies, 
 giving them aid and comfort. In so doing, they have 
 
TREASON. 
 
 241 
 
 adopted the very words of the Statute of Treason, of 
 Edward the Third ; and thus, by implication, in order to 
 cut off, at once, all chances of arbitrary constructions, 
 they have recognized the well-settled interpretation of 
 these phrases in the administration of criminal law, which 
 has prevailed for ages. 
 
 § 405. The other part of the clause, requiring the 
 testimony of two witnesses to the same overt act, or a 
 confession in open court , to justify a conviction, is found¬ 
 ed upon the same reasoning. A like provision exists in 
 British jurisprudence, founded upon the same great policy 
 of protecting men against false testimony and unguarded 
 confessions, to their utter ruin. It has been well remark¬ 
 ed, that confessions are the weakest and most suspicious 
 of all testimony; ever liable to be obtained by artifice, 
 false hopes, promises of favor, or menaces; seldom 
 remembered accurately, or reported with due precision ; 
 and incapable, in their nature, of being disproved by other 
 negative evidence. To which it may be added, that they 
 are easy to be forged, and the most difficult to guard against. 
 An unprincipled demagogue, or a corrupt courtier, might 
 otherwise hold the lives of the purest patriots in his hands, 
 without the means of proving the falsity of the charge, if 
 a secret confession, uncorroborated by other evidence, 
 would furnish a sufficient foundation and proof of guilt. 
 And wisely, also, has the Constitution declined to suffer 
 the testimony of a single witness, however high, to be 
 sufficient to establish such a crime, which rouses at once 
 against the victim private honor and public hostility. 
 There must, as there should, be a concurrence of two 
 witnesses to the same overt act, that is, to the same open 
 act of treason, who are above all reasonable exception. 
 
 § 406. The subject of the power of Congress to de¬ 
 clare the punishment of treason, and the consequent disa¬ 
 bilities, have been already commented on in another place. 
 
 § 407. We have thus passed in review all those pro¬ 
 visions of the Constitution, which concern, the establish¬ 
 ment, jurisdiction, and duties, of the judicial department; 
 and the rights and privileges of the citizens, connected 
 with the administration of public justice. 
 
 21 
 
 XIII. 
 
242 CONSTITUTION OF THE UNITED STATES. 
 
 CHAPTER XXXIII. 
 
 Privileges of Citizens.—Fugitive Criminals and Slaves. 
 
 § 408. The fourth article of the Constitution contains 
 several important subjects, some of which have been al¬ 
 ready considered. Among those, which have been so 
 considered, are, the clauses which respect the faith 
 and credit to be given to the acts, records, judgements, 
 and proceedings, of the different States, and the mode of 
 proving them, and the effect thereof; the admission of 
 new States into the Union ; and the regulation and disposal 
 of the territory, and other property, of the United States. 
 
 § 409. Among those, which remain for consideration, 
 the first is, u The citizens of each State shall be entitled 
 to all privileges and immunities of citizens in the several 
 States.” It is obvious, that if the citizens of the different 
 States were to be deemed aliens to each other, they could 
 not inherit, or hold, or purchase real estate, or possess 
 any political or municipal privileges in any other State, 
 than that, in which they were born. And the States 
 would be at liberty to make laws, giving preferences of 
 rights and offices, and even privileges in trade and busi¬ 
 ness, to those, who were Natives, overall other persons, 
 who belonged to other States ; or they might make in¬ 
 vidious discriminations between the citizens of different 
 States. Such a power would have a tendency to gene¬ 
 rate jealousies and discontents, injurious to the harmony 
 of all the States. And, therefore, the Constitution has 
 wisely created, as it were, a general citizenship, com¬ 
 municating to the citizens of each State, who have their 
 domicil in another, all the privileges and immunities en¬ 
 joyed by the citizens of the latter. 
 
 § 410. The next clause is, “A person, charged in 
 any State with treason, felony, or other crime, who shall 
 flee from justice, and be found in another State, shall, on 
 demand of the Executive authority of the State, from 
 
FUGITIVE CRIMINALS AND SLAVES. 
 
 243 
 
 which he fled, be delivered up, to be removed to the 
 State, having jurisdiction of the crime.” As doubts have 
 existed, whether, by the law of nations, a surrender of 
 fugitives from justice can lawfully be demanded from the 
 government of the country, where they seek an asylum, 
 there is great propriety in making this a positive right, in 
 regard to the several States composing the United States. 
 It is for their mutual benefit, convenience, and safety. It 
 will promote harmony and good feeling between them. 
 It will also add strength to a great moral duty, and ope¬ 
 rate indirectly to the suppression of crimes ; and finally, 
 it will thus increase the public sense of the blessings of 
 the National Government. 
 
 § 411. The next clause is, “No person held to ser¬ 
 vice or labor in one State, under the laws thereof, escap¬ 
 ing into another, shall, in consequence of any law or regu¬ 
 lation therein, be discharged from such service or labor ; 
 but shall be delivered up, on the claim of the party to 
 whom such service or labor may be due.” This clause 
 was introduced into the Constitution solely for the benefit 
 of the slave-holding States, to enable them to reclaim 
 their fugitive slaves, who should escape into other States, 
 where slavery is not tolerated. It is well known, that, 
 at the common law, a slave escaping into a State, where 
 slavery is not allowed, would immediately become free, 
 and could not be reclaimed. Before the Constitution 
 was adopted, the Southern States felt the want of some 
 protecting provision against such an occurrence to be a 
 grievous injury to them. And we here see, that the 
 Eastern and Middle States have sacrificed their own opin¬ 
 ions and feelings, in order to take away every source of 
 jealousy, on a subject so delicate to Southern interests ; 
 a circumstance, sufficient of itself, to repel the delusive 
 notion, that the South has not, at all times, had its full 
 share in the blessings resulting from the Union. 
 
244 CONSTITUTION OF THE UNITED STATES. 
 
 CHAPTER XXXIV. 
 
 Guarantee of Republican Government.—Mode of mak¬ 
 ing Amendments. 
 
 § 412. The fourth section of the fourth article de¬ 
 clares, u The United States shall guaranty to every 
 State in this Union a republican form of Government ; 
 and shall protect each of them against invasion ; and, on 
 application of the Legislature, or of the Executive, when 
 the Legislature cannot be convened, against domestic 
 violence.” The propriety of this provision will scarcely 
 be doubted. If any of the States were to be at liberty 
 to adopt any other form of Government, than a repub¬ 
 lican form, it would necessarily endanger, and might 
 destroy, the safety of the Union. Suppose, for instance, 
 a great State, like New York, should adopt a monarchical 
 form of government, it might, under an enterprising and 
 ambitious king, become formidable to, if not destructive 
 of, the Constitution. And the people of each State 
 have a right to protection against the tyranny of a domestic 
 faction, and to have a firm guarantee, that their political 
 liberties shall not be overturned by a successful dema¬ 
 gogue, who shall arrive at power by corrupt arts, and then 
 plan a scheme for permanent possession of it. On the 
 * other hand, domestic violence by popular insurrection is 
 equally repugnant to the good order and safety of the 
 Union ; and one of the blessings arising from a National 
 Government is the security which it affords, against a 
 recurrence of evils of this sort. Accordingly, it is made 
 an imperative duty of the General Government, on the 
 application of the Legislature or Executive of a State, to 
 aid in the suppression of such domestic insurrections ; as 
 well as to protect the State from foreign invasion. 
 
 § 413. It may possibly be asked, what need there 
 could be of such a precaution, and whether it may not 
 become a pretext for alterations in the State governments, 
 
GUARANTEE OF REPUBLICAN GOVERNMENT. 245 
 
 without the concurrence of the States themselves. These 
 questions admit of ready answers. If the interposition of 
 the General Government should not be needed, the pro¬ 
 vision for such an event will be a harmless superfluity 
 only in the Constitution. But, who can say, what ex¬ 
 periments may be produced by the caprice of particular 
 States, by the ambition of enterprising leaders, or by the 
 intrigues and influence of foreign powers ? To the sec¬ 
 ond question, it may be answered, that if the General 
 Government should interpose, by virtue of this constitu¬ 
 tional authority, it will, of course, be bound to pursue the 
 authority. But the authority extends no further than to a 
 guarantee of a republican form of Government, which 
 supposes a pre-existing Government of the form, which 
 is to be guarantied. As long, therefore, as the existing 
 republican forms are continued by the States, they are 
 guarantied by the Federal Constitution. Whenever the 
 States may choose to substitute other republican forms, 
 they have a right to do so, and to claim the federal guar¬ 
 antee for the latter. The only restriction imposed on 
 them is, that they shall not exchange republican for anti¬ 
 republican Constitutions : a restriction, which, it is pre¬ 
 sumed, will hardly be considered as a grievance. 
 
 § 414. At first view, it might seem not to square 
 with the republican theory, to suppose, either that a ma¬ 
 jority have not the right, or that a minority will have the 
 force, to subvert a government ; and, consequently, that 
 the National interposition can never be required, but when 
 it would be improper. But theoretic reasoning in this case, 
 as in most other cases, must be qualified by the lessons 
 of practice. Why may not illicit combinations, for pur¬ 
 poses of violence, be formed, as well by a majority of a 
 State, especially of a small State, as by a majority of a 
 county, or of a district of the same State ; and if the au¬ 
 thority of the State ought, in the latter case, to protect the 
 local magistracy, ought not the National authority, in the 
 former, to support the State authority ? Besides ; there 
 are certain parts of the State Constitutions, which are so 
 interwoven with the National Constitution, that a violent 
 blow cannot be given to the one, without communicating 
 
 Aaf L 
 
246 CONSTITUTION OF THE UNITED STATES. 
 
 the wound to the other. Insurrections in a State will 
 rarely induce a National interposition, unless the number 
 concerned in them bear some proportion to the friends of 
 Government. It will be much better, that the violence 
 in such cases, should be repressed by the superintending 
 power, than that the majority should be left to maintain 
 their cause by a bloody and obstinate contest. The ex¬ 
 istence of a right to interpose will generally prevent the 
 necessity of exerting it. 
 
 §415. The next (the fifth) article, provides for the 
 mode of making amendments to the Constitution. u The 
 Congress, whenever two thirds of both Houses shall deem 
 it necessary, shall propose amendments to this Constitu¬ 
 tion ; or, on application of the Legislatures of two thirds 
 of the several States, shall call a Convention for proposing 
 amendments ; which, in either case, shall be valid, to all 
 intents and purposes, as part of this Constitution, when 
 ratified by the Legislatures of three fourths of the several 
 States, or by conventions in three fourths thereof, as the 
 one, or the other mode of ratification may be proposed by 
 the Congress ; provided that no amendment, which may 
 be made prior to the year one thousand eight hundred 
 and eight, shall in any manner affect the first and fourth 
 clauses in the ninth section of the first article ; and that 
 no State, without its consent, shall be deprived of its equal 
 suffrage in the Senate.” 
 
 § 416. The importance of this power can scarcely be 
 over estimated. It is obvious, that no human govern¬ 
 ment can ever be perfect ; and it is impossible to foresee, 
 or guard against all the exigencies, which may, in different 
 ages, require changes in the powers and modes of opera¬ 
 tion of a government, to suit the necessities and interests 
 of the people. A government, which has no mode pre¬ 
 scribed for any changes, will, in the lapse of time, become 
 utterly unfit for the nation. It will either degenerate into 
 a despotism, or lead to a revolution, by its oppressive 
 inequalities. It is wise, therefore, in every government, 
 and especially in a republic, to provide peaceable means 
 for altering and improving the structure, as time and ex¬ 
 perience shall show it necessary, for the public safety and 
 
GUARANTEE OF REPUBLICAN GOVERNMENT. 247 
 
 happiness. But, at the same time, it is equally important 
 to guard against too easy and frequent changes ; to secure 
 due deliberation and caution in making them ; and to 
 follow experience, rather than speculation and theory. 
 A government, which is always changing and changeable, 
 is in a perpetual state of internal agitation, and incapable 
 of any steady and permanent operations. It has a con¬ 
 stant tendency to confusion and anarchy. 
 
 § 417. In regard to the Constitution of the United 
 States, it is confessedly a new experiment in the history 
 of nations. Its framers were not bold or rash enough to 
 believe, or to pronounce, it to be perfect. They made 
 use of the best lights, which they possessed, to form and 
 adjust its parts, and mould its materials. But they knew, 
 that time might develope many defects in its arrange¬ 
 ments, and many deficiencies in its powers. They de¬ 
 sired, that it might be open to improvement ; and, under 
 the guidance of the sober judgement and enlightened skill 
 of the country, to be perpetually approaching nearer and 
 nearer to perfection. It was obvious, too, that the means 
 of amendment might avert, or at least have a tendency to 
 avert, the most serious perils, to which confederated 
 republics are liable, and by which all have hitherto been 
 shipwrecked. They knew, that the besetting sin of re¬ 
 publics is a restlessness of temperament, and a spirit of 
 discontent at slight evils. They knew the pride and 
 jealousy of state power in confederacies ; and they 
 wished to disarm them of their potency, by providing a 
 safe means to break the force, if not wholly to ward off 
 the blows, which would, from time to time, under the 
 garb of patriotism, or a love of the people, be aimed at 
 the Constitution. They believed, that the power of 
 amendment was, if one may so say, the safety-valve to 
 let off all temporary effervescences and excitements ; and 
 the real effective instrument to control and adjust the 
 movements of the machinery, when out of order, or in 
 danger of self-destruction. 
 
 § 418. Upon the propriety of the power, in some 
 form, there will probably be little controversy. The 
 only question is, whether it is so arranged, as to accom- 
 
248 CONSTITUTION OF THE UNITED STATES. 
 
 plish its objects in the safest mode ; safest for the sta¬ 
 bility of the Government ; and safest for the rights and 
 liberties of the people. 
 
 § 419. The Constitution has adopted a middle course. 
 It has provided for amendments being made ; the mode 
 is easy ; and at the same time, it secures due deliberation, 
 and caution. Congress may propose amendments, or a 
 convention of the States. But, in any amendment pro¬ 
 posed by Congress, two thirds of both Houses must con¬ 
 cur ; and no convention can be called, except upon the 
 application of two thirds of the States. When amend¬ 
 ments are proposed in either way, the assent of three 
 fourths of all the States is necessary to their ratification. 
 And, certainly, it may be said with confidence, that if 
 three fourths of the States are not satisfied with the ne¬ 
 cessity of any particular amendment, the evils, which it 
 proposes to remedy, cannot be of any general or pressing 
 nature. That the power of amendment is not, in its 
 present form, impracticable, is proved by the fact, that 
 twelve amendments have been already proposed and 
 ratified. 
 
 § 420. The proviso excludes the power of amend¬ 
 ment, until the year 1808, of the clauses in the Constitu¬ 
 tion, which respects the importation and migration of 
 slaves, and the apportionment of direct taxes. And as 
 the equality of the Representation of the States in the 
 Senate might be destroyed by an amendment, it is ex¬ 
 pressly declared, that no amendment shall deprive any 
 State, without its consent, of its equal suffrage in that body. 
 
 CHAPTER XXXV. 
 
 Public Debt.—Supremacy of the Constitution , and Laws. 
 
 § 421. The first clause of the sixth article is, “ All 
 debts contracted, and engagements entered into, before 
 the adoption of this Constitution, shall be as valid against 
 the United States, under this Constitution, as under the 
 
SUPREMACY OF THE CONSTITUTION. 
 
 249 
 
 Confederation.” This can scarcely be deemed more 
 than a solemn declaration of what the public law of na¬ 
 tions recognizes as a moral obligation, binding on all 
 nations, notwithstanding any changes in their forms of 
 Government. It was important, however, to clear away 
 all possible doubts, and to satisfy and quiet the public 
 creditors, who might fear, that their just claims upon the 
 Confederation might be disregarded or denied. 
 
 § 422. The next clause is, u This Constitution, and 
 the Laws of the United States, which shall be made in 
 pursuance thereof, and all treaties made, or which shall 
 be made, under the authority of the United States, shall 
 be the supreme law of the land. And the judges in every 
 State shall be bound thereby, any thing in the Constitu¬ 
 tion, or laws of any State, to the contrary notwithstand¬ 
 ing.” The propriety of this power results from the very 
 nature of the Constitution. To establish a National Gov¬ 
 ernment, and to affirm, that it shall have certain powers ; 
 and yet, that in the exercise of those powers it shall not 
 be supreme, but controllable by any State in the Union, 
 w T ouid be a solecism, so mischievous, and so indefensible, 
 that the scheme could never be attributed to the framers 
 of the Constitution, without manifestly impeaching their 
 wisdom, as well as their good faith. The want of such 
 an effective practical supremacy was a vital defect in the 
 Confederation ; and furnished the most solid reason for 
 abolishing it. It w r ould be an idle mockery, to give pow¬ 
 ers to Congress, and yet at the same time to declare, that 
 those powers might be suspended or annihilated, at the 
 will of a single State ; that the will of twenty-five States 
 should be surrendered to the will of one. A govern¬ 
 ment of such a nature would be as unworthy of public 
 confidence, as it would be incapable of affording public 
 protection, or private happiness. 
 
 § 423. In regard to treaties, there is equal reason, 
 why they should be held, when made, to be the supreme 
 law of the land. It' is to be considered, that treaties 
 constitute solemn compacts of binding obligation among 
 nations ; and unless they are scrupulously obeyed, and 
 enforced, no foreign nation would consent to negotiate 
 
250 CONSTITUTION OF THE UNITED STATES. 
 
 with us ; or if it did, any want of strict fidelity, on our 
 part, in the discharge of the treaty stipulations, would be 
 visited by reprisals, or by war. It is, therefore, indispen¬ 
 sable, that they should have the obligation and force of a 
 law, that they may be executed by the judicial power, 
 and be obeyed like other laws. This will not prevent 
 them from being cancelled, or abrogated, by the nation, 
 upon grave and suitable occasions ; for it will not be dis¬ 
 puted, that they are subject to the legislative power, and 
 may be repealed, like other laws, at its pleasure ; or they 
 may be varied by new treaties. Still, while they do 
 subsist, they ought to have a positive binding efficacy, as 
 laws, upon all the States, and all the citizens of the States. 
 The peace of the nation, and its good faith, and moral 
 dignity, indispensably require, that all State laws should 
 be subjected to their supremacy. The difference be¬ 
 tween considering them as laws, and considering them as 
 executory, or executed contracts, is exceedingly im¬ 
 portant in the actual administration of public justice. If 
 they are supreme laws, courts of justice will enforce 
 them directly in all cases, to which they can be judicially 
 applied, in opposition to all State laws, as we all know 
 was done in the case of the British debts, secured by the 
 treaty of 1783, after the Constitution was adopted. If 
 they are deemed but solemn compacts, promissory in 
 their nature and obligation, courts of justice may be 
 embarrassed in enforcing them, and may be compelled to 
 leave the redress to be administered through other de¬ 
 partments of the Government. It is notorious, that 
 treaty stipulations (especially those of the treaty of peace 
 of 1783) were grossly disregarded by the States under the 
 Confederation. They were deemed by the States, not 
 as laws, but like requisitions, of a mere moral obligation, 
 and dependent upon the good will of the States for their 
 execution. Congress, indeed, remonstrated against this 
 construction, as unfounded in principle and justice. But 
 their voice was not heard. Power and right were separ¬ 
 ated ; the argument was all on one side ; but the power 
 was on the other. It was probably to obviate this very 
 difficulty, that this clause was inserted in the Constitution ; 
 
OATH OF OFFICE.-RELIGIOUS TEST. 251 
 
 and it would redound to the immortal honor of:!« authors, 
 if it had done no more, than thus to bring treaties within 
 the sanctuary of justice, as laws of supreme obligation. 
 There are, indeed, still cases, in which courts of justice 
 can administer no effectual redress ; for, when the terms 
 of a stipulation import a contract, or when either of the 
 parties engages to perform a particular act, the treaty ad¬ 
 dresses itself to the political, and not to the judicial, 
 department ; and the legislature must execute the con¬ 
 tract, before it can become a rule for the courts. 
 
 § 424. From this supremacy of the Constitution, and 
 laws, and treaties, of the United States, within their con¬ 
 stitutional scope, arises the duty of courts of justice to 
 declare any unconstitutional law passed by Congress, or 
 by a State legislature, void. So, in like manner, the 
 same duty arises, whenever any other department of the 
 National or State governments exceeds its constitutional 
 functions. But the Judiciary of the United States has 
 no general jurisdiction to declare acts of the several States 
 void, unless they are repugnant to the Constitution of the 
 United States, notwithstanding they are repugnant to the 
 State Constitution. Such a power belongs to it only, 
 when it sits to administer the local law of a State, and 
 acts exactly, as a State tribunal is bound to act. But 
 upon this subject it seems unnecessary to dwell, since 
 the right of ail courts, State as well as National, to de¬ 
 clare unconstitutional laws void, seems settled beyond 
 the reach of judicial controversy. 
 
 C Ft AFTER XXXVI. 
 
 Oath of Office.—Religions Test.—Ratification of the 
 
 Constitution. 
 
 § 425. The next clause is, u The Senators and Rep¬ 
 resentatives before mentioned, (that is, in Congress,) and 
 the members of the several State Legislatures, and all ex¬ 
 ecutive and judicial officers, both of the United States 
 
252 CONSTITUTION OF THE UNITED STATES. 
 
 and of the several States, shall be bound by oath or affir¬ 
 mation to support this Constitution. But no religious test 
 shall ever be required, as a qualification to any office or 
 public trust under the United States.” 
 
 § 426. That all those, who are intrusted with the exe¬ 
 cution of the powers of the National Government, should 
 he bound, by some solemn obligation, to the due execu¬ 
 tion of the trusts reposed in them, and to support the 
 Constitution, would seem to be a proposition too clear, to 
 render any reasoning necessary in support of it. It results 
 from the plain right of society, to require some guarantee 
 from every officer, that he will be conscientious in the dis¬ 
 charge of his duty. Oaths have a solemn obligation upon 
 the minds of all reflecting men, and especially upon those, 
 who feel a deep sense of accountability to a Supreme 
 being. If, in the ordinary administration of justice, in 
 cases of private rights, or personal claims, oaths are re¬ 
 quired of those, who try the cause, as well as of those, 
 who give testimony, to guard against malice, falsehood, 
 and evasion, surely like guards ought to be interposed in 
 the administration of high public trusts, and especially in 
 such, as may concern the welfare and safety of the whole 
 community. But there are known denominations of men, 
 who are conscientiously scrupulous of taking oaths, (among 
 which is that pure and distinguished sect of Christians, 
 commonly called Friends, or Quakers,) and, therefore, 
 to prevent any unjustifiable exclusion from office, the 
 Constitution has permitted a solemn affirmation to be 
 made, instead of an oath, and as its equivalent. 
 
 § 427. But it may not appear to all persons quite so 
 clear, why the officers of the State governments should 
 be equally bound to take a like oath or affirmation ; and 
 it has been even suggested, that there is no more reason 
 to require that, than to require, that all of the United 
 States officers should take an oath or affirmation to sup¬ 
 port the State Constitutions. -A moment’s reflection will 
 show sufficient reasons for the requisition of it in the one 
 case, and the omission of it in the other. The members 
 and officers of the National Government have no agen¬ 
 cy in carrying into effect the State Constitutions. The 
 
RATIFICATION OF THE CONSTITUTION. 253 
 
 members and officers of the State governments have an 
 essential agency in giving effect to the National Constitu¬ 
 tion. The election of the President and the Senate will 
 depend, in all cases, upon the Legislatures of the several 
 States ; and, in many cases, the election of the House of 
 Representatives may be affected by their agency. The 
 judges of the State courts will frequently be called upon to 
 decide upon the Constitution, and laws, and treaties, of the 
 United States ; and upon rights and claims growing out of 
 them. Decisions ought to be, as far as possible, uniform ; 
 and uniformity of obligation will greatly tend to such a re¬ 
 sult. The executive authority of the several States may be 
 often called upon to exert powers, or to allow rights, given 
 by the Constitution, as in filling vacancies in the Senate, 
 during the recess of the Legislature ; in issuing w r rits of 
 election, to fill vacancies in the House of Representa¬ 
 tives ; in officering the militia, and giving effect to laws 
 for calling them out; and in the surrender of fugitives from 
 justice. These, and many other functions, devolving on 
 the State authorities, render it highly important, that 
 they should be under a solemn obligation to obey the 
 Constitution. In common sense, there can be no well- 
 founded objection to it. There may be serious evils 
 growing out of an opposite course. 
 
 § 428. The remaining part of the clause declares, that 
 44 no religious test shall ever be required, as a qualification 
 to any office or public trust under the United States.” 
 This clause is recommended by its tendency to satisfy the 
 minds of many delicate and scrupulous persons, who enter¬ 
 tain great repugnance to religious tests, as a qualification 
 for civil power or honor. But it has a higher aim in the 
 Constitution. It is designed to cut off every pretence 
 of an alliance between the Church and the State, in the ad¬ 
 ministration of the National Government. The American 
 people were too well read in the history of other coun¬ 
 tries, and had suffered too much in their colonial state, 
 not to dread the abuses of authority resulting from reli¬ 
 gious bigotry, intolerance, and persecution. They knew 
 but too well, that no sect could be safely trusted with 
 power on such a subject ; for all had in turns wielded it 
 
 22 xm. 
 
254 CONSTITUTION OF THE UNITED STATES. 
 
 to the injury, and sometimes to the destruction, of their 
 inoffensive, but, in their judgement, erring neighbors. 
 And we shall presently see, that, by an amendment to 
 the Constitution, evils of this sort in the National Gov¬ 
 ernment are still more effectually guarded against. 
 
 § 429. The seventh and last article of the Constitu¬ 
 tion is, “ The ratification of the Conventions of nine 
 States, shall be sufficient for the establishment of this 
 Constitution between the States so ratifying the same.” 
 It is unnecessary now to comment upon this article, as 
 all the States have ratified the Constitution. But we 
 know, that if an unanimous ratification of it, by all the 
 States, had been required, it would have been rejected ; 
 for North Carolina, and Rhode Island, did not, at first, 
 accede to it. 
 
 § 430. And here closes our review of the Constitu¬ 
 tion in the original form, in which it was adopted by the 
 people of the United States. The concluding passage 
 of it is valuable, as an historical reminiscence. “Done 
 in Convention, by the unanimous consent of the States 
 present, the seventeenth day of September, in the year of 
 our Lord one thousand seven hundred and eighty-seven, 
 and of the Independence of the United States the twelfth. 
 In witness whereof, we have hereunto subscribed our 
 names.” At the head of the illustrious men, who framed 
 and signed it, stands the name of “ George Washington, 
 President, and Deputy from Virginia ;” a name, at the 
 utterance of which it is impossible not to feel the liveliest 
 sense of gratitude to a gracious Providence, for a life of 
 so much glory, such spotless integrity, and such exalted 
 patriotism. 
 
 CHAPTER XXXVII. 
 
 Amendments to the Constitution. 
 
 § 431. When the Constitution was before the people 
 for adoption, several of the State conventions suggested 
 
AM END 31 ENTS.-BILL OF RIGHTS. 
 
 255 
 
 certain amendments for the consideration of Congress, 
 some of the most important of which were afterwards 
 proposed to the people for adoption, by that body, at its 
 first organization; and, having been since ratified, they are 
 now incorporated into the Constitution. They are mainly 
 clauses, in the nature of a Bill of Rights, which more ef¬ 
 fectually guard certain rights, already provided for in the 
 Constitution, or prohibit certain exercises of authority, 
 supposed to be dangerous to the public interests. We 
 have already had occasion to consider several of them in 
 the preceding pages ; and the remainder will now be pre¬ 
 sented. 
 
 § 432. Before, however, proceeding to the considera¬ 
 tion of them, it may be proper to say a few words, as to 
 the origin and objects of the first ten amendments, which 
 may be considered as a Bill of Rights, and w T ere proposed 
 by the first Congress, and were immediately adopted by 
 the people of the United States. The first amendment 
 is, “ Congress shall make no law respecting an establish¬ 
 ment of religion, or prohibiting the free exercise thereof; 
 or abridging the freedom of speech, or of the press ; or 
 the right of the people peaceably to assemble, and to 
 petition the government for a redress of grievances.” 
 
 § 433. It has been already stated, that many objec¬ 
 tions were taken to the Constitution, not only on account 
 of its actual provisions, but also on account of its defi¬ 
 ciencies and omissions. Among the latter, none were 
 proclaimed with more zeal, and pressed with more effect, 
 than the want of a Bill of Rights. This, it was said, was 
 a fatal defect ; and sufficient of itself to bring on the ruin 
 of the republic. To this objection, several answers were 
 given ; first, that the Constitution did, in fact, contain many 
 provisions in the nature of a Bill of Rights, if the whole 
 Constitution was not, in fact, a Bill of Rights ; secondly, 
 that a Bill of Rights was in its nature more adapted to a 
 monarchy, than to a government, professedly founded 
 upon the will of the people, and executed by their imme¬ 
 diate representatives and agents ; and, thirdly, that a for¬ 
 mal Bill of Rights, beyond what was contained in it, was 
 wholly unnecessary, and might even be dangerous. 
 
256 CONSTITUTION OF THE UNITED STATES. 
 
 § 434. It was further added, that, in truth, the Consti¬ 
 tution itself, was, in every rational sense, and to every 
 useful purpose, a Bill of Rights for the Union. It speci¬ 
 fies, and declares the political privileges of the citizens in 
 the structure and administration of the Government. It 
 defines certain immunities and modes of proceeding, which 
 relate to their personal, private, and public rights and 
 concerns. It confers on them the unalienable right of 
 electing their rulers ; and prohibits any tyrannical meas¬ 
 ures, and vindictive prosecutions. So that, at best, much 
 of the force of the objection rests on mere nominal dis¬ 
 tinctions, or upon a desire to make a frame of government 
 a code to regulate rights and remedies. 
 
 § 435. Although it must be conceded, that there is 
 much intrinsic force in this reasoning, it cannot in candor 
 be admitted to be wholly satisfactory, or conclusive on 
 the subject. It is rather the argument of an able advo¬ 
 cate, than the reasoning of a constitutional statesman. In 
 the first place, a Bill of Rights (in the very sense of this 
 reasoning) is admitted in some cases to be important ; 
 and the Constitution itself adopts, and establishes its pro¬ 
 priety to the extent of its actual provisions. Every rea¬ 
 son, which establishes the propriety of any provision of 
 this sort in the Constitution, such as a right of trial by 
 jury in criminal cases, is, to that extent, proof, that it is 
 neither unnecessary nor dangerous. It reduces the ques¬ 
 tion to the consideration, not whether any Bill of Rights is 
 necessary, but what such a Bill of Rights should properly 
 contain. This is a point for argument, upon which dif¬ 
 ferent minds may arrive at different conclusions. That a 
 Bill of Rights may contain too many enumerations, and 
 especially such, as more correctly belong to the ordinary 
 legislation of a government, cannot be doubted. Some 
 of our State Bills of Rights contain clauses of this descrip¬ 
 tion, being either in their character and phraseology quite 
 too loose, and general, and ambiguous ; or covering doc¬ 
 trines quite debatable, both in theory and practice ; or 
 even leading to mischievous consequences, by restricting 
 the Legislative power under circumstances, which were 
 not foreseen, and if foreseen, the restraint would have 
 
AMENDMENTS.-BILL OF RIGHTS. 
 
 257 
 
 been pronounced by all persons inexpedient, and perhaps 
 unjust. Indeed, the rage of theorists to make constitu¬ 
 tions a vehicle for the conveyance of their own crude and 
 visionary aphorisms of government, requires to be guarded 
 against with the most unceasing vigilance. 
 
 § 436. In the next place, a Bill of Rights is important, 
 and may often be indispensable, whenever it operates as 
 a qualification upon powers, actually granted by the peo¬ 
 ple to the government. This is the real ground of all the 
 Bills of Rights in the parent country, in the Colonial con¬ 
 stitutions and laws, and in the State constitutions. In 
 England, the Bills of Rights were not demanded merely of 
 the Crown, as withdrawing a power from the Royal pre¬ 
 rogative ; they were equally important, as withdrawing 
 power from Parliament. A large proportion of the most 
 valuable of the provisions in Magna Charta, and the Bill 
 of Rights in 1683, consists of a solemn recognition of the 
 limitations upon the powers of Parliament; that is, a dec¬ 
 laration, that Parliament ought not to abolish, or restrict 
 those rights. Such are the right of trial by jury; the 
 right to personal liberty and private property, according 
 to the law of the land ; that the subjects ought to have a 
 right to bear arms ; that elections of members of Parlia¬ 
 ment ought to be free ; that freedom of speech and debate 
 in Parliament ought not to be impeached, or questioned 
 elsewhere ; and that excessive bail ought not to be re¬ 
 quired, nor excessive fines imposed, nor cruel or unusual 
 punishments inflicted. Whenever, then, a general power 
 exists, or is granted to a government, which may, in its 
 actual exercise or abuse, be dangerous to the people, there 
 seems a peculiar propriety in restricting its operations, 
 and in excepting from it some at least of the most mis¬ 
 chievous forms, in which it may be likely to be abused. 
 And the very exception in such cases, will operate with a 
 silent, but irresistible influence, to control the actual abuse 
 of it in other analogous cases. 
 
 § 437. In the next place, a Bill of Rights may be im¬ 
 portant, even when it goes beyond the powers supposed to 
 be granted. It is not always possible to foresee the ex¬ 
 tent of the actual reach of certain powers, which are 
 
 22 * 
 
258 CONSTITUTION OF THE UNITED STATES. 
 
 given in general terms. They may be construed to ex¬ 
 tend (and perhaps fairly) to certain classes of cases, which 
 did not at first appear to be within them. A Bill of Rights, 
 then, operates, as a guard upon any extravagant or undue 
 extension of such powers. Besides ; (as has been justly 
 remarked,) a Bill of Rights is of real efficiency in control¬ 
 ling the excesses of party spirit. It serves to guide and 
 enlighten public opinion, and to render it more quick to 
 detect, and more resolute to resist, attempts to disturb 
 private rights. It requires more than ordinary hardihood 
 and audacity of character, to trample down principles, 
 which our ancestors have consecrated with reverence ; 
 which we imbibed in our early education ; which recom¬ 
 mend themselves to the judgement of the world by their 
 truth and simplicity ; and which are constantly placed 
 before the eyes of the people, accompanied with the im¬ 
 posing force and solemnity of a constitutional sanction. 
 Bills of Rights are a part of the muniments of freemen, 
 showing their title to protection ; and they become of 
 increased value, when placed under the protection of an 
 independent judiciary, instituted as the appropriate guar¬ 
 dian of the public and private rights of the citizens. 
 
 § 438. In the next place, a Bill of Rights is an impor¬ 
 tant protection against unjust and oppressive conduct on 
 the part of the people themselves. In a government 
 modified like that of the United States, (it has been said 
 by a great statesman,) the great danger lies rather in the 
 abuse of the community, than of the legislative body. 
 The prescriptions in favor of liberty ought to be levelled 
 against that quarter, where the greatest danger lies, name¬ 
 ly, that which possesses the highest prerogative of power. 
 But this is not found in the executive or legislative de¬ 
 partments of government ; but in the body of the people, 
 operating by the majority against the minority. It may 
 be thought, that all paper barriers against the power of 
 the community are too weak to be worthy of attention. 
 They are not so strong, as to satisfy all, who have seen 
 and examined thoroughly the texture of such a defence. 
 Yet, as they have a tendency to impress some degree of 
 respect for them, to establish the public opinion in their 
 
AMENDMENTS.-FREEDOM OF RELIGION. 259 
 
 favor, and to rouse the attention of the whole community, 
 it may be one means to control the majority from those 
 acts, to which they might be otherwise inclined. 
 
 § 439. The want of a Bill of Rights, then, is not either 
 an unfounded or illusory objection. The real question 
 is not, whether every sort of right or privilege or claim 
 ought to be affirmed in a constitution ; but whether such, 
 as in their own nature are of vital importance, and pecu¬ 
 liarly susceptible of abuse, ought not to receive this sol¬ 
 emn sanction. Doubtless, the want of a formal Bill of 
 Rights in the Constitution was a matter of very exaggerat¬ 
 ed declamation and party zeal, for the mere purpose of 
 defeating the Constitution. But, so far as the objection 
 was well founded in fact, it was right to remove it by 
 subsequent amendments ; and Congress have (as we shall 
 see) accordingly performed the duty with most prompt 
 and laudable diligence. 
 
 §440. The first amendment is, u Congress shall 
 make no law respecting an establishment of religion, or 
 prohibiting the free exercise thereof; or abridging the 
 freedom of speech, or of the press ; or the right of the 
 people peaceably to assemble, and to petition the gov¬ 
 ernment for a redress of grievances.” 
 
 §441. The same policy, which introduced into the 
 Constitution the prohibition of any religious test, led to 
 this more extended prohibition of the interference of Con¬ 
 gress in religious concerns. We are not to attribute this 
 prohibition of a national religious establishment to an in¬ 
 difference to religion in general, and especially to Chris¬ 
 tianity, (which none could hold in more reverence, than 
 the framers of the Constitution,) but to a dread by the 
 people of the influence of ecclesiastical power in matters 
 of government ; a dread, which their ancestors brought 
 with them from the parent country, and which, unhappily 
 for human infirmity, their own conduct, after their emigra¬ 
 tion, had not, in any just degree, tended to diminish. It 
 was also obvious, from the numerous and powerful sects 
 existing in the United States, that there would be perpet¬ 
 ual temptations to struggles for ascendency in the National 
 councils, if any one might thereby hope to found a perma- 
 
260 CONSTITUTION OF THE UNITED STATES. 
 
 nent and exclusive national establishment of its own ; and 
 religious persecutions might thus be introduced, to an ex¬ 
 tent utterly subversive of the true interests and good or¬ 
 der of the Republic. The most effectual mode of sup¬ 
 pressing the evil, in the view of the people, was, to strike 
 down the temptations to its introduction. 
 
 § 442. How far any government has a right to interfere 
 in matters touching religion, has been a subject much dis¬ 
 cussed by writers upon public and political law. The right 
 and the duty of the interference of government in mat¬ 
 ters of religion have been maintained by many distinguish¬ 
 ed authors, as well by those, who were the warmest advo¬ 
 cates of free governments, as by those, who were attached 
 to governments of a more arbitrary character. Indeed, 
 the right of a society or government to interfere in matters 
 of religion, will hardly be contested by any persons, who 
 believe that piety, religion, and morality are intimately 
 connected with the well being of the state, and indispen¬ 
 sable to the administration of civil justice. The promul¬ 
 gation of the great doctrines of religion, the being, and 
 attributes, and providence of one Almighty God ; the 
 responsibility to Him for all our actions, founded upon 
 moral accountability ; a future state of rewards and pun¬ 
 ishments ; the cultivation of all the personal, social, and 
 benevolent virtues ;—these never can be a matter of in¬ 
 difference in any well-ordered community. It is, indeed, 
 difficult to conceive, how any civilized society can well 
 exist without them. And, at all events, it is impossible 
 for those, who believe in the truth of Christianity, as a 
 Divine revelation, to doubt, that it is the especial duty of 
 government to foster, and encourage it among all the cit¬ 
 izens and subjects. This is a point wholly distinct from 
 that of the right of private judgement in matters of relig¬ 
 ion, and of the freedom of public worship, according to 
 the dictates of one’s conscience. 
 
 § 443. The real difficulty lies in ascertaining the limits, 
 to which government may rightfully go, in fostering and 
 encouraging religion. Three cases may easily be sup¬ 
 posed. One, where a government affords aid to a par¬ 
 ticular religion, leaving all persons free to adopt any 
 
AMENDMENTS-LIBERTY OF THE PRESS. 261 
 
 other ; another, where it creates an ecclesiastical estab¬ 
 lishment for the propagation of the doctrines of a particular 
 sect of that religion, leaving a like freedom to all others ; 
 and a third, where it creates such an establishment, and 
 excludes all persons, not belonging to it, either wholly, or 
 in part, from any participation in the public honors, trusts, 
 emoluments, privileges, and immunities of the state. For 
 instance, a government may simply declare, that the Chris¬ 
 tian religion shall be the religion of the state, and shall be 
 aided, and encouraged in all the varieties of sects belong¬ 
 ing to it ; or it may declare, that the Roman Catholic or 
 Protestant religion shall be the religion of the state, leav¬ 
 ing every man to the free enjoyment of his own religious 
 opinions ; or it may establish the doctrines of a particular 
 sect, as of Episcopalians, as the religion of the state, with 
 a like freedom; or it may establish the doctrines of a 
 particular sect, as exclusively the religion of the state, 
 tolerating others to a limited extent, or excluding all, not 
 belonging to it, from all public honors, trusts, emolu¬ 
 ments, privileges, and immunities. 
 
 § 444. Probably, at the time of the adoption of the 
 Constitution, and of the amendment to it, now under con¬ 
 sideration, the general, if not the universal, sentiment in 
 America was, that Christianity ought to receive encour¬ 
 agement from the State, so far as such encouragement was 
 not incompatible with the private rights of conscience, 
 and the freedom of religious worship. An attempt to 
 level all religions, and to make it a matter of state policy 
 to hold all in utter indifference, would have created uni¬ 
 versal disapprobation, if not universal indignation. 
 
 § 445. The next clause respects the liberty of speech, 
 and of the press. That this amendment was intended to 
 secure to every citizen an absolute right to speak, or write, 
 or print, whatever he might please, without any responsi¬ 
 bility, public or private, therefor, is a supposition too wild 
 to be indulged by any reasonable man. That would be, 
 to allow every citizen a right to destroy, at his pleasure, 
 the reputation, the peace, the property, and even the per¬ 
 sonal safety of every other citizen. A man might then, 
 out of mere malice or revenge, accuse another of infamous 
 
262 CONSTITUTION OF THE UNITED STATES. 
 
 crimes ; might excite against him the indignation of all 
 his fellow citizens by the most atrocious calumnies ; might 
 disturb, nay, overturn his domestic peace, and embitter 
 his domestic affections ; might inflict the most distressing 
 punishments upon the weak, the timid, and the innocent ; 
 might prejudice all the civil, political, and private rights 
 of another ; and might stir up sedition, rebellion, and even 
 treason, against the government itself, in the wantonness 
 of his passions, or the corruptions of his heart. Civil 
 society could not go on under such circumstances. Men 
 would be obliged to resort to private vengeance to make 
 up for the deficiencies of the law. It is plain, then, that 
 this amendment imports no more, than that every man 
 shall have a right to speak, write, and print his opinions 
 upon any subject whatsoever, without any prior restraint, 
 so always that he does not injure any other person in his 
 rights, property, or personal reputation ; and so always 
 that he does not thereby disturb the public peace, or at¬ 
 tempt to subvert the government. It is in fact designed 
 to guard against those abuses of power, by which, in some 
 foreign governments, men are not permitted to speak upon 
 political subjects, or to write or publish any thing without 
 the express license of the government for that purpose. 
 
 § 446. A little attention to the history of other coun¬ 
 tries, in other ages, will teach us the vast importance of 
 this right. It is notorious, that, even to this day, in some 
 foreign countries, it is a crime to speak on any subject, 
 religious, philosophical, or political, what is contrary to 
 the received opinions of the government, or the institutions 
 of the country, however laudable may be the design, and 
 however virtuous may be the motive. Even to animad¬ 
 vert upon the conduct of public men, of rulers, or of repre¬ 
 sentatives, in terms of the strictest truth and courtesy, has 
 been, and is, deemed a scandal upon the supposed sanc¬ 
 tity of their stations and characters, subjecting the party 
 to grievous punishment. In some countries, no works can 
 be printed at all, whether of science, or literature, or phi¬ 
 losophy, without the previous approbation of the govern¬ 
 ment ; and the press has been shackled, and compelled 
 to speak only in the timid language, which the cringing 
 
AMENDMENTS.-LIBERTY OF SPEECH. 263 
 
 courtier, or the capricious inquisitor, has been willing to 
 license for publication. The Bible itself, the common 
 inheritance, not merely of Christendom, but of the world, 
 has been put exclusively under the control of government; 
 and has not been allowed to be seen, or heard, or read, 
 except in a language unknown to the common inhabitants 
 of the country. To publish a translation in the vernacu¬ 
 lar tongue, has been in former times a flagrant offence. 
 
 § 447. There is a good deal of loose reasoning on the 
 subject of the liberty of the press, as if its inviolability 
 were constitutionally such, that, like the King of England, 
 it could do no wrong, and was free from every inquiry, 
 and afforded a perfect sanctuary for every abuse ; that, 
 in short, it implied a despotic sovereignty to do every 
 sort of wrong, without the slightest accountability to pri¬ 
 vate or public justice. Such a notion is too extravagant 
 to be held by any sound constitutional lawyer, with regard 
 to the rights and duties belonging to governments gener¬ 
 ally, or to the state governments in particular. If it 
 were admitted to be correct, it might be justly affirmed, 
 that the liberty of the press was incompatible with the 
 permanent existence of any free government. Mr. Jus¬ 
 tice Blackstone has remarked, that the liberty of the press, 
 properly understood, is essential to the nature of a free 
 state ; but that this consists in laying no previous re¬ 
 straints upon publications, and not in freedom from cen¬ 
 sure for criminal matter, when published. Every freeman 
 has an undoubted right to lay what sentiments he pleases 
 before the public. To forbid this is to destroy the free¬ 
 dom of the press. But, if he publishes what is improper, 
 mischievous, or illegal, he must take the consequences of 
 his own temerity. To subject the press to the restrictive 
 power of a licenser, as was formerly done before, and 
 since the Revolution, (of 1688,) is to subject all freedom 
 of sentiment to the prejudices of one man, and make him 
 the arbitrary and infallible judge of all controverted points 
 in learning, religion, and government. But to punish any 
 dangerous or offensive writings, which, when published, 
 shall, on a fair and impartial trial, be adjudged of a per¬ 
 nicious tendency, is necessary for the preservation of 
 
264 CONSTITUTION OF THE UNITED STATES. 
 
 peace and good order, of government and religion, the 
 only solid foundations of civil liberty. Thus, the will of 
 individuals is still left free ; the abuse only of that free 
 will is the object of legal punishment. Neither is any 
 restraint hereby laid upon freedom of thought or inquiry ; 
 liberty of private sentiment is still left; the disseminating, 
 or making public of bad sentiments, destructive of the 
 ends of society, is the crime, which society corrects. 
 A man may be allowed to keep poisons in his closet; 
 but not publicly to vend them as cordials. And, after 
 some additional reflections, he concludes with this mem¬ 
 orable sentence : cc So true will it be found, that to cen¬ 
 sure the licentiousness, is to maintain the liberty of the 
 press.” 
 
 § 448. The remaining clause, secures u The right of 
 the people peaceably to assemble and to petition for a re¬ 
 dress of grievances,” a right inestimable in itself, but 
 often prohibited in foreign governments, under the pre¬ 
 tence of preventing insurrections, and dangerous conspir¬ 
 acies against the government. 
 
 § 449. This would seem unnecessary to be expressly 
 provided for in a republican government, since it results 
 from the very nature of its structure and institutions. It 
 is impossible, that it could be practically denied, until 
 the spirit of liberty had wholly disappeared, and the peo¬ 
 ple had become so servile and debased, as to be unfit to 
 exercise any of the privileges of freemen. 
 
 § 450. The next amendment is, u A well-regulated 
 militia being necessary to the security of a free state, the 
 right of the people to keep and bear arms shall not be in¬ 
 fringed.” One of the ordinary modes, by which tyrants 
 accomplish their purposes without resistance, is, by dis¬ 
 arming the people, and making it an offence to keep arms, 
 and by substituting a regular army in the stead of a resort 
 to the militia. The friends of a free government can¬ 
 not be too watchful, to overcome the dangerous tendency 
 of the public mind to sacrifice, for the sake of mere pri¬ 
 vate convenience, this powerful check upon the designs 
 of ambitious men. 
 
 § 451. The importance of this article will scarcely be 
 
AMENDMENTS.-RIGHTS OF THE PEOPLE. 265 
 
 doubted by any persons, who have duly reflected upon 
 the subject. The militia is the natural defence of a free 
 country against sudden foreign invasions, domestic insur¬ 
 rections, and domestic usurpations of power by rulers. 
 It is against sound policy for a free people to keep up 
 large military establishments and standing armies in time 
 of peace, both from the enormous expenses, with which 
 they are attended, and the facile means, which they af¬ 
 ford to ambitious and unprincipled rulers, to subvert the 
 government, or trample upon the rights of the people. 
 The right of the citizens to keep and bear arms has justly 
 been considered, as the palladium of the liberties of a re¬ 
 public ; since it offers a strong moral check against the 
 usurpations and arbitrary power of rulers ; and it will gen¬ 
 erally, even if these are successful in the first instance, 
 enable the people to resist and triumph over them. And 
 yet, though this truth would seem so clear, and the im¬ 
 portance of a well-regulated militia would seem so unde¬ 
 niable, it cannot be disguised, that among the American 
 people there is a growing indifference to any system of 
 militia discipline, and a strong disposition, from a sense 
 of its burdens, to be rid of all regulations. How it is 
 practicable to keep the people duly armed without some 
 organization, it is difficult to see. There is certainly no 
 small danger, that indifference may lead to disgust, and 
 disgust to contempt; and thus gradually undermine all the 
 protection intended by this clause of our National Bill of 
 Rights. 
 
 § 452. The next amendment is, u No soldier shall 
 in time of peace be quartered in any house without the 
 consent of the owner ; nor in time of war, but in a man¬ 
 ner to be prescribed by law.” This provision speaks for 
 itself. In arbitrary times it has not been unusual for mil¬ 
 itary officers, with the connivance, or under the sanction 
 of the government, to billet soldiers upon private citi¬ 
 zens, without the slightest regard to their rights, or com¬ 
 fort. 
 
 § 453. The next amendment is, u The enumeration 
 in the Constitution of certain rights shall not be constru¬ 
 ed to deny, or disparage others retained by the People.” 
 
 23 ' xm. 
 
266 CONSTITUTION OF THE UNITED STATES. 
 
 The object of this clause is to get rid of a very common 
 but perverse misapplication of a known maxim, that an 
 affirmation of a power in particular cases, implies a nega¬ 
 tion of it in all other cases ; and so, on the other hand, 
 that a negation of a power in some cases, implies an af¬ 
 firmation of it in all others not denied. The maxim, when 
 rightly understood, is perfectly sound and safe ; but it has 
 often been abused to purposes injurious to the rights of 
 the people ; and therefore the present clause was wisely 
 inserted to prevent any such false interpretations and glos¬ 
 ses of the Constitution. 
 
 § 454. The next and last amendment, which has not 
 been already considered, is, The powers not dele¬ 
 gated to the United States by the Constitution, nor pro¬ 
 hibited by it to the States, are reserved to the States re¬ 
 spectively, or to the People.” This amendment follows 
 out the object of the preceding ; and is merely an af¬ 
 firmation of a rule of construction of the Constitution, 
 which, upon any just reasoning, must have existed without 
 it. Still, it is important as a security against two opposite 
 tendencies of opinion, each of which is equally subver¬ 
 sive of the true import of the Constitution. The one is 
 to imply all powers, which may be useful to the National 
 Government, which are not expressly prohibited; and the 
 other is, to deny all powers to the National Government, 
 which are not expressly granted. We have already seen, 
 that there are many implied powers necessarily resulting 
 from the nature of the express powers ; and it is as clear, 
 that no power can properly arise by implication from a 
 mere prohibition. The Government of the United States 
 is one of limited powers ; and no authority exists beyond 
 the prescribed limits, marked out in the instrument itself. 
 Whatever powers are not granted, necessarily belong to 
 the respective States, or to the people of the respective 
 States, if they have not been confided by them to the 
 State Governments. 
 
CONCLUDING REMARKS. 
 
 267 
 
 CHAPTER XXXVIII. 
 
 Concluding Remarks. 
 
 § 455. We have now reviewed all the provisions of 
 the original Constitution of the United States, and all the 
 Amendments, which have been incorporated into it. And 
 here, the task, originally proposed in these Commentaries, 
 is brought to a close. Many reflections naturally crowd 
 upon the mind at such a moment; many grateful recollec¬ 
 tions of the past; and many anxious thoughts of the future. 
 The past is secure. It is unalterable. The seal of eter¬ 
 nity is upon it. The wisdom, which it has displayed, and 
 the blessings, which it has bestowed, cannot be obscured ; 
 neither can they be debased by human folly, or by human 
 infirmity. The future, is that, which may well awaken 
 the most earnest solicitude, both for the virtue and the per¬ 
 manence of our Republic. The fate of other republics, 
 their rise, their progress, their decline, and their fall, are 
 written but too legibly on the pages of history, if, indeed, 
 they were not continually before us in the startling frag¬ 
 ments of their ruins. Those republics have perished ; 
 and have perished by their own hands. Prosperity has 
 enervated them ; corruption has debased them ; and a 
 venal populace has consummated their destruction. The 
 people, alternately the prey of military chieftains at home, 
 and of ambitious invaders from abroad, have been some¬ 
 times cheated out of their liberties by servile demagogues ; 
 sometimes betrayed into a surrender of them by false pa¬ 
 triots ; and sometimes they have willingly sold them for 
 a price to the despot, who has bidden highest for his vic¬ 
 tims. They have disregarded the warning voice of their 
 best statesmen ; and have persecuted and driven from 
 office their truest friends. They have listened to the 
 councils of fawning sycophants, or base calumniators of 
 the wise and the good. They have reverenced power 
 more in its high abuses and summary movements, than in 
 
26S CONSTITUTION OF THE UNITED STATES. 
 
 its calm and constitutional energy, when it dispensed bles¬ 
 sings with an unseen, but a liberal hand. They have sur¬ 
 rendered to faction, what belonged to the common inter¬ 
 ests and common rights of the country. Patronage and 
 party, the triumph of an artful popular leader, and the dis¬ 
 contents of a day, have outweighed, in their view, all solid 
 principles and institutions of government. Such are the 
 melancholy lessons of the past history of republics down 
 to our own. 
 
 § 456. It is not my design to detain the reader by any 
 elaborate reflections addressed to his judgement, either by 
 way of admonition or of encouragement. But it may not 
 be wholly without use to glance at one or two considera¬ 
 tions, upon which our meditations cannot be too frequent¬ 
 ly indulged. 
 
 § 457. In the first place, it cannot escape our notice, 
 how exceedingly difficult it is to settle the foundations of 
 any government upon principles, which do not admit of 
 some controversy or question. The very elements, out of 
 which it is to be built, are susceptible of infinite modifica¬ 
 tions ; and theory too often deludes us by the attractive 
 simplicity of its plans, and imagination by the visionary 
 perfection of its speculations. In theory, a government 
 may promise the most perfect harmony of operations in 
 all its various combinations. In practice, the whole ma¬ 
 chinery may be perpetually retarded, or thrown out of 
 order by accidental mal-adjustments. In theory, a gov¬ 
 ernment may seem deficient in unity of design and sym¬ 
 metry of parts ; and yet, in practice, it may work with 
 astonishing accuracy and force for the general welfare. 
 Whatever, then, has been found to work well by experi¬ 
 ence, should rarely be hazarded upon conjectural improve¬ 
 ments. Time, and long and steady operation are indis¬ 
 pensable to the perfection of all social institutions. To 
 be of any value, these institutions must become cemented 
 with the habits, the feelings, and the pursuits of the peo¬ 
 ple. Every change discomposes for a while the whole 
 arrangements of the system. What is safe, is not always 
 expedient; what is new, is often pregnant with unforeseen 
 evils, or attracts only by imaginary good. 
 
CONCLUDING REMARKS. 
 
 269 
 
 § 458. In the next place, the slighest attention to the 
 history of the National Constitution must satisfy every 
 reflecting mind, how many difficulties attended its forma¬ 
 tion and adoption, from real or imaginary differences of 
 State interests, sectional feelings, and local institutions. 
 It is an attempt to create a National sovereignty, and yet 
 to preserve the State sovereignties ; although it is impos¬ 
 sible to assign definite boundaries in all cases to the pow¬ 
 ers of each. The influence of the disturbing causes, 
 which, more than once in the Convention, were on the 
 point of breaking up the Union, have since immeasurably 
 increased in concentration and vigor. The very inequal¬ 
 ities of a government, confessedly founded in a compro¬ 
 mise, were then felt with a strong sensibility ; and every 
 new source of discontent, whether accidental or perma¬ 
 nent, has since added increased activity to the painful sense 
 of these inequalities. The North cannot but perceive, that 
 it has yielded to the South a superiority of Representatives 
 already amounting to twenty-five, beyond its due propor¬ 
 tion ; and the South imagines, that, with all this prepon¬ 
 derance in representation, the other parts of the Union 
 enjoy a more perfect protection of their interests, than its 
 own. The West feels its growing power and weight in 
 the Union ; and the Atlantic States begin to learn, that 
 the sceptre must soon, and perhaps forever, depart from 
 them. If, under these circumstances, the Union should 
 once be broken up, it is impossible, that a new Constitu¬ 
 tion should ever be formed, embracing the whole Terri¬ 
 tory. We shall be divided into several nations or con¬ 
 federacies, rivals in power, pursuits, and interests ; too 
 proud to brook injury, and too near to make retaliation 
 distant or ineffectual. Our very animosities will, like 
 those of all other kindred nations, become more deadly, 
 because our lineage, our laws, and our language are the 
 same. Let the history of the Grecian and Italian repub¬ 
 lics warn us of our dangers. The National Constitution 
 is our last, and our only security. United we stand ; di¬ 
 vided we fall. 
 
 § 459. If this Work shall but inspire the rising gene¬ 
 ration with a more ardent love of their country, an un- 
 
270 CONSTITUTION OF THE UNITED STATES. 
 
 quenchable thirst for liberty, and a profound reverence 
 for the Constitution and the Union, then it will have ac¬ 
 complished all, that its author ought to desire. Let the 
 American youth never forget, that they possess a noble 
 inheritance, bought by the toils, and sufferings, and blood 
 of their ancestors ; and capable, if wisely improved, and 
 faithfully guarded, of transmitting to their latest posterity 
 all the substantial blessings of life, the peaceful enjoyment 
 of liberty, of property, of religion, and of independence. 
 The structure has been erected by architects of consum¬ 
 mate skill and fidelity ; its foundations are solid ; its com¬ 
 partments are beautiful, as well as useful; its arrangements 
 are full of wisdom and order ; and its defences are im¬ 
 pregnable from without. It has been reared for immor¬ 
 tality, if the work of man may justly aspire to such a title. 
 It may, nevertheless, perish in an hour, by the folly, or 
 corruption, or negligence of its only keepers, the peo¬ 
 ple. Republics are created by the virtue, public spirit, 
 and intelligence of the citizens. They fall, when the 
 wise are banished from the public councils, because they 
 dare to be honest, and the profligate are rewarded, be¬ 
 cause they flatter the people, in order to betray them. 
 
APPENDIX. 
 
 DECLARATION OF RIGHTS 
 
 OF THE CONTINENTAL CONGRESS, OCTOBER 14, 1774. 
 
 Whereas, since the close of the last war, the British 
 Parliament, claiming a power of right, to bind the people 
 of America by Statutes in all cases whatsoever, hath in 
 some Acts expressly imposed taxes on them, and in oth¬ 
 ers, under various pretences, but in fact for the purpose of 
 raising a revenue, hath imposed rates and duties payable 
 in these Colonies, established a Board of Commissioners, 
 with unconstitutional powers, and extended the jurisdiction 
 of Courts of Admiralty, not only for collecting the said 
 duties, but for the trial of causes merely arising within the 
 body of a county : 
 
 And whereas, in consequence of other Statutes, judges, 
 who before held only estates at will in their offices, have 
 been made dependent on the Crown alone, for their sal¬ 
 aries, and standing armies kept in times of peace ; and 
 whereas, it has lately been resolved in Parliament, that 
 by force of a Statute, made in the thirty-fifth year of the 
 reign of King Henry the VTII., Colonists may be trans¬ 
 ported to England, and tried there, upon accusations for 
 treasons and misprisions, or concealments, of treasons 
 committed in the Colonies, and by a late Statute, such 
 trials have been directed in cases therein mentioned : 
 
 And whereas, in the last session of Parliament, three 
 Statutes were made ; one entitled, c An Act to discon¬ 
 tinue, in such manner, and for such time, as are therein 
 mentioned, the landing and discharging, lading, or ship¬ 
 ping of goods, wares, and merchandize, at the town, and 
 within the harbor, of Boston, in the Province of Massa- 
 
272 
 
 APPENDIX. 
 
 chusetts Bay in North Americaanother entitled, c An 
 Act for the better regulating the government of the Prov¬ 
 ince of Massachusetts Bay in New England,’and another 
 entitled, ‘An Act for the impartial administration of just¬ 
 ice, in the cases of persons questioned for any act done 
 by them in the execution of the law, or for the suppres¬ 
 sion of riots and tumults, in the Province of the Massa¬ 
 chusetts Bay in New England And another Statute 
 was then made, “for making more effectual provision for 
 the government of the Province of Quebec,” &c. All 
 which Statutes are impolitic, unjust, and cruel, as well as 
 unconstitutional, and most dangerous and destructive of 
 American rights : 
 
 And whereas, Assemblies have been frequently dis¬ 
 solved, contrary to the rights of the People, when they 
 attempted to deliberate on grievances ; and their dutiful, 
 humble, loyal, and reasonable, petitions to the Crown for 
 redress, have been repeatedly treated with contempt, by 
 his Majesty’s ministers of state : 
 
 The good People of the several Colonies of New 
 Hampshire, Massachusetts Bay, Rhode Island and 
 Providence Plantations, Connecticut, New York, New 
 Jersey, Pennsylvania, Newcastle, Kent, and Sussex, on 
 Delaware, Maryland, Virginia, North Carolina, and South 
 Carolina, justly alarmed at these arbitrary proceedings of 
 Parliament and Administration, have severally elected, 
 constituted, and appointed Deputies to meet and sit in 
 General Congress, in the city of Philadelphia, in order 
 to obtain such establishment, as that their religion, laws, 
 and liberties, may not be subverted ; whereupon the Dep¬ 
 uties so appointed being now assembled, in a full and 
 free representation of these Colonies, taking into their 
 most serious consideration, the best means of attaining 
 the ends aforesaid, do, in the first place, as Englishmen 
 their ancestors in like cases have usually done, for assert¬ 
 ing and vindicating their rights and liberties, DECLARE, 
 
 That the inhabitants of the English Colonies in North 
 America, by the immutable laws of Nature, the principles 
 of the English Constitution, and the several Charters or 
 Compacts, have the following RIGHTS. 
 
DECLARATION OF RIGHTS. 
 
 273 
 
 Resolved, N. C. D.* 1 . That they are entitled to life, 
 liberty, and property ; and they have never ceded to any 
 Sovereign power whatever, a right to dispose of either, 
 without their consent. 
 
 Resolved, N. C. D. 2. That our ancestors, who 
 first settled these Colonies, were, at the time of their 
 emigration from the mother Country, entitled to all the 
 rights, liberties, and immunities, of free and natural-born 
 subjects, within the realm of England. 
 
 Resolved, N. C. D. 3. That, by such emigration, they 
 by no means forfeited, surrendered, or lost, any of those 
 rights, but that they were, and their descendants now are, 
 entitled to the exercise and enjoyment of all such of them, 
 as their local and other circumstances enable them to ex¬ 
 ercise and enjoy. 
 
 Resolved, 4. That the foundation of English liberty, 
 and of all free government, is, a right in the People to 
 participate in their legislative council ; and as the English 
 Colonists are not represented, and, from their local and 
 other circumstances, cannot properly be represented, in the 
 British Parliament, they are entitled to a free and ex¬ 
 clusive power of legislation in their several provincial 
 legislatures, where their right of representation can alone 
 be preserved, in all cases of taxation and internal polity, 
 subject only to the negative of their Sovereign, in such 
 manner as has been heretofore used and accustomed ; 
 but, from the necessity of the case, and a regard to the 
 mutual interests of both Countries, we cheerfully consent 
 to the operation of such Acts of the British Parliament, as 
 are, bona fide, restrained to the regulation of our external 
 commerce, for the purpose of securing the commercial 
 advantages of the whole empire to the mother Country, 
 and the commercial benefits of its respective members ; 
 excluding every idea of taxation, internal or external, for 
 raising a revenue on the subjects in America, without their 
 consent. 
 
 Resolved, N. C. D. 5. That the respective Colonies 
 are entitled to the common law of England, and more es- 
 
 * JVemine contradicente, no person opposing, or disagreeing. 
 
274 
 
 APPENDIX. 
 
 pecially to the great and inestimable privilege of being 
 tried by their peers of the vicinage, according to the 
 course of that law. 
 
 Resolved, 6. That they are entitled to the benefit of 
 such of the English Statutes, as existed at the time of 
 their colonization ; and which they have, by experience, 
 respectively found to be applicable to their several local 
 and other circumstances. 
 
 Resolved, N. C. D. 7. That these, his Majesty’s 
 Colonies, are likewise entitled to all the immunities and 
 privileges, granted and confirmed to them by royal Char¬ 
 ters, or secured by their several codes of provincial laws. 
 
 Resolved, N. C. D. 8. That they have a right peace¬ 
 ably to assemble, consider of their grievances, and pe¬ 
 tition the King ; and that all prosecutions, prohibitory 
 proclamations, and commitments for the same, are illegal. 
 
 Resolved, N. C. D. 9. That the keeping a standing 
 army in these Colonies, in times of peace, without the 
 consent of the legislature of that Colony in which such 
 army is kept, is against law. 
 
 Resolved, N. C. D. 10. It is indispensably necessary 
 to good government, and rendered essential by the Eng¬ 
 lish Constitution, that the constituent branches of the 
 legislature be independent of each other ; that, therefore, 
 the exercise of legislative power, in several Colonies, by 
 a Council appointed, during pleasure, by the Crown, is 
 unconstitutional, dangerous, and destructive to the free¬ 
 dom of American legislation. 
 
 All and each of which, the aforesaid Deputies, in be¬ 
 half of themselves, and their Constituents, do claim, de¬ 
 mand, and insist on, as their indubitable rights and liber¬ 
 ties ; which cannot be legally taken from them, altered, 
 or abridged, by any power whatever, without their own 
 consent, by their representatives, in their several provin¬ 
 cial Legislatures. 
 
DECLARATION OF INDEPENDENCE. 
 
 275 
 
 DECLARATION OF INDEPENDENCE. 
 
 A Declaration by the Representatives of the United 
 States of America, in Congress assembled. 
 
 When, in the course of human events, it becomes ne¬ 
 cessary for one people to dissolve the political bands 
 which have connected them with another, and to assume, 
 among the powers of the earth, the separate and equal 
 station to which the laws of nature, and of nature’s God, 
 entitle them, a decent respect to the opinions of man¬ 
 kind requires, that they should declare the causes which 
 impel them to the separation. 
 
 We hold these truths to be self-evident : that all men 
 are created equal ; that they are endowed, by their Cre¬ 
 ator, with certain unalienable rights ; that among these, 
 are life, liberty, and the pursuit of happiness. That, to 
 secure these rights, governments are instituted among 
 men, deriving their just powers from the consent of the 
 governed ; that, whenever any form of government be¬ 
 comes destructive of these ends, it is the right of the 
 people to alter or to abolish it, and to institute new gov¬ 
 ernment, laying its foundation on such principles, and or¬ 
 ganizing its powers in such form, as to them shall seem 
 most likely to effect their safety and happiness. Pru¬ 
 dence, indeed, will dictate, that governments, long estab¬ 
 lished, should not be changed for light and transient cau¬ 
 ses ; and, accordingly, all experience hath shown, that 
 mankind are more disposed to suffer, while evils are suf¬ 
 ferable, than to right themselves, by abolishing the forms 
 t6 which they are accustomed. But, when a long train 
 of abuses and usurpations, pursuing invariably the same 
 object, evinces a design to reduce them under absolute 
 despotism, it is their right, it is their duty, to throw off 
 such government, and to provide new guards for their fu¬ 
 ture security. Such has been the patient sufferance of 
 these Colonies ; and such is now the necessity which con¬ 
 strains them to alter their former systems of government. 
 
276 
 
 APPENDIX. 
 
 The history of the present King of Great Britain is a his¬ 
 tory of repeated injuries and usurpations, all having, in 
 direct object, the establishment of an absolute tyranny- 
 over these States. To prove this, let facts be submitted 
 to a candid world. 
 
 He has refused his assent to laws the most wholesome 
 and necessary for the public good. 
 
 He has forbidden his governors to pass laws of imme¬ 
 diate and pressing importance, unless suspended in their 
 operation till his assent should be obtained ; and, when 
 so suspended, he has utterly neglected to attend to them. 
 
 He has refused to pass other laws for the accommoda¬ 
 tion of large districts of people, unless those people would 
 relinquish the right of representation in the legislature : a 
 right inestimable to them, and formidable to tyrants only. 
 
 He has called together legislative bodies at places un¬ 
 usual, uncomfortable, and distant from the depository of 
 their public records, for the sole purpose of fatiguing 
 them into compliance with his measures. 
 
 He has dissolved representative houses, repeatedly, for 
 opposing, with manly firmness, his invasions on the rights 
 of the people. 
 
 He has refused, for a long time, after such dissolu¬ 
 tions, to cause others to be elected ; whereby the legis¬ 
 lative powers, incapable of annihilation, have returned to 
 the people at large for their exercise ; the State remain¬ 
 ing, in the mean time, exposed to all the dangers of inva¬ 
 sion from without, and convulsions within. 
 
 He has endeavored to prevent the population of these 
 States ; for that purpose, obstructing the laws for natural¬ 
 ization of foreigners ; refusing to pass others to encour¬ 
 age their migrations hither, and raising the conditions of 
 new appropriations of lands. 
 
 He has obstructed the administration of justice, by re¬ 
 fusing his assent to laws for establishing judiciary powers. 
 
 He has made judges dependent on his will alone, for 
 the tenure of their offices, and the amount and payment 
 of their salaries. 
 
 He has erected a multitude of new offices, and sent 
 hither swarms of officers to harass our people, and eat 
 out their substance. 
 
DECLARATION OF INDEPENDENCE. 
 
 277 
 
 He has kept among us, in time of peace, standing ar¬ 
 mies, without the consent of our legislatures. 
 
 He has affected to render the military independent of, 
 and superior to, the civil power. 
 
 He has combined, with others, to subject us to a juris¬ 
 diction foreign to our constitution, and unacknowledged 
 by our laws ; giving his assent to their acts of pretended 
 legislation : 
 
 For quartering large bodies of armed troops among us : 
 
 For protecting them, by a mock-trial, from punish¬ 
 ment, for any murders which they should commit on the 
 inhabitants of these States : 
 
 For cutting off our trade with all parts of the world : 
 
 For imposing taxes on us, without our consent: 
 
 For depriving us, in many cases, of the benefits of trial 
 by jury : 
 
 For transporting us beyond seas, to be tried for pre¬ 
 tended offences : 
 
 For abolishing the free system of English laws in a 
 neighboring Province, establishing therein an arbitrary 
 government, and enlarging its boundaries, so as to render 
 it, at once, an example and fit instrument for introducing 
 the same absolute rule into these Colonies : 
 
 For taking away our charters, abolishing our most val¬ 
 uable laws, and altering, fundamentally, the forms of our 
 governments : 
 
 For suspending our own legislatures, and declaring 
 themselves invested with power to legislate for us, in all 
 cases whatsoever. 
 
 He has abdicated government here, by declaring us 
 out of his protection, and waging war against us. 
 
 He has plundered our seas, ravaged our coasts, burnt 
 our towns, and destroyed the lives of our people. 
 
 He is, at this time, transporting large armies of foreign 
 mercenaries, to complete the works of death, desolation, 
 and tyranny, already begun with circumstances of cruel¬ 
 ty and perfidy, scarcely paralleled in the most barbarous 
 ages, and totally unworthy the head of a civilized nation. 
 
 He has constrained our fellow-citizens, taken captive 
 on the high seas, to bear arms against their country, to 
 
 24 xiii. 
 
278 
 
 APPENDIX. 
 
 become the executioners of their friends and brethren, or 
 to fall themselves by their hands. 
 
 He has excited domestic insurrections amongst us, and 
 has endeavored to bring on the inhabitants of our fron 
 tiers, the merciless Indian savages, whose known rule of 
 warfare is an undistinguished destruction of all ages, sex¬ 
 es, and conditions. 
 
 In every stage of these oppressions, we have petition¬ 
 ed for redress, in the most humble terms : Our repeated 
 petitions have been answered only by repeated injury. 
 A prince, whose character is thus marked by every act 
 which may define a tyrant, is unfit to be the ruler of a 
 free people. 
 
 Nor have we been wanting in attentions to our British 
 brethren. We have warned them, from time to time, of 
 attempts, by their legislature, to extend an unwarrantable 
 jurisdiction over us. We have reminded them of the 
 circumstances of our emigration and settlement here. 
 We have appealed to their native justice and magnanimi¬ 
 ty, and we have conjured them, by the ties of our com¬ 
 mon kindred, to disavow these usurpations, which would 
 inevitably interrupt our connexions and correspondence. 
 They too, have been deaf to the voice of justice and of 
 consanguinity. We must, therefore, acquiesce in the 
 necessity, which denounces our separation, and hold 
 them, as we hold the rest of mankind, enemies in war, 
 in peace, friends. 
 
 We, therefore, the representatives of the United 
 States of America, in General Congress assem¬ 
 bled, 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 ; that they are absolved from all allegiance to 
 the British crown, and that all political connexion between 
 them and the state of Great Britain is, and ought to be, 
 totally dissolved ; and that, as Free and Independent 
 States, they have full power to levy war, conclude 
 peace, contract alliances, establish commerce, and to do 
 
ARTICLES OF CONFEDERATION. 
 
 279 
 
 all other acts and things, which Independent States 
 may of right do. And, for the support of this decla¬ 
 ration, with a firm reliance on the protection of Divine 
 'Providence, vve mutually pledge to each other, oui 
 lives, our fortunes, and our sacred honor. 
 
 ARTICLES OF CONFEDERATION 
 
 And perpetual union, between the States of New 
 Hampshire, Massachusetts Bay, Rhode Island and Prov¬ 
 idence Plantations, Connecticut, New York, New Jer¬ 
 sey, Pennsylvania, Delaware, Maryland, Virginia, North 
 Carolina, South Carolina, and Georgia. 
 
 ARTICLE I. 
 
 The style of this confederacy shall be, u The 
 United States of America.” 
 
 ARTICLE II. 
 
 Each State retains its sovereignty, freedom, and inde¬ 
 pendence, and every power, jurisdiction, and right, which 
 is not by this Confederation, expressly delegated to the 
 United States in Congress assembled. 
 
 ARTICLE III. 
 
 The said States hereby severally enter into a firm 
 league of friendship with each other, for their common 
 defence, the security of their liberties, and their mutual 
 and general welfare ; binding themselves to assist each 
 other against all force offered to, or attacks made upon, 
 them, or any of them, on account of religion, sovereign¬ 
 ty, trade, or any other pretence whatever. 
 
 ARTICLE IV. 
 
 The better to secure and perpetuate mutual friendship 
 and intercourse among the people of the different States 
 in this Union, the free inhabitants of each of these States, 
 
2S0 
 
 APPENDIX. 
 
 paupers, vagabonds, and fugitives from justice, excepted, 
 shall be entitled to all privileges and immunities of free 
 citizens, in the several States ; and the people of each 
 State shall have free ingress and regress to and from any 
 other State ; and shall enjoy therein all the privileges of 
 trade and commerce, subject to the same duties, impo¬ 
 sitions, and restrictions,as the inhabitants thereof respec¬ 
 tively ; provided, that such restriction shall not extend 
 so far as to prevent the removal of property imported in¬ 
 to any State, to any other State of which the owner is an 
 inhabitant ; provided also, that no imposition, duties, or 
 restriction, shall be laid by any State, on the property of 
 the United States, or either of them. 
 
 If any person guilty of, or charged with, treason, felo¬ 
 ny, or other high misdemeanor, in any State, shall flee 
 from justice, and be found in any of the United States, 
 he shall, upon demand of the governor or executive pow¬ 
 er of the State from which he fled, be delivered up, and 
 removed to the State having jurisdiction of his offence. 
 
 Full faith and credit shall be given in each of these 
 States to the records, acts, and judicial proceedings, of 
 the courts and magistrates of every other State. 
 
 ARTICLE V. 
 
 For the more convenient management of the general 
 interests of the United States, delegates shall be annual¬ 
 ly appointed in such manner as the legislature of each 
 State shall direct, to meet in Congress on the first Mon¬ 
 day in November, in every year, with a power reserved 
 to each State to recall its delegates, or any of them, at 
 any time within the year, and send others in their stead, 
 for the remainder of the year. 
 
 No State shall be represented in Congress by less than 
 two, nor by more than seven, members ; and no person 
 shall be capable of being a delegate for more than three 
 years in any term of six years ; nor shall any person, be¬ 
 ing a delegate, be capable of holding any office under the 
 United States, for which he, or another for his benefit, 
 receives any salary, fees, or emolument of any kind. 
 
 Each State shall maintain its own delegates in a meet- 
 
ARTICLES OF CONFEDERATION. 
 
 281 
 
 ing of the States, and while they act as members of the 
 committee of the States. 
 
 In determining questions in the United States in Con¬ 
 gress assembled, each State shall have one vote. 
 
 Freedom of speech and debate in Congress shall not 
 be impeached or questioned, in any court or place out of 
 Congress ; and the members of Congress shall be pro¬ 
 tected in their persons from arrests and imprisonment, 
 during the time of their going to, and from, and attend¬ 
 ance on, Congress, except for treason, felony, or breach 
 of the peace. 
 
 ARTICLE VI. 
 
 No State, without the consent of the United States in 
 Congress assembled, shall send any embassy to, or re¬ 
 ceive any embassy from, or enter into any conference, 
 agreement, alliance, or treaty, with any king, prince, or 
 state ; nor shall any person, holding any office of profit, 
 or trust, under the United States, or any of them, accept 
 of any present, emolument, office, or title, of any kind 
 whatever, from any king, prince, or foreign state ; nor 
 shall the United States in Congress assembled, or any 
 of them, grant any title of nobility. 
 
 No two or more States shall enter into any treaty, 
 confederation, or alliance whatever, between them, with¬ 
 out the consent of the United States in Congress assem¬ 
 bled, specifying accurately the purposes for which the 
 same is to be entered into, and how long it shall con¬ 
 tinue. 
 
 No State shall lay any imposts or duties, which may 
 interfere with any stipulations in treaties entered into, by 
 the United States in Congress assembled, with any king, 
 prince, or state, in pursuance of any treaties, already pro¬ 
 posed by Congress to the courts of France and Spain. 
 
 No vessels of war shall be kept up, in time of peace, 
 by any State, except such number only, as shall be 
 deemed necessary, by the United States in Congress as¬ 
 sembled, for the defence of such State, or its trade ; nor 
 shall any body of forces be kept up by any State, in 
 time of peace, except such number only, as in the judge- 
 
 24* 
 
232 
 
 APPENDIX. 
 
 ment of the United States in Congress assembled, shall 
 be deemed requisite to garrison the forts necessary for 
 the defence of such State : but every Slate shall always 
 keep up a well-regulated and disciplined militia, suffi¬ 
 ciently armed and accoutred ; and shall provide and con¬ 
 stantly have ready for use, in public stores, a due number 
 of field-pieces and tents, and a proper quantity of arms, 
 ammunition, and camp equipage. 
 
 No State shall engage in any war, without the consent 
 of the United States in Congress assembled, unless such 
 State be actually invaded by enemies, or shall have re¬ 
 ceived certain advice of a resolution being formed by 
 some nation of Indians to invade such State, and the 
 danger is so imminent as not to admit of a delay, till the 
 United States in Congress assembled can be consulted ; 
 nor shall any State grant commissions to any ship or 
 vessels of war, nor letters of marque or reprisal, except 
 it be after a declaration of war by the United States in 
 Congress assembled ; and then only against the kingdom 
 or state, and the subjects thereof, against which war has 
 been so declared, and under such regulations as shall be 
 established by the United States in Congress assembled ; 
 unless such State be infested by pirates, in which vessels 
 of war may be fitted out for that occasion, and kept so 
 long as the danger shall continue, or until the United 
 States in Congress assembled shall determine otherwise. 
 
 ARTICLE VII. 
 
 When land forces are raised by any State for the 
 common defence, all officers of, or under, the rank of 
 colonel, shall be appointed by the legislature of each 
 State respectively, by whom such forces shall be raised, 
 or in such manner as such State shall direct ; and all va¬ 
 cancies shall be filled uo by the State w r hich first made 
 the appointment. 
 
 ARTICLE VIII. 
 
 All charges of war, and all other expenses that shall 
 be incurred for the common defence, or general welfare, 
 and allowed by the United States in Congress assem- 
 
ARTICLES OF CONFEDERATION. 
 
 283 
 
 bled, shall be defrayed out of a common treasury, which 
 shall be supplied by the several States in proportion to 
 the value of all land within each State, granted to, or 
 surveyed for, any person, as such land and the buildings 
 and improvements thereon shall be estimated, according 
 to such mode as the United States in Congress assem¬ 
 bled shall, from time to time, direct and appoint. The 
 taxes for paying that proportion, shall be laid and levied 
 by the authority and direction of the legislatures of the 
 several States, within the time agreed upon by the Unit¬ 
 ed States in Congress assembled. 
 
 ARTICLE IX. 
 
 The United States in Congress assembled, shall have 
 the sole and exclusive right and power, of determining 
 on peace and war, except in the cases, mentioned in the 
 sixth article : Of sending and receiving ambassadors : 
 Entering into treaties and alliances ; provided that no 
 treaty of commerce shall be made, whereby the legisla¬ 
 tive power of the respective States shall be restrained 
 from imposing such imposts and duties on foreigners as 
 their own people are subjected to, or from prohibiting 
 the exportation or importation of any species of goods 
 or commodities whatever : Of establishing rules for de¬ 
 ciding, in all cases, what captures on land or water shall 
 be legal ; and in what manner prizes, taken by land or 
 naval forces, in the service of the United States, shall 
 be divided or appropriated : Of granting letters of marque 
 and reprisal, in times of peace : Appointing courts, for 
 the trial of piracies and felonies, committed on the high 
 seas ; and establishing courts, for receiving and deter¬ 
 mining, finally, appeals in all cases of captures ; provid¬ 
 ed, that no member of Congress shall be appointed a 
 judge of any of the said courts. 
 
 The United States in Congress assembled shall also 
 be the last resort, on appeal, in all disputes and differen¬ 
 ces now subsisting, or that hereafter may arise, between 
 two or more States, concerning boundary, jurisdiction, 
 or any other cause whatever ; which authority shall al¬ 
 ways be exercised in the manner following : Whenev- 
 
284 
 
 APPENDIX. 
 
 er the legislative or executive authority, or lawful agent, 
 of any State, in controversy with another, shall present a 
 petition to Congress, stating the' 1 matter in question, and 
 praying for a hearing, notice thereof shall be given, by 
 order of Congress, to the legislative or executive author¬ 
 ity of the other State in controversy ; and a day assign¬ 
 ed, for the appearance of the parties by their lawful 
 agents, who shall then be directed to appoint, by joint 
 consent, commissioners or judges, to constitute a court 
 for hearing and determining the matter in question : but 
 if they cannot agree, Congress shall name three persons, 
 out of each of the United States ; and from the list of 
 such persons, each party shall alternately strike out one, 
 the petitioners beginning, until the number shall be redu¬ 
 ced to thirteen ; and from that number, not less than 
 seven, nor more than nine, names, as Congress shall di¬ 
 rect, shall, in the presence of Congress, be drawn out, 
 by lot; and the persons whose names shall be so drawn, 
 or any five of them, shall be commissioners or judges, to 
 hear and finally determine the controversy, so always as 
 a major part of the judges, w T ho shall hear the cause, 
 shall agree in the determination. And if either party 
 shall neglect to attend at the day appointed, without 
 showing reasons which Congress shall judge sufficient, 
 or being present shall refuse to strike, the Congress shall 
 proceed to nominate three persons out of each State ; 
 and the Secretary of Congress shall strike in behalf of 
 such party absent or refusing ; and the judgement and 
 sentence of the court, to be appointed in the manner be¬ 
 fore prescribed, shall be final and conclusive. And if 
 any of the parties shall refuse to submit to the authority 
 of such court, or to appear, or defend their claim or 
 cause, the court shall, nevertheless, proceed to pro¬ 
 nounce sentence or judgement, which shall in like man¬ 
 ner be final and decisive ; the judgement, or sentence, 
 and other proceedings, being, in either case, transmitted to 
 Congress, and lodged among the acts of Congress, for the 
 security of the parties concerned : Provided, that every 
 commissioner, before he sits in judgement, shall take an 
 oath, to be administered by one of the judges of the su- 
 
ARTICLES OF CONFEDERATION. 
 
 285 
 
 preme or superior court of the State, where the cause 
 shall be tried, 4 Well and truly to hear and determine 
 the matter in question, according to the best of his judge¬ 
 ment, without favor, affection, or hope of reward Pro¬ 
 vided, also, that no State shall be deprived of territory 
 for the benefit of the United States. 
 
 All controversies concerning the private right of soil 
 claimed under different grants of two or more States, 
 whose jurisdictions, as they may respect such lands and 
 the States which passed such grants, are adjusted, the said 
 grants, or either of them, being at the same time claimed 
 to have originated antecedent to such settlement of juris¬ 
 diction, shall, on the petition of either party to the Con¬ 
 gress of the United States, be finally determined, as near 
 as may be, in the same manner as is before prescribed for 
 deciding disputes respecting territorial jurisdiction between 
 different States. 
 
 The United States in Congress assembled shall also 
 have the sole and exclusive right and power of regulating 
 the alloy and value of coin struck by their own authority, 
 or by that of the respective States : Fixing the standard 
 of weights and measures throughout the United States : 
 Regulating the trade and managing all affairs with the In¬ 
 dians, not members of any of the States ; provided that 
 the legislative right of any State within its own limits be 
 not infringed or violated : 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 : Appointing all officers of 
 the land forces in the service of the United States, ex¬ 
 cepting regimental officers : Appointing all the officers of 
 the naval forces, and commissioning all officers whatevei 
 in the service of the United States : Making rules for the 
 government and regulation of the land and naval forces, 
 and directing their operations. 
 
 The United States in Congress assembled shall have 
 authority to appoint a committee, to sit in the recess of * 
 Congress, to be denominated a committee of the 
 states, and to consist of one delegate from each State ; 
 
236 
 
 APPENDIX. 
 
 and to appoint such other committees and civil officers as 
 may be necessary for managing the general affairs of the 
 United States under their direction : To appoint one of 
 their number to preside ; provided, that no person be al¬ 
 lowed to serve in the office of President more than one 
 year in any term of three years. To ascertain the neces¬ 
 sary sums of money to be raised for the service of the 
 United States, and to appropriate and apply the same for 
 defraying the publick expenses : To borrow money, or 
 emit bills on the credit of the United States, transmitting 
 every half year to the respective States an account of the 
 sums of money so borrowed or emitted : To build and 
 equip a navy : 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 in such 
 State, which requisition shall be binding ; and thereupon 
 the legislature of each State shall appoint the regimental 
 officers, raise the men, and clothe, arm, and equip them, 
 in a soldierlike manner, at the expense of the United 
 States ; and the officers and men so clothed, armed, and 
 equipped, shall march to the place appointed, and within 
 the time agreed on, by the United States in Congress as¬ 
 sembled : but if the United States in Congress assembled 
 shall, on consideration of circumstances, judge proper that 
 any State should not raise men, or should raise a smaller 
 number than its quota, and that any other State should 
 raise a greater number of men than its quota thereof, such 
 extra number shall be raised, officered, clothed, armed, 
 and equipped, in the same manner as the quota of such 
 State ; unless the legislature of such State shall judge that 
 such extra number cannot be safely spared out of the 
 same ; in which case they shall raise, officer, clothe, 
 arm, and equip, as many of such extra number as they 
 judge can be safely spared : and the officers and men so 
 clothed, armed, and equipped, shall march to the place 
 appointed, and within the time agreed on, by the United 
 States in Congress assembled. 
 
 The United States in Congress assembled shall never 
 engage in a war ; nor grant letters of marque and reprisal 
 in time of peace ; nor enter into any treaties or alliances ; 
 
ARTICLES OF CONFEDERATION. 
 
 287 
 
 nor coin money ; nor regulate the value thereof; nor as¬ 
 certain the sums and expenses necessary for the defence 
 and welfare of the United States, or any of them ; nor 
 emit bills ; nor borrow money on the credit of the United 
 Stales ; nor appropriate money ; nor agree upon the 
 number of vessels of war to be built or purchased, or the 
 number of land or sea forces to be raised ; nor appoint a 
 Commander-in-Chief of the army or navy ; unless nine 
 States assent to the same ; nor shall a question on any 
 other point, except for adjourning from day to day, be 
 determined, unless by the votes of a majority of the Uni¬ 
 ted States in Congress assembled. 
 
 The Congress of the United States shall have power 
 to adjourn to any time within the year, and to any place 
 within the United States, so that no period of adjourn¬ 
 ment be for a longer duration than the space of six months ; 
 and shall publish the journal of their proceedings monthly, 
 except such parts thereof relating to treaties, alliances, or 
 military operations, as in their judgement require secrecy ; 
 and the yeas and nays of the delegates of each State, on 
 any question, shall be entered on the journal, when it is 
 desired by any delegate ; and the delegates of a State, or 
 any of them, at his or their request, shall be furnished 
 with a transcript of the said journal, except such parts as 
 are above excepted, to lay before the legislatures of the 
 several States. 
 
 ARTICLE X. 
 
 The Committee of the States, or any nine of them, 
 shall be authorized to execute, in the recess of Congress, 
 such of the powers of Congress as the United States in 
 Congress assembled, by the consent of nine States, shall, 
 from time to time, think expedient to vest them with ; 
 provided, that no power be delegated to the said Com¬ 
 mittee, for the exercise of which, by the articles of Con¬ 
 federation, the voice of nine States in the Congress of 
 the United States assembled is requisite. 
 
 ARTICLE XI. 
 
 Canada, acceding to this Confederation, and joining 
 
2SS 
 
 APPENDIX. 
 
 in the measures of the United States, shall be admitted 
 into, and entitled to all the advantages of, this Union. 
 But no other Colony shall be admitted into the same, 
 unless such admission be agreed to by nine States. 
 
 ARTICLE XII. 
 
 All bills of credit emitted, moneys borrowed, and debts 
 contracted, by or under the authority of Congress, before 
 the assembling of the United States, in pursuance of the 
 present Confederation, shall be deemed and considered 
 as a charge against the United States, for payment and 
 satisfaction whereof, the said United States, and the pub¬ 
 lic faith, are hereby solemnly pledged. 
 
 ARTICLE XIII. 
 
 Every State shall abide by the determinations of the 
 United States in Congress assembled, on all questions 
 which, by this Confederation, are submitted to them. 
 And the Articles of this Confederation shall be inviola¬ 
 bly observed by every State ; and the Union shall be 
 perpetual. Nor shall any alteration at any time hereafter 
 be made in any of them, unless such alteration be agreed 
 to, in a Congress of the United States, and be afterwards 
 confirmed by the legislatures of every State. 
 
 And whereas, it hath pleased the great Governor of 
 the World, to incline the hearts of the legislatures we 
 respectively represent in Congress to approve of, and to 
 authorize us to ratify, the said Articles of Confederation 
 and Perpetual Union : 
 
 Know Ye, That we, the undersigned delegates, by 
 virtue of the power and authority to us given for that 
 purpose, do, by these presents, in the name, and in be¬ 
 half, of our respective constituents, fully and entirely 
 ratify and confirm each and every of the said Articles of 
 Confederation and Perpetual Union, and all and singular 
 the matters and things therein contained. And we do 
 further solemnly plight and engage the faith of our res¬ 
 pective constituents, that they shall abide by the deter¬ 
 minations of the United States in Congress assembled, 
 on all questions, which, by the said Confederation, are 
 
CONSTITUTION OF THE UNITED STATES. 289 
 
 V 
 
 submitted to them ; and that the articles thereof shall be 
 inviolably observed by the States we respectively repre¬ 
 sent ; and that the Union shall be perpetual. 
 
 In witness whereof, we have hereunto set our hands in 
 Congress. 
 
 Done at Philadelphia, in the State of Pennsylvania, the 
 ninth day of July, in the year of our Lord one thousand 
 seven hundred and seventy-eight, and in the third year 
 of the Independence of America. 
 
 CONSTITUTION 
 
 OF THE 
 
 UNITED STATES OF AMERICA. 
 
 We, the People of the United States, in order to 
 form a more perfect union, establish justice, insure do¬ 
 mestic tranquillity, provide for the common defence, pro¬ 
 mote the general welfare, and secure the blessings of lib¬ 
 erty to ourselves and our posterity, do ordain and estab¬ 
 lish this Constitution for the United States of America. 
 
 ARTICLE I. 
 
 SECTION 1. 
 
 1. All Legislative powers herein granted, shall be 
 vested in a Congress of the United States, which shall 
 consist of a Senate and House of Representatives. 
 
 SECTION 2. 
 
 1. The House of Representatives shall be composed 
 of members chosen every second year by the people of 
 the several States, and the electors in each State shall 
 have the qualifications requisite for electors of the most 
 numerous branch of the State legislature. 
 
 2. No person shall be a Representative who shall not 
 have attained to the age of twenty-five years, and been 
 
 25 xin. 
 
290 
 
 APPENDIX. 
 
 seven years a citizen of the United States, and who shall 
 not, when elected, be an inhabitant of that State in which 
 he shall be chosen. 
 
 3. Representatives and direct taxes shall be appor¬ 
 tioned among the several States which may be included 
 within this Union, according to their respective numbers, 
 which shall be determined by adding to the whole num- 
 ber of free persons, including those bound to service for 
 a term of years, and excluding Indians not taxed, three 
 fifths of all other persons. The actual enumeration shall 
 be made within three years after the first meeting of the 
 Congress of the United States, and within every subse¬ 
 quent term of ten years, in such manner as they shall by 
 law direct. The number of Representatives shall not ex¬ 
 ceed one for every thirty thousand, but each State shall 
 have at least one Representative ; and until such enumer¬ 
 ation shall be made, the State of New Hampshire shall 
 be entitled to choose three, Massachusetts eight, Rhode 
 Island and Providence Plantations one, Connecticut five, 
 New York six, New Jersey four, Pennsylvania eight, 
 Delaware one, Maryland six, Virginia ten, North Caro¬ 
 lina five, South Carolina five, and Georgia three. 
 
 4. When vacancies happen in the representation from 
 any State, the executive authority thereof shall issue 
 writs of election to fill such vacancies. 
 
 5. The House of Representatives shall choose their 
 Speaker and other officers ; and shall have the sole pow¬ 
 er of impeachment. 
 
 SECTION 3 . 
 
 1. The Senate of the United States shall be compos¬ 
 ed of two Senators from each State, chosen by the legis¬ 
 lature thereof, for six years ; and each Senator shall have 
 one vote. 
 
 2. Immediately after they shall be assembled in con¬ 
 sequence of the first election, they shall be divided, as 
 equally as may be, into three classes. The seats of the 
 Senators of the first class shall be vacated at the expira¬ 
 tion of the second year ; of the second class, at the expi¬ 
 ration of the fourth year ; and of the third class, at the 
 
CONSTITUTION OF THE UNITED STATES. 291 
 
 expiration of the sixth year ; so that one third may be 
 chosen every second year ; and if vacancies happen by 
 resignation, or otherwise, during the recess of the legis¬ 
 lature of any State, the executive thereof may make tem¬ 
 porary appointments until the next meeting of the legisla¬ 
 ture, which shall then fill such vacancies. 
 
 3. No person shall be a Senator who shall not have at¬ 
 tained to the age of thirty years, and been nine years a 
 citizen of the United States, and who shall not, when 
 elected, be an inhabitant of that State for which he shall 
 be chosen. 
 
 4. The Vice-President of the United States shall be 
 
 President of the Senate, but shall have no vote, unless 
 they be equally divided. * 
 
 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 office of Presi¬ 
 dent of the United States. 
 
 6. The Senate shall have the sole power to try all 
 impeachments. When sitting for that purpose, they 
 shall be on oath or affirmation. When the President of 
 the United States is tried, the Chief Justice shall pre¬ 
 side ; and no person shall be convicted without the con¬ 
 currence of two thirds of the members present. 
 
 7. Judgement in cases of impeachment shall not ex¬ 
 tend further than to removal from office, and disqualifica¬ 
 tion to hold and enjoy any office of honor, trust, or pro¬ 
 fit, under the United States ; but the party convicted 
 shall, nevertheless, be liable and subject to indictment, 
 trial, judgement, and punishment, according to law. 
 
 SECTION 4. 
 
 1. The times, places, and manner, of holding elections 
 for Senators and Representatives, shall be prescribed in 
 each State by the legislature thereof : but the Congress 
 may at any time, by law, make or alter such regulations, 
 except as to the places of choosing Senators. 
 
 2. The Congress shall assemble at least once in every 
 year, and such meeting shall be on the first Monday in 
 December, unless they shall by law appoint a different day. 
 
292 
 
 APPENDIX. 
 
 SECTION 5. 
 
 1. Each House shall be the judge of the elections, re¬ 
 turns, and qualifications, of its own members, and a ma^ 
 jority of each shall constitute a quorum to do business ; 
 but a smaller number may adjourn from day to day, and 
 may be authorized to compel the attendance of absent 
 members, in such manner, and under such penalties, as 
 each House may provide. 
 
 2. Each House may determine the rules of its pro¬ 
 ceedings, punish its members for disorderly behavior, 
 and, with the concurrence of two thirds, expel a member. 
 
 3. Each House shall keep a journal of its proceed¬ 
 ings, and, from time to time, publish the same, excepting 
 such parts as may, in their judgement, require secrecy ; 
 and the yeas and nays of the members of either House, 
 on any question, shall, at the desire of one fifth of those 
 present, be entered on the journal. 
 
 4. Neither House, during the session of Congress, 
 shall, without the consent of the other, adjourn for more 
 than three days, nor to any other place than that in which 
 the two Houses shall be sitting. 
 
 SECTION 6. 
 
 1. The Senators and Representatives shall receive a 
 compensation for their services, to be ascertained by law, 
 and paid out of the treasury of the United States. They 
 shall, in all cases, except treason, felony, and breach of 
 the peace, be privileged from arrest during their attend¬ 
 ance at the session of their respective Houses, and in go¬ 
 ing to, and returning from, the same ; and for any speech 
 or debate in either House, they shall not be questioned 
 in any other place. 
 
 2. No Senator or Representative shall, during the 
 time for which he was elected, be appointed to any civil 
 office under the authority of the United States, which 
 shall have been created, or the emoluments whereof shall 
 have been increased, during such time ; and no person, 
 holding any office under the United States, shall be a 
 member of either House during his continuance in office. 
 
CONSTITUTION OF THE UNITED STATES. 293 
 
 SECTION 7. 
 
 1. All bills for raising revenue shall originate in the 
 House of Representatives ; but the Senate may propose 
 or concur with amendments, as on other bills. 
 
 2. Every bill, which shall have passed the House of 
 Representatives and the Senate, shall, before it become 
 a law, be presented to the President of the United 
 States ; if he approve, he shall sign it, but if not, he shall 
 return it, with his objections, to that House in which it 
 shall have originated, who shall enter the objections at 
 large on their journal, and proceed to reconsider it. If, 
 after such reconsideration, two thirds of that House shall 
 agree to pass the bill, it shall be sent, together with the 
 objections, to the other House, by which it shall like¬ 
 wise be reconsidered, and, if approved by two thirds of 
 that House, it shall become a law. But in all such cases 
 the votes of both Houses shall be determined by yeas 
 and nays, and the names of the persons voting for and 
 against the bill shall be entered on the journal of each 
 House, respectively. If any bill shall not be returned by 
 the President within ten days (Sundays excepted) after 
 it shall have been presented to him, the same shall be a 
 law, in like manner as if he had signed it, unless the 
 Congress, by their adjournment, prevent its return, in 
 which case it shall not be a law. 
 
 3. Every order, resolution, or vote, to which the con¬ 
 currence of the Senate and House of Representatives 
 may be necessary, (except on a question of adjourn¬ 
 ment,) shall be presented to the President of the United 
 States ; and before the same shall take effect, shall be 
 approved by him, or, being disapproved by him, shall be 
 re-passed by two thirds of the Senate and House of Re¬ 
 presentatives, according to the rules and limitations pre¬ 
 scribed in the case of a bill. 
 
 SECTION 8. 
 
 The Cong ress shall have power, 
 
 1. To lay and collect taxes, duties, imposts, and ex¬ 
 cises, to pay the debts, and provide for the common de- 
 
 25* 
 
294 
 
 APPENDIX. 
 
 fence and general welfare, of the United States ; but all 
 duties, imposts, and excises, shall be uniform throughout 
 the United States : 
 
 2. To borrow money on the credit of the United 
 States : 
 
 3. To regulate commerce with foreign nations, and 
 among the several States, and with the Indian tribes : 
 
 4. To establish a uniform rule of naturalization, and 
 uniform laws on the subject of bankruptcies, throughout 
 the United States : 
 
 5. To coin money, regulate the value thereof, and of 
 foreign coin, and fix the standard of weights and meas¬ 
 ures : 
 
 6. To provide for the punishment of counterfeiting the 
 securities and current coin of the United States : 
 
 7. To establish post-offices and post-roads : 
 
 8. To promote the progress of science and useful arts, 
 by securing, for limited times, to authors and inventors 
 the exclusive right to their respective writings and dis¬ 
 coveries : 
 
 9. To constitute tribunals inferior to the Supreme 
 Court : 
 
 10. To define and punish piracies and felonies, com¬ 
 mitted on the high seas, and offences against the law of 
 nations : 
 
 11. To declare war, grant letters of marque and re¬ 
 prisal, and make rules concerning captures on land and 
 water : 
 
 12. To raise and support armies ; but no appropriation 
 of money to that use shall be for a longer term than two 
 years : 
 
 13. To provide and maintain a navy : 
 
 14. To make rules for the government and regulation 
 of the land and naval forces : 
 
 15. To provide for calling forth the militia to execute 
 the laws of the Union, suppress insurrections, and repel 
 invasions : 
 
 16. To provide for organizing, arming, and disciplin¬ 
 ing, the militia, and for governing such part of them as 
 may be employed in the service of the United States, 
 
CONSTITUTION OF THE UNITED STATES. 295 
 
 reserving to the States respectively, the appointment of 
 the officers, and the authority of training the militia, ac 
 cording to the discipline prescribed by Congress : 
 
 17. To exercise exclusive legislation in all cases 
 whatsoever, over such district, (not exceeding ten miles 
 square,) as may, by cession of particular States, and the 
 acceptance of Congress, become the seat of the govern¬ 
 ment of the United States, and to exercise like authority 
 over all places, purchased by the consent of the legislature 
 of the State in which the same shall be, for the erection 
 of forts, magazines, arsenals, dock-yards, and other need¬ 
 ful buildings :—And 
 
 18. 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. 
 
 SECTION 9. 
 
 1. The migration or importation of such persons, as 
 any of the States, now existing, shall think proper to ad¬ 
 mit, shall not be prohibited by the Congress prior to the 
 year one thousand eight hundred and eight ; but a tax or 
 duty may be imposed on such importation, not exceeding 
 ten dollars for each person. 
 
 2. The privilege of the writ of habeas corpus shall not 
 be suspended, unless when, in cases of rebellion or inva¬ 
 sion, the public safety may require it. 
 
 3. No bill of attainder, or ex post facto law, shall be 
 passed. 
 
 4. No capitation or other direct tax, shall be laid, un¬ 
 less in proportion to the census or enumeration, herein 
 before directed to be taken. 
 
 5. No tax or duty shall be laid on articles exported 
 from any State. No preference shall be given by any 
 regulation of commerce or revenue, to the ports of one 
 State over those of another ; nor shall vessels bound to, 
 or from, one State, be obliged to enter, clear, or pay 
 duties, in another. 
 
 6. No money shall be drawn from the treasury, but in 
 
296 
 
 APPENDIX. 
 
 consequence of appropriations made by law ; and a regu¬ 
 lar statement and account of the receipts and expenditures 
 of all public money shall be published, from time to time. 
 
 7. No title of nobility shall be granted by the United 
 States : And no person, holding any office of profit or 
 trust under them, shall, without the consent of the Con¬ 
 gress, accept of any present, emolument, office, or title, 
 of any kind whatever, from any king, prince, or foreign 
 state. 
 
 SECTION 10 . 
 
 1. No State shall enter into any treaty, alliance, or 
 confederation ; grant letters of marque and reprisal; coin 
 money ; emit bills of credit; make any thing but gold and 
 silver coin a tender in payment of debts ; pass any bill of 
 attainder, ex post facto law, or law impairing the obliga¬ 
 tion of contracts, or grant any title of nobility. 
 
 2. No State shall, without the consent of the Congress, 
 lay any imposts or duties on imports or exports, except 
 what may be absolutely necessary for executing its in¬ 
 spection laws ; and the net produce of all duties and im¬ 
 posts, laid by any State on imports or exports, shall be 
 for the use of the treasury of the United States ; and all 
 such laws shall be subject to the revision and control of 
 the Congress. No State shall, without the consent of 
 Congress, lay any duty of tonnage, keep troops, or ships 
 of war, in time of peace, enter into any agreement or 
 compact with another State, or with a foreign power, or 
 engage in war, unless actually invaded, or in such immi¬ 
 nent danger, as will not admit of delay. 
 
 ARTICLE II. 
 
 SECTION 1. 
 
 1. The Executive [ower shall be vested in a Presi¬ 
 dent of the United States of America. He shall hold 
 his office during the term of four years, and together 
 with the Vice-President, chosen for the same term, be 
 elected as follows : 
 
 2. Each State shall appoint, in such manner as the 
 
CONSTITUTION OF THE UNITED STATES. 297 
 
 Legislature thereof may direct, a number of Electors, 
 equal to the whole number of Senators and Representa¬ 
 tives, to which the State may be entitled in the Con¬ 
 gress : but no Senator or Representative, or person hold¬ 
 ing an office of trust or profit, under the United States, 
 shall be appointed an Elector. 
 
 3. The Electors shall meet in their respective States, 
 and vote by ballot for two persons, of whom one, at least, 
 shall not be an inhabitant of the same State with them¬ 
 selves. 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 Sen¬ 
 ate 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 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 majority, 
 then, from the five highest on the list, the said House 
 shall, in like manner, choose the President. But in choos¬ 
 ing the President, the votes shall be taken by States, the 
 representation from each State having one vote ; a quo¬ 
 rum for this purpose, shall consist of a member or mem¬ 
 bers 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. 
 
 4. The Congress may determine the time of choosing 
 the Electors, and the day on which they shall give their 
 votes ; which day shall be the same throughout the Uni¬ 
 ted States. 
 
 5. No person, except a natural-born citizen, or a citi- 
 
298 
 
 APPENDIX. 
 
 zen of the United States at the time of the adoption of 
 this Constitution, shall be eligible to the office of Presi¬ 
 dent ; neither shall any person be eligible to that office, 
 who shall not have attained to the age of thirty-five years, 
 and been fourteen years a resident within the United 
 States. 
 
 6. In case of the removal of the President from office, 
 or of his death, resignation, or inability to discharge the 
 powers and duties of the said office, the same shall de¬ 
 volve on the Vice-President, and the Congress may by 
 law provide for the case of removal, death, resignation, 
 or inability, both of the President and Vice-President, 
 declaring what officer shall then act as President, and 
 such officer shall act accordingly, until the disability be 
 removed, or a President shall be elected. 
 
 7. The President shall, at stated times, receive for 
 his services, a compensation, which shall neither be in¬ 
 creased nor diminished during the period for which he 
 shall have been elected, and he shall not receive within 
 that period, any other emolument from the United States, 
 or any of them. 
 
 8. Before he enter on the execution of his office, he 
 shall take the following oath or affirmation : 
 
 9. “ I do solemnly swear, (or affirm,) that I will faith¬ 
 fully execute the office of President of the United States, 
 and will, to the best of my ability, preserve, protect, and 
 defend, the Constitution of the United States.” 
 
 „ SECTION 2. 
 
 1. The President shall be commander-in-chief of the 
 army and navy of the United States, and of the militia 
 of the several States, when called into the actual service 
 of the United States ; he may require the opinion, in 
 writing, of the principal officer in each of the executive 
 departments, upon any subject relating to the duties of 
 their respective offices, and he shall have power to grant 
 reprieves and pardons for offences against the United 
 States, except in cases of impeachment. 
 
 2. He shall have power, by and with the advice and 
 consent of the Senate, to make treaties, provided two 
 
CONSTITUTION OF THE UNITED STATES. 
 
 299 
 
 thirds of the Senators present concur ; and he shall nom¬ 
 inate, and by and with the advice and consent of the 
 Senate, shall appoint ambassadors, other public ministers, 
 and consuls, judges of the Supreme Court, and all other 
 officers of the United States, whose appointments are not 
 herein otherwise provided for, and which shall be estab¬ 
 lished bylaw : but the Congress may by law vest the ap¬ 
 pointment of such inferior officers, as they think proper, 
 in the President alone, in the courts of law, or in the 
 heads of Departments. 
 
 3. The President shall have power to fill up all va¬ 
 cancies that may happen, during the recess of the Sen¬ 
 ate, by granting commissions, which shall expire at the 
 end of their next session. 
 
 SECTION 3. 
 
 1. He shall, from time to time, give to the Congress in¬ 
 formation of the state of the Union, and recommend to 
 their consideration such measures as he shall judge neces¬ 
 sary and expedient ; he may, on extraordinary occasions, 
 convene both Houses, or either of them, and in case of 
 disagreement between them, with respect to the time of 
 adjournment, he may adjourn them to such time as he 
 shall think proper ; he shall receive ambassadors and 
 other public ministers ; he shall take care that the laws 
 be faithfully executed, and shall commission all the offi¬ 
 cers of the United States. 
 
 SECTION 4. 
 
 1. The President, Vice-President, and all civil officers 
 of the United States, shall be removed from office, on 
 impeachment for, and conviction of, treason, bribery, or 
 other high crimes and misdemeanors. 
 
 ARTICLE III. 
 
 SECTION 1. 
 
 1. The Judicial power of the United States shall be 
 vested in one Supreme Court, and in such inferior courts 
 as the Congress may, from time to time, ordain and estab- 
 
300 
 
 APPENDIX. 
 
 lish. The judges, both of the Supreme and inferior 
 courts, shall hold their offices during good behavior, and 
 shall, at stated times, receive for their services a com¬ 
 pensation, which shall not be diminished during their 
 continuance in office. 
 
 SECTION 2 . 
 
 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 made, or which shall be 
 made, under their authority ; to all cases affecting am¬ 
 bassadors, other public ministers, and consuls ; to all cases 
 of admiralty and maritime jurisdiction ; to controversies 
 to which the United States shall be a party ; to contro¬ 
 versies between two or more States, between a State and 
 citizens of another State, between citizens of different 
 States, between citizens of the same State claiming lands 
 under grants of different States, and between a State, or 
 the citizens thereof, and foreign states, citizens, or subjects. 
 
 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 juris¬ 
 diction. In all the other cases before mentioned, the Su¬ 
 preme Court shall have appellate jurisdiction, both as to 
 law and fact, with such exceptions, and under such regu¬ 
 lations, as the Congress shall make. 
 
 3. The trial of all crimes, except in cases of impeach¬ 
 ment, shall be by jury ; and such trial shall be held in the 
 State where the said crimes shall have been committed ; 
 but when not committed within any State, the trial shall be 
 at such place, or places, as the Congress may by law have 
 directed. 
 
 SECTION 3. 
 
 1. Treason against the United States shall consist 
 only in levying war against them, or in adhering to their 
 enemies, giving them aid and comfort. No person shall 
 be convicted of treason, unless on the testimony of two 
 witnesses to the same overt act, or on confession in open 
 court. 
 
CONSTITUTION OF THE UNITED STATES. 301 
 
 2. The Congress shall have power to declare the pun¬ 
 ishment of treason, but no attainder of treason shall work 
 corruption of blood, or forfeiture, except during the life 
 of the person attainted. 
 
 ARTICLE IV. 
 
 SECTION 1. 
 
 1. Full faith and credit shall be given in each State to 
 the public acts, records, and judicial proceedings, of every 
 other State. And the Congress may, by general laws, 
 prescribe the manner in which such acts, records, and 
 proceedings, shall be proved, and the effect thereof. 
 
 SECTION 2. 
 
 1. The citizens of each State shall be entitled to all 
 privileges and immunities of citizens in the several States. 
 
 2. A person charged in any State with treason, fel¬ 
 ony, or other crime, who shall flee from justice, and be 
 found in another State, shall, on demand of the executive 
 authority of the State from which he fled, be delivered 
 up, to be removed to the State having jurisdiction of the 
 crime. 
 
 3. No person held to service or labor in one State, 
 under the laws thereof, escaping into another, shall, in 
 consequence of any law or regulation therein, be dis¬ 
 charged from such service or labor, but shall be delivered 
 up on claim of the party to whom such service or labor 
 may be due. 
 
 SECTION 3. 
 
 1. New States may be admitted by the Congress into 
 this Union ; but no new State shall be formed, or erected, 
 within the jurisdiction of any other State ; nor any State 
 be formed, by the junction of two or more States, or parts 
 ol States, without the consent of the legislatures of the 
 States concerned, as well as of the Congress. 
 
 2. The Congress shall have power to dispose of and 
 make all needful rules and regulations respecting the ter¬ 
 ritory, or other property, belonging to the United States ; 
 and nothing in this Constitution shall be so construed as 
 
 26 xiii. 
 
302 
 
 APPENDIX. 
 
 to prejudice any claims of the United States, or of any 
 particular State. 
 
 SECTION 4. 
 
 1. The United States shall guaranty to every State 
 in this Union a republican form of government, and shall 
 protect each of them against invasion ; and, on application 
 of the legislature, or of the executive, (when the legisla¬ 
 ture cannot be convened,) against domestic violence. 
 
 ARTICLE V. 
 
 1. The Congress, whenever two thirds of both Houses 
 shall deem it necessary, shall propose amendments to this 
 Constitution, or, on the application of the legislatures of 
 two thirds of the several States, shall call a convention 
 for proposing amendments, which, in either case, shall be 
 valid to all intents and purposes, as part of this Constitu¬ 
 tion, when ratified by the legislatures of three fourths of 
 the several States, or by conventions in three fourths there¬ 
 of, as the one or the other mode of ratification may be 
 proposed by the Congress : Provided, that no amend¬ 
 ment, which may be made prior to the year one thousand 
 eight hundred and eight, shall, in any manner, affect the 
 first and fourth clauses in the ninth section of the first 
 article ; and that no State, without its consent, shall be 
 deprived of its equal suffrage in the Senate. 
 
 ARTICLE YI. 
 
 1. All debts contracted, and engagements entered into, 
 before the adoption of this Constitution, shall be as valid 
 against the United States, under this Constitution, as un¬ 
 der the Confederation. 
 
 2. This Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all trea¬ 
 ties made, or which shall be made, under the authority of 
 the United States, shall be the supreme law of the land ; 
 and the judges in every State shall be bound thereby, any 
 thing in the Constitution or law's of any State to the con¬ 
 trary notwithstanding. 
 
AMENDMENTS OF THE CONSTITUTION. 
 
 303 
 
 3. The Senators and Representatives before mention¬ 
 ed, and the members of the several State legislatures, and 
 all executive and judicial officers, both of the United 
 States, and of the several States, shall be bound, by oath 
 or affirmation, to support this Constitution ; but no re¬ 
 ligious test shall ever be required as a qualification to any 
 office or public trust, under the United States. 
 
 ARTICLE VII. 
 
 1. The ratification of the Conventions of nine States 
 shall be sufficient for the establishment of this Constitution 
 between the States so ratifying the same. 
 
 AMENDMENTS TO THE CONSTITUTION. 
 
 ARTICLE I. 
 
 Congress shall make no law respecting an establish¬ 
 ment of religion, or prohibiting the free exercise thereof; 
 or abridging the freedom of speech, or of the press ; or 
 the right of the people peaceably to assemble, and to pe¬ 
 tition the government for a redress of grievances. 
 
 ARTICLE II. 
 
 A well regulated militia being necessary to the security 
 of a free State, the right of the people to keep and bear 
 arms shall not be infringed. 
 
 ARTICLE III. 
 
 No soldier shall, in time of peace, be quartered in any 
 house, without the consent of the owner ; nor, in time of 
 war, but in a manner to be prescribed by law. 
 
 ARTICLE IV. 
 
 The right of the people to be secure in their persons, 
 houses, papers, and effects, against unreasonable searches 
 
304 
 
 APPENDIX^ 
 
 and seizures, shall not be violated ; and no warrants shall 
 issue, but upon probable cause, supported by oath or 
 affirmation, and particularly describing the place to be 
 searched, and the persons or things to be seized. 
 
 ARTICLE V. 
 
 No person shall be held to answer for a capital, or 
 otherwise infamous, crime, unless on a presentment or in¬ 
 dictment of a grand jury, except in cases arising in the 
 land or naval forces, or in the militia, when in actual ser¬ 
 vice, in time of war, or public danger ; nor shall any per¬ 
 son be subject, for the same offence, to be twice put in 
 jeopardy of life or limb ; nor shall be compelled, in any 
 criminal case, to be a witness against himself, nor be de¬ 
 prived of life, liberty, or property, without due process 
 of law ; nor shall private property be taken for public use, 
 without just compensation. 
 
 ARTICLE VI. 
 
 In all criminal prosecutions, the accused shall enjoy 
 the right to a speedy and public trial, by an impartial jury 
 of the State and district wherein the crime shall have been 
 committed, which district shall have been previously as¬ 
 certained by law ; and to be informed of the nature and 
 cause of the accusation ; to be confronted with the wit¬ 
 nesses against him ; to have compulsory process for ob¬ 
 taining witnesses in his favor ; and to have the assistance 
 of counsel for his defence. 
 
 ARTICLE VII. 
 
 In suits at common law, where the value in contro¬ 
 versy shall exceed twenty dollars, the right of trial by 
 jury shall be preserved ; and no fact, tried by a jury, shall 
 be otherwise re-examined in any court of the United 
 States, than according to the rules of the common law. 
 
 ARTICLE VIII. 
 
 Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel and unusual punishments inflicted. 
 
AMENDMENTS TO THE CONSTITUTION. 
 
 305 
 
 ARTICLE IX. 
 
 The enumeration in the Constitution of certain rights 
 shall not be construed to deny or disparage others retain¬ 
 ed by the people. 
 
 ARTICLE X. 
 
 The powers not delegated to the United States by the 
 Constitution, nor prohibited by it to the States, are re¬ 
 served to the States respectively, or to the people. 
 
 ARTICLE XI. 
 
 The judicial power of the United States shall not be 
 construed to extend to any suit in law or equity, com¬ 
 menced or prosecuted against one of the United States 
 by citizens of another State, or by citizens or subjects of 
 any foreign State. 
 
 ARTICLE XII. 
 
 1. The Electors shall meet in their respective States, 
 and vote by ballot for President and Vice-President, one 
 of whom, at least, shall not be an inhabitant of the same 
 State with themselves ; they shall name in their ballots 
 the person voted for as President, and in distinct ballots 
 the person voted for as Vice-President; and they shall 
 make distinct 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 govern¬ 
 ment of the United States, directed to the President of 
 the Senate ; the President of the Senate shall, in the pres¬ 
 ence 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 for President 
 shall be the President, if such number be a majority of 
 the whole number of Electors appointed ; and if no per¬ 
 son have such majority, then, from the persons having the 
 highest numbers, not exceeding three, on the list of those 
 voted for as President, the House of Representatives 
 
 26* 
 
306 
 
 APPENDIX. 
 
 shall choose immediately, by ballot, the President. But 
 in choosing the President, the votes shall be taken by 
 States, the representation from each State having one 
 vote ; a quorum for this purpose shall consist of a mem¬ 
 ber or members from two thirds of the States, and a ma¬ 
 jority of all the States shall be necessary to a choice. 
 And if the House of Representatives shall not choose 
 a President, whenever, the right of choice shall devolve 
 upon them, before the fourth day of March next follow¬ 
 ing, then the Vice-President shall act as President, as in 
 case of the death, or other constitutional disability, of the 
 President. 
 
 2. The person having the greatest number of votes 
 as Vice-President shall be the Vice-President, if such 
 number be a majority of the whole number of electors ap¬ 
 pointed ; and if no person have a majority, then, from the 
 two highest numbers on the list, the Senate shall choose 
 the Vice-President ; a quorum for the purpose shall con¬ 
 sist of two thirds of the whole number of Senators ; a ma¬ 
 jority of the whole number shall be necessary to a choice. 
 
 3. But no person constitutionally ineligible to the office 
 of President, shall be eligible to that of Vice-President of 
 the United States. 
 
 WASHINGTON’S FAREWELL ADDRESS 
 TO THE PEOPLE OF THE UNITED STATES. 
 
 SEPTEMBER 17, 1796. 
 
 Friends and Fellow Citizens, 
 
 The period for a new election of a citizen to adminis¬ 
 ter the executive government of the United States being 
 not far distant, and the time actually arrived, when your 
 thoughts must be employed in designating the person who 
 is to be clothed with that important trust, it appears to me 
 proper, especially as it may conduce to a more distinct 
 expression of the public voice, that I should now apprise 
 
307 
 
 Washington’s farewell address. 
 
 you of the resolution I have formed, to decline being con¬ 
 sidered among the number of those out of whom a choice 
 is to be made. 
 
 I beg you, at the same time, to do me the justice to be 
 assured, that this resolution has not been taken, without a 
 strict regard to all the considerations appertaining to the 
 relation which binds a dutiful citizen to his country; and 
 that, in withdrawing the tender of service, which silence, 
 in my situation, might imply, I am influenced by no dim¬ 
 inution of zeal for your future interest; no deficiency of 
 grateful respect for your past kindness ; but am supported 
 by a full conviction that the step is compatible with both. 
 
 The acceptance of, and continuance hitherto in, the 
 office to which your suffrages have twice called me, have 
 been a uniform sacrifice of inclination to the opinion of 
 duty, and to a deference for what appeared to be your 
 desire. I constantly hoped, that it would have been much 
 earlier in my power, consistently with motives which I 
 was not at liberty to disregard, to return to that retirement 
 from which I had been reluctantly drawn. The strength 
 of my inclination to do this, previous to the last election, 
 had even led to the preparation of an address, to declare 
 it to you ; but mature reflection on the then perplexed 
 and critical posture of our affairs with foreign nations, and 
 the unanimous advice of persons entitled to my confidence, 
 impelled me to abandon the idea. 
 
 I rejoice that the state of your concerns, external as 
 well as internal, no longer renders the pursuit of inclina¬ 
 tion incompatible with the sentiment of duty or propriety ; 
 and am persuaded, whatever partiality may be retained 
 for my services, that, in the present circumstances of our 
 country, you will not disapprove my determination to re¬ 
 tire. 
 
 The impressions, with which I first undertook the ar¬ 
 duous trust, were explained on the proper occasion. In 
 the discharge of this trust, I will only say, that I have, 
 with good intentions, contributed towards the organization 
 and administration of the government, the best exertions 
 of which a very fallible judgement was capable. Not un¬ 
 conscious, in the outset, of the inferiority of my qualifica- 
 
308 
 
 APPENDIX. 
 
 tions, experience in my own eyes, perhaps still more in 
 the eyes of others, has strengthened the motives to diffi¬ 
 dence of myself; and, every day, the increasing weight of 
 years admonishes me, more and more, that the shade of 
 retirement is as necessary to me, as it will be welcome. 
 Satisfied that, if any circumstances have given peculiar 
 value to my services, they were temporary, I have the 
 consolation to believe, that, while choice and prudence 
 invite me to quit the political scene, patriotism does not 
 forbid it. 
 
 In looking forward to the moment which is intended to 
 terminate the career of my public life, my feelings do not 
 permit me to suspend the deep acknowledgment of that 
 debt of gratitude which 1 owe to my beloved country, for 
 the many honors it has conferred upon me ; still more for 
 the steadfast confidence with which it has supported me ; 
 and for the opportunities I have thence enjoyed, of man¬ 
 ifesting my inviolable attachment, by services faithful and 
 persevering, though in usefulness unequal to my zeal. If 
 benefits have resulted to our country from these services, 
 let it always be remembered to your praise, and as an in¬ 
 structive example in our annals, that, under circumstances 
 in which the passions, agitated in every direction, were 
 liable to mislead, amidst appearances sometimes dubious, 
 vicissitudes of fortune often discouraging, in situations in 
 which, not unfrequently, want of success has countenanced 
 the spirit of criticism, the constancy of your support was 
 the essential prop of the efforts, and a guarantee of the 
 plans, by which they were effected. Profoundly pene¬ 
 trated with this idea, I shall carry it with me to my grave, 
 as a strong incitement to unceasing vows, that Heaven 
 may continue to you the choicest tokens of its benefi¬ 
 cence ; that your union and brotherly affection may he 
 perpetual ; that the free Constitution, which is the work 
 of your hands, may be sacredly maintained ; that its ad¬ 
 ministration, in every department, may be stamped with 
 wisdom and virtue ; that, in fine, the happiness of the 
 people of these States, under the auspices of liberty, may 
 be made complete, by so careful a preservation and so 
 prudent a use of this blessing, as will acquire to them the 
 
309 
 
 Washington’s farewell address. 
 
 glory of recommending it to the applause, the affection, 
 and adoption, of every nation which is yet a stranger to it. 
 
 Here, perhaps, I ought to stop ; but a solicitude for 
 your welfare, which cannot end but with my life, and the 
 apprehension of danger, natural to that solicitude, urge me, 
 on an occasion like the present, to offer to your solemn 
 contemplation, and to recommend to your frequent re¬ 
 view, some sentiments, which are the result of much 
 reflection ; of no inconsiderable observation ; and which 
 appear to me all important to the permanency of your 
 felicity, as a people. These will be offered to you with 
 the more freedom, as you can only see in them the disin¬ 
 terested warnings of a parting friend, who can possibly 
 have no personal motive to bias his counsel ; nor can I 
 forget, as an encouragement to it, your indulgent reception 
 of my sentiments on a former, and not dissimilar, occasion. 
 
 Interwoven as is the love of liberty with every ligament 
 of your hearts, no recommendation of mine is necessary 
 to fortify, or confirm, the attachment. 
 
 The unity of government, which constitutes you one 
 people, is also now dear to you. It is justly so ; for it 
 is a main pillar in the edifice of your real independence ; 
 the support of your tranquillity at home, your peace 
 abroad ; of your safety ; of your prosperity ; of that very 
 liberty which you so highly prize. But, as it is easy to 
 foresee, that, from different causes, and from different 
 quarters, much pains will be taken, many artifices employ¬ 
 ed, to weaken, in your minds, the conviction of this truth ; 
 as this is the point in your political fortress, against which 
 the batteries of internal and external enemies will be most 
 constantly and actively (though often covertly and insid- 
 uously) directed, it is of infinite moment that you should 
 properly estimate the immense value of your National 
 Union, to your collective and individual happiness ; that 
 you should cherish a cordial, habitual, and immovable, 
 attachment to it ; accustoming yourselves to think and 
 speak of it as of the palladium of your political safety and 
 prosperity; watching for its preservation with jealous 
 anxiety ; discountenancing whatever may suggest even a 
 suspicion that it can, in any event, be abandoned ; and 
 
310 
 
 APPENDIX. 
 
 indignantly frowning upon the first dawning of every at¬ 
 tempt to alienate any portion of our country from the rest, 
 or to enfeeble the sacred ties which now link together the 
 various parts. 
 
 For this you have every inducement of sympathy and 
 interest. Citizens, by birth or choice, of a common coun¬ 
 try, that country has a right to concentrate your affections. 
 The name of American, which belongs to you in your 
 National capacity, must always exalt the just pride of pa¬ 
 triotism, more than any appellation derived from local dis¬ 
 criminations. With slight shades of difference, you have 
 the same religion, manners, habits, and political princi¬ 
 ples. You have, in a common cause, fought and triumphed 
 together : the independence and liberty you possess are 
 the work of joint councils and joint efforts, of common 
 dangers, sufferings, and successes. 
 
 But these considerations, however powerfully they ad¬ 
 dress themselves to your sensibility, are greatly outweighed 
 by those which apply more immediately to your interest. 
 Here every portion of our country finds the most comman¬ 
 ding motives for carefully guarding and preserving the union 
 of the whole. 
 
 The North , in an unrestrained intercourse with the 
 South , protected by the equal laws of a common govern¬ 
 ment, finds, in the productions of the latter, great addi¬ 
 tional resources of maritime and commercial enterprise, 
 and precious materials of manufacturing industry. The 
 South , in the same intercourse, benefiting by the agency 
 of the North , sees its agriculture grow, and its commerce 
 expand. Turning partly into its own channels the seamen 
 of the North, it finds its particular navigation invigorated : 
 and, while it contributes, in different ways, to nourish and 
 increase the general mass of the National navigation, it 
 looks forward to the protection of a maritime strength, to 
 which itself is unequally adapted. The East, in like in¬ 
 tercourse with the West, already finds, and in the pro¬ 
 gressive improvement of interior communications, by land 
 and water, will more and more find, a valuable vent for 
 the commodities which it brings from abroad, or manu¬ 
 factures at home. The West derives from the East sup- 
 
Washington’s farewell address. 
 
 311 
 
 plies requisite to its growth and comfort; and, what is, 
 perhaps, of still greater consequence, it must, of necessity, 
 owe the secure enjoyment of indispensable outlets for its 
 own productions, to the weight, influence, and the future 
 maritime strength of the Atlantic side of the Union, di¬ 
 rected by an indissoluble community of interest as one na¬ 
 tion. Any other tenure by which the West can hold this 
 essential advantage, whether derived from its own separ¬ 
 ate strength, or from an apostate and unnatural connexion 
 with any foreign power, must be intrinsically precarious. 
 
 While, then, every part of our country thus feels an 
 immediate and particular interest in union, all the parts 
 combined cannot fail to find, in the united mass of means 
 and efforts, greater strength, greater resource, proportion- 
 ably greater security from external danger, a less frequent 
 interruption of their peace by foreign nations ; and, what 
 is of inestimable value, they must derive from union an 
 exemption from those broils and wars between themselves, 
 which so frequently afflict neighboring countries, not tied 
 together by the same governments ; which their own ri- 
 valships alone would be sufficient to produce, but which 
 opposite foreign alliances, attachments, and intrigues, 
 would stimulate and embitter. Hence, likewise, they 
 will avoid the necessity of those overgrown military es¬ 
 tablishments, which, under any form of government, are 
 inauspicious to liberty, and which are to be regarded as 
 particularly hostile to republican liberty ; in this sense it 
 is, that your union ought to be considered as a main prop 
 of your liberty, and that the love of the one ought to en¬ 
 dear to you the preservation of the other. 
 
 These considerations speak a persuasive language to 
 every reflecting and virtuous mind, and exhibit the con¬ 
 tinuance of the Union as a primary object of patriotic de¬ 
 sire. Is there a doubt, whether a common government 
 can embrace so large a sphere ? Let experience solve it. 
 To listen to mere speculation, in such a case, were crim¬ 
 inal. We are authorized to hope, that a proper organi¬ 
 zation of the w r hole, with the auxiliary agency of govern¬ 
 ments for the respective subdivisions, will afford a happy 
 issue to the experiment. It is well worth a fair and full 
 
312 
 
 APPENDIX. 
 
 experiment. With such powerful and obvious motives 
 to union, affecting all parts of our country, while experi¬ 
 ence shall not have demonstrated its impracticability, there 
 will always be reason to distrust the patriotism of those, 
 who, in any quarter, may endeavor to weaken its bands. 
 
 In contemplating the causes, which may disturb our 
 union, it occurs, as matter of serious concern, that any 
 ground should have been furnished for characterizing 
 parties by geographical discriminations, Northern and 
 Southern , Atlantic and Western ; whence designing men 
 may endeavor to excite a belief, that there is a real differ¬ 
 ence of local interests and views. One of the expedients of 
 party to acquire influence, within particular districts, is, to 
 misrepresent the opinions and aims of other districts. You 
 cannot shield yourselves too much against the jealousies 
 and heart-burnings, which spring from these misrepresen¬ 
 tations ; they tend to render alien to each other those who 
 ought to be bound together by fraternal affection. The 
 inhabitants of our western country have lately had a use¬ 
 ful lesson on this head ; they have seen, in the negotiation 
 by the Executive, and in the unanimous ratification by the 
 Senate, of the treaty with Spain, and in the universal sat¬ 
 isfaction at that event, throughout the United States, a 
 decisive proof how unfounded were the suspicions prop¬ 
 agated among them, of a policy in the General Govern¬ 
 ment, and in the Atlantic States, unfriendly to their inter¬ 
 ests, in regard to the Mississippi ; they have been wit¬ 
 nesses to the formation of two treaties, that with Great 
 Britain, and that with Spain, which secure to them every 
 thing they could desire, in respect to our foreign relations, 
 towards confirming their prosperity. Will it not be their 
 wisdom to rely, for the preservation of these advantages, 
 on the Union by which they were procured ? Will they 
 not henceforth be deaf to those advisers, if such there 
 are, who would sever them from their brethren, and con¬ 
 nect them with aliens ? 
 
 To the efficacy and permanency of your Union, a gov¬ 
 ernment for the whole is indispensable. No alliances, 
 however strict, between the parts, can be an adequate 
 substitute ; they must inevitably experience the infrac- 
 
Washington’s farewell address. 
 
 313 
 
 tions and interruptions which all alliances, in all times, have 
 experienced. Sensible of this momentous truth, you have 
 improved upon your first essay, by the adoption of a Con¬ 
 stitution of Government better calculated than your former, 
 for an intimate Union, and for the efficacious management 
 of your common concerns. This Government, the off¬ 
 spring of our own choice, uninfluenced and unawed, 
 adopted upon full investigation and mature deliberation, 
 completely free in its principles, in the distribution of its 
 powers uniting security with energy, and containing with¬ 
 in itself a provision for its own amendment, has a just 
 claim to your confidence and your support. Respect for 
 its authority, compliance with its laws, acquiescence in 
 its measures, are duties enjoined by the fundamental max¬ 
 ims of true liberty. The basis of our political systems 
 is, the right of the people to make and to alter their Con¬ 
 stitutions of Government. But the Constitution which at 
 any time exists, till changed by an explicit and authentic 
 act of the whole people, is sacredly obligatory upon all. 
 The very idea of the power and the right of the people 
 to establish Government, pre-supposes the duty of every 
 individual to obey the established Government. 
 
 All obstructions to the execution of the Laws, all com¬ 
 binations and associations, under whatever plausible char¬ 
 acter, with the real design to direct, control, counteract, 
 or awe, the regular deliberation and action of the consti¬ 
 tuted authorities, are destructive of this fundamental prin¬ 
 ciple, and of fatal tendency. They serve to organize 
 faction, to give it an artificial and extraordinary force ; to 
 put, in the place of the delegated will of the nation, the 
 will of a party, often a small but artful and enterprising 
 minority of the community ; and, according to the al¬ 
 ternate triumphs of different parties, to make the public 
 administration the mirror of the ill-concerted and incon¬ 
 gruous projects of faction, rather than the organ of con¬ 
 sistent and wholesome plans, digested by common coun¬ 
 cils, and modified by mutual interests. 
 
 However combinations or associations of the above 
 description may now and then answer popular ends, they 
 are likely, in the course of time and things, to become 
 
 27 xiii. 
 
314 
 
 APPENDIX. 
 
 potent engines, by which cunning, ambitious, and unprin¬ 
 cipled, men will be enabled to subvert the power of the 
 people, and to usurp for themselves the reins of govern¬ 
 ment ; destroying, afterwards, the very engines, which had 
 lifted them to unjust dominion. 
 
 Towards the preservation of your government, and the 
 permanency of your present happy state, it is requisite, 
 not only that you steadily discountenance irregular opposi¬ 
 tions to its acknowledged authority, but also that you resist 
 with care the spirit of innovation upon its principles, how¬ 
 ever specious the pretexts. One method of assault may 
 be to effect, in the forms of the Constitution, alterations 
 which will impair the energy of the system, and thus to 
 undermine what cannot be directly overthrown. In all 
 the changes to which you may be invited, remember that 
 time and habit are at least as necessary to fix the true 
 character of governments, as of other human institutions ; 
 that experience is the surest standard, by which to test 
 the real tendency of the existing Constitution of a country ; 
 that facility in changes, upon the credit of mere hypothe¬ 
 sis and opinion, exposes to perpetual change, from the 
 endless variety of hypothesis and opinion ; and remem¬ 
 ber, especially, that, for the efficient management of your 
 common interests, in a country so extensive as ours, a 
 government of as much vigor as is consistent with the 
 perfect security of liberty is indispensable. Liberty it¬ 
 self will find in such a government, with powers properly 
 distributed and adjusted, its surest guardian. It is, in¬ 
 deed, little else than a name, where the government is too 
 feeble to withstand the enterprises of faction, to confine 
 each member of the society within the limits prescribed 
 by the laws, and to maintain all in the secure and tranquil 
 enjoyment of the rights of person and property. 
 
 I have already intimated to you the danger of parties in 
 the state, with particular reference to the founding of them 
 on geographical discriminations. Let me now take a 
 more comprehensive view, and warn you in the most sol¬ 
 emn manner against the baneful effects of the spirit of 
 partjr, generally. 
 
 This spirit, unfortunately, is inseparable from our na- 
 
Washington’s farewell address. 315 
 
 ture, having its root in the strongest passions of the hu¬ 
 man mind. It exists, under different shapes, in all govern¬ 
 ments, more or less stifled, controlled, or repressed ; but, 
 in those of the popular form, it is seen in its greatest 
 rankness, and is truly their worst enemy. 
 
 The alternate domination of one faction over another, 
 sharpened by the spirit of revenge, natural to party dis¬ 
 sension, which in different ages and countries has perpe¬ 
 trated the most horrid enormities, is itself a frightful des¬ 
 potism. But this leads at length to a more formal and 
 permanent despotism. The disorders and miseries, which 
 result, gradually incline the minds of men to seek securi¬ 
 ty and repose in the absolute power of an individual ; and 
 sooner or later the chief of some prevailing faction, more 
 able or more fortunate than his competitors, turns this 
 disposition to the purposes of his own elevation, on the 
 ruins of Public Liberty. 
 
 Without looking forward to an extremity of this kind, 
 (which nevertheless ought not to be entirely out of sight,) 
 the common and continual mischiefs of the spirit of party 
 are sufficient to make it the interest and duty of a wise 
 people to discourage and restrain it. 
 
 It serves always to distract the Public Councils, and 
 enfeeble the Public Administration. It agitates the Com¬ 
 munity with ill-founded jealousies and false alarms ; kin¬ 
 dles the animosity of one part against another ; foments, 
 occasionally, riot and insurrection. It opens the door to 
 foreign influence and corruption, which find a facilitated 
 access to the government itself through the channels of 
 party passions. Thus the policy and the will of one 
 country are subjected to the policy and will of another. 
 
 There is an opinion, that parties in free countries are 
 useful checks upon the administration of the Government, 
 and serve to keep alive the spirit of Liberty. This, 
 within certain limits, is probably true ; and in Govern¬ 
 ments of a Monarchical cast, Patriotism may look with 
 indulgence, if not with favor, upon the spirit of party. 
 But in those of the popular character, in Governments 
 purely elective, it is a spirit not to be encouraged. From 
 their natural tendency, it is certain there will always be 
 
316 
 
 APPENDIX. 
 
 enough of that spirit for every salutary purpose. And, 
 there being constant danger of excess, the effort ought to 
 be, by force of public opinion, to mitigate and assuage it. 
 A fire not to be quenched, it demands a uniform vigilance 
 to prevent its bursting into a flame, lest, instead of warm¬ 
 ing, it should consume. 
 
 It is important, likewise, that the habits of thinking in 
 a free country should inspire caution, in those intrusted 
 with its administration, to confine themselves within their 
 respective constitutional spheres, avoiding in the exercise 
 of the powers of one department to encroach upon anoth¬ 
 er. The spirit of encroachment tends to consolidate the 
 powers of all the departments in one, and thus to create, 
 whatever the form of government, a real despotism. A 
 just estimate of that love of power, and proneness to 
 abuse it, which predominates in the human heart, is suffi¬ 
 cient to satisfy us of the truth of this position. The ne¬ 
 cessity of reciprocal checks in the exercise of political 
 power, by dividing and distributing it into different de¬ 
 positories, and constituting each the Guardian of the Pub¬ 
 lic Weal against invasions by the others, has been evinced 
 by experiments ancient and modern ; some of them in our 
 country and under our own eyes. To preserve them 
 must be as necessary as to institute them. If, in the 
 opinion of the people, the distribution or modification of 
 the constitutional powers be, in any particular, wrong, let 
 it be corrected by an amendment, in the way which the 
 Constitution designates. But let there be no change by 
 usurpation ; for, though this, in one instance, may be 
 the instrument of good, it is the customary weapon by 
 which free governments are destroyed. The precedent 
 must always greatly overbalance, in permanent evil, any 
 partial or transient benefit, which the use can at any time 
 yield. 
 
 Of all die dispositions and habits, which lead to polit¬ 
 ical prosperity, Religion and Morality are indispensable 
 supports. In vain would that man claim the tribute of 
 Patriotism, who should labor to subvert these great pillars 
 of human happiness, these firmest props of the duties of 
 Men and Citizens. The mere Politician, equally with 
 
Washington’s farewell address. 
 
 317 
 
 the pious man, ought to respect and to cherish them. A 
 volume could not trace all their connexions with private 
 and public felicity. Let it simply be asked, Where is 
 the security for property, for reputation, for life, if the 
 sense of religious obligation desert the oaths, which are 
 the instruments of investigation in Courts of Justice ? 
 And let us with caution indulge the supposition, that mor¬ 
 ality can be maintained without religion. Whatever 
 may be conceded to the influence of refined education on 
 minds of peculiar structure, reason and experience both 
 forbid us to expect, that national morality can prevail in 
 exclusion of religious principle. 
 
 It is substantially true, that virtue or morality is a nec¬ 
 essary spring of popular government. The rule, indeed, 
 extends with more or less force to every species of free 
 government. Who, that is a. sincere friend to it, can 
 look with indifference upon attempts to shake the founda¬ 
 tion of the fabric ? 
 
 Promote, then, as an object of primary importance, 
 institutions for the general diffusion of knowledge. In 
 proportion as the structure of a government gives force to 
 public opinion, it is essential that public opinion should be 
 enlightened. 
 
 As a very important source of strength and security, 
 cherish public credit. One method of preserving it is, to 
 use it as sparingly as possible; avoiding occasions of ex¬ 
 pense by cultivating peace, but remembering also that 
 timely disbursements to prepare for danger frequently 
 prevent much greater disbursements to repel it; avoiding, 
 likewise, the accumulation of debt, not only by shunning 
 occasions of expense, but by vigorous exertions in time 
 of peace to discharge the debts, which unavoidable wars 
 may have occasioned, not ungenerously throwing upon 
 posterity the burden, which we ourselves ought to bear. 
 The execution of these maxims belongs to your represen¬ 
 tatives, but it is necessary that public opinion should co¬ 
 operate. To facilitate to them the performance of their 
 duty, it is essential that you should practically bear in 
 mind, that towards the payment of debts there must be 
 Revenue ; that to have Revenue there must be taxes; 
 
 27 * 
 
318 
 
 APPENDIX. 
 
 that no taxes can be devised, which are not more or less 
 inconvenient and unpleasant; that the intrinsic embarrass¬ 
 ment, inseparable from the selection of the proper objects, 
 (which is always a choice of difficulties,) ought to be a 
 decisive motive for a candid construction of the conduct 
 of the government in making it, and for a spirit of acqui¬ 
 escence in the measures for obtaining Revenue, which the 
 public exigencies may, at any time, dictate. 
 
 Observe good faith and justice towards all Nations ; 
 cultivate peace and harmony with all. Religion and Mor¬ 
 ality enjoin this conduct ; and can it be, that good policy 
 does not equally enjoin it ? It will be worthy of a free, 
 enlightened, and, at no distant period, a great Nation, to 
 give to mankind the magnanimous and too novel example 
 of a people always guided by an exalted justice and be¬ 
 nevolence. Who can doubt, that, in the course of time 
 and things, the fruits of such a plan would richly repay 
 any temporary advantages, which might be lost by a steady 
 adherence to it ? Can it be, that Providence has not con¬ 
 nected the permanent felicity of a Nation with its Virtue ? 
 The experiment, at least, is recommended by every sen¬ 
 timent which ennobles human nature. Alas ! is it render¬ 
 ed impossible by its vices ? 
 
 In the execution of such a plan, nothing is more es¬ 
 sential, than that permanent, inveterate antipathies against 
 particular Nations, and passionate attachments for others, 
 should be excluded ; and that, in place of them, just and 
 amicable feelings towards all should be cultivated. The 
 Nation, which indulges towards another an habitual hatred, 
 or an habitual fondness, is in some degree a slave. It is 
 a slave to its animosity or to its affection, either of which 
 is sufficient to lead it astray from its duty and its interest. 
 Antipathy in one nation against another disposes each more 
 readily to offer insult and injury, to lay hold of slight causes 
 of umbrage, and to be haughty and intractable, when ac¬ 
 cidental or trifling occasions of dispute occur. Hence 
 frequent collisions, obstinate, envenomed, and bloody con¬ 
 tests. The Nation, prompted by ill-will and resentment, 
 sometimes impels to war the Government, contrary to the 
 best calculations of policy. The Government sometimes 
 
Washington’s farewell address. 319 
 
 participates in the national propensity, and adopts through 
 passion what reason would reject; at other times, it 
 makes the animosity of the Nation subservient to projects 
 of hostility instigated by pride, ambition, and other sinis¬ 
 ter and pernicious motives. The peace often, sometimes 
 perhaps the liberty, of Nations has been the victim. 
 
 So, likewise, a passionate attachment of one Nation for 
 another produces a variety of evils. Sympathy for the 
 favorite Nation, facilitating the illusion ol an imaginary 
 common interest, in cases where no real common inter¬ 
 est exists, and infusing into one the enmities of the other, 
 betrays the former into a participation in the quarrels 
 and wars of the latter, without adequate inducement or 
 justification. It leads also, to concessions to the favorite 
 Nation of privileges denied to others, which is apt doubly 
 to injure the Nation making the concessions ; by unnec¬ 
 essarily parting with what ought to have been retained, 
 and by exciting jealousy, ill will, and a disposition to re¬ 
 taliate, in the parties from whom equal privileges are 
 withheld ; and it gives to ambitious, corrupted, or deluded 
 citizens, (who devote themselves to the favorite nation,) 
 facility to betray or sacrifice the interest of their own 
 country, without odium, sometimes even with populari¬ 
 ty ; gilding with the appearances of a virtuous sense of ob¬ 
 ligation, a commendable deference for public opinion, or 
 a laudable zeal for public good, the base or foolish com¬ 
 pliances of ambition, corruption, or infatuation. 
 
 As avenues to foreign influence, in innumerable ways, 
 such attachments are particularly alarming, to the truly 
 enlightened and independent Patriot. How many oppor¬ 
 tunities do they afford, to tamper with domestic factions, 
 to practise the arts of seduction, to mislead public opin¬ 
 ion, to influence or awe the Public Councils ! Such an 
 attachment of a small or weak, towards a great and pow¬ 
 erful, nation, dooms the former to be the satellite of the 
 latter. 
 
 Against the insidious wiles of foreign influence, (I 
 conjure you to believe me, fellow-citizens,) the jealousy 
 of a free people ought to be constantly awake ; since 
 history and experience prove, that foreign influence is one 
 
320 
 
 APPENDIX. 
 
 of the most baneful foes of Republican Government. But 
 that jealousy, to be useful, must be impartial; else it be¬ 
 comes the instrument of the very influence to be avoided, 
 instead of a defence against it. Excessive partiality for 
 one foreign nation, and excessive dislike of another, 
 cause those whom they actuate to see danger only on one 
 side, and serve to veil and even second the arts of influ¬ 
 ence on the other. Real patriots, who may resist the 
 intrigues of the favorite, are liable to become suspected 
 and odious ; while its tools and dupes usurp the applause 
 and confidence of the people, to surrender their inter¬ 
 ests. 
 
 The great rule of conduct for us, in regard to foreign 
 nations, is, in extending our commercial relations, to have 
 with them as little political connection as possible. So 
 far as we have already formed engagements, let them be 
 fulfilled with perfect good faith. Here let us stop. 
 
 Europe has a set of primary interests, which to us have 
 none, or a very remote relation. Hence she must be 
 engaged in frequent controversies, the causes of which 
 are essentially foreign to our concerns. Hence, there¬ 
 fore, it must be unwise in us to implicate ourselves, by 
 artificial ties, in the ordinary vicissitudes of her politics, 
 or the ordinary combinations and collisions of her friend¬ 
 ships or enmities. 
 
 Our detached and distant situation invites and enables 
 us to pursue a different course. If we remain one peo¬ 
 ple, under an efficient government, the period is not far 
 oft', when we may defy material injury from external an¬ 
 noyance ; when we may take such an attitude as will 
 cause the neutrality, we may at any time resolve upon, 
 to be scrupulously respected ; when belligerent nations, 
 under the impossibility of making acquisitions upon us, 
 will not lightly hazard the giving us provocation ; when 
 we may choose peace or war, as our interest, guided by 
 justice, shall counsel. 
 
 Why forego the advantages of so peculiar a situation ? 
 Why quit our own, to stand upon foreign ground ? Why, 
 by interweaving our destiny with that of any part of Eu¬ 
 rope, entangle our peace and prosperity in the toils of 
 
Washington’s farewell address. 
 
 321 
 
 European ambition, rivalship, interest, humor, or ca¬ 
 price ? 
 
 It is our true policy to steer clear of permanent alliances 
 with any portion of the foreign world ; so far, I mean, as 
 we are now at liberty to do it ; for let me not be under¬ 
 stood as capable of patronising infidelity to existing en¬ 
 gagements. I hold the maxim no less applicable to pub¬ 
 lic than to private affairs, that honesty is always the best 
 policy. I repeat it, therefore, let those engagements be 
 observed in their genuine sense. But, in my opinion, it 
 is unnecessary and would be unwise to extend them. 
 
 Taking care always to keep ourselves, by suitable es¬ 
 tablishments, on a respectable defensive posture, we may 
 safely trust to temporary alliances, for extraordinary emer¬ 
 gencies. 
 
 Harmony, and a liberal intercourse with all nations, 
 are recommended by policy, humanity, and interest. But 
 even our commercial policy should hold an equal and im¬ 
 partial hand ; neither seeking nor granting exclusive fa¬ 
 vors or preferences ; consulting the natural course of 
 things ; diffusing and diversifying, by gentle means, the 
 streams of commerce, but forcing nothing ; establishing, 
 with powers so disposed, in order to give trade a stable 
 course, to define the rights of our merchants, and to ena¬ 
 ble the government to support them, conventional rules 
 of intercourse, the best that present circumstances and 
 mutual opinion will permit, but temporary, and liable to 
 be from time to time abandoned or varied, as experience 
 and circumstances shall dictate ; constantly keeping in 
 view, that it is folly in one nation to look for disinterest¬ 
 ed favors from another ; that it must pay with a portion 
 of its independence for whatever it may accept under that 
 character ; that, by such acceptance, it may place itself 
 in the condition of having given equivalents for nominal 
 favors, and yet of being reproached with ingratitude for 
 not giving more. There can be no greater error than to 
 expect or calculate upon real favors from nation to na¬ 
 tion. It is an illusion, which experience must cure, 
 which a just pride ought to discard. 
 
 In offering to you, my countrymen, these counsels of an 
 
322 
 
 APPENDIX. 
 
 old and affectionate friend, I dare not hope they will 
 make the strong and lasting impression I could wish ; that 
 they will control the usual current of the passions, or pre¬ 
 vent our nation from running the course, which has hith-_ 
 erto marked the destiny of nations. But, if I may even 
 flatter myself, that they may be productive of some par¬ 
 tial benefit, some occasional good ; that they may now 
 and then recur to moderate the fury of party spirit, to 
 warn against the mischiefs of foreign intrigue, to guard 
 against the impostures of pretended patriotism ; this hope 
 will be a full recompense for the solicitude for your wel¬ 
 fare, by which they have been dictated. 
 
 How far, in the discharge of my official duties, I have 
 been guided by the principles which have been delinea¬ 
 ted, the public records and other evidences of my conduct 
 must witness to you and to the world. To myself, the 
 assurance of my own conscience is, that I have at least 
 believed myself to be guided by them. 
 
 In relation to the still subsisting war in Europe, my 
 Proclamation of the 22d of April, 1793, is the index to 
 my Plan. Sanctioned by your approving voice, and by 
 that of your Representatives in both Houses of Congress, 
 the spirit of that measure has continually governed me, un¬ 
 influenced by any attempts to deter or divert me from it. 
 
 After deliberate examination, with the aid of the best 
 lights I could obtain, I was well satisfied that our country, 
 under all the circumstances of the case, had a right to take, 
 and was bound in duty and interest to take, a neutral po¬ 
 sition. Having taken it, I determined, as far as should 
 depend upon me, to maintain it, with moderation, perse¬ 
 verance, and firmness. 
 
 The considerations, which respect the right to hold 
 this conduct, it is not necessary on this occasion to detail. 
 
 I will only observe, that, according to my understanding 
 of the matter, that right, so far from being denied by any 
 of the Belligerent Powers, has been virtually admitted 
 by all. 
 
 The duty of holding a neutral conduct may be inferred, 
 without any thing more, from the obligation which justice 
 and humanity impose on every nation, in cases in which 
 
Washington’s farewell address. 
 
 323 
 
 it is free to act, to maintain inviolate the relations of peace 
 and amity towards other nations. 
 
 The inducements of interest for observing that conduct 
 will best be referred to your own reflections and experi¬ 
 ence. With me, a predominant motive has been to en¬ 
 deavor to gain time to our country to settle and mature 
 its yet recent institutions, and to progress without inter¬ 
 ruption to that degree of strength and consistency, which 
 is necessary to give it, humanly speaking, the command 
 of its own fortunes. 
 
 Though, in reviewing the incidents of my administra¬ 
 tion, I am unconscious of intentional error, I am never¬ 
 theless too sensible of my defects, not to think it probable 
 that I may have committed many errors. Whatever they 
 may be, I fervently beseech the Almighty to avert or 
 mitigate the evils to which they may tend. I shall also 
 carry with me the hope, that my Country will never 
 cease to view them with indulgence ; and that, after for¬ 
 ty-five years of my life dedicated to its service with an 
 upright zeal, the faults of incompetent abilities will be 
 consigned to oblivion, as myself must soon be to the man¬ 
 sions of rest. 
 
 Relying on its kindness in this as in other things, and 
 actuated by that fervent love towards it, which is so nat¬ 
 ural to a man, who views in it the native soil of himself and 
 his progenitors for several generations ; I anticipate with' 
 pleasing expectation that retreat, in which I promise my¬ 
 self to realize, without alloy, the sweet enjoyment of par¬ 
 taking, in the midst of my fellow-citizens, the benign 
 influence of good laws under a free government, the ever 
 favorite object of my heart, and the happy reward, as I 
 trust, of our mutual cares, labors, and dangers. 
 
 George Washington. 
 
 United States , September 17 th, 1796. 
 
324 
 
 APPENDIX. 
 
 DEFINITIVE TREATY OF PEACE 
 
 BETWEEN THE UNITED STATES OF AMERICA, AND 
 HIS BRITANNIC MAJESTY. 
 
 In the Name op the Most Holy and Undivided Trinity. 
 
 It having pleased the Divine Providence to dispose 
 the hearts of the most serene and most potent prince, 
 George the Third, by the grace of God King of Great 
 Britain, France, and Ireland, Defender of the Faith, Duke 
 of Brunswick and Luneburg, Arch Treasurer and Prince 
 Elector of the holy Roman empire, &c. and of the United 
 States of America, to forget all past misunderstandings 
 and differences that have unhappily interrupted the good 
 correspondence and friendship which they mutually wist) 
 to restore ; and to establish such a beneficial and satis¬ 
 factory intercourse between the two countries, upon the 
 ground of reciprocal advantages and mutual convenience, 
 as may promote and secure to both perpetual peace and 
 harmony : And having, for this desirable end, already laid 
 the foundation of peace and reconciliation, by the Provis¬ 
 ional Articles, signed at Paris, on the thirtieth of Novem¬ 
 ber, one thousand seven hundred and eighty-two, by the 
 Commissioners empowered on each part, which articles 
 were agreed to be inserted in, and to constitute the Trea¬ 
 ty of Peace proposed to be concluded between the Crown 
 of Great Britain and the said United States, but which 
 Treaty was not to be concluded until terms of peace should 
 be agreed upon between Great Britain and France, and 
 his Britannic Majesty should be ready to conclude such 
 Treaty accordingly ; and the Treaty between Great Brit¬ 
 ain and France having since been concluded, his Britan¬ 
 nic Majesty and the United States of America, in order to 
 carry into full effect the Provisional Articles above men¬ 
 tioned, according to the tenor thereof, have constituted 
 and appointed, that is to say : his Britannic Majesty on 
 his part, David Hartley, esquire, member of the Parlia¬ 
 ment of Great Britain ; and the said United States on their 
 
DEFINITIVE TREATY OF PEACE OF 1783. 325 
 
 part, John Adams, esquire, late a Commissioner of the 
 United States of America at the Court of Versailles, late 
 Delegate in Congress from the State of Massachusetts, and 
 Chief Justice of the said State, and Minister Plenipoten¬ 
 tiary of the said United States to their High Mightinesses 
 the States General of the United Netherlands ; Benjamin 
 Franklin, esquire, late Delegate in Congress from the State 
 of Pennsylvania, President of the Convention of the said 
 State, and Minister Plenipotentiary from the United States 
 of America at the Court of Versailles ; John Jay, esquire, 
 late President of Congress, and Chief Justice of the State 
 of New York, and Minister Plenipotentiary from the said 
 United States at the Court of Madrid, to be the Plenipo¬ 
 tentiaries for the concluding and signing the present de¬ 
 finitive Treaty ; who, after having reciprocally communi¬ 
 cated their respective full powers, have agreed upon and 
 confirmed the following articles : 
 
 Art. 1 . His Britannic Majesty acknowledges the said 
 United States, namely, New Hampshire, Massachusetts 
 Bay, Rhode Island and Providence Plantations, Connec¬ 
 ticut, New York, New Jersey, Pennsylvania, Delaware, 
 Maryland, Virginia, North Carolina, South Carolina, and 
 Georgia, to be free, sovereign, and independent States ; 
 that he treats with them as such ; and for himself, his 
 heirs and successors, relinquishes all claims to the gov¬ 
 ernment, propriety, and territorial rights of the same, and 
 every part thereof. 
 
 Art. 2. And that all disputes which might arise in 
 future, on the subject of the boundaries of the said United 
 States may be prevented, it is hereby agreed and de¬ 
 clared, that the following are and shall be their bounda¬ 
 ries, namely, from the northwest angle of Nova Scotia, 
 namely, that angle which is formed by a line drawn due 
 north from the source of St. Croix river to the Highlands ; 
 along the said Highlands which divide those rivers that 
 empty themselves into the river St. Lawrence from those 
 which fall into the Atlantic ocean, to the northwestern- 
 most head of Connecticut river, thence down along 
 the middle of that river, to the forty-fifth degree of north 
 latitude ; from thence, by a line due west on said lati- 
 
 28 xiii. 
 
326 
 
 APPENDIX. 
 
 tude, until it strikes the river Iroquois or Cataraquy ; 
 thence along the middle of said river into lake Ontario, 
 through the middle of said lake until it strikes the com¬ 
 munication by water between that lake and lake Erie ; 
 thence along the middle of said communication into lake 
 Erie, through the middle of said lake until it arrives at 
 the water communication between that lake and lake Hu¬ 
 ron ; thence along the middle of said water communica¬ 
 tion into the lake Huron ; thence through the middle of 
 said lake to the water communication between that lake 
 and lake Superior ; thence through lake Superior north¬ 
 ward of the isles Royal and Philipeaux, to the Long 
 Lake ; thence through the middle of the said Long Lake, 
 and the water communication between it and the lake of 
 the Woods, to the said lake of the Woods ; thence 
 through the said lake to the most northwestern point 
 thereof, and from thence on a due west course to the riv¬ 
 er Mississippi ; thence by a line to be drawn along the 
 middle of the said river Mississippi until it shall intersect 
 the northernmost part of the thirty-first degree of north 
 latitude. South, by a line to be drawn due east from the 
 determination of the line last mentioned, in the latitude 
 of thirty-one degrees north of the equator, to the middle 
 of the river Appalachicola or Catahouche ; thence along 
 the middle thereof to its junction with the Flint river ; 
 thence straight to the head of St. Mary’s river ; and 
 thence down along the middle of St. Mary’s river to the 
 Atlantic ocean. East, by a line to be drawn along the 
 middle of the river St. Croix, from its mouth, in the Bay 
 of Fundy, to its source, and from its source, directly 
 north, to the aforesaid Highlands, which divide the rivers 
 that fall into the Atlantic ocean from those which fall into 
 the river St. Lawrence : comprehending all islands with¬ 
 in twenty leagues of any part of the shores of the United 
 States, and lying between lines to be drawn due east 
 from the points where the aforesaid boundaries between 
 Nova Scotia on the one part, and East Florida on the 
 other, shall respectively touch the bay of Fundy, and the 
 Atlantic ocean ; excepting such islands as now are, or 
 heretofore have been, within the limits of the said Prov¬ 
 ince of Nova Scotia. 
 
DEFINITIVE TREATY OF PEACE OF 1783. 327 
 
 Art. 3. It is agreed that the people of the United 
 States shall continue to enjoy unmolested the right to take 
 fish of every kind on the Grand Bank, and on all the other 
 banks of Newfoundland ; also, in the Gulf of St. Law¬ 
 rence, and at all other places in the sea, where the in¬ 
 habitants of both countries used at any time heretofore to 
 fish ; and also, that the inhabitants of the United States 
 shall have liberty to take fish of every kind on such part 
 of the coast of Newfoundland as British fishermen shall 
 use ; (but not to dry or cure the same on that island ;) 
 and also on the coasts, bays, and creeks, of all other of 
 his Britannic Majesty’s dominions in America ; and that 
 the American fishermen shall have liberty to dry and cure 
 fish in any of the unsettled bays, harbors, and creeks of 
 Nova Scotia, Magdalen Islands, and Labrador, so long 
 as the same shall remain unsettled ; but so soon as the 
 same or either of them shall be settled, it shall not be law¬ 
 ful for the said fishermen to dry or cure fish at such set- 
 ' dement, without a previous agreement for that purpose 
 with the inhabitants, proprietors, or possessors of the 
 ground. 
 
 Art. 4. It is agreed that creditors on either side shall 
 meet with no lawful impediment to the recovery of the 
 full value in sterling money, of all bona fide debts hereto¬ 
 fore contracted. 
 
 Art. 5 . It is agreed that the Congress shall earnest¬ 
 ly recommend it to the Legislatures of the respective 
 States, to provide for the restitution of all estates, rights, 
 and properties, which have been confiscated, belonging 
 to real British subjects, and also of the estates, rights, 
 and properties of persons resident in districts in the pos¬ 
 session of his Majesty’s arms, and who have not borne 
 arms against the said United States. And that persons 
 of any other description shall have free liberty to go to any 
 part or parts of any of the thirteen United States, and 
 therein to remain twelve months, unmolested in their en¬ 
 deavors to obtain the restitution of such of their estates, 
 rights, and properties, as may have been confiscated ; 
 and that Congress shall also earnestly recommend to the 
 several States, a reconsideration and revision of all acts 
 
328 
 
 APPENDIX. 
 
 or laws regarding the premises, so as render the said laws 
 or acts perfectly consistent, not only with justice and 
 equity, but with that spirit of conciliation, which, on the 
 return of the blessings of peace, should universally pre¬ 
 vail. And that Congress shall also earnestly recommend 
 to the several States, that the estates, rights, and properties 
 of such last-mentioned persons, shall be restored to them, 
 they refunding to any persons who may be now in pos¬ 
 session, the bona fide price (where any has been given) 
 which such persons may have paid on purchasing any of 
 the said lands, rights, or properties, since the confisca¬ 
 tion. And it is agreed, that all persons who have any 
 interest in confiscated lands, either by debts, marriage 
 settlements, or otherwise, shall meet with no lawful im¬ 
 pediment in the prosecution of their just rights. 
 
 Art. 6 . That there shall be no future confiscations 
 made, nor any prosecutions commenced against any per¬ 
 son or persons for, or by reason of, the part which he or 
 they may have taken in the present war ; and that no 
 person shall, on that account, suffer any future loss or 
 damage, either in his person, liberty, or property ; and 
 that those who may be in confinement on such charges, 
 at the time of the ratification of the Treaty in America, 
 shall be immediately set at liberty, and the prosecutions 
 so commenced be discontinued. 
 
 Art. 7. There shall be a firm and perpetual peace 
 between his Britannic Majesty and the said States, and 
 between the subjects of the one and the citizens of the 
 other, wherefore all hostilities, both by sea and land, shall 
 from henceforth cease : all prisoners on both sides shall 
 be set at liberty ; and his Britannic Majesty shall, with all 
 convenient speed, and without causing any destruction, 
 or carrying away any negroes or other property of the 
 American inhabitants, withdraw all his armies, garrisons, 
 and fleets, from the said United States, and from every 
 post, place, and harbor within the same ; leaving in all 
 fortifications the American artillery that may be therein ; 
 and shall also order and cause all archives, records, deeds, 
 and papers, belonging to any of the said States, or their 
 citizens, which, in the course of the war, may have fal- 
 
AN ORDINANCE. 
 
 329 
 
 len into the hands of his officers, to be forthwith restored 
 and delivered to the proper States and persons to whom 
 they belong. 
 
 Art. 8. The navigation of the river Mississippi, from 
 its source to the ocean, shall for ever remain free and 
 open to the subjects of Great Britain, and the citizens of 
 the United States. 
 
 Art. 9. In case it should so happen that any place or 
 territory belonging to Great Britain or to the United 
 States, should have been conquered by the arms of either 
 from the other, before the arrival of the said Provisional 
 Articles in America, it is agreed, that the same shall be 
 restored without difficulty, and without requiring any com¬ 
 pensation. 
 
 Art. 10. The solemn ratifications of the present Trea¬ 
 ty, expedited in good and due form, shall be exchanged 
 between the contracting parties, in the space of six 
 months, or sooner if possible, to be computed from the 
 day of the signature of the present Treaty. In witness 
 whereof, we, the undersigned, their Ministers Plenipoten¬ 
 tiary, have, in their name and in virtue of our full powers, 
 signed with our hands the present definitive Treaty, and 
 caused the seals of our arms to be affixed thereto. Done 
 at Paris, this third day of September, in the year of our 
 Lord one thousand seven hundred and eighty-three. 
 
 [l. s.] D. HARTLEY, 
 
 [l. s.] JOHN ADAMS, 
 
 [l. s.] B. FRANKLIN, 
 
 [l. s.] JOHN JAY. 
 
 AN ORDINANCE 
 
 FOR THE GOVERNMENT OF THE TERRITORY OF THE 
 UNITED STATES NORTHWEST OF THE RIVER OHIO. 
 
 Be it ordained by the United States in Congress as¬ 
 sembled, That the said Territory, for the purposes of 
 temporary government, be one District; subject, howev- 
 
 28* 
 
330 
 
 APPENDIX* 
 
 er, to be divided into two Districts, as future circumstan¬ 
 ces may, in the opinion of Congress, make it expedient. 
 
 Be it ordained by the authority aforesaid, That the 
 estates both of resident and non-resident proprietors in 
 the said Territory, dying intestate, shall descend to, and 
 be distributed among their children, and the descendants 
 of a deceased child, in equal parts ; the descendants of a 
 deceased child or grandchild to take the share of their 
 deceased parent in equal parts among them : and where 
 there shall be no children or descendants, then in equal 
 parts to the next of kin, in equal degree ; and among col¬ 
 laterals, the children of a deceased brother or sister of 
 the intestate shall have, in equal parts among them, their 
 deceased parents’ share ; and there shall, in no case, be 
 a distinction between kindred of the whole and half 
 blood ; saving in all cases to the widow of the intestate, 
 her third part of the real estate for life, and one third 
 part of the personal’ estate ; and this law relative to de¬ 
 scents and dower, shall remain in full force, until altered 
 by the Legislature of the District. And until the Govern¬ 
 or and Judges shall adopt laws as herein after mentioned, 
 estates in the said Territory may be devised or bequeath¬ 
 ed by wills in writing, signed and sealed by him or her, 
 in whom the estate may be, (being of full age,) and at¬ 
 tested by three witnesses ; and real estates may be con¬ 
 veyed by lease and release, or bargain and sale, signed, 
 sealed, and delivered, by the person, being of full age, 
 in whom the estate may be, and attested by two witnes¬ 
 ses, provided such wills be duly proved, and such con¬ 
 veyances be acknowledged, or the execution thereof duly 
 proved, and be recorded within one year after proper 
 magistrates, courts, and registers, shall be appointed for 
 that purpose ; and personal property may be transferred 
 by delivery ; saving, however, to the French and Cana¬ 
 dian inhabitants, and other settlers of the Kaskaskies, 
 Saint Vincents, and the neighboring villages, who have 
 heretofore professed themselves citizens of Virginia, their 
 laws and customs now in force among them, relative to 
 the descent and conveyance of property. 
 
 Be it ordained by the authority aforesaid, That there 
 
AN ORDINANCE. 
 
 331 
 
 shall be appointed, from time to time, by Congress, a 
 Governor, whose commission shall continue in force for 
 the term of three years, unless sooner revoked by Con¬ 
 gress : he shall reside in the District, and have a freehold 
 estate therein, in one thousand acres of land, while in the 
 exercise of his office. 
 
 There shall be appointed, from time to time, by Con¬ 
 gress, a Secretary, whose commission shall continue in 
 force for four years, unless sooner revoked ; he shall re¬ 
 side in the District, and have a freehold estate therein, in 
 five hundred acres of land, while in the exercise of his 
 office ; it shall be his duty to keep and preserve the acts 
 and laws passed by the Legislature, and the public rec¬ 
 ords of the District, and the proceedings of the Governor 
 in his executive department; and transmit authentic cop¬ 
 ies of such acts and proceedings, every six months, to 
 the Secretary of Congress : There shall also be appoint¬ 
 ed a court, to consist of three Judges, any two of whom 
 to form a court, who shall have a common law jurisdic¬ 
 tion, and reside in the District, and have each therein a 
 freehold estate, in five hundred acres of land, while in the 
 exercise of their offices ; and their commissions shall 
 continue in force during good behavior. 
 
 The Governor and Judges, or a majority of them, shall 
 adopt and publish in the District, such laws of the origin¬ 
 al States, criminal and civil, as may be necessary, and 
 best suited to the circumstances of the District, and re¬ 
 port them to Congress, from time to time ; which laws 
 shall be in force in the District until the organization of 
 the General Assembly therein, unless disapproved of by 
 Congress ; but afterwards the Legislature shall have au¬ 
 thority to alter them as they shall think fit. 
 
 The Governor for the time being, shall be command¬ 
 er-in-chief of the militia, appoint and commission all 
 officers in the same, below the rank of general officers ; 
 all general officers shall be appointed and commissioned 
 by Congress. 
 
 Previous to the organization of the General Assembly, 
 the Governor shall appoint such magistrates and other 
 civil officers, in each county or township, as he shall find 
 
332 
 
 APPENDIX. 
 
 necessary for the preservation of the peace and good or¬ 
 der in the same. After the General Assembly shall be 
 organized, the powers and duties of magistrates and other 
 civil officers shall be regulated and defined by the said 
 assembly ; but all magistrates and other civil officers, 
 not herein otherwise directed, shall, during the continu¬ 
 ance of this temporary government, be appointed by the 
 Governor. 
 
 For the prevention of crimes and injuries, the laws to 
 be adopted or made shall have force in all parts of the 
 District, and for the execution of process, criminal and 
 civil, the Governor shall make proper divisions thereof; 
 and he shall proceed from time to time, as circumstances 
 may require, to lay out the parts of the District in which 
 the Indian titles shall have been extinguished, into coun¬ 
 ties and townships, subject, however, to such alterations 
 as may thereafter be made by the Legislature. 
 
 So soon as there shall be five thousand free male in¬ 
 habitants, of full age, in the District, upon giving proof 
 thereof to the Governor, they shall receive authority, with 
 time and place, to elect Representatives from their coun¬ 
 ties or townships, to represent them in the General Assem¬ 
 bly ; provided that, for every five hundred free male in¬ 
 habitants, there shall be one Representative, and so on, 
 progressively, with the number of free male inhabitants, 
 shall the right of representation increase, until the number 
 of Representatives shall amount to twenty-five ; after which 
 the number and proportion of Representatives shall be reg¬ 
 ulated by the Legislature ; provided, that no person be 
 eligible or qualified to act as a Representative, unless he 
 shall have been a citizen of one of the United States 
 three years, and be a resident in the District, or unless 
 he shall have resided in the District three years ; and in 
 either case, shall likewise hold in his own right, in fee 
 simple, two hundred acres of land within the same ; pro¬ 
 vided also, that a freehold in fifty acres of land in the 
 District, having been a citizen of one of the States, and 
 being resident in the District, or the like freehold and two 
 years residence in the District, shall be necessary to qual¬ 
 ify a man as an elector of a Representative. 
 
AN ORDINANCE. 
 
 333 
 
 The Representatives, thus elected, shall serve for the 
 term of two years ; and in case of the death of a Repre- 
 tative, or removal from office, the Governor shall issue a 
 writ to the county or township, for which he was a mem¬ 
 ber, to elect another in his stead, to serve for the residue 
 of the term. 
 
 The General Assembly, or Legislature, shall consist of 
 the Governor, Legislative Council, and a House of Repre¬ 
 sentatives. The Legislative Council shall consist of five 
 members, to continue in office five years, unless sooner 
 removed by Congress ; any three of whom to be a quo¬ 
 rum : and the members of the Council shall be nomi¬ 
 nated and appointed in the following manner, to wit: 
 As soon as Representatives shall be elected, the Gover¬ 
 nor shall appoint a time and place for them to meet to¬ 
 gether, and when met, they shall nominate ten persons, 
 residents in the District, and each possessed of a freehold 
 in five hundred acres of land, and return their names to 
 Congress ; five of whom Congress shall appoint and com¬ 
 mission to serve as aforesaid : and whenever a vacancy 
 shall happen in the Council, by death or removal from 
 office, the House of Representatives shall nominate two 
 persons, qualified as aforesaid, for each vacancy, and 
 return their names to Congress ; one of whom Congress 
 shall appoint and commission for the residue of the term : 
 And every five years, four months at least before the ex¬ 
 piration of the time of service of the members of Council, 
 the said House shall nominate ten persons, qualified as 
 aforesaid, and return their names to Congress ; five of 
 whom Congress shall appoint and commission to serve as 
 members of the Council five years, unless sooner removed. 
 And the Governor, Legislative Council, and House of 
 Representatives, shall have authority to make laws, in all 
 cases, for the good government of the District, not repug¬ 
 nant to the principles and articles in this Ordinance estab¬ 
 lished and declared. And all bills, having passed by a ma¬ 
 jority in the House, and by a majority in the Council, shall 
 be referred to the Governor for his assent ; but no bill 
 or legislative act whatever, shall be of any force without 
 his assent. The Governor shall have power to convene. 
 
334 
 
 APPENDIX. 
 
 prorogue, and dissolve, the General Assembly, when in 
 his opinion it shall be expedient. 
 
 The Governor, Judges, Legislative Council, Secreta¬ 
 ry, and such other officers as Congress shall appoint in the 
 District, shall take an oath or affirmation of fidelity, and 
 of office ; the Governor before the President of Congress, 
 and all other officers before the Governor. As soon as a 
 Legislature shall be formed in the District, the Council and 
 House assembled, in one room, shall have authority, by 
 joint ballot, to elect a Delegate to Congress, who shall 
 have a seat in Congress, with a right of debating, but not 
 of voting during this temporary government. 
 
 And for extending the fundamental principles of civil 
 and religious liberty, which form the basis whereon these 
 republics, their laws, and constitutions, are erected ; to 
 fix and establish those principles as the basis of all laws, 
 constitutions, and governments, which forever hereafter 
 shall be formed in the said Territory ; to provide, also, for 
 the establishment of States, and permanent government 
 therein, and for their admission to a share in the Federal 
 councils on an equal footing with the original States, at as 
 early periods as may be consistent with the general inter¬ 
 est : 
 
 It is hereby ordained and declared, by the authority 
 aforesaid, That the following Articles shall be considered 
 as articles of compact, between the original States and 
 the People and States in the said Territory, and forever 
 remain unalterable, unless by common consent, to wit : 
 
 Art. 1 . No person, demeaning himself in a peaceable 
 and orderly manner, shall ever be molested on account 
 of his mode of worship or religious sentiments, in the 
 said Territory. 
 
 Art. 2. The inhabitants of the said Territory shall al¬ 
 ways be entitled to the benefits of the writ of habeas 
 corpus, and of the trial by jury ; of a proportionate rep¬ 
 resentation of the people in the Legislature, and of judi¬ 
 cial proceedings according to the course of the common 
 law. All persons shall be bailable, unless for capital of¬ 
 fences, where the proof shall be evident, or the presump¬ 
 tion great. All fines shall be moderate ; and no cruel 
 
AN ORDINANCE. 
 
 335 
 
 or unusual punishment shall be inflicted. No man shall 
 be deprived of his liberty or property, but by the judge¬ 
 ment of his peers, or the law of the land, and should the 
 public exigencies make it necessary, for the common 
 preservation, to take any person’s property, or to demand 
 his particular services, full compensation shall be made 
 for the same. And, in the just preservation of rights and 
 property, it is understood and declared, that no law ought 
 ever to be made, or have force in the said Territory, 
 that shall, in any manner whatever, interfere with, or af¬ 
 fect, private contracts or engagements, bona fide, and 
 without fraud, previously formed. 
 
 Art. 3. Religion, morality, and knowledge, being 
 necessary to good government and the happiness of man¬ 
 kind, schools and the means of education shall forever 
 be encouraged. The utmost good faith shall always be 
 observed towards the Indians ; their lands and property 
 shall never be taken from them without their consent; 
 and in their property, rights, and liberty, they never shall 
 be invaded or disturbed, unless in just and lawful wars 
 authorized by Congress ; but laws founded in justice and 
 humanity shall, from time to time, be made, for preven¬ 
 ting wrongs being done to them, and for preserving peace 
 and friendship with them. 
 
 Art. 4. The said Territory, and the States which may 
 be formed therein, shall forever remain a part of this 
 Confederacy of the United States of America, subject to 
 the articles of Confederation, and to such alterations 
 therein as shall be constitutionally made ; and to all the 
 acts and ordinances of the United States in Congress as¬ 
 sembled, conformable thereto. The inhabitants and set¬ 
 tlers in the said Territory shall be subject to pay a part 
 of the Federal debts, contracted or to be contracted, and 
 a proportional part of the expenses of government, to be 
 apportioned on them by Congress, according to the same 
 common rule and measure by which apportionments 
 thereof shall be made on the other States ; and the taxes 
 for paying their proportion, shall be laid and levied by 
 the authority and direction of the Legislatures of the Dis¬ 
 trict or Districts, or new States, as in the original States, 
 
336 
 
 APPENDIX. 
 
 within the time agreed upon by the United States in Con¬ 
 gress assembled. The Legislatures of those Districts, 
 or new States, shall never interfere with the primary dis¬ 
 posal of the soil by the United States in Congress assem¬ 
 bled, nor with any regulations Congress may find neces¬ 
 sary, for securing the title in such soil, to the bona fide pur¬ 
 chasers. No tax shall be imposed on lands the property 
 of the United States ; and in no case shall non-resident 
 proprietors be taxed higher than residents. The navi¬ 
 gable waters leading into the Mississippi and St. Law¬ 
 rence, and the carrying places between the same, shall 
 be common highways, and forever free, as well to the 
 inhabitants of the said Territory, as to the citizens of the 
 United States, and those of any other States that maybe 
 admitted into the Confederacy, without any tax, impost, 
 or duty therefor. 
 
 Art. 5. There shall be formed in the said Territory, 
 not less than three, nor more than five States ; and the 
 boundaries of the States, as soon as Virginia shall alter 
 her act of cession, and consent to the same, shall become 
 fixed and established as follows, to wit : the western 
 State in the said Territory, shall be bounded by the Mis¬ 
 sissippi, the Ohio, and Wabash rivers ; a direct line 
 drawn from the Wabash and Post Vincents, due north, 
 to the Territorial line between the United States and Can¬ 
 ada ; and by the said Territorial line to the lake of the 
 Woods and Mississippi. The middle States shall be 
 bounded by the said direct line, the Wabash, from Post 
 Vincents to the Ohio, by the Ohio, by a direct line drawn 
 due north from the mouth of the Great Miami to the said 
 Territorial line, and by the said Territorial line. The 
 eastern State shall be bounded by the last mentioned direct 
 line, the Ohio, Pennsylvania, and the said Territorial line: 
 provided however, and it is further understood and declar¬ 
 ed, that the boundaries of these three States shall be sub¬ 
 ject so far to be altered, that, if Congress shall hereafter 
 find it expedient, they shall have authority to form one or 
 two States in that part of the said Territory which lies north 
 of an east and west line drawn through the southerly bend 
 or extreme of lake Michigan. And whenever any of the 
 
AN ORDINANCE. 
 
 337 
 
 said States shall have sixty thousand free inhabitants there¬ 
 in, such State shall be admitted, by its delegates, into the 
 Congress of the United States, on an equal footing with the 
 original States, in all respects whatever ; and shall be at 
 liberty to form a permanent Constitution and State gov¬ 
 ernment ; provided the Constitution and government, so 
 to be formed, shall be republican, and in conformity to 
 the principles contained in these Articles ; and, so far as 
 it can be consistent with the general interest of the Con¬ 
 federacy, such admission shall be allowed at an earlier 
 period, and when there may be a less number of free in¬ 
 habitants in the State than sixty thousand. 
 
 Art. 6. There shall be neither slavery nor involun¬ 
 tary servitude in the said Territory, otherwise than in the 
 punishment of crimes, whereof the party shall have been 
 duly convicted : provided always, that any person escap¬ 
 ing into the same, from whom labor or service is lawfully 
 claimed in any one of the original States, such fugitive 
 may be lawfully reclaimed, and conveyed to the person 
 claiming his or her labor or service as aforesaid. 
 
 Be it ordained by the authority aforesaid, That the 
 resolutions of the 23d of April, 1784, relative to the 
 subject of this Ordinance, be, and the same are hereby 
 repealed and declared null and void. Done, &c. 
 
 29 
 
 XIII. 
 
A GLOSSARY 
 
 OP THE LEGAL AND OTHER NOT-EASILY-UNDERSTOOD WORDS 
 
 AND PHRASES. 
 
 A fortiori, literally, for the stronger ground, or reason. 
 
 Allegiance, the tie, or duty, which binds the subject or citizen of a 
 State to aid and assist the State, or Sovereignty, in return for the 
 protection afforded by the latter. It imports, therefore, the obliga¬ 
 tion of a subject, or citizen, to be faithful to the State. 
 
 Ambassador, a public minister, of the highest grade, sent abroad by a 
 sovereign state, or prince, to transact public business with a foreign 
 government, in behalf of his own. There are three grades of foreign 
 ministers. (1.) Ambassadors, who have the highest rank and privi¬ 
 leges, and who represent, personally, their sovereign. (2.) Ministers 
 Plenipotentiarxj, who have full powers to act for their sovereign or 
 country. (3.) Ministers Resident, who generally possess, or may 
 possess, the same powers, but hold a subordinate rank to Ministers 
 Plenipotentiary. The explanation of the peculiar rights and duties 
 of each class belongs, properly, to a treatise on the law of nations. 
 
 Arrest, the seizure and detention of the person of a party, by a public 
 officer, under a writ or process from some court or magistrate. 
 Thus, when a sheriff takes a man in custody, under a writ, we say, 
 the sheriff arrests him, or he is under arrest. 
 
 Arrest of judgement, an order of a court, directing that no judgement 
 be rendered in a case, from an error of law in the proceedings. 
 
 Articles of Confederation, the form of a general government, adopted 
 by the States, during the Revolution, for their union. It was framed 
 by the Continental Congress, in 1778 ; and was finally adopted, by 
 all the States, in 1781, and remained in force until the present Con¬ 
 stitution of the United States was adopted, in 1788. The articles 
 will be found, at large, in the Appendix to this Volume, pp. 279— 
 289. 
 
 Autre Droit, in the right of another, and not in one’s own personal 
 right. Thus, an administrator or executor, who collects a debt due 
 to the estate of the deceased party, receives it not on his personal 
 account, but in the right, or as representative, of another. 
 
 Bail , a person, who becomes surety for another’s appearance in a 
 court of justice, to answer to some civil suit, or criminal accusa¬ 
 tion ; and usually, also, that he shall abide the judgement of the 
 court thereon. 
 
 Bailable, literally, where bail may be taken. Thus, a suit or crimi¬ 
 nal accusation is said to be bailable, where the party is entitled, after 
 arrest, to be discharged on giving bail. 
 
340 
 
 GLOSSARY. 
 
 Bill. This word has various senses, according to the things, to which 
 it is applied. It may be generally defined, to be a formal, written 
 Instrument. When we speak of a Bill before a Legislature, we mean, 
 a written Instrument, containing a proposed Law, drawn up in the 
 proper form. When the Bill is said to be passed by the Legislature, 
 we mean, that it has received the final assent of the Legislature. 
 When the Bill is passed, and is approved by the Executive, or oth- 
 wise becomes a Law, we call it an Act, or Statute. 
 
 Bill of Credit , a written Instrument, which contains a promise or 
 agreement of the State to pay or allow a certain sum of money to 
 the bearer or holder thereof. It is issued on the credit of the State, 
 and is designed to circulate as currency. 
 
 Bill of Rights, a written Instrument, containing a public declaration 
 of certain general rights of the people, which are held fundamental 
 to their security and protection. 
 
 Bills for raising Revenue. These are written Instruments, contain¬ 
 ing laws proposed to be passed by the Legislature, to create a reve¬ 
 nue, or income, to the Government ; such as a Bill to lay and collect 
 a tax, or duty, on houses, or lands, or goods. 
 
 Bona fide, a phrase borrowed from the Latin language, and literally 
 meaning, “ in good faith.” We commonly apply it to a person, who 
 acts honestly and conscientiously in doing any thing, without sus¬ 
 pecting or knowing it to be wrong. 
 
 Bottomry Bond, literally, a Bond given by a master or owner of a 
 ship, or other vessel, pledging the bottom of the vessel, that is, the 
 vessel itself, for the repayment of money borrowed upon the credit 
 of the vessel, and payable upon the contingency, that the vessel per¬ 
 forms the voyage specified in the bond. 
 
 Cabinet, an abbreviated expression for Cabinet Council, meaning the 
 Ministers of the State, or Heads of the Departments of the Govern¬ 
 ment, who are convened by the Executive Magistrate, to assist and 
 advise him in the Government. Thus, in the United States, we 
 say, the Heads of the Departments of State, of War, of the Treas¬ 
 ury, of the Navy, of the Post Office, and of the Law, (the Attorney 
 General,) constitute the Cabinet, that is, they are the private confi¬ 
 dential advisers and council of the President. 
 
 Cessio Bonorum, literally, a Cession or Transfer of the Goods or Prop¬ 
 erty of a party. It is a phrase derived from the Roman or civil 
 law, and means, that a debtor has made a cession, or assignment, of 
 his property, for the benefit of his creditors. 
 
 Charter. In a general sense, this word means any written Instrument 
 conferring rights or creating obligations, from the Latin w ord charta, 
 paper or parchment, on which something is written. But, in legal lan¬ 
 guage, a Charter usually means a written Instrument, or grant, under 
 the public seal of the Government, conferring certain rights, privi¬ 
 leges, and authorities, of a public nature, upon certain citizens or 
 subjects. Such were the original Charters of Government, granted 
 by the Crown to the American Colonies. 
 
 Commission, a written Document, signed by the Executive, or other 
 proper officer of the Government, conferring an authority, or appoint¬ 
 ment to office, on some person. Commissions to public officers. 
 
GLOSSARY. 
 
 341 
 
 appointed by the President of the United States, are signed hy the 
 President, and have the great seal of the United States annexed 
 thereto. To commission, is to give or grant such commission to the 
 proper party. 
 
 Confederation , Articles of, see Articles of Confederation. 
 
 Consul , a commercial Agent of the Government, appointed and resi¬ 
 dent in a foreign country, to attend to the commercial rights and 
 privileges of his own country, and its citizens, in such foreign 
 country. 
 
 Continental Congress, the general appellation of the general Congress 
 or Legislature, in which all the States of the Union were represent¬ 
 ed, hy their Delegates, during the American Revolution. It was 
 called ‘ Continental,’ as being for the whole of the Continent of 
 America, embraced within the limits of the United States, in contra¬ 
 distinction to a Provincial Congress, which was the Legislative Body 
 of a single State, Colony, or Province, of the Union. 
 
 Conveyance, a transfer, in writing, by one person to another, of his 
 right and title to land or other property. It is usually by an Instru¬ 
 ment under the seal of the person making the transfer. . 
 
 Copyright, the right of an Author to the exclusive publication and sale 
 of his works, for the period, which is prescribed by law for its con¬ 
 tinuance, upon his complying with the requisites of law, in order to 
 secure the same. 
 
 Crown. This word is used as equivalent to King, Sovereign, or reign¬ 
 ing Monarch. Thus, we say, indifferently, such a grant was made 
 by, or such a power exists in, the Crown, the King, or the Sov¬ 
 ereign. 
 
 Declaration of Independence, the Act by which the United States 
 severed their connexion with the British Crown. It may be found, 
 at length, in the Appendix to this Volume, pp. 275—279. 
 
 Declaration of Rights, of the Continental Congress, a declaration, 
 published October 14, 1774, and which may be found, at length, in 
 the Appendix to this Volume, pp. 271—274. 
 
 Defendant, the person against whom any suit is brought ; but, in a 
 more limited sense, it means the person, against whom any suit is 
 brought, who appears in court to defend, or contest, the suit. 
 
 Duty on Tonnage, a tax laid on ships and vessels, in proportion to 
 their tonnage ; as, for example, a tax of six cents a ton on the ton¬ 
 nage of every American ship, or a tax of fifty cents a ton on that of 
 every foreign ship, arriving in the ports of the United States. 
 
 Embargo , a restraint, or detainment, of ships and vessels, from sailing 
 out of port, imposed by the authority of the Government. It is usu¬ 
 ally imposed for temporary purposes, in contemplation of war, or on 
 account of some immediate and impending public danger. 
 
 Equity. This word is commonly used as equivalent to natural jus¬ 
 tice, in contradistinction to strict Law. In the Law, it is used, to 
 express the jurisdiction, which belongs to Courts of Equity, to enforce 
 rights and remedy wrongs, in favor of parties ; which rights and 
 wrongs Courts of common Law have no authority to enforce or re¬ 
 dress. 
 
 Estate , the right and interest, which a man has in property. Real 
 
 29 * 
 
342 
 
 GLOSSARY. 
 
 Estate is the right and interest, which a man has in land, or other 
 things of a kindred and permanent nature ; such, for example, as an 
 interest in a mill, in a waterfall, or in a private way. Personal 
 Estate is the right or interest, which a man has in goods, merchan¬ 
 dises, and other movable property, or debts and credits. 
 
 Estoppel is, in Law, the stopping, or precluding, or preventing, a man 
 from setting up any fact, or previous act, to contradict or invalidate, 
 what he has since done or admitted. Thus, if a man makes a con¬ 
 veyance, by deed, of land, stating therein that he has a good title 
 thereto, he shall be estopped to deny that he had any title. 
 
 Excise. This word ordinarily means a tax, or duty, laid upon some 
 commodity or thing used, or manufactured, or sold, in a country. 
 Thus, a tax laid upon all coaches used, or upon all spirits manufac¬ 
 tured, or upon all goods sold at auction, in a country, is called an 
 excise. It is commonly used in contradistinction to “ imposts,” the 
 latter word being applied to taxes levied on goods upon their im¬ 
 portation from a foreign country, whereas excises are taxes on things 
 already in the country, or to be sold or manufactured there, and are 
 therefore commonly called “ internal taxes.” 
 
 Ex post facto, literally, after the act is done. The phrase is usually 
 applied to laws passed to punish an act as a crime, when it was not 
 so at the time, when the act was done. Hence such laws are called 
 Ex post facto laws. 
 
 Felony. This word was originally applied to crimes, which the com¬ 
 mon law punished by a forfeiture of the lands and goods of the of¬ 
 fender, it being supposed to be derived from the feudal law, in which 
 “fee” signified the fief, feud, or estate of the tenant, and “ Ion,” 
 which signified price or value. It is now commonly applied to de¬ 
 signate such crimes as are punished capitally, that is, by death. 
 
 Franchise, a right or privilege, granted by the King or Government 
 to one or more persons, which does not belong to subjects or citi¬ 
 zens generally ; and which cannot properly be exercised by them, 
 without such grant. Thus, to be and act as a corporation, is a fran¬ 
 chise. 
 
 General Issue, a law phrase, signifying a general denial, by the De¬ 
 fendant in a suit, of all the charges made by the Plaintiff’, in his 
 written statements, or allegations, (commonly called a declaration,) 
 against the Defendant, for which the suit is brought. Thus, if an 
 action is brought by A against B, for an assault and battery of A, 
 and B pleads, that he is not guilty, this is called the general issue ; 
 that is, the Defendant denies the whole matter charged against him. 
 The Reply of the Plaintiff, putting the matter of fact on trial, by the 
 Jury, is called joining the issue. So, where a party, charged with 
 a crime, pleads not guilty, that is the general issue. 
 
 Grantee, the person to whom a grant is made. The person, who 
 makes the grant, is called the Grantor. 
 
 Habeas Corpus, literally, Have you the Body. The phrase designates 
 the most emphatic words of a writ, issued by a Judge or Court, 
 commanding a person, who has another in custody, or in imprison¬ 
 ment, to have his body (Habeas Corpus) before the Judge or Court, 
 at a particular time and place, and to state the cause of his imprison- 
 
GLOSSARY. 
 
 343 
 
 ment. The person, whether a sheriff, gaoler, or other person, is 
 bound to produce the body of the prisoner at the time and place ap¬ 
 pointed ; and, if the prisoner is illegally or improperly in custody, 
 the Judge or Court will discharge him. Hence it is deemed the 
 great security of the personal liberty of the citizen against oppression 
 and illegal confinement. 
 
 Impeachment, in a juridical sense, is a written, formal accusation of a 
 person, as being guilty of some public offence or misdemeanor. 
 When the charges against him are specially described and set forth 
 in writing, they are called Articles of Impeachment. When, for 
 example, the House of Representatives of the United States prefers 
 or offers to the Senate written charges, against, any public officer, as 
 being guilty of high crimes and misdemeanors, on which it requires 
 him to be put upon trial, it is called an Impeachment. 
 
 In Capite, literally, in chief, or of the head. Tenants in capite, are 
 those tenants of land, who hold them directly, or immediately, from 
 and under the King, by his gift or grant, in contradistinction to per¬ 
 sons who hold by the grant of, or under, other persons. 
 
 Indictment is a formal written accusation, by a Grand Jury, charging 
 a person to be guilty of a particular crime or misdemeanor, which is 
 particularly described and set forth in the indictment. 
 
 Infamous crime. This phrase means, in common language, a crime, 
 which is attended with infamy. In Law, it is usually applied to such 
 gross, or atrocious crimes, as involve deep moral turpitude and dis¬ 
 grace. 
 
 Injunction , the name of a writ or process, which enjoins or commands 
 a man to do or not to do a particular act or thing ; and is a common 
 process issued by Courts of Equity, in proper cases. An injunction 
 of a judgement is an order to the part}', who has obtained a judge¬ 
 ment in a suit, not to enforce that judgement by an execution, or 
 otherwise. 
 
 Insolvency , an inability of a debtor to pay all his debts. Insolvent 
 laws are such as are made for the relief of debtors unable to pay all 
 their debts. 
 
 Ipso facto, literally, by this very act. It means, that a certain result 
 immediately follows from that act. Thus, we say, if a man conveys 
 his estate to another, he ceases, ipso facto, (by this very act,) to be 
 the owner thereof. 
 
 Jure Belli, literally, by the law or right of war. 
 
 Jurisprudence is, properly speaking, the Science of the Law, in which 
 sense, it includes all the principles and doctrines of the Law. The 
 word is sometimes used in a more limited sense, and means only the 
 expositions and interpretations of the Law, by Judicial Tribunals. 
 
 Jury, a body composed of twelve men, selected to try questions of 
 fact in civil and criminal suits, and who are under oath or solemn 
 affirmation, to decide the facts truly and faithfully, according to the 
 evidence laid before them. The points, which they are to try, are 
 generally founded upon the written allegations of the parties, (called 
 the pleadings,) and the points, on which the parties require their de¬ 
 cision, are called the issues, and the decisions on those points made 
 by the jury, after hearing the case, are called their verdict, or find- 
 
344 
 
 GLOSSARY. 
 
 ing of the truth of the facts. The jury for the trial of causes is some¬ 
 times called the 'petit, (or small,) or traverse jury, (that is, a jury to 
 try questions of fact, which are traversed or denied between the 
 parties.) 
 
 Jury, Grand, a body composed of not less than twelve, nor more than 
 twenty-three men, who, under oath, hear the proof of any particular 
 crime, or offence, with which any person is charged, and if they 
 believe him guilty on the evidence, they present an indictment against 
 him. 
 
 Law, Civil. The phrase, “ civil law,” sometimes means the law, 
 which respects the private rights and property of persons, in contradis¬ 
 tinction to criminal law, which respects public offences. Sometimes, 
 it means the Roman Law, which is commonly called the civil law. 
 Sometimes, civil law is used in contradistinction to military law, the 
 latter being applicable only to persons in the military or naval service. 
 
 Law, Common. The phrase, “common law,” is used, in England, 
 to express all the doctrines and principles of Law, which are recog¬ 
 nised and enforced in its jurisprudence, and are not founded upon 
 any positive existing act or statute of Parliament. It consists of all 
 the general customs and usages, which regulate the rights of proper¬ 
 ty, and all those general principles of justice and interpretation, 
 which are acted upon in Courts of Justice, and all those remedies, 
 which are applied for the redress of wrongs, which cannot be traced 
 up to any positive act or statute. The phrase, “ common law,” 
 is sometimes used to distinguish the English law from the Roman, 
 which is commonly called the “ civil law ;” and sometimes merely 
 to express*that it is the law applicable, in common to the whole 
 kingdom. The common Law of each of the American States is 
 that portion of the English common Law, which has been adopted by 
 the particular State, in connexion with its own peculiar and settled 
 usages and customs, and which is not prescribed by any act or statute 
 of the State Legislature. 
 
 Laiv, Constitutional. Constitutional Law is that branch of the Law, 
 which relates to the exposition and interpretation of the Constitution 
 of the State or Nation. 
 
 Law, Merchant. That branch of the Laws of a State or Nation, which 
 treats of rights, duties, contracts, &c., respecting trade, and com¬ 
 merce, and navigation, and shipping, and sales, and insurance, and 
 bills of exchange, and promissory notes, &c. &c. 
 
 Law, Municipal. Municipal Law means the law of a particular com¬ 
 munity, State, or Nation, in contradistinction to the law of foreign 
 communities, States, or Nations. 
 
 Law of Nations. The Law of Nations is properly that, which regu¬ 
 lates the rights and duties of Nations, in respect to each other, and 
 the respective subjects and citizens thereof. That branch, which 
 respects the rights and intercourse of the Nations, in their sovereign 
 capacities, is often called public international law ; that, which re¬ 
 spects the private rights and intercourse of the respective subjects and 
 citizens thereof, is called private international law. 
 
 Laivs, Insolvent. Laws made respecting debtors, who are unable to 
 pay their debts, and distributing their property among their creditors. 
 
GLOSSARY. 
 
 345 
 
 Laws, Inspection. Inspection laws are such laws as are made by a 
 particular State, to ascertain and fix the quality, character, and rela¬ 
 tive value, of its own products or manufactures. In order to ascer¬ 
 tain these facts, the products or manufactures are examined, or in¬ 
 spected, by skilful persons, who are often called inspectors ; as, for 
 example, inspectors of provisions, inspectors of flour, inspectors of 
 ashes, &c. 
 
 Letters of Marque and Reprisal. These are letters under seal, or 
 commissions, granted by a government to one or more of its citizens, 
 to make seizure or reprisal of the property of an enemy, or of per¬ 
 sons, who belong to another government, which government has re¬ 
 fused to do justice to the citizens of the country granting the letters 
 of marque and reprisal. 
 
 Magna Charta, or Magna Carta, literally, the Great Charter. This 
 name is given to a formal written charter, granted by King John, and 
 confirmed by King Henry III., of England, which solemnly recog¬ 
 nised and secured certain enumerated rights, privileges, and liberties, 
 as belonging to the people of England, which have ever since con¬ 
 stituted a fundamental part of the constitution or government of 
 England. Among other important rights, it secured the right of a 
 trial by jury in civil and criminal cases, and the right of the subject 
 to the free enjoyment of his life, his liberty, and his property, un¬ 
 less declared forfeited by the judgement of his peers, (a jury,) or 
 by the Law of the land. Several of its provisions constitute a part 
 of the Bill of Rights set forth in our present State and National Con¬ 
 stitutions. « 
 
 Malversations in Office. This phrase is applied to official misdemean¬ 
 ors, corruptions, extortions, and other wrongful conduct, by public 
 officers. 
 
 Mandamus, literally, “ we command.” This is a writ issued by a 
 Court of Justice to some Corporation, public officer, or other person, 
 commanding them to do some particular thing, therein specified, 
 which appertains to their office or duty. It is called a Mandamus, 
 from this word being in the original writ, which was formerly in 
 Latin. 
 
 Material Men. Those persons are called, in Admiralty Courts, ma¬ 
 terial men, who supply ships with provisions, or equipments, or other 
 outfits, or furnish materials for repairs, and make the repairs on ships. 
 
 Mesne Process, literally, intermediate process, as contradistinguished 
 from final process, in any suit. In strictness, the writ first issued, 
 to bring a party before a court, in a suit, is called original process ; 
 the writ of execution, which issues to enforce the judgement in the 
 suit, is called the final process ; and all other process or writs, is¬ 
 sued in that suit, are mesne process. But, in America, mesne pro¬ 
 cess is ordinarily used to describe all process issued in a suit, which 
 is not final process. 
 
 Ministers Plenipotentiary, ) 0 „ , , 
 
 Ttr- ■ . r, . / , ? kee Ambassadors. 
 
 Ministers Resident. } 
 
 Ordinance of 1787, for the settlement and government of the North- 
 Western Territory of the United States, may be found, at length, in 
 the Appendix to this Volume, pp. 329—337. 
 
346 
 
 GLOSSARY. 
 
 Parliament. This is the appellation, by which the Legislature of 
 Great Britain is ordinarily designated. It is composed of the House 
 of Lords, and House of Commons. 
 
 Patent, an abbreviated expression, signifying letters-patent, or open 
 letters, or grants of the government, under the great seal thereof, 
 granting some right, privilege, or property, to a person, who is thence 
 called the Patentee. Thus, the government grants the public lands, 
 by a patent, to the purchaser. So, a copy-right in a book, or an ex¬ 
 clusive right to an invention, is granted by a patent. When the 
 word patent is used in conversation, it ordinarily is limited to a pa- 
 tent-right for an invention. 
 
 Patentee. The party, who is the grantee of a patent from the govern¬ 
 ment. 
 
 Peers. Peers, ordinarily, means the nobility of Great Britain, who 
 have a seat in the House of Lords. They are called peers, from the 
 Latin word, pares , equals. But the word is also used to signify, 
 the pares, or jurymen, who are entitled to try questions of fact in 
 civil and criminal cases. The trial by jury is therefore often called 
 a trial by his (the defendant’s) peers. 
 
 Personal Estate. See Estate. 
 
 Plaintiff, the party, who brings a suit against another, for redress of 
 some private wrong or breach of contract. He is so called, be¬ 
 cause he makes a plaint or complaint against the wrongdoer. 
 
 Plea, the written defence of the Defendant in any suit, in denial or 
 avoidance of the matter charged by the Plaintiff in that suit against 
 him. 
 
 Plea , Special. It is a special justification or excuse, set forth in writing 
 by the Defendant in a suit, which bars or destroys the Plaintiff’s right 
 in that suit. It is used in contradistinction, generally, to the general 
 issue. A justification admits the act charged by the Plaintiff to be 
 done or omitted, and justifies the Defendant in such act or omission. 
 Whereas the general issue usually denies, that the act has ever been 
 done or omitted. 
 
 Plurality of Votes. A person is said to have a plurality of votes, who 
 has more votes than any other single candidate for the same office. 
 A person is said to have a majority of votes, who has a larger num¬ 
 ber than all the other candidates have, adding all their votes together. 
 
 Prima facie means, literally, upon the first view or appearance. It 
 is commonly applied to cases of evidence or presumption, where the 
 meaning is, that the evidence or presumption is to be taken to be 
 sufficient to prove certain facts, until other evidence or presumptions 
 are introduced to control it. 
 
 Prison Liberties, or Gaol Limits. To every public gaol or prison, 
 there are certain limited spaces, or local limits, outside of the walls 
 of the gaol or prison, within which persons imprisoned for debts are 
 entitled to reside, or be, upon complying with the conditions and se¬ 
 curities required to be given, that they will commit no escape. These 
 limits, or liberties, are commonly called the gaol or prison limits or 
 liberties. 
 
 Privies, in a legal sense, are those, who claim any right or property 
 from or under another person. Thus, the heir, or devisee, of an an- 
 
GLOSSARY. 
 
 347 
 
 cestor, is a privy under the latter. An executor is a privy under his 
 intestate. A purchaser is a privy in estate from the seller. 
 
 Process of Law. Process means the writs and other compulsive writ¬ 
 ten orders, issued in any civil or criminal case, to compel the appear¬ 
 ance of a party or witness, or to enforce obedience to the judgement, 
 or other order of a court of justice. 
 
 Property in Contingency , is property, to which there is no absolute 
 right or title in a party, but its vesting in him is dependent upon a 
 future uncertain event. Thus, a legacy to a man, who is under age, 
 if he arrives at twenty-one years, is property in contingency. 
 
 Proprietary. This phrase is equivalent to owner or proprietor. But 
 it is usually limited to persons, who possess a right to territory, with 
 the powers of government therein. Thus, Penn was called the Pro¬ 
 prietary of Pennsylvania, and Lord Baltimore, of Maryland; because, 
 by grants from the King of England, not only the territory of those 
 Colonies, but the right of governing them, was vested in them. 
 
 Pro tempore , literally, for a time. It means, that a person is not the 
 regular officer holding an office, but one holding it for a short and 
 uncertain period. Thus, the Vice President of the United States is 
 the regular President of the Senate ; but, in his absence, the Senate 
 may appoint a President, pro tempore , to perform his duties. 
 
 Provincial Congress , see Continental Congress. 
 
 Real Estate , see Estate. 
 
 Records of a Court. These are the written memorials of the trans¬ 
 actions of a court of justice, drawn up in form by its regular officers, 
 and styled records, because the acts and doings of the Court are 
 therein recorded fully and truly, so as to be received as absolutely 
 correct. 
 
 Replication is the written reply of the Plaintiff in a suit, to the plea 
 put in by the Defendant in the same suit. Its true object is, to deny 
 or destroy the validity of the plea, as a bar to the suit. 
 
 Reprieve. When a criminal has been condemned, by the sentence of 
 a court of justice, to suffer a particular punishment at a particular 
 time, and the execution of that sentence is postponed, suspended, or 
 withdrawn, for an interval of time, by the proper authority, it is cal¬ 
 led a reprieve ; from reprendre , to take back. 
 
 Return-Day of Process. Whenever a writ or process is issued by a 
 court of justice, to an officer, or other person, to be by him executed, 
 according to the command therein stated, it usually contains a fixed 
 time, when the officer is to make a return of that writ or process, with 
 a written statement of his acts or proceedings done under it. That 
 time is the return-day ; and that written statement is technically cal¬ 
 led his Return. 
 
 Right, Possessory. A man, who is in possession of property, having a 
 right to possess it, is said to have a possessory right. Thus, a man, 
 who hires a horse and chaise for a journey, has a possessory right to 
 the horse and chaise for that journey, although the person, who lets 
 them, is the general owner. So a man in possession of land, as a 
 tenant, has a possessory right in the land, although it is owned by 
 his landlord. 
 
 Sergeant-at-Arms. The name of the officer of a legislative body, who 
 
348 
 
 GLOSSARY. 
 
 serves processes, and executes the orders of that body upon solemn 
 occasions. 
 
 Socage, a word of feudal origin, and, in that system, the tenure, by 
 which a man holds lands, is to render therefor some certain and de¬ 
 terminate service, in contradistinction to tenure of lands by uncertain 
 and precarious services, where the tenant was obliged to render such 
 service as the grantor might, from time to time, require of him. Free 
 Socage is a tenure by certain and honorable service. 
 
 Stamp Act. An act or statute, which requires certain papers and 
 enumerated documents to be stamped with a stamp by the govern¬ 
 ment, before they have any validity ; and imposes a certain tax or 
 duty for the stamping such papers or documents. Thus, if the gov¬ 
 ernment should declare, that every deed or promissory note should 
 be written on paper stamped by the government, and require the 
 party to pay a fixed sum or tax for such stamped paper, the Act or 
 Law, making such provisions, would be called a Stamp Act. 
 
 Stand seised. A man is said to stand seised of land, who is in posses¬ 
 sion of it under a claim or title to it, either in fee, or, at least, for life. 
 
 State Trials are trials for crimes or offences in Courts of justice. 
 They are called State trials, because the State or Government prose¬ 
 cutes the suit or indictment. 
 
 Statute. An act or law, passed by a Legislature. It is called a 
 Statute, from Statutum, a thing ordered or appointed by the Legis¬ 
 lature. 
 
 Statute of Limitations. A statute or law, which limits the time with¬ 
 in which a suit or action may be brought in a court of justice. Such 
 statutes exist in every State in the Union. 
 
 Suit at Law is the remedy, which a person, aggrieved by any wrong 
 done to him, seeks, in a court of law, for redress of the wrong. 
 
 Tonnage Duty is a tax or duty laid by the Legislature, or other com¬ 
 petent authority, upon ships or vessels, in proportion to their tonnage. 
 
 Tort is a wrong or injury done by one man to another, or to his prop¬ 
 erty or rights. It includes all trespasses ; but is a word of larger 
 signification. 
 
 Treaty of Peace, of 1783, is the treaty made between Great Britain 
 and the American States, by which Great Britain acknowledged our 
 Independence, and surrendered her claims to our Territory. It 
 closed the War for our Independence ; and will be found in the Ap¬ 
 pendix to the present Volume, pp. 324—329. 
 
 Trespass is a wrong or injury done by one man to another, or to his 
 property or rights. When the word is used, alone, it means some 
 wrong done by violence, or force, or some illegal act. Thus, if a 
 man unlawfully strikes another, or unlawfully takes possession of 
 the land or goods of another, he is said to be guilty of a trespass. 
 
 V. is often put for versus , or against. Thus, a suit is said to be by 
 A versus B. 
 
 Viva Voce, literally, by the living voice, or orally. Thus, when a 
 witness gives his testimony in open court, in the presence of the au¬ 
 dience, and answers, by word of mouth, we say, his testimony is 
 viva voce. If his testimony is written down, and read, it is called 
 his Deposition. 
 
GLOSSARY. 
 
 349 
 
 Warrant is a written, sealed order, command, or writ, requiring and 
 authorizing an officer or other person to do a particular act. It is 
 usually applied to the process, by which criminals are arrested for 
 trial or examination. 
 
 Writ of Error is a writ, which authorizes a Court of justice to bring 
 a record before it, either of the same court, or of another court, in 
 order to examine and decide, whether there is any error of law in 
 the judgement, or other proceedings in that record ; and, if there be, 
 to correct the error. 
 
 Writ of Habeas Corpus, see Habeas Corpus. 
 
 30 xiii. 
 
 
 / 
 

INDEX 
 
 A. 
 
 Absent members of Congress, 
 compelled to attend,90,91,292. 
 
 Absolute governments, the pow¬ 
 ers of, 46. 
 
 Account of the receipts and expen¬ 
 ditures of all public money, to 
 be published, 144, 145, 296. 
 
 Accusation, self, criminals not 
 bound to, 230, 233, 304. 
 
 Accused, incases of impeachment, 
 86. Privileges to the, 230— 
 234, 304. Not bound to testi¬ 
 fy against themselves, 230, 233, 
 304. Examination of witnesses 
 against the, 231, 235, 304. 
 Counsel for, 231, 236, 304. 
 Confessions of, 241. 
 
 Acts, public, of the States, faith to 
 be given to, 135, 301. 
 
 Adams, John, Vice-President of 
 the United States, 34. Various 
 offices held by, 325. Minister 
 Plenipotentiary for the conclud¬ 
 ing and signing the Definitive 
 Treaty of Peace, between the 
 United States of America and 
 his Britannic Majesty, in 1783, 
 325, 329. 
 
 Adjournment of Congress, 92, 
 292. Bills not approved by the 
 President at the time of, 98, 
 100, 293. 
 
 Admiralty and maritime jurisdic¬ 
 tion, jurisdiction of the Supreme 
 Court in cases of, 186, 187, 
 194, 196, 221, 300. 
 
 Admission of New States into the 
 Union, 137, 301, 307. 
 
 Afiirmation, substitution of, for 
 oath, 252, 298, 303. 
 
 Age, of Representatives, 54, 73, 
 
 289. Of Senators, 73, 291 
 Of President and Vice-Presi¬ 
 dent, 167, 298. 
 
 Agreements between States, for¬ 
 bidden,156,296. See Alliances. 
 
 Alexandria, meeting of commis¬ 
 sioners at, in 1785, 33. 
 
 Aliens, suits by and against, in the 
 courts of the United States, 
 211, 300. See Foreigners. 
 
 Alliances, States forbidden to 
 make, 146, 296. Washington, 
 on domestic, 313 ; on foreign, 
 321. See Agreements, and 
 Combination. 
 
 Ambassadors, appointment of, 
 172, 173, 299. To be received 
 by the President, 176, 299. 
 Suits by and against, 186, 192, 
 213, 221, 223, 300. 
 
 Amendments to the Constitution, 
 161, 303. On the election of 
 President and Vice-President, 
 
 161.163.305. On suits by and 
 against the States, 203, 205, 
 
 216.305. On the appellate ju¬ 
 risdiction of the Supreme Court, 
 both as to law and fact, 225, 
 304. On trial by jury, 230, 
 304. On search-warrants, 237, 
 303. On excessive bail, fines, 
 and punishments, 237,238,304. 
 Mode of making, 246, 302. Re¬ 
 specting religious tolerance,254, 
 303. Articles of, 303. 
 
 American, Washington on the 
 name, 310. 
 
 American Colonies, history of the, 
 11. Their title to the soil, 13. 
 Times and manner of the settle¬ 
 ment of the, 15. Governments 
 of the, 17. Rights and privi- 
 
352 
 
 INDEX. 
 
 leges of the, 19. Legislative 
 powers of the, 19. Common 
 law of England introduced into 
 the, 20. Political state of the, 
 at the time of the Revolution, 
 22. Their connexion with Great 
 Britain and with each other, 22. 
 Controversies between the, de¬ 
 termined before the King in 
 council, 200. Declaration of 
 Independence of the, 275. 
 
 American Revolution, see Revo¬ 
 lution. 
 
 Annapolis, meeting of commission¬ 
 ers at, in 1786, 33. 
 
 Appellate jurisdiction of the Na¬ 
 tional Judiciary, 212, 300. 
 
 Suggestions respecting it, 213— 
 228. Of inferior tribunals, 214, 
 218. On the exclusion of, by 
 original jurisdiction, 215. Ex¬ 
 tent of the, 217. Meaning of 
 and mode of exercising, 224. 
 Qualified, 227, 304. 
 
 Appointments to office, power of, 
 172-175, 299. By the Presi- 
 ident, 172, 299. By Congress 
 and the Heads of Departments, 
 172, 174, 299. When discre¬ 
 tionary in Congress, 172, 174, 
 299. See Commissions, and, 
 Vacancies. 
 
 Apportionment, of Representa¬ 
 tives, 56-62, 104, 290. Of di¬ 
 rect taxes, 56-60, 97, 104, 290. 
 
 Appropriations, for armies, 122, 
 123, 294. Before drawing 
 
 money from the treasury, 144, 
 295. 
 
 Aristocracy, absolute, or despotic, 
 47. 
 
 Arms, on keeping and bearing, 
 264, 303. 
 
 Army,'power of Congress as to 
 the, 43, 122, 141, 294. Rev¬ 
 olutionary, 122. Restrictions 
 respecting the, 123, 294. A 
 standing impolitic, 265 ; con¬ 
 demned in the Declaration of 
 Rights, of 1774, 274. 
 
 Arrest, members of Congress,priv¬ 
 
 ileged as to, 93, 292 ; under 
 the Confederation, 281. 
 
 Arsenals, 129, 295. Reservation 
 respecting, 130. 
 
 Articles, of Confederation, 279. 
 Of the Constitution, 289. Of 
 Amendments to the Constitution, 
 303. Provisional,of Peace,sign¬ 
 ed at Paris, in 1782, 324. Of 
 the Definitive Treaty of Peace, 
 of 1783, 325. Of compact, be¬ 
 tween the original States and 
 the People and States in the 
 Territory northwest of the river 
 Ohio, 334. See Confederation. 
 
 Arts and sciences, promotion of 
 the, 118, 294. 
 
 Assemblies of the people, 264, 
 303. Claimed in the Declara¬ 
 tion of Rights, of 1774, 274. 
 
 Assemblies, Provincial, 17. Dis¬ 
 solution of, by English gover¬ 
 nors, 92, 272. 
 
 Attainder, effect of, in treason, 
 134, 135,239,301. Bills of, not 
 to be passed, 144 ; by Congress, 
 144, 295 ; nor by the States, 
 146, 150, 296. 
 
 Authors, copy-rights for, 11S, 294. 
 
 Ayes and noes,in Congress,92,292. 
 
 B. 
 
 Bail, excessive, unconstitutional, 
 238, 304. 
 
 Baltimore, Lord, 18. William 
 Penn versus, 201. 
 
 Bankruptcy, power of Congress 
 respecting, 114, 294. Impo- 
 tency of the States as to, 115. 
 
 Bills, power of the President to 
 approve and negative, 98, 293. 
 
 Bills for raising revenue and tax¬ 
 es, 96, 293. 
 
 Bills of attainder, not to be passed 
 by Congress, 144, 295 ; nor by 
 the States, 146, 150, 296. 
 
 Bills of credit, 146, 148. States 
 forbidden to emit, 146,147,296. 
 Meaning of, 147. Emission of, 
 under the Confederation, 2S6. 
 
 Bills of indictment, 231. 
 
INDEX. 
 
 353 
 
 Bills of Rights, of 1774, 24, 271. 
 Of States, 48, 256. Under the 
 Constitution, 255, 303 ; impor¬ 
 tance of considered, 256. 
 
 Blackstone, Sir William, on the 
 laity in England, 82. On ex¬ 
 culpation by witnesses, in capi¬ 
 tal cases, 235. On counsel for 
 accused persons, 236. On the 
 liberty of the press, 263. 
 
 Borrowing money, under the Con¬ 
 federation, 29, 287. Under the 
 Constitution, 107, 141, 294. 
 
 Boston Port Bill, 271. 
 
 Boundaries, between States, 200. 
 Of the United States, according 
 to the Definitive Treaty of 1783, 
 325. For States in the North¬ 
 western Territory, 336. 
 
 Bribery, impeachment for, 81, 
 83, 299. Persons liable to be 
 removed from office for, 178, 
 299. 
 
 C. 
 
 Cabinet,see Heads of Departments. 
 
 Canada, provision for the acces¬ 
 sion of, to the Confederation, 
 287. Boundaries between the 
 United States and, according to 
 the Treaty of 1783, 325. 
 
 Capital offences, and second trials 
 for, 230, 232, 304. 
 
 Capitation taxes, 103, 104, 295. 
 
 Captures, 120, 122, 294. Juris¬ 
 diction in cases of, 194.. 
 
 Cases, meaning of, in the sense of 
 the Constitution, 189,190. By 
 implication, 191. In equity, 
 192, 216, 305. See Equity. 
 
 Ceded places, power of Congress 
 over, 129, 295. Reservation 
 respecting, 130. 
 
 Censorship of the Press, 262. See 
 Press. 
 
 Census, provision for the, 56, 58, 
 290. Capitation or other direct 
 taxes according to the, 104, 295. 
 
 Cessions, see Ceded Places. 
 
 Charter granted by James I., 15. 
 
 Charter governments, in the Amer¬ 
 
 30 * 
 
 ican colonies, 18. Introduc¬ 
 tion of the common law into the, 
 20 . 
 
 Chief Justice shall preside at the 
 trial of the President, 76, 78, 
 291. 
 
 Chisholm versus Georgia, 202. 
 
 Church and State, alliance be¬ 
 tween, cut off, 253, 259, 303. 
 
 Cicero condemned torture, 233. 
 
 Circuitous voyages, 105. 
 
 Citizens, privileges and immunities 
 of, in each State, 242, 301. See 
 Controversies, and Judiciary. 
 
 Citizenship, of Representatives, 
 54, 55, 73, 290. Of Senators, 
 73, 291. Of the President and 
 Vice-President, 167, 297. See 
 Naturalization. 
 
 Civil obligation of contracts, on 
 impairing the, 154. 
 
 Civil officers, meaning of, under 
 the Constitution, 81. 
 
 Clearances at custom houses, 105, 
 
 295. 
 
 Coinage of money, under the Con¬ 
 federation, 30, 285. Power of 
 Congress respecting, 116, 294. 
 Counterfeiting, 116, 294. For¬ 
 bidden to the States, 146, 147, 
 
 296. 
 
 Coke, Sir Edward, on the law of 
 the land, 233. On witnesses in 
 behalf of accused persons, 235. 
 
 Colonial governments, 17. 
 
 Colonies, see American Colonies. 
 
 Colonists, sent to England for 
 trial, 271. 
 
 Columbia, District of, 129, 295. 
 
 Combination among the States, 
 156, 245. See Alliances. 
 
 Commerce, crippled, under the 
 Confederation, 31. Foreign im¬ 
 positions respecting, 32, 108. 
 Power of Congress to regulate, 
 108, 109, 141, 294. State of, 
 at the adoption of the Constitu¬ 
 tion, 108. Meaning of the words 
 “ to regulate commerce,” 110. 
 See Duties, Taxes, and Trade. 
 
 Commissioners, appointed by Ma- 
 
354 
 
 INDEX. 
 
 ryland and Virginia, meet at 
 Alexandria, 33. Meeting of, at 
 Annapolis, 33. 
 
 Commissions from the President, 
 176, 178, 299. See Appoint¬ 
 ments. 
 
 Committee of the States, under the 
 Confederation, 285. 
 
 Common defence, provision for, 
 42, 101, 141, 289, 293. 
 
 Common law, of England, intro¬ 
 duced into the Colonies, 20. 
 Conservative principle in the, 
 20. Its effects in the Colonies, 
 22. Cases at, under the Consti¬ 
 tution,189. See Law ,and Laws. 
 
 Common socage, 16. 
 
 Compacts, see Alliances. 
 
 Compensation, of members of Con¬ 
 gress, 93, 292. Of the Presi¬ 
 dent, 168, 298. Of the judges 
 ofthe Supreme Court, 181, 185, 
 300. For private property taken 
 for public use, 233, 304. 
 
 Confederation, history of the, 28. 
 Delays and objections to the, 
 28. Final adoption of the, 28. 
 Defects in the, 29. Powers and 
 weakness of the, 29. Gave to 
 Congress no coercive authority, 
 30 ; nor penal sanction to then- 
 enactments, 30 ; nor power to 
 lay taxes, or to collect revenue, 
 30, 102 ; nor to regulate com¬ 
 merce, 31. Prospective termi¬ 
 nation of the, 33. Convention 
 for revision of the Articles of, 
 34. Legislative power under the, 
 49. Voting in Congress under 
 the, 56, 68, 281. State of com¬ 
 merce under the, 108. Impoten- 
 cy of the, as to armies, 122. 
 Restricted the authority of Con¬ 
 gress to powers expressly grant¬ 
 ed, 132, 279. Want of an execu¬ 
 tive department in the, 159 ; of 
 judicial power, 180. Authority 
 under the, to determine differ¬ 
 ences between States, 200, 283. 
 Disregard of treaty stipulations 
 under the, 250. Articles of, 
 
 279. See Congress, Continental. 
 
 Confederation among States, un¬ 
 constitutional, 146, 296. See 
 Alliances. 
 
 Confessions, as evidence, 241. 
 
 Confiscation, in punishment for 
 treason, unconstitutional, 134, 
 135, 239, 301. In the States, 
 during the Revolution, 150. 
 Articles respecting, in the treaty 
 of peace, of 1783, 327, 328. 
 
 Congress, Continental, first and 
 second meetings of the, 24, 26. 
 Declaration of Rights of the, in 
 1774,24,271. Voting in, 26, 
 68, 281. Organization of the, 
 27. Its powers and its weak¬ 
 ness, 27, 29, 30. Articles 
 of Confederation by the, 28, 
 
 279. Had no coercive author¬ 
 ity, 30 ; nor penal sanctions 
 for its enactments, 30. Could 
 not lay taxes or collect revenue, 
 for the public service, 30 ; nor 
 regulate commerce, 31. Report 
 laid before the, for a General 
 Convention, 33. Calls a Con¬ 
 vention for revision of the Arti¬ 
 cles of Confederation, 34. Puts 
 into operation the Federal Con¬ 
 stitution, 34. Adjournment of, 
 to Princeton, 129. Compelled 
 to violate the Confederation, in 
 order to preserve it, 132. Re¬ 
 presentation of the States in the, 
 
 280. Freedom of speech and 
 debate in the, 281. Sole and 
 exclusive rights and powers of 
 the, 283. See Confederation. 
 
 Congress, the first under the Con¬ 
 stitution, 34. Divided into two 
 branches, 49,289. Impeachment 
 by, 62, 63, 76, 78, 85, 290, 
 291, 299. Elections for, 89, 90, 
 291, 292. Meetings of, 90, 291. 
 Powers and privileges of both 
 Houses of, 90, 292. Judgement 
 of elections by, 90, 91, 292. 
 Quorum of, 90, 91,292. Absent 
 members compelled to attend, 
 90,91,292. Rules of, 91. Pun- 
 
INDEX. 
 
 355 
 
 ishment and expulsion of mem¬ 
 bers of, 91, 292. Journals of, 
 to be kept, 92, 292. Yeas and 
 nays of, 92, 292. Adjournment 
 of, 92, 292. Contempts of, 93. 
 Compensation of members of, 
 
 93, 292. Their privilege from ar¬ 
 rest, 93, 292. Liberty of speech 
 and debate in, 93, 94, 292. 
 Disqualifications of members of, 
 
 94, 161, 162, 292, 297. Mode 
 of passing laws in, 96, 293. 
 Power of the President to neg¬ 
 ative the laws of, 98-100, 293. 
 Power of, to lay and collect tax¬ 
 es, 101,103,141,293. May bor¬ 
 row money, 107,141, 294. May 
 regulate commerce, 108, 109, 
 141, 294 ; inquiries respecting 
 this power, 109. On trade with 
 Indian tribes, 108,109,113,294. 
 Power of, respecting naturaliza¬ 
 tion, 114, 294 ; bankruptcies, 
 114, 294 ; to coin money, regu¬ 
 late the value thereof, and fix the 
 standard of weights and meas¬ 
 ures, 116, 294 ; as to counter¬ 
 feiting, 116, 294 ; post offices 
 and post roads, 117, 294; pa¬ 
 tents and copy-rights, 118, 294 ; 
 to constitute tribunals inferior to 
 the Supreme Court, 119, 181, 
 218, 294, 299 ; to define, and 
 punish piracies and felonies, 
 committed on the high seas, and 
 offences against the law of na¬ 
 tions, 119, 294; to declare war, 
 120, 141, 294 ; grant letters of 
 marque and reprisal, 120, 121, 
 294 ; to make rules concerning 
 captures, 120, 122, 294 ; to 
 raise and support armies, 122, 
 123, 141, 294 ; to provide and 
 maintain a navy, 124, 141, 294; 
 to make rules for land and na¬ 
 val forces, 124, 294; to provide 
 for calling forth the militia, 125, 
 127, 294 ; for organizing and 
 disciplining the militia, 126, 
 294. Power of, over the Seat of 
 the Government, 128, 129, 295; 
 
 over ceded places for forts, mag¬ 
 azines, arsenals, dock-yards, 
 and other needful buildings, 
 128, 129, 295 ; to make all nec¬ 
 essary and proper laws for car¬ 
 rying their powers into effect, 
 131,295. Implied and inciden¬ 
 tal powers of, 131, 133, 141, 
 191. Power of, respecting trea¬ 
 son, 134, 239, 301 ; respecting 
 the faith and credit to be given 
 in each State to the public acts, 
 records, and judicial proceedings 
 of every other State,135,301; as 
 to the admission of New States, 
 137, 140, 301, 336; respecting 
 the territory, or other property,of 
 the United States,138,301. Pro¬ 
 hibitions on the powers of, 141, 
 266, 305 ; respecting the slave- 
 trade, 142, 295 ; respecting the 
 writ of habeas corpus, 143, 295; 
 respecting bills of attainder, and 
 ex post facto laws, 144, 239, 
 295 ; respecting appropriations 
 before drawing money from the 
 treasury, 144, 295 ; as to creat¬ 
 ing titles of nobility, 145, 296. 
 Power of, respecting Electors, 
 166, 297. Provision by, for va¬ 
 cancy of the Presidency and 
 Vice-Presidency, 168, 298 ; for 
 appointment of inferior officers, 
 172, 174, 299. The President 
 to give information to, and re¬ 
 commend measures, 176, 299. 
 Power of the President to con¬ 
 vene and adjourn, 176, 299. 
 Authority given by,-to the post¬ 
 master-general, to bring suits, 
 205. Restriction by, on appel¬ 
 late jurisdiction, 212-224, 226, 
 227, 300, 304. Power of, as to 
 designating places for trials, 228, 
 300 ; respecting amendments to 
 the Constitution, 246, 302. 
 
 Duty of courts, respecting un¬ 
 constitutional laws passed by, 
 251. Oaths to be taken by 
 members of, 251, 303. No 
 religious test required, 252, 253, 
 
356 
 
 INDEX. 
 
 303. Amendments to the Con¬ 
 stitution, adopted by, 254, 303. 
 Shall make no law respecting 
 an establishment of religion, or 
 prohibiting the free exercise 
 thereof, 255, 259, 303 ; or 
 abridging the freedom of speech, 
 or of the press, 255, 259, 261, 
 303 ; or the rights of the peo¬ 
 ple peaceably to assemble, and 
 to petition the government for a 
 redress of grievances, 255, 259, 
 264, 303. Recommendations 
 required to be made by the, ac¬ 
 cording to the treaty of 1783, 
 327, 328. See Commerce, Con¬ 
 gress, Continental, Impeach¬ 
 ments, Judiciary, Representa¬ 
 tives, Senators, and States. 
 
 Connecticut, settled, 16. Charter 
 government of, 19. Adopts the 
 Constitution, 35. 
 
 Conscience, rights of, 252, 253, 
 255, 259, 303. 
 
 Constitution of the United States 
 of America, 33, 289. Origin of 
 the, 33. Adoption of the, 34, 35, 
 303. Remarks on the framers of 
 the, 35, 247. Exposition of the, 
 36. Formed by the people, and 
 not by the States, 36. Remarks 
 on the interpretation of the, 36. 
 Final interpreter of the, 37. The 
 Preamble of the, and its exposi¬ 
 tion,37,289. Distribution of pow¬ 
 ers by the, 46, 289. Separation 
 of the legislative, the executive, 
 and the judicial, departments by 
 the, 47, 49. On the House of 
 Representatives, 49, 50, 2S9. 
 On the Senate and Senators, 49, 
 64, 67, 290. On impeachments, 
 62,63,76,291,298, 299. On 
 elections and meetings of Con¬ 
 gress, 89, 291. On the powers 
 and privileges of both Houses, 
 90, 292. On the mode of pas¬ 
 sing laws, 96, 293. On tax¬ 
 ation, 101, 141, 293. On 
 
 borrowing money, 107, 294. 
 On regulating commerce, 108, 
 
 109, 294. On trade with Indian 
 tribes, 108, 113, 294. On nat¬ 
 uralization , 114, 294. On bank¬ 
 ruptcy, 114, 294. On coinage 
 of money, 115, 294. On post- 
 offices, and post roads, 117, 294. 
 On patents and copy-rights, 118, 
 294. On the punishment of 
 piracies and felonies, 119, 294. 
 On the declaration of war, 120, 
 141, 294. On the army, 122, 
 294. On the navy, 124, 294. 
 As to militia, 125, 294. On the 
 Seat of the Government, and oth¬ 
 er ceded places, 128, 295. Gen¬ 
 eral power of Congress under 
 the, to make necessary and prop¬ 
 er laws,131,295. Onthe punish¬ 
 ment of treason, 134, 239, 301. 
 On State Records, 135, 301. 
 On the admission of New States, 
 137, 301. On the government 
 of Territories, 138, 301. Pro¬ 
 hibitions on the United States 
 by the, 142, 305 ; on the States 
 by the, 146, 296. On the struc¬ 
 ture, organization, and powers, 
 of the Executive department, 
 158, 296. On the powers and 
 duties of the President, 170, 298. 
 On the Judicial department, 
 179, 299. On the powers and 
 jurisdiction of the Judiciary, 
 186, 300, 304, 305. On trial 
 by jury, 228, 300. Definition 
 of treason by the, 239, 300. On 
 the privileges of citizens, 242, 
 301. On fugitive criminals and 
 slaves, 242, 243, 301. Guaran¬ 
 tee of republican government by 
 the, to the States, 244, 302. 
 Mode of making amendments to 
 the, 246, 302. Considered as 
 an experiment, 247, 267. On 
 public debt, 248, 302. Supre¬ 
 macy of Laws, treaties, and the, 
 249,302. On oath of office,251, 
 298, 303. On religious tests, 
 252, 253, 303. Ratification of 
 the, 254, 303. Amendments to 
 the, 254, 303. Regarded as a 
 
INDEX. 
 
 357 
 
 Bill of Rights, 255, 259, 303. 
 Powers not delegated to the 
 United States by the, 266, 305. 
 Concluding remarks on the, 267. 
 Disturbing causes of the, 269. 
 See Congress, Impeachment, 
 Judiciary, President, Represen¬ 
 tatives, Senate, Senators, and 
 States. 
 
 Constitutional questions, impor 
 tance of independence in the 
 Judiciary as to, 184. Jurisdic¬ 
 tion in, 186, 188, 190, 300. 
 
 Constructive treasons, 240. 
 
 Consuls, appointment of, 172, 173, 
 
 299. Suits by and against, 186, 
 193, 213, 223, 300. 
 
 Contempts of Congress, 93. 
 
 Continental Congress, see Con¬ 
 gress, Continental. 
 
 Contracts, laws impairing the obli¬ 
 gation of, prohibited, 146, 150, 
 248, 296, 302. Remarks on, 
 150. Express and implied, 151. 
 The obligation of, 152. What 
 impairs, 154. Insolvent laws 
 by States respecting, 155. 
 
 Controversies, judicial power in, 
 where the United States is a 
 party, 186, 187, 199, 300. Be¬ 
 tween two or more States, 186, 
 187, 199, 200, 221,300. Be¬ 
 tween a State and citizens of an¬ 
 other State, 186, 187, 199, 201, 
 
 300. Between citizens of differ¬ 
 ent States, 186, 187, 205, 221, 
 300 ; of the same State, claiming 
 lands under grants of different 
 States, 186, 187, 209, 221, 300. 
 Between a State, or the citizens 
 thereof, and foreign States, citi¬ 
 zens, or subjects, 186, 187, 210, 
 211, 221, 300. 
 
 Conventions, at Alexandria and 
 Annapolis, 33. At Philadel¬ 
 phia, for forming the Consti¬ 
 tution, 34. For amendments to 
 the Constitution, 246, 302. 
 
 Ratifications of, 254, 303. 
 
 Conviction, in cases of impeach¬ 
 ment, 76, 79, 88, 291. Testi¬ 
 
 mony necessary to, 76, 291 ; in 
 treason, 241, 300. 
 
 Copy-rights, 118, 294. 
 
 Corporations, non-identification of 
 States with, 204. Not, consti¬ 
 tutionally, citizens, 208. For¬ 
 eign, may sue in the courts ofthe 
 Union, 211. 
 
 Corruption of blood, in treason, 
 134, 135, 301. 
 
 Council, The, under the Provincial 
 Governments, 17, 274. 
 
 Counsel for accused persons, 236, 
 304. See Accused. 
 
 Counterfeiting securities and mon¬ 
 ey, 116, 294. 
 
 Country, trial by the, 228. See 
 J ury. 
 
 Credit, States cannot emit bills of, 
 146, 147, 296. Meaning of 
 bills of, 147. Emission of bills 
 of, in the Revolution, and un¬ 
 der the Confederation, 148, 
 2S6. Washington on public, 
 317. See Debts. 
 
 Crimes, impeachable, 81, 83, 88, 
 299. Committed upon the high 
 seas, 119, 198, 294. Mode and 
 place of trying, 228, 229, 300, 
 304. Second trials for, 230, 
 
 232, 304. See High Seas, Im¬ 
 peachment, and Offences. 
 
 Criminals,on delivering up fugitive, 
 140, 242, 301, 337. Trial of, 
 228, 229, 300, 304. Not bound 
 to accuse themselves, 230, 233, 
 304. Not to be twice tried, 230, 
 
 233, 304. Delivering up fugi¬ 
 tive, under the Confederation, 
 280. 
 
 Crown, see King. 
 
 Currency, of the country, 116, 
 294. Paper, 148. See Money. 
 
 Custom-house entries and clear¬ 
 ances, 105, 295. 
 
 Customs, use of the word, 103. 
 
 D. 
 
 Dane, Nathan, ordinance by, for 
 the government of the Terri¬ 
 tory of the United States north- 
 
358 
 
 INDEX. 
 
 west of the river Ohio, 139, 
 329. 
 
 Debate, liberty of, in Congress, 
 93, 94, 292. In the Continen¬ 
 tal Congress, 281. 
 
 Debts, public, under the Confed¬ 
 eration, 32. To foreigners, un¬ 
 paid, 41. Prohibitions on the 
 States respecting, 146,149, 296. 
 Tender in payment of, 146, 
 149, 296. State, at the adop¬ 
 tion of the Constitution, 216. 
 Contracted before the adoption 
 of the Constitution, valid after¬ 
 ward, 248, 302. Washington 
 on the public, 317. 
 
 Decimal mode of calculation, 116. 
 
 Declaration of Independence, 12, 
 24, 27, 275. 
 
 Declaration of Rights, in 1774, 
 24, 271. 
 
 Declaration of war, 120,141, 294. 
 
 Defence, the common, provision 
 for, 42, 101, 141, 289, 293. 
 
 Definitive Treaty of peace, be¬ 
 tween the United States of 
 America and his Britannic Maj¬ 
 esty, 324. See Peace. 
 
 Delaware, settlement of, 12, 16. 
 Proprietary government of, 18. 
 Adopts the Constitution, 35. 
 
 Delegates, to the Continental Con¬ 
 gress, 26, 272, 280. For re¬ 
 vising the Articles of the Con¬ 
 federation, 34. The choice of, 
 and representation by, in the 
 Continental Congress, 280. 
 
 Democratic governments, features 
 of, 47. 
 
 Departments, see Heads of the 
 Departments. 
 
 Despotic governments, features 
 of, 46. 
 
 Direct taxes, apportionment of, 
 56-60, 97, 104, 290. Power 
 of Congress to lay and collect, 
 103, 295. Meaning of, 103. 
 
 Discovery, title founded upon the 
 right of, 13. Effect of, upon 
 the Indian title, 14. 
 
 Disqualifications of members of 
 
 Congress, 94, 161, 162, 292, 
 297. 
 
 Distribution of powers, in govern¬ 
 ments, 46. 
 
 District of Columbia, 129, 295. 
 
 Division, of legislative, executive, 
 and judicial, powers, 47. Of 
 legislative powers, 49, 289. 
 
 Dock-yards, 129, 295. Reserva¬ 
 tions respecting, 130. 
 
 Domestic insurrections, suppres¬ 
 sions of, 244, 302. 
 
 Domestic manufactures, encour¬ 
 agement of, 113. 
 
 Domestic tranquillity, on insuring, 
 42, 289. 
 
 Dutch, early settlements by the, 
 in New York and Delaware, 12. 
 
 Duties, evils of want of uniformi¬ 
 ty in, among the States, 44. 
 Power of Congress to lay and 
 collect, 101, 293. Use of the 
 word, 103. Uniformity in, re¬ 
 quired, 104, 294. On imports, 
 
 105, 296. Not to be laid on 
 exports, 105, 295, 296. By 
 the States, unconstitutional, 
 
 106, 156, 296. 
 
 E. 
 
 East Greenwich, manor of, held 
 in free and common socage, 16. 
 
 Education, Washington on institu¬ 
 tions for, 317. 
 
 Elections for Congress, 89, 90, 
 
 291, 292. Judges of, 90, 91, 
 
 292. 
 
 Electors of President and Vice- 
 President, choice of, 161, 297. 
 Their mode of electing, 162, 
 163, 297, 305. Vote by ballot, 
 163, 165, 297,305. Time of 
 choosing, 166, 297. Time of 
 their voting, 166, 297. 
 
 Electors of Representatives, quali¬ 
 fications for, 50, 51, 289. 
 
 Emigrants, 142, 295. See Natur¬ 
 alization. 
 
 Emission of bills of credit, by the 
 States, unconstitutional, 146, 
 147, 296. 
 
INDEX. 
 
 359 
 
 Emit, meaning of, 148. 
 
 England, see Peace. 
 
 Enlistments in the Revolution, 
 
 122 . 
 
 Equity, cases of law and, 186, 
 189, 192, 216, 300. 
 
 Establishments of religion, uncon¬ 
 stitutional, 255, 259, 303. 
 
 Europeans, claim of, to the soil of 
 America, 13. 
 
 Ex post facto laws, prohibition 
 of, by the Union, 144, 295 ; by 
 the States, 146, 150, 296. 
 
 Excises, power of Congress to lay 
 and collect, 101, 293. Use of 
 the word, 103. Uniformity in, 
 required, 104, 294. 
 
 Executed and executory contracts, 
 151. 
 
 Execution of the laws, the Presi¬ 
 dent to take care as to the, 
 177, 299. 
 
 Executive department, structure, 
 organization, and powers of the, 
 158 ; the President, 159, 296. 
 Three practical questions re¬ 
 specting the, considered, 159. 
 Unity in the, 159. See Presi¬ 
 dent. 
 
 Expenditures of public money, ac¬ 
 count of, to be published, 144, 
 145, 296. 
 
 Exports, no duties on, 105, 295. 
 Duties on, by the States, 106, 
 296. 
 
 Express contracts, 151. 
 
 Expulsion from Congress, 91, 292. 
 
 F. 
 
 Fact, jurisdiction of the Supreme 
 Court as to the law and, 224, 
 226, 300, 304. 
 
 Faith and credit to be given to the 
 acts, records, and judicial pro¬ 
 ceedings of the States, 135, 242, 
 301. 
 
 Farewell Address of Washington, 
 306. 
 
 Federal Constitution, see Consti¬ 
 tution. 
 
 Felonies, 119, 242, 294, 301. 
 
 Fines, excessive, not to be impoa- 
 ed, 238, 304. 
 
 First Colony, under the charter 
 of James I., 15. 
 
 Fisheries, privileges as to, accord¬ 
 ing to the treaty of 17S3, 327. 
 
 Florida, acquisition of, 138. 
 
 Foreign alliances, Washington on, 
 321. See Alliances. 
 
 Foreign commerce, regulation of, 
 108, 109, 141, 294. See Com¬ 
 merce. 
 
 Foreign corporations, see Corpora¬ 
 tions. 
 
 Foreign debts, non-payment of, 41. 
 See Debts. 
 
 Foreign influence, Washington on, 
 319. 
 
 Foreign judgements, proof of, 135. 
 
 Foreign ministers, to be received 
 by the President, 176, 299. 
 Jurisdiction of the Judiciary 
 over, 186, 192, 213, 221, 223, 
 300. 
 
 Foreign powers, resistance to, by 
 individual States, 43. The faith 
 to be given to the acts, records 
 and judicial proceedings of, 135. 
 Presents and favors from, pro¬ 
 hibited, 145, 296. Controversies 
 with, 210, 300. Cannot be 
 compelled to become parties, 
 211 . 
 
 Foreigners, justice towards, 40. 
 Jurisdiction in cases affecting, 
 196. See Aliens. 
 
 Forfeiture, see Confiscation. 
 
 Forgeries, 116, 294. 
 
 Forts, 129, 295. Reservation re¬ 
 specting, 130. 
 
 France, peace between Great Brit¬ 
 ain and, 324. 
 
 Franklin, Benjamin, various offices 
 held by, 325. Minister Plenipo¬ 
 tentiary for concluding and sign¬ 
 ing the Definitive Treaty of 
 Peace,between the United States 
 of America and his Britannic 
 Majesty, in 1783, 325, 329. 
 
 Freedom of the press, 255, 261, 
 303. 
 
360 
 
 INDEX. 
 
 Freedom of speech, see Liberty. 
 
 Freedom, religious, 139, 252, 253, 
 255, 259, 303, 334. 
 
 Fugitive criminals and slaves, on 
 delivering up, 140, 242, 301, 
 337. Under the Confedera¬ 
 tion, 280. 
 
 G. 
 
 General welfare, on promoting the, 
 44, 102, 289, 294. 
 
 George III., injuries and usurpa¬ 
 tions by, 276. Definitive Trea¬ 
 ty of Peace between the United 
 States of America and, 324. 
 Peace between France and, 
 324. See King. 
 
 Georgia, settled, 16. Government 
 of, at the commencement of the 
 Revolution, 18. Adopts the 
 Constitution, 35. Chisholm ver¬ 
 sus, 202. 
 
 Germany, war3 in, previous to the 
 institution of the Imperial cham¬ 
 ber, 200. 
 
 Glossary, 339. 
 
 Gold, to be legal tender in pay¬ 
 ment of debts, 146, 149, 296. 
 
 Governments, the Colonial, 17. 
 Provincial, 17. Proprietary, 17, 
 18. Charter, 17, 18. The 
 Revolutionary, 26. The three 
 great powers of, 46. Of the 
 Territory northwest of the Ohio, 
 139,329. Republican, guaran¬ 
 tied to the States, 244,245,302. 
 Rights of, as to religious inter¬ 
 ference, 260. Difficulty of fix¬ 
 ing principles for, 268.' Re¬ 
 marks on, in the Declaration of 
 Independence, 275. 
 
 Governors, under Provincial gov¬ 
 ernments, 17. Under proprie¬ 
 tary governments, 18. Under 
 charter governments, 19. Ap¬ 
 proval of Speakers by, 62. 
 Prorogued and dissolved Assem¬ 
 blies, 92, 272. Powers and 
 privileges of, according to the 
 Ordinance for the government 
 of the Territory northwest of 
 the Ohio, 139, 331. 
 
 Grand Bank, the privilege to take 
 fish on the, according to the 
 treaty of 1783, 327. 
 
 Grand Jury, 231. See Jury. 
 
 Grants, 151, 152. 
 
 Great Britain, see Peace. 
 
 Guarantee of a republican form of 
 government to the States, 244, 
 245, 302. 
 
 H. 
 
 Habeas corpus writ, provision for 
 the right to the, in the North¬ 
 western Territory, 139, 324. 
 Privilege of, and suspension of 
 it, 143, 295. Meaning of the, 
 143. On the exercise of au¬ 
 thority respecting, 224. 
 
 Hardwicke, Lord, on appellate ju¬ 
 risdiction, 201. 
 
 Hartley, David, British minister 
 plenipotentiary for signing the 
 Definitive Treaty of Peace, be¬ 
 tween the United States of 
 America and his Britannic Ma¬ 
 jesty, in 1783, 324, 329. 
 
 Heads of the Departments, restric¬ 
 tions respecting the, 94, 95, 292. 
 President may require the opin¬ 
 ions of the, 170, 171, 298. 
 Appointments by the, 172, 174, 
 299 
 
 Henry III., 20. 
 
 High seas, definition of, 119. Pun¬ 
 ishments of crimes upon the, 
 119,294. Jurisdiction in cases 
 of crimes committed upon the, 
 187, 196,198, 300. See Crimes. 
 
 History, of the American Colonies, 
 11. Of the Confederation, 28. 
 
 House of Commons, election of 
 Speaker by the, 62. Impeach¬ 
 ment by the, 63. Money bills 
 originate in the, 97. On the 
 right to witnesses, by accused 
 persons, 235. 
 
 House of Lords, a court, 63. Re¬ 
 strictions on the, as to money 
 bills, 97. 
 
 House of Representatives, in the 
 colonies, 17, 19. See Represen¬ 
 tatives. 
 
INDEX. 
 
 361 
 
 I. 
 
 Ignored bills, 232. 
 
 Impairing contracts, laws for, un¬ 
 constitutional, 146, 150, 248, 
 296, 302. Meaning of, 154. 
 See Contracts. 
 
 Impeachment, by the House of 
 Representatives, 62, 63, 85, 
 87, 290. Trial of, before the 
 Senate, 76, 85, 291. Of the 
 President of the United States, 
 76,78,83,291. Requirements 
 necessary for conviction, 76, 79, 
 291. Mode of trial in, 78, 291. 
 The judgement to be rendered 
 in cases of, 79, 88, 291. Per¬ 
 sons liable to, 81, 83, 178, 299. 
 Extent of the power of, 81,299. 
 Offences for, 81, 83, 88, 299. 
 Summary statement of the pro¬ 
 ceedings respecting, 85. No 
 pardon upon conviction of, 88, 
 170, 172, 298. 
 
 Implication, cases arising by,191. 
 
 Implied contracts, 151. 
 
 Implied powers of Congress, 131, 
 133, 141, 191. 
 
 Implied prohibitions on the States, 
 157. 
 
 Importation and migration of 
 slaves, 142, 295. 
 
 Imports, on duties on, 105, 296. 
 See Duties. 
 
 Imposts, power of Congress to 
 lay, and collect, 101, 293. Use 
 of the word, 103. Uniformity 
 in, required, 104, 294. 
 
 In capite, 16. 
 
 Incidental powers, of Congress, 
 131, 141, 191. Of the Presi¬ 
 dent of the United States, 
 178. 
 
 Independence, declared, 12, 24, 
 27, 275. Admitted by Great 
 Britain, 24, 325. 
 
 Indians, title of the, to the soil, 12. 
 Rights and privileges retained 
 by the, 14. Power of Congress' 
 to regulate commerce with the, 
 108, 109, 294. Trade with, 
 113. Good faith to be observed 
 
 31 
 
 towards, in the Northwestern 
 Territory, 335. 
 
 Indictments, 230, 231, 232, 304. 
 
 Indirect taxes, meaning of, 103. 
 
 Inferior courts, establishment of, 
 119, 181, 218, 294, 299. 
 
 Influence, foreign, Washington 
 on, 319. 
 
 Inhabitancy, of Representatives, 
 54, 55, 74, 290. Of Senators, 
 73,291. Of the President and 
 Vice-President, 167, 298. 
 
 Innocent persons, punished, 135. 
 
 Innovations in the government, 
 Washington on, 314. See 
 Amendments. 
 
 Insolvent laws, power of Congress 
 respecting, 114, 294. By the 
 States, 155. 
 
 Inspection laws, provision as to, 
 106, 296. 
 
 Institutions, Washington on liter¬ 
 ary, 317. 
 
 Insurrections, suppression of do¬ 
 mestic, 244, 302. 
 
 Invasion, protection against, 244, 
 302. 
 
 Inventions, patents for, 118, 294. 
 J. 
 
 James I., charter granted by, 15. 
 
 Jay, John, various offices held 
 by, 325. Minister Plenipoten¬ 
 tiary for concluding and signing 
 the Definitive Treaty of Peace, 
 between the United States of 
 America and his Britannic Ma¬ 
 jesty, in 1783, 325, 329. 
 
 Jeopardy of life and limb, 230, 
 232, 304. 
 
 John, King of England, Magna 
 Charta wrung from, 20. 
 
 Journals of Congress to be kept, 
 92, 292. 
 
 Judgement to be rendered in cases 
 of impeachment, 79, 88, 291. 
 Not pardonable by the Presi¬ 
 dent, 88, 170, 172, 298. See 
 Impeachment. 
 
 Judgements, foreign, proof of,135. 
 
 Judges, appointment and tenure 
 
 XIII. 
 
362 
 
 INDEX 
 
 of office of, 174, 181, 182, 
 299, 300. Compensation of, 
 
 185, 300. Impeachable, 185. 
 Tenure of office of, in different 
 States, 206. Functions of the 
 National, 228. In the Territory 
 northwest of the river Ohio,331. 
 
 Judicial power of the Senate, 76, 
 291. 
 
 Judiciary, under the Constitution, 
 48, 289. Appointments of 
 
 judges, and tenure of office in 
 the, 174, 181, 182, 299, 300. 
 Indispensableness of the, 179, 
 180. Montesquieu on the, 180. 
 Two ends of government to be 
 attained by the, 181. Estab¬ 
 lishments of courts, 181, 299. 
 Provision for the independence 
 of the, 182, 183, 300. Ju¬ 
 risdiction of the, 186; in cases 
 arising under the Constitution, 
 
 186, 188, 190, 221, 223, 300 ; 
 under the laws of the United 
 States, 186, 1S8, 190, 216, 221, 
 223, 300 ; under treaties, 186, 
 189, 190, 216, 221, 223, 300 ; 
 incases of law and equity, 186, 
 189, 192, 216, 300, 305 ; in 
 cases affecting ambassadors, and 
 other public ministers, 186, 
 192, 213, 221,223, 300 ; con¬ 
 suls, 186, 193, 213, 223, 300 ; 
 of admiralty and maritime juris¬ 
 diction, 186, 187, 194, 196, 
 221, 223, 300 ; of captures, 
 
 187, 194, ; of crimes upon the 
 high seas, 186, 187, 196, 198, 
 300 ; of controversies, to which 
 the United States is a party, 
 186, 187, 199, 223, 300 ; of 
 controversies between States, 
 
 186, 187, 199, 200, 221, 300 ; 
 between a State and citizens of 
 another State, 186, 187, 199, 
 
 201, 223, 300 ; in suits brought 
 by and against a State, 186, 
 
 202, 217, 305. Jurisdiction of 
 the, in controversies between 
 citizens of different States, 186, 
 
 187, 205, 221, 300 ; of the 
 same State claiming grants of 
 
 different States, 186, 187, 209, 
 221, 300 ; between a State, or 
 the citizens thereof, and foreign 
 States, citizens or subjects, 186, 
 187, 210, 211, 221, 223, 300. 
 The mode of exercising juris¬ 
 diction by the, 212,300. De¬ 
 tails respecting the original and 
 appellate jurisdiction of the, 212 
 —227. Bound by the Constitu¬ 
 tion, laws, and treaties, 219, 
 302. Object of the, 222. Ex¬ 
 clusive powers of the, 223. 
 Non-interference of, with State 
 courts, 224. Jurisdiction of the, 
 both as to law and fact, 224, 
 226, 300, 304. 
 
 Jurisdiction, see Appellate, Judic¬ 
 iary, and Original. 
 
 Jury, trial by, and its incidents, 
 
 228, 300, 304. Object of it, 
 
 229. Grand, 231. 
 
 Justice, establishment of, 40, 289. 
 Administration of, 40. Evils 
 requiring, 41. National, en¬ 
 joined by Washington, 318. See 
 Judiciary. 
 
 K. 
 
 King, authority of the, in the Pro¬ 
 vincial governments, 17-21. 
 Rights and prerogatives of the, 
 23. Approbation of the Speaker 
 of the House of Commons by 
 the, 62. May prorogue Parlia¬ 
 ment, 92. Negatived laws pro¬ 
 hibiting the slave trade, 143. 
 Jurisdiction of the, in controver¬ 
 sies between Colonies, 200. 
 See George III. 
 
 Knowledge, importance of, in 
 Members of Congress, 52. 
 Washington, on institutions for, 
 317. 
 
 L. 
 
 Laity in England, 82. 
 
 Lands, under the Articles of Con¬ 
 federation, 29. Ceded to the 
 government, 128, 295. Juris¬ 
 diction in certain controversies 
 respecting, 209. 
 
INDEX. 
 
 363 
 
 Law and equity, cases of, 186, 
 189, 192, 216, 300. 
 
 Law and fact, jurisdiction of the 
 Supreme Court as to, 224, 226, 
 300, 304. 
 
 Law of the land, 233. 
 
 Law of nations, offences against, 
 
 119, 294. 
 
 Laws, for new countries, 21. 
 Inefficacy of, under the Con¬ 
 federation, 30. Mode of pas¬ 
 sing, in Congress, 96, 293. 
 Power of Congress to make nec¬ 
 essary and proper, 131, 295. 
 Expost facto, by Congress, 144, 
 295 ; by the States, 146, 150, 
 296. Impairing the obligation 
 of contracts, 146, 150, 248, 
 296, 302. Uniformity in inter¬ 
 preting, 181. Duty of the Pres¬ 
 ident respecting the faithful ex¬ 
 ecution of the, 177, 299. Ju¬ 
 risdiction in cases under the 
 United States’, 186, 188, 190, 
 216, 221, 223, 300. Suprema¬ 
 cy of the Constitution, treaties, 
 and, 249, 302. Washington, 
 on oppositions to the, 313. See 
 Common, Congress, and Ju¬ 
 diciary. 
 
 Legal tender in payment of debts, 
 146, 149, 296. 
 
 Legislation in ceded places, 129, 
 130, 295. 
 
 Legislative powers under the colo¬ 
 nial governments, 17—19. Un¬ 
 der the Confederation and Con¬ 
 stitution, 47, 49, 289. Advan¬ 
 tages of the division of, in Con¬ 
 gress, 49. 
 
 Legislature, see Congress, Repre¬ 
 sentatives, and Senate. 
 
 Letters of marque and reprisal, 
 
 120, 121, 294. By the States, 
 unconstitutional, 146, 296. 
 
 Levies for the Revolutionary ar¬ 
 my, 122. 
 
 Liberty, on securing the blessings 
 of, 45, 289. Of speech and de¬ 
 bate in Congress, 93, 94, 292. 
 Religious, 252, 253, 255, 259, 
 
 303. Of speech, 255, 261, 303. 
 Of the press, 255, 261, 303 ; 
 restricted in foreign countries, 
 262 ; loose reasoning on it, 263. 
 Of speech and debate, under the 
 Confederation, 281. 
 
 Licensing the press, 263. 
 
 Licentiousness of the press, 264. 
 
 Life or limb, second trials for, 230, 
 232, 304. 
 
 Literary institutions, Washington 
 on, 317. 
 
 Loyalists, articles respecting, in 
 the treaty of 1783, 327. 
 
 Louisiana, acquisition of, 108, 
 138. 
 
 M. 
 
 Mably, Abbe, on neighboring 
 
 states, 38. 
 
 Magazines, 129, 295. Reservation 
 respecting, 130. 
 
 Magna Charta, 20. Valuable pro¬ 
 visions in the, 257. 
 
 Mail routes, 117, 294. 
 
 Maritime jurisdiction, power of the 
 Judiciary in cases of admiralty 
 and, 186, 187, 194, 196, 221, 
 223, 300. 
 
 Marque, letters of, and reprisal, 
 120, 121, 294. By the States, 
 unconstitutional, 146, 296. 
 
 Maryland, settled, 16. Proprietary 
 government of, 18. Accedes to 
 the Confederation, 28. Com¬ 
 missioners appointed by, in 
 1785, 33. Adopts the Consti¬ 
 tution, 35. 
 
 Massachusetts, settled, 16. Union 
 of, with Plymouth, 16. Charter 
 government of, 19. Recom¬ 
 mends a Continental * Congress, 
 26. Adopts the Constitution, 
 35. 
 
 Maximilian, institution of the im¬ 
 perial chamber by, 200. 
 
 Measures and weights, power of 
 Congress as to, 116, 294. 
 
 Meetings of Congress, 90, 291. 
 
 Migration and importation of 
 slaves, 142, 295. 
 
364 
 
 INDEX. 
 
 Military establishments, Washing¬ 
 ton on, 311. 
 
 Military officers, distinction be¬ 
 tween civil and, 82. Trial and 
 punishment of, 82. Appoint¬ 
 ment of, under the Confedera¬ 
 tion, 282, 285. 
 
 Militia, power of Congress over 
 the, 125, 294. Discipline and 
 government of the, 126, 294. 
 Commander of the, when cal¬ 
 led out, 128, 298. Amend¬ 
 ment of the Constitution re¬ 
 specting the, 264, 303. Right 
 of the, to bear arms, 264, 265, 
 303. Importance of the, 265. 
 Clause respecting, in the Con- 
 
 » federation, 282. 
 
 Ministers, public, appointment of, 
 172, 173, 299. To be received 
 by the President, 176, 299. Ju¬ 
 risdiction of the Judiciary as to, 
 186, 192, 213, 221, 223, 300. 
 
 Mississippi River and its tributa¬ 
 ries, freedom of the, according 
 to the Ordinance for the gov¬ 
 ernment of the Northwestern 
 Territory, 140, 336. A boun- 
 
 • dary of the United States, 326. 
 Freedom of the, according to 
 the treaty of 1783, 329. 
 
 Mode of passing laws in Congress, 
 96, 293. 
 
 Money, borrowing, under the Con¬ 
 federation, 29, 287, 288. Coin¬ 
 age of, under the Confedera¬ 
 tion, 30, 287. Power of Con¬ 
 gress for borrowing, 107, 141, 
 294 ; as to coining, 115, 294 ; 
 regulating the value of, 116, 
 294 ; and counterfeiting, 116, 
 294. Appropriation of, for ar¬ 
 mies, 122, 123, 294. On ap¬ 
 propriating, before drawing 
 from the treasury, 144, 295. 
 States forbidden to coin, 146, 
 147, 296. See Bills, and Pa¬ 
 per. 
 
 Montesquieu, on the judiciary,180. 
 
 Morality, indispensable to political 
 prosperity, 316. See Religion. 
 
 N. 
 
 National justice, 40, 289. Enjoin¬ 
 ed by Washington, 318. 
 
 National prejudices, Washington 
 on, 318. 
 
 Naturalization, power of Congress 
 respecting, 114, 294. See Cit¬ 
 izenship. 
 
 Naval officers, trial of, 82. 
 
 Navigation, power of Congress 
 over, 110. See Commerce. 
 
 Navy, power of Congress as to, 
 43, 124, 141, 294. 
 
 Necessary and proper, meaning of, 
 as to powers of Congress, 131, 
 133. 
 
 Negative of the President on laws, 
 98, 293. 
 
 Neighboring States, Abbe Mably 
 on, 38. 
 
 Neutrality, Washington on, 322. 
 
 New countries, laws of England 
 for, 21. 
 
 New England, origin of the States 
 of, 15. 
 
 New Hampshire, settled, 16. Gov¬ 
 ernment of, at the commence¬ 
 ment of the Revolution, 18. 
 
 New Jersey, settled, 16. Adopts 
 
 the Constitution, 35. 
 
 r % 
 
 New States, admission of, into the 
 Union, 137, 301, 336. 
 
 New York, settled, 12, 16. Gov¬ 
 ernment of, at the commence¬ 
 ment of the Revolution, 18. 
 Concessions of territory by, 29. 
 Adopts the Constitution, 35. 
 
 New-York city, the seat of govern¬ 
 ment, 34. 
 
 Nobility, prohibition of titles of, by 
 Congress, 145, 296 ; by the 
 States, 146, 156, 296. 
 
 Nominations by the President, 
 172, 173, 299. 
 
 North Carolina, settled, 16. Gov¬ 
 ernment of, at the commence¬ 
 ment of the Revolution, 18. 
 Proceedings of, respecting the 
 adoption of the Federal Consti¬ 
 tution, 34. 
 
 Northeastern boundary of the Uni- 
 
INDEX. 
 
 365 
 
 ted States, according to the trea¬ 
 ty of 1783, 325. 
 
 Northern Colony, under the char¬ 
 ter of Janies I., 15. 
 
 Northwestern boundary of the 
 United States, according to the 
 treaty of 1783, 326. 
 
 Northwestern Territory, 138. Peo¬ 
 pling of the, 139. Dane’s ordi¬ 
 nance for the government of the, 
 139, 329. Division of the, into 
 States, 140, 336. Articles of 
 compact between the original 
 States and the people and States 
 of the, 334. 
 
 O. 
 
 Oaths of office, of the President, 
 169, 298. Of Senators and 
 Representatives, 252, 303. Of 
 executive and judicial officers, 
 252, 253, 303. Of State officers, 
 252, 303. Washington on, 317. 
 
 Obligation of contracts, impairing 
 the, 146, 150, 154, 296. Mean¬ 
 ing of, 152. 
 
 Offences, for impeachment, 81,83, 
 88, 299. Against the law of na¬ 
 tions, 119, 294. See Crimes. 
 
 Office, tenure of, by Representa¬ 
 tives, 50,52,289 ; by Senators, 
 67,71,290. Disqualifications of 
 members of Congress respect¬ 
 ing, 94, 292. Prohibition to 
 hold foreign, 145, 296. Tenure 
 of, by the President, 159, 160, 
 296 ; by the Vice-President, 
 159, 161, 296. Appointments 
 to, 172-175, 299. Removal 
 from, 174. Tenure of, 174 ; 
 by judges, 181, 182, 300 ; by 
 judges in different States, 206. 
 See Appointments,Oaths, Qual¬ 
 ifications, and Vacancies. 
 
 Officers, United States’, to be 
 commissioned by the President, 
 178, 299. Appointment of mili¬ 
 tary, under the Confederation, 
 282, 285. 
 
 Ordinance of the Continental Con¬ 
 gress, of the 13th of July, 1787, 
 
 31 * 
 
 for the government of the terri¬ 
 tory of the United States north¬ 
 west of the Ohio, 139, 329. 
 
 Original and appellate jurisdiction 
 of the National Judiciary, 212, 
 300. Suggestions respecting it, 
 213-228. Of inferior tribunals, 
 214, 218. On the exclusion of 
 the one by the other, 215. 
 
 P. 
 
 Paper money, prohibited, 146, 
 147, 148, 149, 296. In the 
 Revolution, 148, 149. 
 
 Pardons, not extending to impeach¬ 
 ment, 88, 170, 172, 298. By 
 the President, 171, 298. 
 
 Parliament, powers and rights of, 
 over the Colonies, 23, 271. 
 Stamp Act passed by, 24. May 
 be prorogued by the King, 92. 
 
 Parties to a suit, 186, 203, 300, 
 304,305. 
 
 Party, Washington on the effects 
 and evils of, 312, 314. 
 
 Patents for inventions, 118, 294. 
 
 Peace of 1783, indifference of the 
 States as to taxation after the, 
 during the Confederation, 31. 
 Disregard of the, under the 
 Confederation, 250. Definitive 
 Treaty of, between the United 
 States of America and his Bri¬ 
 tannic Majesty, 324. Provis¬ 
 ional Articles of, signed at Paris, 
 in 1782, 324. 
 
 Penal sanctions, the Confederation 
 without, 30. 
 
 Penn, William, 18. Versus Lord 
 Baltimore, 201. 
 
 Pennsylvania, Delaware a depen¬ 
 dency upon, 12. Settled, 16. 
 Proprietary government of, 18. 
 Adopts the Constitution, 35. 
 
 People, the Constitution framed by 
 the, 36. Elect Representatives, 
 50, 289. Right of the, to as¬ 
 semble, and petition for redress 
 of grievances, 264, 303. 
 
 Per pais, trial, 228. 
 
 Petition, right of, 264, 303. Claim- 
 
366 
 
 INDEX. 
 
 ed in the Declaration of Rights 
 of 1774, 274. Rejected by the 
 King of Great Britain, 278. 
 
 Philadelphia, Convention at, for 
 forming the Constitution, 34. 
 
 Piracies, power to define and pun¬ 
 ish, 119, 294. 
 
 Places of trial of crimes, 228, 229, 
 300, 304. 
 
 Pledges of Electors, 166, 167. 
 
 Plymouth Company, 15. Settle¬ 
 ment by the, 15, 16. Union of, 
 with Massachusetts, 16. 
 
 Poll taxes, 103, 104, 295. 
 
 Postmaster-general, suits by the, 
 205. 
 
 Post offices, 117, 294. 
 
 Post roads, 117, 294. 
 
 Powers and privileges, of both 
 Houses of Congress, 90, 292. 
 Reserved to the States and peo¬ 
 ple, 266, 305. See Congress, 
 President, Representatives,Sen¬ 
 ate, Senators, and States. 
 
 Preamble of the Constitution and 
 the exposition of it, 37, 289. 
 
 Presentments, 230, 231, 232, 304. 
 
 Presents to persons in office, from 
 foreign powers, prohibition of, 
 145, 296. 
 
 President of the Senate, Vice- 
 President of the United States, 
 74, 291. Senatorial chair vacat¬ 
 ed by the, 76, 291. See Vice- 
 President. 
 
 President of the United States, 
 impeachment and trial of the,76, 
 78, 83, 291. Cannot pardon, in 
 trials by impeachment, 88, 170, 
 172, 298. Power of the, to ap¬ 
 prove and negative laws, 9S, 
 293. Bills not approved by the, 
 at the adjournment of Congress, 
 98, 100, 293. Commander-in- 
 chief of the army, navy, and 
 militia, 127, 170, 298. Power 
 of, to call out the militia, 127. 
 Duration and tenure of office of 
 the, 159, 160, 296. Re-eligi- 
 bility of the, 160, 161. Vice- 
 President performing the duties 
 
 of, 161, 163, 164, 168, 298, 
 306. Mode of electing the, 161, 
 163, 164, 296, 297, 395. 
 
 Qualifications for, 167, 297. 
 Resignation of the, 168, 298. 
 Provision for vacancy of the 
 office of, 168, 298, 306. His 
 compensation, 168, 169, 298. 
 Oath taken by the, 169, 298. 
 Powers of, 170, 29S ; to re¬ 
 quire the opinions of the Heads 
 of Departments, 170, 171, 
 
 298 ; to grant reprieves and 
 pardons, 171, 298 ; to make 
 treaties, 172, 298 ; appoint¬ 
 ments to office, 172-175, 299. 
 Removal from office by the, 
 174. Duties of, 175, 299. To 
 give information to Congress, 
 and recommend measures, 176, 
 299. To convene and adjourn 
 Congress, 176, 299. To re¬ 
 ceive ambassadors and other 
 public ministers, 176, 299. To 
 take care that the laws be faith¬ 
 fully executed, 177, 299. To 
 commission all the officers of 
 the United States, 178, 299. 
 Incidental powers of the, 178. 
 
 Press, liberty of the, 255,261, 303. 
 Restriction of the, in foreign 
 countries, 262. Loose reasoning 
 on the, 263. Licensing the, 
 263. Licentiousness of the, 264. 
 
 Princeton, adjournment of the 
 Continental Congress to, 129. 
 
 Private property, on taking for 
 public uses, 230, 233, 304. 
 
 Privilege from arrest, 93,281,292. 
 
 Privileges of citizens, 242, SOI. 
 See Controversies, and Judic¬ 
 iary. 
 
 Prizes, jurisdiction in cases of, 194, 
 195. See Captures. 
 
 Prohibitions, on the United States, 
 142, 295. On the States, 146, 
 296. Of religious tests, 252, 
 253, 259, 303. Of religious es¬ 
 tablishments, 255, 259, 303. 
 
 Property, private, taken for public 
 use, 230, 233, 304. 
 
INDEX. 
 
 367 
 
 Proprietary governments, in the 
 American colonies, 17,18. In¬ 
 troduction of the common law 
 into, 20. 
 
 Proroguing, by the King, and by 
 governors, 92. 
 
 Protecting domestic manufactures, 
 113. 
 
 Provincial Assemblies, 17. Disso¬ 
 lution of, by English governors, 
 92, 272. 
 
 Provincial governments, in the 
 American colonies, 17. Intro¬ 
 duction of the common law into 
 the, 20. 
 
 Provisional Articles of Peace, sign¬ 
 ed at Paris, in 1782, 324. 
 
 Public acts, records, and judicial 
 proceedings, the faith to be giv¬ 
 en to, 135, 301. 
 
 Public credit, Washington on, 317. 
 
 Public debts, see Debts. 
 
 Public lands, owned by the Crown, 
 29. Concessions of, by Virginia 
 and New York, 29. See Ceded 
 places. 
 
 Public ministers, appointment of, 
 172, 173, 299. To be received 
 by the President, 176, 299. Ju¬ 
 risdiction of the Judiciary over, 
 186, 192, 213, 221, 223, 300. 
 
 Public money, see Money. 
 
 Punishments, on the infliction of, 
 under the Confederation, 30. In 
 cases of impeachment, unpar¬ 
 donable, 88, 170,171, 298. Of 
 members of Congress, 91, 292. 
 For counterfeiting securities and 
 current coin, 116, 294. Of pi¬ 
 racies, felonies, and offences 
 against the law of nations, 119, 
 294. Of treason, 134, 135, 
 301. Of innocent persons, 135. 
 Cruel and unjust, not to be in¬ 
 flicted, 23S, 304. 
 
 Q. 
 
 Qualifications, for electors of Rep¬ 
 resentatives, 50, 51, 289. For 
 Representatives, 54, 73, 289. 
 For Senators, 73, 291. For 
 
 President and Vice-President, 
 167, 297, 306. 
 
 Quartering soldiers, 265, 303. 
 
 Quorum, in the Houses of Con¬ 
 gress, 90, 91, 292. In voting 
 for President and Vice-Presi¬ 
 dent, 162, 163, 297, 306. 
 
 R. 
 
 Ratifications of the Constitution, 
 
 254, 303. 
 
 Recaptures, 196. 
 
 Receipts of public money, account 
 of, to be published, 144, 145, 
 296. 
 
 Records and laws of States, admis¬ 
 sion and proof of, 135, 301. 
 Effect to be given to, 136. 
 
 Regulate commerce, power of 
 Congress to, 108, 109, 110, 
 141, 294. Meaning of the 
 
 words, 109. See Commerce. 
 
 Religion, freedom of, 252, 253, 
 
 255, 259, 303. Right of gov¬ 
 ernment to interfere in, 260. 
 Washington on the necessity of, 
 to political prosperity, 316. 
 
 Religious establishments, unconsti¬ 
 tutional, 255, 259, 303. 
 
 Religious tests, 252, 253, 259, 
 303. 
 
 Removals from office by the Pres¬ 
 ident, 174. 
 
 Representation, in Parliament, 
 24, 273. The principle of, 50, 
 57. The right of, 273. In the 
 Territory northwest of the river 
 Ohio, 332. 
 
 Representatives under the Colonial 
 Governments, 17, 19. 
 
 Representatives, House of, in Con¬ 
 gress, 49, 50, 289. Election of, 
 by the people, 50, 89, 289 ; 
 advantages of it, 50, 51. Quali¬ 
 fications of electors of, 50, 51, 
 289. Serve two years, 52, 289. 
 Knowledge and experience re¬ 
 quisite in, 52. Qualifications of, 
 54, 73, 289 ; as to age, 54, 73, 
 289 ; as to citizenship, 54, 55, 
 73, 290 ; as to inhabitancy, 54, 
 
368 
 
 INDEX 
 
 55, 74, 290. Apportionment of, 
 56-62, 104, 290. Restriction as 
 to the number of, 56, 61, 290. 
 On the manner of apportioning, 
 58,290. Supplying vacancies in 
 the, 62, 290. Choice of Speak¬ 
 er, and other officers by the, 62, 
 290. The power of impeach¬ 
 ment in the, 62, 63, 85, 87, 290. 
 Not impeachable, 83. Punish 
 for contempts, 85, 98. Disqual¬ 
 ifications of, 94, 292. Bills for 
 raising revenue, to originate with 
 the, 96, 293. Cannot be elec¬ 
 tors of President and Vice-Pres¬ 
 ident, 161, 297. Choice of 
 President by, 162, 163, 165, 
 
 297, 305. See Congress. 
 
 Reprieves, granted by the Presi¬ 
 dent, 171, 298. See Pardons. 
 
 Reprisal, letters of marque and, 
 120, 121, 294. Forbidden to 
 the States, 146, 296. 
 
 Republican form of government, 
 guarantied to the several States, 
 244, 245, 302. 
 
 Republics, remarks on, 267, 270. 
 
 Reserved powers and rights, of the 
 people, 264, 265, 266, 305. 
 Of the States, under the Confed¬ 
 eration, 279. 
 
 Resignation of President, 168, 
 
 298. 
 
 Resolves, contained in the Declar¬ 
 ation of Rights, 273. 
 
 Retrospective laws, prohibition of, 
 by the Union, 144, 295 ; by the 
 States, 146, 150, 296. 
 
 Revenue, measures of Great Brit¬ 
 ain for raising, in the American 
 Colonies, 24, 271. Want of 
 power respecting, under the 
 Confederation, 30. Bills for 
 raising, 96, 293. Power of 
 Congress to raise, 101, 293. 
 See Duties, and Taxes. 
 
 Revolution, the American, politi¬ 
 cal state of the Colonies at the 
 time of the, 22. Origin of the, 
 24. Government during the, 
 26. Army of the, 122. Bills 
 
 of credit in the, 148,286. Le¬ 
 gal tender during the, 149. Con¬ 
 fiscation laws, 150. Aliens made 
 by the, 212. 
 
 Rhode Island, settled, 16. Char¬ 
 ter government of, 19. Pro¬ 
 ceedings of, respecting the Fed¬ 
 eral Constitution, 34. 
 
 Rights, of discovery, 13. Declar¬ 
 ation of, by the Continental Con¬ 
 gress, in 1774, 24, 271. Reserv¬ 
 ed to the States and people, 264, 
 265, 266, 305. Claimed in the 
 Declaration of Independence, 
 275. Nee Bill of Rights. 
 
 Rules of Congress, 91, 292. 
 
 S. 
 
 Salary of the President, 168, 169, 
 
 298. See Compensation. 
 
 Salvage, 196. 
 
 Search-warrants, 237, 303. 
 
 Seat of the government and other 
 ceded places, power of Congress 
 over the, 128, 295. 
 
 Second trials, prohibition of, 230, 
 232, 304. See Trials. 
 
 Secrecy in Congress, 92, 292. 
 
 Self-accusation, criminals not 
 bound to, 230, 233, 304. 
 
 Senate, in Congress, importance of 
 its existence, 64. Nature of the 
 representation and vote in the, 
 67, 290. Supply of vacancies 
 in the, 72, 291. President of 
 the, 74, 291. Choice of officers 
 by the, 74, 75, 291. Trial for 
 impeachment, by the, 76, 78, 
 85, 291. Power of the, in re¬ 
 gard to treaties and appoint¬ 
 ments by the President, 172, 
 182, 299. Filling of vacancies 
 during the recess of the, 175, 
 
 299. To concur in the appoint¬ 
 ment of judges, 182, 299. See 
 Congress, and Senators. 
 
 Senators, 67-69, 89, 290. Num¬ 
 ber of, 67, 70, 290. Chosen by 
 the legislatures, 67, 69, 290. 
 Their term of service, 67, 71, 
 290. Change of one third of 
 
INDEX. 
 
 369 
 
 the, 72, 290. Qualifications of, 
 73, 291. On the impeachment 
 of, 83. Disqualifications of, 
 94, 292. Cannot be electors of 
 President and Vice-President, 
 161, 162, 297. See Congress, 
 and Senate. 
 
 Settlement of the United States, 
 and notice of the, 15. 
 
 Ships of war, not to be kept by 
 the States in time of peace, 156, 
 296. 
 
 Silver to be legal tender in pay¬ 
 ment of debts, 146, 149, 296. 
 
 Slave trade, abolition of the, by 
 the United States, 142, 295. 
 
 Slaves, apportionment of Repre¬ 
 sentatives according to, 56, 57, 
 290. Prohibition of, in the 
 Northwestern Territory, 140, 
 337. Importation of, 142,295. 
 Duties on, 142, 295. Examin¬ 
 ation of, by torture, 233. On 
 delivering up fugitive, 243, 
 301, 337. 
 
 Soil, Indian right to the, 12. Eu¬ 
 ropean claim to the, 13. 
 
 Soldiers, on quartering, 265, 303. 
 
 South Carolina, settled, 16. Gov¬ 
 ernment of, at the commence¬ 
 ment of the Revolution, 18. 
 Adopts the Constitution, 35. 
 
 Southern Colony, under the char¬ 
 ter of James I., 15. 
 
 Speaker, of the House of Repre¬ 
 sentatives, choice of, 62, 290. 
 Of the House of Commons, 
 must be approved by the King, 
 62. 
 
 Speech, see Liberty. 
 
 Stamp Act, 24. 
 
 Standard of weights and meas¬ 
 ures, 116, 294. 
 
 Standing armies, impolicy of, 265. 
 Resolution respecting the Bri¬ 
 tish, in America, 274. 
 
 State Bills of Rights, 48, 256. 
 See Bills of Rights, and 
 Church. 
 
 State courts, remarks, on the ju¬ 
 risdiction of, 219. Non-inter¬ 
 
 ference of the National with, 
 224. See Appellate, and Ju¬ 
 diciary. 
 
 State debts, 216. See Debts. 
 
 States, governments of the, during 
 the Revolution, 27. Confeder¬ 
 ation adopted by the, 28, 279, 
 Constitution adopted by the, 
 34, 303. Abbe Mably on 
 
 neighboring, 38. Importance 
 of union among the, 38, 43, 
 310. Separation of, into con¬ 
 federacies, 39. Burdens on, 
 if disunited, 43. Voting by, 
 under the Confederation, 56, 
 68,281. Apportionment of di¬ 
 rect taxes among the, 56-60,97, 
 104, 290, 295. Restraints on, 
 respecting taxation and duties, 
 
 106, 188, 296. Paramount 
 authority of the Union and the, 
 
 107. Taxation by, 111, 296. 
 Impotency of, respecting natur¬ 
 alization and bankrupt laws, 
 114, 115. Not to engage in 
 war, 120, 156, 296. Rights 
 reserved by the, over ceded 
 places, 130. The faith and 
 credit to be given to the public 
 acts, records, and judicial pro¬ 
 ceedings of the, 135, 301. Ad¬ 
 mission of New, into the Union, 
 137,140,301, 336. The de¬ 
 livering up of fugitive criminals 
 and slaves by, 140, 242, 243, 
 301, 337. Prohibitions on the, 
 146, 156, 188, 296 ; as to trea¬ 
 ties, alliances, and confedera¬ 
 tions, 146, 156, 296 ; as to 
 granting letters of marque and 
 reprisal, 146, 296 ; as to coin¬ 
 ing money, 146, 147, 296 ; as 
 to emission of bills of credit, 
 146, 147, 296 ; as to making 
 any thing but gold and silver 
 coin a legal tender in payment 
 of debts, 146, 149, 296 ; as to 
 passing any bill of attainder, ex 
 post facto law, or law impairing 
 the obligation of contracts, 146, 
 150, 296 ; as to granting titles 
 
370 
 
 INDEX. 
 
 of nobility, 146, 156, 296. Du¬ 
 ties by, unconstitutional, 156, 
 
 296. Not to keep troops, or 
 ships of war, in time of peace, 
 156, 296. Implied prohibitions 
 on the, 157. Voting by, in the 
 choice of President, 162, 163, 
 
 297, 306. Importance of the 
 National Judiciary to the tran¬ 
 quillity and sovereignty of the, 
 186, 187. Jurisdiction in con¬ 
 troversies between, 186, 187, 
 199, 200, 221, 223, 300 ; be¬ 
 tween a State and citizens of 
 another State, 186, 187, 199, 
 
 201, 223, 300 ; in suits brought 
 by, and against a State, 186, 
 
 202, 217, 305 ; between citi¬ 
 zens of different, 186, 187, 
 
 205, 221, 300 ; of the same 
 State claiming lands under grants 
 of different, 186, 187, 209, 221, 
 300 ; between a State and the 
 citizens thereof, and foreign 
 States, citizens, or subjects, 
 186, 187, 210, 211, 221, 223. 
 In debt, at the adoption of the 
 Constitution, 216. Privileges 
 and immunities of citizens of 
 the, 242, 301. Guarantee of 
 republican government to the, 
 244, 245, 302. Power of, as to 
 amendments of the Constitu¬ 
 tion, 246, 302. Disregard of 
 treaty stipulations by the, un¬ 
 der the Confederation, 250. 
 Oath of office to be taken by 
 members of the governments 
 of, 252, 303. Ratification of 
 the Constitution by the, 254, 
 303. Powers not delegated to 
 the United States, by the, 266, 
 305. Representation of the, 
 under the Confederation, 280. 
 Restrictions on the, by the Con¬ 
 federation, 281. Committee 
 of the, under the Confederation, 
 285, 287. See Confederation, 
 Congress, and Union. 
 
 Supremacy of the Constitution, 
 laws, and treaties, 249, 302. 
 
 Supreme Court, 181, 299. Pos¬ 
 itively required, 182. See Ju¬ 
 diciary. 
 
 Swedes, in Delaware, 12. 
 
 T. 
 
 Tacitus, on examination by torture, 
 233. 
 
 Tariff', 113. 
 
 Taxation, under the Confederation, 
 28, 30. Power of Congress 
 respecting, 101, 141, 293; limit 
 to this power, 104, 293. By 
 individual States, 111, 296. See 
 Taxes. 
 
 Taxes, weakness of the Continen¬ 
 tal Congress respecting, 30,102. 
 Apportionment of direct, 56- 
 60, 97, 104, 290. Bills for 
 raising, 96, 97, 293. Power of 
 Congress to lay and collect, 101, 
 103,141,293. Direct and indi¬ 
 rect, 103. Laying, and reg¬ 
 ulating commerce, 111. On 
 imported slaves, 142, 29-5. See 
 Taxation. 
 
 Tender, in payment for debts, 146, 
 149, 296. 
 
 Tenure of office, of Representa¬ 
 tives, 50, 52, 289. Of Sena¬ 
 tors, 60, 71, 290. Of Presi¬ 
 dent, 159, 160, 296. Of Vice- 
 President, 159, 161, 296. Of 
 Judges, 181, 182, 300. By 
 Judges, in different States, 206. 
 
 Territories, government of, 138, 
 301. Ordinance for, by Nathan 
 Dane, 139, 329. 
 
 Testimony, see Witnesses. 
 
 Tests, religious, unconstitutional, 
 252, 253, 259, 303. See Reli¬ 
 gion. 
 
 Title to the soil of America, claim¬ 
 ed by the Indians, 12 ; by the 
 Europeans, 13. 
 
 Titles of nobility, unconstitutional, 
 145, 146, 156, 296. 
 
 Tonnage duties by the States, un¬ 
 constitutional, 106, 156, 296. 
 See Duties. 
 
 Tories, see Loyalists. 
 
INDEX. 
 
 371 
 
 Torture, examination by, con¬ 
 demned, 233. 
 
 Trade with the Indians, 113. See 
 Commerce. 
 
 Tranquillity, on insuring domestic, 
 42, 244, 289, 302. 
 
 Transportation to England, for tri¬ 
 al, 271. 
 
 Treason, impeachment for, 81,83, 
 299. Punishment of, 134, 135, 
 301. Persons liable to removal 
 from office for, 178,299. Defi¬ 
 nition of, 239, 300. Construc¬ 
 tive, 240. Two kinds of, 240. 
 Evidence of, 241,300. Trans¬ 
 portation to England for trial 
 for, 271. 
 
 Treasury, drawing money from 
 the, 144, 295. 
 
 Treaties, under the Confederation, 
 29,283. Of peace, in 1783, 31, 
 250. States forbidden to enter 
 into, 146, 296. Power of the 
 President and Senate respecting, 
 172, 298. Supremacy of Con¬ 
 stitution, laws, and, 249, 302. 
 Definitive,of peace, between the 
 United States of America and 
 his Britannic Majesty, in 1783, 
 324 ; provisional articles of, in 
 1782, 324. Between France 
 and Great Britain, 324. See 
 Judiciary. 
 
 Trial, of impeachment, 76, 78, 
 291. By jury, 227, 228, 300, 
 304. Of crimes, 228, 300. 
 Places for, 228, 229, 300, 304. 
 Prohibition of second, 230, 232, 
 304. Transportation of colo¬ 
 nists to England for, 271. Rights 
 respecting, claimed in the Dec¬ 
 laration of Rights, of 1774, 274. 
 See Accused. 
 
 Troops, in time of peace, not to 
 be kept by the States, 156, 296. 
 Quartering, 265, 303. 
 
 True bills of indictment, 232. 
 
 U. 
 
 Ulpian, on examination by torture, 
 233. 
 
 Unconstitutionality of laws, 251. 
 
 Uniformity, of duties, imposts, and 
 excises, 44, 101, 104, 294, 295. 
 Of interpretation and operation 
 of the powers of government and 
 its laws, 181. Of judicial de¬ 
 cisions, 221, 253. 
 
 Union, of the States, condition of 
 the, during the Revolution, and 
 under the Confederation, 26, 
 28, 29, 32, 38. Importance of, 
 38, 43, 310. Conflict of, with 
 individual States, 107. Admis¬ 
 sion of New States into the, 
 137, 301, 336. Provision for 
 the accession of Canada to the, 
 under the Confederation, 287. 
 Washington on the importance 
 of, 310. Causes which may 
 disturb the, 312. See States. 
 
 United States, Definitive Treaty 
 of Peace between his Britannic 
 Majesty and the, 324. Bounda¬ 
 ries of the, according to the 
 treaty of 1783, 325. See Con¬ 
 gress, Constitution, and States. 
 
 Unity of the Executive, 159. 
 
 Usurpation, Washington on, 316. 
 
 V. 
 
 Vacancies, in the House of Repre¬ 
 sentatives, on supplying, 62, 
 290. In the Senate, 72, 291. 
 Of the Presidency and Vice- 
 Presidency, 168, 298, 306. 
 
 Appointments to fill, during the 
 recess of the Senate, 175, 299. 
 See Appointments, and Office. 
 
 Veto, the power of the President, 
 
 98, 293. Restraint upon it, 98, 
 
 99, 100, 293. 
 
 Vice-President of the United 
 States, 34. President of the 
 Senate, 74, 291; reasons for it, 
 74. Vote of the, 74, 291. 
 Vacation of the Senatorial chair 
 by the, 76. Impeachment of 
 the, 81, 83, 299. Term of 
 office of the, 159, 161, 296. 
 Acting as President, 161, 163, 
 164, 168, 298, 306. Originally 
 
372 
 
 INDEX 
 
 an equal candidate for the office 
 of President, 161, 297. Mode 
 of electing, 161, 163, 164, 296, 
 306. Qualifications for, 167, 
 297, 306. Provision for vacan¬ 
 cy of the office of, 168, 298,306. 
 
 Virginia, the name given to the 
 Southern Colony, 15. Settle¬ 
 ment of, 15, 16. Government 
 of, at the commencement of the 
 Revolution, 18. Concession of 
 public lands by, 29. Commis¬ 
 sioners appointed by, in 1785, 
 and in 1786, 33. Adopts the 
 Constitution, 35. 
 
 Virtue, see Morality. 
 
 Voting, in Congress, under the 
 Confederation, 56, 6S, 281 ; 
 under the Constitution, 57, 68. 
 By the President of the Senate, 
 74, 291. For the choice of 
 President and Vice-President, 
 162, 163, 297, 305. 
 
 Voyages, former circuity of, 105. 
 
 W. 
 
 War, declaration of, 120, 141, 
 
 294. States not to engage in, 
 120, 156, 296. 
 
 Warrants for search, 237, 303. 
 
 Washington, George, inaugurated 
 President of the United States, 
 34. Militia called out under his 
 administration, 127. Selection 
 of the Seat of the Government 
 by, 129. President of the Fed¬ 
 eral Convention, and Deputy 
 from Virginia, 254. Farewell 
 Address of, 306. 
 
 Weights and measures, 116, 294. 
 
 Welfare, general, on promoting 
 the, 44, 102, 289, 294. 
 
 Witnesses, persons accused not 
 bound to be, against them¬ 
 selves, 230, 233, 304. Ex¬ 
 amination of, by torture, 233. 
 In behalf of accused persons, 
 234, 235, 304. Two, neces¬ 
 sary to conviction of treason, 
 241, 300. 
 
 y. 
 
 Yeas and nays in Congress, 92, 
 292. 
 
 END 
 
• 
 
 
 
 • 
 
 
 
 
 
 
 
 
 
 
 
 * 
 
 
 
 
 
 
 

 Date Due 
 
 JEU’5' 
 
 
 
 
 
 
 
 
 r~ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 ■ 
 
 f) 
 
 
 
 . 
 
 L 
 
oL^ U> ^ , Qi ^L/r 
 
 Uf * 
 
 % ** 
 
 ., A <f ' 
 
 < 
 
 *» ^ s 
 fr ~ 
 
 ■-0 ** • . * ‘ % i .. . 
 
 < * 
 
 . *_/ • . #> r n >.;* 
 
 ». 2-* * 
 
 • 
 
 . • -• v * '*■•*'■ 
 
 
 t* > / 
 
 t 
 
 .* ' 4‘ 
 
 A 
 
 • . . _M. 
 
 ■ 3. ~ - 
 
 * • * 
 
 • 
 
 -> / <5 j 
 
 ' ' _• . .< _/ 
 
 T ; / „/ 
 
 
 
 •' f 
 
 a * 
 
 - ^ 
 
 
 
 
 A ' 
 
 4