Mftr.NRLF *B ssa ^ 5 vvm OF THE LmTrcrrm vm t# f I *"-\*'A* ^#f'#:.4 J r & — LIBRARY UNIVERSITY OF CALIFORNIA.: AV,y/,-r,/ .*•* ^,- .v^;. *:♦>#•. l;*v ^i^r m* • *:-,*>: i« Digitized by the Internet Archive in 2007 with funding from Microsoft Corporation http://www.archive.org/details/expositionofconsOOflanrich AN EXPOSITION Constitution of the United States. FOURTH EDITION, REVISED. HENRY FLANDERS, !< AUTHOR OK A ' TREATISE ON MARITIME LAW," " THE LAW OF 8HIPPINQ," ** THE LAW OF FIRE INSURANCE," ETC., ETC. V/^ OP THE n^ (UNIVERSITY) PHILADELPHIA: T. & J. W. JOHNSON & CO., 535 Chestnut Street. 1885. s 1. Entered, according to Act of Congress, in the year 1S85, by HENRY FLANDERS, In the Office of the Librarian of Congress, at Washington. ZfVff PREFACE. VTO argument would seem to be necessary to prove the . OP THE . [UNIVERSIT' 54 AN EXPOSITION OF THE THE HOUSE OF REPRESENTATIVES. When and by whom Chosen, 37. The House of Representatives is composed of members chosen evej^.seco.nd_jear by the people of the several states, and the electors in each state must have the qualifications requisite for electors of the most numerous branch of the state legislature. Dependence of the Representative upon the Constituent, 38. Without a dependence of the representative upon the electors, without a power on their part to call him to account for his conduct, the experiment of republican government would be likely to end in an oligarchy or a despotism. A permanent legislative body, though they may, like the Council of Venice, advance the power of a country, are a most unsafe custodian of its liberties. 39. Hence it has become an axiom in republican states that the representative should be directly responsible to the people, and this responsibility is ensured by the frequency of his election. CONSTITUTION OF THE UNITED STATES. 55 How frequently should a Representative he elected ? 40. How frequent this election should be, or how long should be the duration of a representative's term of office, is a question that does not admit of an exact solution. It may be affirmed, however, as a general proposition, that it should never be so long as to destroy his sense of dependence on his constit- uents, nor so short as to prevent that familiarity with the practical business of legislation, and that knowledge of the interests of his country upon which his usefulness must essentially depend. 41. The framers of the Constitution, in establish- ing biennial elections for representatives, were influ- enced, in part, by the known attachment of the people to the principle of frequent elections. Most of the states chose their representatives annually, Connec- ticut and Rhode Island semi-annually, North «and South Carolina biennially, and Virginia alone sep- tennially. 42. It would, therefore, have been impolitic, and have heightened the opposition which the Constitu- tion encountered w T hen submitted to the people for their assent and ratification, if the term of service in the House of Representatives had been fixed at a longer period than two years. Besides, in fixing 56 AN EXPOSITION OF THE upon that term, it was thought that the inconvenience of a too frequent election on the one hand, and a too long duration of power on the other, would be, in great measure, guarded against. Qualifications for Electors, 43. It will be remarked that the electors of repre- sentatives in each state must possess the same quali- fications as the electors of the most numerous branch of the state legislature. Originally the qualifications for electors were different in the different states ; and if the Constitution had disregarded these dif- ferences and established a uniform qualification for all, it would have been likely to cause great dis- satisfaction. But, the states themselves have since made great changes in the qualifications of their electors, and they now approach to a nearly uniform standard : universal suffrage prevailing in all or most of the states. Moreover, by the fifteenth amend- ment, which was declared duly ratified by the requi- site number of States on the 30th day of March, 1870, it is provided that the. right of citizens of the | United States to vote shall not be denied or abridged ! by the United States, or by any State, on account of vj^ace, color, or previous condition of servitude. So that by the terms in effect of this amendment any restric- tion upon the elective franchise on these grounds is forbidden. CONSTITUTION OF THE UNITED STATES. 57 Qualifications for a Representative. 44. No person can be a Kepresentative who has not attained the age of twenty-five years, and been seven years a citizen of the United States. He must also, w T hen elected, be an inhabitant of the state in which he is chosen. 45. Three qualifications are thus required on the part of a representative : First, He must have attained the age of twenty- five. Secondly, He must have been seven years a citizen of the United States. A foreigner is thus eligible to the House of Representatives after a citizenship of seven years ; but he is not a citizen until he has been naturalized, and to be naturalized requires a pre- vious residence of five years. So that twelve years must elapse before he is eligible as a Representative. 46. Thirdly, He must, when elected, be an inha- bitant of the state in which he shall be chosen ; that is, he must really be a member of the state, subject to all the requisitions of its laws, and entitled to all the privileges and advantages which they confer. By a political fiction, however, a representative of his country at a foreign court, though residing abroad, is still regarded, as it were, as being at home. He remains under the jurisdiction and laws of his own 58 AN EXPOSITION OF THE country, like a sailor upon the high seas, and is not subject to the laws of the country in which he resides. Hence he is not deemed, by his foreign residence, to lose his character of inhabitant of the state of which he is a citizen, and may be elected to a seat in Con- gress. In addition to the qualifications thus specified, the fourteenth amendment, which was declared a part of the Constitution on the 28th day of July, 1868, provides that no person shall be a Senator or Repre- sentative in Congress, or elector of President and Vice- President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. The disability, however, created by this amendment Congress may remove by a vote of two-thirds of each house.* 47. The Constitution having fixed the qualifica- tions for a Representative, the states cannot require others. They can neither add to, nor in any manner vary the qualifications set forth in the Constitution itself. They cannot, for example, require their * Ohio and New Jersey withdrew their consent to this amend* ment before its proclamation. CONSTITUTION OF THE UNITED STATES. 59 representatives to be freeholders or professors of any particular religious belief, or inhabitants of the par- ticular districts from which they are chosen, in addi- tion to being inhabitants of the state, because in this instance the affirmation of certain qualifications obviously implies a negation of all others. Apportionment of Representatives. 48. The apportionment of representatives among the several states was a subject of great difficulty. It was generally agreed that the apportionment should be made according to their respective num- bers; but how should these numbers be determined ? On the one hand it was contended that slaves were property, and as representation was to be based on persons, they ought to be excluded from the enumera- tion equally with all other property. 49. On the other hand it was urged that in the union of independent states, the population of each should constitute the basis of its representation in the common legislature, without reference to its condition. Slaves, it was said, were the laboring, producing population of many of the states, and constituted a large portion of their aggregate numbers. Hence, it was contended, that it would be unjust to these states to exclude the slaves from the census. 60 AN EXPOSITION OF THE Slaves regarded in the Apportionment. 50. After an exciting controversy the subject was compromised as follows: The slaveholding states were allowed a representation for three-fifths of their slaves ; but it was agreed at the same time that they should pay direct taxes in the same proportion. Thus the increase in the number of their representatives was accompanied by a corresponding increase in the amount of their direct taxes. 51. That is, representatives and direct taxes are apportioned among the several states, according to their respective numbers, which are determined by adding to the whole number of free persons, includ- ing those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons, meaning thereby slaves. As, however, slavery was abolished by the thirteenth amendment, which was declared a part of the Constitution of the United States on the 18th day of December, a. d. 1865, it became necessary to apportion representatives among the several states upon a basis different from that pro- vided in the original Constitution. Accordingly, by the terms of the fourteenth amendment, it is declared as follows: Representatives shall be apportioned among the several states according to their respectivo numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when CONSTITUTION OF THE UNITED STATES. 61 the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the exec- utive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Limit as to number of Representatives. 52. The number of representatives is not to exceed one for every thirty thousand ; but each state is entitled to at least one. A Census required to be taken. 53. To ascertain the population of the respective states, and apportion representatives among them according to their relative increase of numbers, an enumeration is required to be made, every ten years, in such manner as Congress shall by law direct. 54. The first enumeration was made in 1790, and has since been made once in every ten years, as the Constitution requires. 6 62 AN EXPOSITION OF THE Mode of Apportionment. 55. Though, at first view, it would seem to be a very easy matter to apportion representatives among the states, according to their respective numbers, it has nevertheless been a subject of much difficulty. In point of fact, it has been found impracticable to apportion representatives exactly according to num- bers. Whatever common ratio or divisor is fixed upon, there will be resulting fractions. If these fractions are less than thirty thousand they must be disregarded, because, by the Constitution, more representatives than one for every thirty thousand are not allowed. But if the fractions exceed thirty thousand what is to be done with them ? 56. The rule adopted by Congress, at one time, was this : the representative population of each state was divided by a common divisor, and, in addition to the number of members resulting from such division, a member was allowed to each state whose fraction exceeded a moiety of the division. 57. By Act of Congress (Feb. 2, 1872,) it is provided that after the 3d day of March, 1873, the House of Representatives shall be composed of two hundred and eighty-three members. These members are appor- tioned among the several states according to the ninth census, and the number each state is entitled to is specifically stated in the act. If a new state is ad- CONSTITUTION OF THE UNITED STATES. 63 mitted into the Union subsequent to such apportion- ment, the representation or representatives of such new state are additional to the original number of two hundred and eighty-three.* 58 In addition to the representation of the statesA Congress allow each o£ the organized territories of ^ the United States to send a delegate to the House / of Representatives, who has the privilege of debating/ but not of voting. • / Vacancies. 59. To conclude this branch of our subject we have only to add, that when vacancies happen in the representation from any state, the executive autho- rity thereof is required to issue writs of election to * By the act of May 23, 1850, the number of representatives of which the House was to be composed was fixed at 233. The aggregate representative population of the United States, ascer- tained by adding to the whole number of free persons in all the states, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons, was divided by 233, and the quotient, rejecting fractions, became the ratio of representatives among the several states. The repre- sentative population of each state, ascertained in the same man- ner, being now divided by this common ratio, gave the number of representatives apportioned to each. But in this process there had been a loss in the number of members caused by the frac- tions; it fell short of 233. This loss was compensated for by assigning to so many states having the largest fractions as might be necessary to make the whole number of representatives 233, one additional member each for its fraction 64 AN EXPOSITION OF THE fill them ; and also, that the house of representatives choose their own speaker and other officers, and have the sole power of impeachment. It may also be observed, that it is not necessary for the executive of a state to be first informed by the house itself that a vacancy exists before issuing a writ of election ; it is sufficient if he has received the resignation of a member. CONSTITUTION OF THE UNITED STATES. 65 THE SENATE. Importance of a Senate. 60. Mr. Burke has remarked that a monarchy may exist without a senate ; but that it seems to be in the very essence of a republican government. Obviously this was the opinion of the framers of the Constitution of the United States. They constituted a Senate, and constituted it in such manner as to give it, in greater or less measure, a steady control in the action of the government. 61. By the mode of their election, the members of the Senate are likely to be men of known ability and established character. By their term of office, they are in a situation to disregard those gusts of passion or delusion that frequently sweep over all communi- ties, and can await in security the return of reason, of justice, and moderation. How constituted. 62. The Constitution provides that the Senate shall be composed of two senators from each state, chosen by the legislature thereof for six years, and that each senator shall have one vote. 6* E 66 AN EXPOSITION OF THE 63. This equality of representation in the Senate, without reference to the disproportion in the territory, wealth, or population of the several states, was the result of compromise and mutual concession. The small states demanded it as a means of protection against the large, and as being in accordance with the federal principle : the proportional representation in the House being conformable to the national principle, and thus securing the large states against the small. Mode of Election. 64. The members of the Senate are chosen by the legislatures of the respective states, and generally by a joint vote, that is, both branches of the legislature unite and form one assembly, and the majority elect. The Senate, however, in a recent case, decided that, in order to the validity of such an election, both branches, acting separately, must first have voted to meet as a joint body, and have actually met accord- ingly. In some of the states each branch gives a separate and independent vote, and a majority of each must concur in the choice of the same candidate or there is no election. This is called a concurrent vote. By the act of July 25, 1866, Congress pre- scribed the following mode of electing senators : — The legislature of each state which shall be chosen CONSTITUTION OF THE UNITED STATES. 67 next preceding the expiration of the time for which any Senator was elected to represent said state in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress, in the place of such Senator so going out of office, in the following manner: Each house shall openly, by a viva voce of each member present, name one person for Senator in Congress from said state, and the name of the person so voted for who shall have a majority of the whole number of votes cast in each house shall be entered on the journal of each house, by the clerk or secretary thereof ; but if either house shall fail to give such majority to any person on said day, that fact shall be entered on the journal. At twelve o'clock, meridian, of the day fol- lowing that on which proceedings are required to take place, as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person shall have received a majority of all the votes in each house, such person shall be duly declared elected Senator to repre- sent said state in the Congress of the United States ; but if the same person shall not have received a major- ity of the votes in each house, or if either house shall have failed to take proceedings as required by this act, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for the purpose aforesaid; and the person having a, majority of all the votes of the said joint assembly, 68 AN EXPOSITION OF THE a majority of all the members of both houses being present and voting, shall be declared duly elected ; and in. case no person shall receive such majority on the first day, the joint assembly shall meet at twelve o'clock meridian of each succeeding day, during the session of the legislature, and take at least one vote until a Senator shall be elected. Elections to fill Vacancies. Whenever, on the meeting of the legislature of any state, a vacancy shall exist in the representation of such state in the Senate of the United States, said legisla- ture shall proceed, on the second Tuesday after the commencement and organization of its session, to elect a person to fill such vacancy, in the manner herein- before provided for the election of a Senator for a full term; and if a vacancy shall happen during the session of the legislature, then, on the second Tuesday after the legislature shall have been organized and shall have notice of such vacancy. Certificates of Election. It shall be the duty of the governor of the state from which any Senator shall have been chosen as afore- said, to certify his election, under the seal of the state, to the President of the United States; which certifi- cate shall be countersigned by the secretary of state of the state. CONSTITUTION OF THE UNITED STATES. 69 Term of Office. 65. The Senators are chosen for six years; but, as if to obviate any objection that might be urged against so long a term, the Constitution has provided that immediately after the Senate should be as- sembled, in consequence of the first election, they should be divided, as equally as might be, into three classes : the seats of the Senators of the first class to be vacated at the expiration of the second year ; of the second class, at the expiration of the fourth year ; and of the third class, at the expiration of the sixth year. Thus one-third are chosen every second year. 66. By this arrangement, while fresh members are introduced into the Senate biennially, there is a much larger number who have acquired experience and familiarity with the public business. As new states are admitted into the Union, and additional members are thus brought into the Senate, they are placed by lot in the foregoing classes, but in such manner as to keep the classes as nearly equal as pos- sible. In arranging the classes, care was taken to place the Senators from the same state in different classes, so that their term of service should not ex- pire at the same time, and thus leave the senatorial representation of the state vacant. 70 AN EXPOSITION OF THE Vacancies in the Senate. 67. If vacancies happen in the Senate by resigna- tion, or otherwise, during the recess of the legisla- ture of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which must then fill such vacancies. 68. In one instance it was decided by the Senate that the seat of a Senator is vacated by a resignation addressed to the executive of the state, though he may have received no notice that it was accepted ; and in another that the executive of a state could not make an appointment in the recess of its legislature in anticipation of a vacancy ; it being held that the vacancy must actually have occurred before the appointment could legally be made. Qualifications for a Senator. 69. As the members of the Senate are chosen differently from the members of the House, and for a longer term, so also their qualifications are different and their powers greater. No person can be a Senator w T ho has not attained the age of thirty years, and been nine years a citizen of the United States, and who is not, when elected, an inhabitant of the state for which he is chosen. CONSTITUTION OF THE UNITED STATES. 71 70. When we reflect that history furnishes us with many conspicuous examples of men who have exhi- bited extraordinary abilities at the very outset of their career ; that Hannibal, for instance, was but twenty-six when he led the Carthaginian army into Italy, Scipio but twenty-seven when entrusted with the command of the Roman legions in Spain, and Napoleon also but twenty-seven when he began his astonishing career of victory, it may, perhaps, appear singular that the Constitution should place the qua- lification for a Senator, in point of age, at thirty years, rather than at twenty-five, which is prescribed for a Representative. But when we consider, on the other hand, that genius and intuition are vouchsafed to but few, and that study, experience, and observa- tion, are necessary to form most men and fit them for the discharge of important duties, the propriety of this qualification will appear. For, it may be confidently affirmed, that, except in rare instances, a person under the age of thirty will not possess that knowledge, that discipline of mind and stability of character suited to the grave position of a Senator of the United States : the duties of that position, as we shall presently see, being of a more important nature and of a wider range than those confided to a Representative. 71. It will be observed that foreigners are eligible 72 AN EXPOSITION OF THE to the Senate after a citizenship of nine years. They become citizens upon naturalization ; but they cannot become naturalized until after a previous residence of five years. Thus fourteen years must expire be- fore a foreigner can be elected to the Senate. It will be recollected that he is eligible to the House of Representatives after a citizenship of seven years. The fact that the Senate concur with the executive in making treaties with foreign nations, suggests the reason why a too hasty admission of adopted citizens into that branch of the government might be attended with serious inconvenience, by creating a channel for foreign influence ; and also the reason why the qua- lification, in point of citizenship, is raised higher for the Senate than for the House of Representatives. 72. The only other qualification prescribed for a Senator is, that he must when elected be an inhabit- ant of the state for which he is chosen. If this qualification be important, as is thought, in order that a Senator, by being an inhabitant of the state for which he is chosen, may have a more intimate knowledge of its wants, and a more sensitive regard to its rights, character, and dignity, it is singular that the Constitution should not have gone further, and required that he should continue an inhabitant of the state during his senatorial term. As it now stands, a Senator may be an inhabitant of the state CONSTITUTION OF THE UNITED STATES. 73 for which he is chosen on the day of his election, and cease to be an inhabitant the day after, and yet con- tinue its representative. 73. We have now considered the qualifications attached to the office of a Senator of the United i States. These qualifications, it will be observed, are confined to three particulars, and have regard only to age, citizenship, and inhabitancy. First, he must be thirty years of age ; secondly, he must have been, nine years a citizen of the United States ; and,, thirdly, he must, when elected, be an inhabitant of the state for which he is chosen. President of the Senate, 74. The President of the Senate is the Vice-Presi- dent of the United States ; but he has no vote unless* the Senators be equally divided. The House of Re- presentatives choose their Speaker from among their own members; but the Vice-President is not a mem- ber of the Senate, and is not chosen as their pre- siding officer by themselves. 75. The reason for this difference is not very- obvious : but the necessity of providing for the case of a vacancy in the office of President gave rise to the creation of the office of Vice-President,- and if he were not to be President of the Senate he would be without employment. 74 AN EXPOSITION OF THE Officers and President pro tempore. 76. With the exception of the Vice-President, the Senate choose all their other officers, and also a President pro tempore, in the absence of the Vice- President, or when he exercises the office of Presi- dent of the United States, as he may in the cases to be mentioned hereafter. It is customary for the Vice-President, before the close of each session, to vacate the chair, in order that the Senate may choose a President pro tempore, who becomes their presiding officer, in case the Vice-President should, in the recess, succeed to the Presidency, in consequence of the death of the President or his resignation, or inability to discharge the powers and duties of the office. Impeachment. 77. We have already seen that the House of Representatives possess the sole power of impeach- ment, and we must now add that the Senate have the sole power of trying the party accused. It would be obviously unjust to permit the accusers to try the accusation which they make ; and hence it is, that the Constitution intrusts the House with the one duty and the Senate with the other. 78. This process of impeachment is borrowed from CONSTITUTION OF THE UNITED STATES. 75 England, where the Commons impeach, that is, make the accusation* and the Lords try ; and is designed to reach public functionaries, the President, Vice- President, heads of departments, foreign ministers, judges, and all civil officers of the United States, who, in the course of their employment, are guilty of treason, bribery, or other high crimes and misde- meanors. 79. When sitting as a court of impeachment the Senate are required to be on oath or affirmation. When acting in a similar capacity the House of Lords only make a declaration upon their honor. As the members of that house cannot testify as witnesses, except on oath, there would seem to be no good reason for permitting them to act as judges without a similar obligation resting upon them. Another difference is, that two-thirds of the Senators present must concur in order to convict, whereas a majority of the Lords is sufficient for that purpose. It is necessary, however, to the validity of a judgment of impeachment that at least twelve of the Lords concur in it — a verdict by less than twelve would not be good. 80. In a trial by jury, the verdict must be unani- mous, but if that principle were to be adopted in the trial of political offenders, there would be reason to fear that from political sympathy few convictions 76 AN EXPOSITION OF THE would ever take place. And if a simple majority were sufficient there would be danger, in times of high party excitement, that the person impeached might be unjustly convicted. 81. When the President of the United States is tried, the Chief Justice of the Supreme Court pre- sides ; because the Vice-President, from a possible desire to succeed to his office, might be. tempted to employ his position as President of the Senate to procure his conviction. And the Chief Justice thus presiding is a constituent member of the court, and has a right to vote as such. Judgment in Cases of Impeachment. 82. Judgment in cases of impeachment does not extend further than to removal .from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. The party convicted is, nevertheless, liable and subject to indictment, trial, judgment, and punishment, accord- ing to law. 83. By confining the judgment of the Senate to removal from, and disqualification to hold office under the United States, the Constitution has wisely pre- vented tnose excessive punishments, which political resentment, warping the sense of justice, might in- flict. Politically, the offender is punished by the CONSTITUTION OF THE UNITED STATES. 77 judgment of the Senate : criminally, he is punished by the courts of justice according to the rules and prin- ciples of law. Thus the President, convicted of treason on impeachment before the Senate, would be removed from, and might also be disqualified to hold office under the United States. But on trial and convic- tion for the same offence in the courts of law he would be sentenced to death, that being the penalty. Persons liable to Impeachment. 84. The persons liable to impeachment, as we have already observed, are the President and Vice- President, and all civil officers of the United States ; and the offences for which they may be impeached are treason, bribery, or other high crimes and mis- demeanors. 85. Officers of the army and navy, not being "civil officers," are not liable to impeachment. They are, however, subject to trial and punishment according to the laws and usages of war. It is thought, too, that members of Congress are not liable to impeachment, because, though members of the government, they do not derive their appointment from it, but from the states, or the people of the states, 86. Treason against the United States consists only in levying war against them, or in adhering to 78 AN EXPOSITION OF THE their enemies, giving them aid and comfort. Bribery consists in giving or receiving a reward by any civil officer of the United States., as an inducement for acting contrary to his duty. In determining what are " high crimes and misdemeanors,*" resort is had to the common law. Mode of Pi*ocedure. 87. The usual course of proceeding in a case of impeachment is substantially as follows : The House of Representatives having investigated the charges laid against the accused, and become satisfied that they are well-founded, present articles of impeach- ment or accusation to the Senate, who thereupon summon the party to appear on a designated day and answer. 88. If he does not appear in obedience to the sum- mons, the Senate may try the impeachment in his absence. If he does appear, he is furnished with a copy of the articles, and time is allowed him to answer them. The House reply in writing to this answer or defence, and state their readiness to prove the charges they have preferred. The impeachment is conducted on the part of the House by a committee of managers, and counsel are allowed the accused. The trial proceeds according to the rules of law T and parliamentary usage. CONSTITUTION OF THE UNITED STATES. 79 THE ELECTION OF SENATORS AND REPRE- SENTATIVES. Power of Congress respecting. 89. The times, places, and manner of holding elections for Senators and Representatives must be prescribed in each state by the legislature thereof; but Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. 90. It is obviously important that Congress should possess the power to regulate elections in the points mentioned, in order to guard against the negligence or wilful omission of a state to make any regulation at all, as well as to secure a uniformity of election in all the states, should the want of such uniformity occasion confusion or inconvenience. 91. Until a very recent period the states were left to regulate all the particulars of elections for Sena- tors and Representatives in their own way, without the interposition of Congress. . In several of the states the Representatives were chosen by a general ticket for the whole state ; in other states they were chosen singly in districts. But now, in consequence of an Act of Congress passed June 25, 1842, Repre* 80 AN EXPOSITION OF THE sentatives are elected by districts, equal in number to the number of Representatives to which the state is entitled, and each of these districts elects one Re- presentative. [See Act of Congress, July 14, 1862, which provides that members of the House of Repre- sentatives shall be elected by single districts.] 92. In some of the states the candidate must receive a majority of all the votes in order to be elected ; in others a plurality is sufficient. By law the election must take place on the Tuesday next after the first Monday in November, and be by written or printed ballot. Con- gress may provide for the conduct of such elections, and protect them from intimidation, corruption and fraud. It should be observed that when neither the legislature of a state nor Congress have prescribed the times, places, and manner of holding elections, the executive authority of such state may, in case of a vacancy, in his writ of election, fix the time and place of election. 93. Though Congress cannot alter, or make regu- lations, as to the place of choosing Senators, they may prescribe the times at which the choice shall be made. The exception as to place was made because the Senators are elected by the state legislatures, whose place of meeting is always at the state capitols or seats of government, unless accidental circum- stances should render it necessary for them to con- vene elsewhere, and of this they are the proper judges. CONSTITUTION OF THE UNITED STATES. 81 THE MEETING OF CONGRESS. How often Congress must meet. 94. Congress must assemble, at least, once in every year, and such meeting must be on the first Monday in December, unless they appoint by law a different day. 95. Under the Confederation the delegates were elected annually, and assembled in Congress on the first Monday in November of every year. The state legislatures also assembled annually, and the opinion was well nigh universal among the people that the annual meeting of the legislature was not only con- venient, but necessary as a check on the executive department, which, if left too long in control of public affairs without legislative supervision, might come to possess a disproportionate influence, and thus endanger the public liberty. Hence it is, that the Constitution, embodying the prevailing opinion and practice, requires Congress to assemble, at least, once in every year. F 82 AN EXPOSITION OF THE POWERS AND PRIVILEGES OF THE RESPECTIVE HOUSES. Each House to judge of the Elections, &c. 96. Each House is the judge of th,e elections, returns, and qualifications of its own members, and a majority of each constitutes 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. Contested Seats. 97. It frequently happens that there are two claimants, each asserting a right to hold the same seat in the Senate or House, as the case may be. Now it is obvious that some tribunal must be clothed with the power to decide between them, to investigate the facts, and ascertain which one of them is the rightful claimant. This power might have been vested in the Supreme Court ; but it was thought best to confide it directly to each house of Congress. The decision of the House is final and conclusive. 98. If the executive of the state should refuse to grant a certificate of election, this, according to one CONSTITUTION OF THE UNITED STATES. 83 decision of the House, would not prejudice the right of the person entitled to a seat ; nor, on the other hand, would a certificate of election be conclusive upon the House. In either case it may examine other evidence, and decide according to the weight and nature of the proofs. Quorum. 99. Neither house can transact business without a majority of the members being present. The Con- stitution has wisely established this rule, and thus rendered it impossible for laws to be passed by stealth or surprise, and in opposition to the opinions of the majority of the House. But a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members. By the rules of the House of Representatives, any fifteen members (including the Speaker, if there be one) may compel the attendance of absent members. Thus a dissolution of either house is guarded against, and a quorum at the same time insured. Rules of Proceeding, &c. 100. Each House may determine the rules of its proceedings, punish its members for disorderly beha- vior, and, with the concurrence of two-thirds, expel a member. 84 AN EXPOSITION OF THE 101. The ordinary course of proceeding in Con- gress, under the rules established by the respective Houses, is as follows : One day's notice of a motion for leave to bring in a bill, in cases of a general nature, is required. Every bill must have three readings previous to its being passed, and these readings must be on different days, and no bill can be committed or amended until it has been twice read. The object of these forms is, to guard against surprise or imposition. In the House of Representa- tives, bills, after being twice read, are committed to a committee of the whole house, when the Speaker leaves the chair and takes part, if he chooses, in the debate as an ordinary member, and a chairman is appointed in his stead. 102. When a bill has passed one House it is transmitted to the other, and goes through a similar form ; though in the Senate there is less formality, and bills are often committed to a select committee, chosen by ballot. If a bill be altered or amended in the House to which it is transmitted, it is then returned to the House in which it originated, and if the two Houses cannot agree, they appoint com- mittees to confer together on the subject. When a bill is engrossed, and has passed both Houses, it is transmitted to the President for his sanction. CONSTITUTION OF THE UNITED STATES. 85 Punishment of Members. 103. It has been contended that the Constitution only confers on each House of Congress the power to punish its members for disorderly behavior during the session of the House, and within its presence. But the prevailing opinion is, that members may be punished for disorderly behavior committed during the session of Congress, no matter whether it be committed within or without the walls of the House ; and that a member may be expelled for any misde- meanor inconsistent with his trust and duty, no matter whether he commits the misdemeanor during the session of Congress or otherwise, nor whether such misdemeanor is punishable by statute or not. 104. Each House of Congress not only possesses this express power of punishing its own members, but the implied power of punishing for contumacy when a wit- ness refuses to answer proper questions, in a matter before either House, and into which that House has juris- diction to inquire. But the Houses of Congress do not possess a general power of punishing for contempt. If they attempt to exercise it, their action is not conclusive, and the resolution of either House finding a person guilty of contempt, and the warrant of its presiding officer for his commitment to prison, are no justification, when it appears that the House was without authority in the particular matter. And the officer executing such war- rant is answerable in an action for false imprisonment. 86 AN EXPOSITION OF THE 105. The extent to which this power may be carried in a proper case, has been a subject of grave discussion, and the conclusion arrived at is, that it is limited to impris- onment, which must terminate with the adjournment of Congress. For although the legislative power continues perpetual, the legislative body ceases to exist at the moment of its adjournment or periodical dissolution. The Journal of Proceedings. 106. Each House must keep a journal of its pro- ceedings, and, from time to time, publish the same, excepting such parts as may, in their judgment, require secrecy ; and the yeas and nays of the mem- bers of either House, on any question, must, at the desire of one-fifth of those present, be entered on the journal. 107. A journal preserves in permanent form a record of the proceedings of Congress, and its publi- cation, from time to time, insures to the people authentic information of their official acts. As the proceedings of Congress, however, are generally conducted in public, and immediately communicated to the people through the press, and in advance of the official publication of their journal, this provision of the Constitution may, on a first view, seem to be needless. But when we consider that neither House is required to sit with open doors, and might, if they chose, conduct all their proceedings in secret, as was CONSTITUTION OF THE UNITED STATES. 87 done by the Senate at the outset of the government, the importance of this provision for the publication of their journal will appear. 108. When business of a confidential nature is brought before either House, all persons are excluded but their officers. The Senate, too, holds what are termed "Executive Sessions, " in which confidential communications from the President are considered, such as nominations to office, treaties, &c. The journal of its proceedings on occasions of this kind, unless the injunction of secrecy has been removed, is not made public, but is kept in a distinct record, which is only accessible to certain privileged persons. The Yeas and Nays. 109. The importance of that portion of the clause which requires the yeas and nays to be entered on the journal, if one-fifth of the members present desire it, is obvious, By this means the people know how their representatives vote, and thus caution and deliberation are induced on the part of the latter. As too much time, however, would be consumed in calling the yeas and nays on every question, and as they might be called by factious or dissatisfied members for the sole purpose of delaying and embar- rassing the passage of measures, it is wisely provided that they shall not be called, or entered upon the journal, unless at the desire of one-fifth of the mem- bers present. bb AN EXPOSITION OF THE Adjournments. 110. Neither House, during the session of Con- gress, can, 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. 111. This clause was intended to prevent either House from interrupting the regular course of legisla- tion by undue adjournments. In this particular they are restrained both as to time and place. In case of disagreement between them, with respect to the time of adjournment, the President may adjourn them to such time as he shall think proper. With this exception, the executive department has nothing whatever to do with the duration or the adjournment of Congress. In England, on the contrary, the King may prorogue or dissolve Parliament at his pleasure. Duration of Congress. 112. It will be recollected that the members of the House are chosen for two years, and also that the seats of one-third of the Senators become vacant every second year. Hence the duration of each Congress is two years. And as the Constitution requires them to assemble at least once in every year, it follows that each Congress will necessarily hold not less than two sessions. In addition to these, the President is empowered, on extraordinary occa- sions, to convene both Houses, or either of them. CONSTITUTION OF THE UNITED STATES. 89 PRIVILEGES AND DISABILITIES OF MEMBERS. Compensation. 113. The Senators and Representatives receive a compensation for their services, ascertained by law, and paid out of the Treasury of the United States. 114. In England, the members of Parliament re- ceive no compensation ; their services being con- sidered merely honorary. It seems, however, to harmonize best with the genius of a republican government to adopt the contrary practice. Without compensation an undue advantage would be given to the rich. Men of talents, who were not favored by fortune, might be deterred from seeking or accepting a position whose expenses they could ill support. And, if they did obtain a seat in the national coun- cils, their necessities might expose them to pecuniary temptations. 115. The Congress of the Confederation were paid by their respective states ; but the Senators and Re- presentatives under the Constitution are paid out of the Treasury of the United States — the amount being determined by an act of Congress. Under the first 8* 90 AN EXPOSITION OF THE system it was thought the members of Congress were too much the mere agents and advocates of state interests, instead of being the impartial umpires and guardians of justice and the general good. To avoid this evil, to prevent too much dependence on the states, the Constitution changed the mode of pay- ment from the states to the United States. Freedom from Arrest. 116. The Senators and Representatives are, in all cases, except treason, felony, and breach of the peace, privileged from arrest during their attendance at the session of their respective Houses, and in going to, and returning from, the same. And, for any speech or debate in either House they are not to be questioned in any other place. 117. The privilege of members of Congress from arrest, except for the offences mentioned in the pre- ceding section, is founded upon important public reasons. They are exempted while going, because it is necessary that they should reach the scene of their labors ; they are exempted while there, because if they could be withdrawn from their seats at the suit of creditors, or by any other merely civil pro- cess, such as a summons to testify as witnesses, or to serve as jurors, the voice of their constituents would be lost, and the public interests, perhaps, suffer CONSTITUTION OF THE UNITED STATES. 91 serious inconvenience ; they are exempted while returning, because, having gone from home in the service of the public, it is proper that the public should insure their return to it safe from interruption. 118. It has also been held that this privilege from arrest extends to one duly commissioned as a member, though Congress should decide, upon investigation, that he is not entitled to a seat. In going and returning a member is not restricted to a precise number of days, but the law allows him a reasonable time. Nor is he restricted to the most direct route, and any little deviation from it will be presumed to have been directed by some superior convenience or necessity. Neither does the law compel him to set out on his return immediately upon the adjournment'; but allows him time to settle his private affairs, and to prepare for his journey. 119. If the immunity from arrest is disregarded, the member thus unlawfully arrested will at once be discharged on application to a court of justice. He may also maintain an action against the party making the arrest, or procure his indictment for the trespass. But the privileges of a member are not so extensive that his suits cannot be forced to a trial and decision while the session of Congress continues. While privileged ffom arrests both on judicial and mesne pro- cess, and from the service of a summons or other civil process while in attendance on their public duties, none 92 AN EXPOSITION OF THE of the reasons on which this privilege is allowed can extend it to the right to continue a cause pending in court. Immunity of Debate, 120. For any speech or debate in either house, the members are not to be questioned in any other place. The object of this clause is to secure the utmost freedom in the discussion of public measures. It is a moot question, however, whether a member, who publishes his speech which contains libellous matter, is liable to an action and prosecution therefor, as in common cases of libel? Though a member may not be questioned elsewhere for any slander he may utter in debate, it is contended that the publica- tion of such slander is an independent act, not at all connected with the discharge of his duties, and not protected by the privilege granted him by the Con- stitution. But where Congress direct the publication of their debates, the responsibility of the individual member would seem to cease, because the publication of his speech is not his act, but the act of the represent- ative body. In any event, however, the law would attach responsibility on the publisher. 121. The constitutional provision, securing immunity of debate, is not limited to uttering a speech, but to the giving of a vote, to the making of a written report, to the offering of a resolution, and to every other act result- ing from the nature and in the execution of the office. CONSTITUTION OF THE UNITED STATES. 93 In short, to things generally done in a session of either House by one of its members in relation to the business before it. But if either House of Congress should order an illegal act, though the members may be exempt from question therefor, yet the person executing it would be liable to an action. Disability to hold Office. 122. No Senator or Representative can, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which has been created, or the emoluments whereof have been increased, during such time. And no person, holding any office under the United States, can be a member of either House of Congress during his continuance in office. 123. It was intended by the first part of this clause to prevent Congress from creating new offices or increasing the emoluments of old ones from per- sonal considerations ; and by the second part to guard against improper bias on the part of its mem- bers. Hence, a member of Congress appointed to an office under the United States, must resign his seat. If he accepts the office without such resignation, it operates as a forfeiture of his seat. On the other hand, an officer of the United States, if elected a member of Congress, must resign his office, though 94 AJS EXPOSITION OF THE his continuing to execute its duties after his election does not operate as a disqualification ; it only being necessary that he should resign his office prior to taking his seat. In other words, a person cannot at the same time be a member of Congress and hold office under the United States. The acceptance of a military commission in* a volunteer regiment, mustered into the service of the United States, operates as a forfeiture of his seat. CONSTITUTION OF THE UNITE: > OP THR UNIVERSITY] THE PASSAGE OPSfc^Sj) 27*6 Initiative of Revenue Bills. 124. All bills for raising revenue must originate in the House of Representatives ; but the Senate may propose or concur with amendments, as on other bills. 125. It was thought that the House of Represent- atives, being more popular in its character, more immediately dependent on the people, and likely to possess more extensive local information than the Senate, was the fittest body to be intrusted with the initiative in the imposition of taxes. Under the English system the Commons originate money bills, and the Lords simply approve or reject. Unlike our Senate, they have no power to alter or amend. 126. By bills for raising revenue are meant bills to levy taxes in the usual sense of the word ; and not bills for other purposes, though they may incidentally create revenue. The Veto Poicer. 127. Every bill which has passed the House of Representatives and the Senate must, before it becomes a law, be presented to the President of the 96 AN EXPOSITION OF THE United States ; if he approves he must sign it, but if not he must return it with his objections to the House in which it originated, who must enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two- thirds of that House agree to pass the bill, it must be sent, together with the objections, to the other House, by which it must likewise be reconsidered, and if approved by two-thirds of that House it becomes a law. But in all such cases the votes of both Houses must be determined by yeas and nays, and the names of the persons voting for or against the bill be entered on the journal of each House respectively. If any bill is not returned by the President within ten days (Sundays excepted) after having been presented to him, it becomes a law, in like manner as if he had signed it, unless the Con- gress, by their adjournment, prevent its return, in which case it does not become a law. / 128. The power with which the President is [invested of objecting to the passage of a bill is called i the veto power ; and both the word and the power are derived from the Romans. The word itself means I forbid, and was used by the tribunes of the people to hinder the passage of any obnoxious decree of the senate. The object of placing this power in the hands of the President is to secure the authority CONSTITUTION OF THE UNITED STATES. 97 confided to the executive department from encroach- ment, and also to interpose another check against hasty or improvident legislation. But, in order to prevent an abuse of the power, it is provided that two-thirds of both Houses, that is, two-thirds of a quorum of each House, may pass a bill notwithstand- ing his veto. His returning a bill, with the reasons and arguments that induced him to return it, is not an absolute defeat of the bill, but an appeal, as it were, to the legislature to reconsider it. Joint Orders, Resolutions, &c. 129. Not only must every bill which has passed the House and Senate be presented to the President for his approval or rejection, but every order, reso- lution, or vote to which the concurrence of both Houses is necessary, except on a question of adjourn- ment. And before the same can take eifect it must be approved by him, or, being disapproved, must be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limita- tions prescribed in the case of a bill. 130. The object of thus extending the veto power is to prevent Congress from evading the President's negative by passing laws in the form of an order or resolution instead of a bill. This does not apply, however, to orders, resolutions, or votes to which the 9 G 98 AN EXPOSITION OF THE concurrence of both Houses is not necessary. But separate resolutions of either House of Congress, except in matters appertaining to their own parlia- mentary rights, have no legal effect to constrain the action of the President or heads of departments. 131. When a bill has been passed by Congress it is enrolled on parchment of uniform size and signed by the Speaker of the House of Representatives and the President of the Senate. It is then sent to the President of the United States, and if approved and signed by him he notifies Congress of the fact, and deposits the original in the office of the Secre- tary of State. Every bill operates as a law from the time when it is approved by the President, and is pros pective in its effect only. The legal fiction that there is no fraction of a day is not applicable in such a case. CONSTITUTION OF THE UNITED STATES. 99 ' THE POWERS OF CONGRESS. Taxation. 132. We have now arrived at that part of the Con- stitution which has given rise to much discussion, and with regard to which opinions have been greatly divided. In treating upon it we shall endeavor to confine ourselves within the limits marked out by the well-settled practice of the government, and the authoritative exposition of the courts. 133. Congress 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 must be uniform throughout the United States. 134. This clause of the Constitution has been a subject of much controversy. On one hand it has been said that it empowers Congress to lay and col- lect taxes, duties, imposts, and excises, and also to pay the debts and provide for the common defence and general welfare of the United States. On the other it is contended that Congress is empowered to lay and collect taxes, duties, imposts, and excises, 100 AN EXPOSITION OF THE for the purpose of paying the debts and providing for the common defence and general welfare. The latter is the common and doubtless correct interpre- tation. The power to tax is not, therefore a dis- tinct and unlimited power; but is restrained to the payment, of the debts, and providing a revenue for those public purposes, contemplated and authorized by the Con- stitution. Moreover Congress cannot tax the means and instrumentalities by which the states carry on the opera- tions of their respective governments. They cannot tax its judicial process, nor the salaries of its officers, nor require a stamp upon the official bonds of state officers. This exemption arises from implication, and rests upon the law of self-preservation. If the means employed by a state government in conducting its operations could be taxed at discretion by the general government, the former would exist at the mercy of the latter. On the other hand, as we shall see here- after, the instrumentalities of the general government are equally exempt from the influence of state taxa- tion. But it is only property exempt from taxation by the Constitution that is beyond the taxing power of the states. Congress has no power to exempt other property from such taxation. Different Kinds of Taxes. 135. Taxes are commonly designated as direct or indirect, according to their character, and are imposed I CONSTITUTION OF THE UNITED STATES. 101 by the government for the service of the state. Direct taxes are laid directly on land or real pro- perty, or upon persons, in which case they are spoken of as personal, poll, or capitation taxes. Indirect taxes are laid on articles of consumption, whether those articles consist of imports or manufactures. In this description of tax are included duties, imposts, and excises. By duties are generally meant taxes upon goods, imported or exported, though, as we shall see hereafter, the Constitution inhibits a tax or duty on articles exported from any state. Imposts, in a restricted sense, mean taxes on goods imported from abroad. Excise is an inland tax levied upon various commodities of home use or consumption, usually while in the hands of the producer or manufacturer. Rule by which Taxes are levied, 136. All duties, imposts, and excises, must bev\ uniform throughout the United States ; but a dif- ferent rule is prescribed for capitation or other direct taxes. These must be levied, not according to the rule of uniformity, but according to the rule of appor- tionment, that is, they, must be apportioned among the several states, according to their respective numbers. 137. A case decided by the Supreme Court soon after the organization of the government, furnishes a 102 AN EXPOSITION OF THE very good illustration of the difference between the rule which requires that direct taxes shall be appor- tioned among the states according to their respective numbers, and the rule which requires that duties, imposts, and excises, shall be uniform throughout the United States. It arose as follows : — By an Act of Congress, passed in 1794, a duty of ten dollars each per annum was laid on carriages, and the levy made uniform throughout the United States, that is, each owner of a carriage was to pay ten dollars per annum, no matter whether the number of such owners in a particular state was few or many. The constitution- ality of the act was contested upon the ground that it was a direct tax, and hence should be apportioned among the states according to their numbers. 138. In this case, the proportion of tax awarded to a particular state, determined by its numbers, might be two hundred dollars, and yet there might not be more than two carriages in that state. Hence, although Congress only intended to lay a tax of ten dollars on each carriage, the owners of the two car- riages would be compelled to pay one hundred dollars each. The Supreme Court, however, decided that the carriage tax was not a direct tax in the sense of the Constitution, and hence should be levied as Con- gress had directed according to the rule of unifor- mity. The same rule applies to taxes on income, the CONSTITUTION OF THE UNITED STATES. 103 business of insurance companies, bank circulation, and succession taxes. None of these are direct taxes in the sense of the Constitution. In addition to the fact that direct taxes were supposed to have reference only to land and persons, this consideration, in the carriage case, was decisive w T ith the court, namely, that no tax could be a direct tax in the sense of the Constitution which was incapable of apportionment according to the constitu- tional rule. And, if in any one of the states there should be no carriages, then there could be no appor- tionment at all. A tax is uniform when it operates with the same force and effect in every place where the subject of it is found. Taxes may be extended to the Territories, &c. 139. The power to levy and collect taxes, duties, imposts, and excises, is coextensive with the territory of the United States. Hence Congress, in laying a direct tax, may extend it to the District of Columbia and the territories. If this be done, the same rule which is applied to the states must be applied to them, namely, the rule of apportionment. It is equally necessary too that uniformity in the imposi- tion of imposts, duties, and excises, should be ob- served in the one as in the other. 104 AN EXPOSITION OF THE Power to borrow Money. 140. Congress have not only the power to raise money by means of taxes, duties, imposts, and ex- cises, but the power to borrow money on the credit of the United States — a power absolutely necessary in order that provision may be made for those exi gencies which arise in time of war, and those extra ordinary and unexpected demands on the treasury which occasionally occur in time of peace. And the states have no power to tax the loans thus made. Commerce. 141. Among the more prominent defects of the Articles of Confederation was the want of a general authority over commerce. This induced injurious regulations on the part of foreign nations, from their knowledge that Congress had no power to adopt countervailing measures, and also led to most irri- tating and complicating regulations on the part of the several states. Subjected to this double pressure, the commerce of the country was at a stand, and the union and harmony of the states were fast giving way to mutual discord and hatred. The evil was great and pressing, and was one of the chief causes that conduced to the call of the Federal Convention and the establishment of the Constitution. Hence, it CONSTITUTION OF THE UNITED STATES. 105 *?*? provided that Congress should have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. 142. To regulate commerce is to prescribe the rule by which commerce is to be governed. Commerce with foreign nations and among the several states, means intercourse with those nations, and among those states, for the purposes of trade, be the object of the trade what it mav : and this intercourse in- eludes all the means by which it can be carried on, whether by the free navigation of the waters of the several states, or by a passage over land through the states, w T hen such passage becomes necessary to the commercial intercourse between the states. 143. Commerce among the several states means commerce which concerns more states than one. It does not comprehend any commerce which is purely internal, between man and man in a- single state, or between different parts of the same state, and not extending to or affecting other states. At the same time commerce among the states does not stop at the external boundary line of each state, but may be introduced into the interior. The word among means intermingled with. And this commerce, that is, inter- state transportation of passengers or property (and re- ceiving and landing either is incidental to their trans- portation), is beyond the reach of state legislation. Hence state taxation of persons passing from one state to another, 106 AN EXPOSITION OP THE or of merchandise from state to state, is a burden upon such commerce, in short is a regulation of it, and an invasion of the domain of the general government, and prohibited by its Constitution. But a state may tax the gross receipts of a railroad company. See post, sec. 255. 144. The power to regulate commerce may be variously applied, as, for example, by laws for the regulation of railroad and telegraph companies ; of the coasting trade and fisheries, and wrecks of the sea, and for the punish- ment of crimes upon stranded vessels ; for the govern- ment of seamen on board of American ships, and the imposition of embargoes ; for the construction of light- houses and buoys, the removal of obstructions to navi- gation in rivers, bays, lakes and harbors ; the imposition of duties upon articles of importation, and a tax upon immigrants ; the designation of particular ports of entry and delivery, and for conferring privileges upon ships built and owned in the United States. 145. While it has been held that the power to regulate commerce is exclusive, so that the states cannot legislate upon the same subject, it has been equally held that they may enact .police regulations, although such regulations operate on the agents and subjects of commerce, restricted only by this limita- tion, that in the event of collision, the law of the state must yield to that of Congress. Thus the states may pass license laws restricting the sale of spirituous liquors imported either from foreign coun- CONSTITUTION OF THE UNITED STATES. 107 tries or the other states of the Union; or prohibiting the manufacture and sales of intoxicating liquors altogether; and inspection and quarantine laws which delay the land- ing of ships and cargoes, and also laws for the removal or destruction of unsound and infectious articles which have been imported, and laws regulating pilots and to protect their fisheries. Because the right of Congress to regulate commerce necessarily contemplates limita- tions and exceptions in favor of the states, in cases affecting the morals, health, or safety of the com- munity. 146. The states may pass laws, too, requiring the master of every vessel arriving in one of their ports to make a report, in writiug, respecting his passen- gers, but they cannot exact bonds indemnifying the au- thorities of a port from all expenses and charges w^hich may be incurred in the maintenance of all such passen- gers, indiscriminately, or in lieu of such bonds require the payment of commutation money. The whole subject has been confided to Congress, and Congress is the proper body to legislate with regard to it. That the states can by police regulations, protect themselves against actual paupers, vagrants, criminals and diseased persons, arriving from abroad, may be conceded. They may exclude them from their limits; and they may also exclude property dan- gerous to the property of their citizens, as animals having contagious or infectious disease. 147. But they cannot, under pretence of their police powers, substantially prohibit or burden either foreign or 108 AN EXPOSITION OF THE inter-state commerce; nor pass laws imposing a tax upon passengers, either foreigners or citizens, coming into their ports, either in foreign vessels or vessels of the United States, from foreign nations or the other states of the Union ; nor can they impose a license tax, specially upon venders of products which are not the growth, produce, or manufacture of the state requiring such license ; that is, they cannot impose on persons or products from other states for sale or use, within their limits, more onerous burdens than are imposed on their own. In fact, there must be no discrimination against the persons or products of other states, and in favor of their own ; such state laws are unconstitutional and void, being, in their nature, regulations of commerce. The states, therefore, cannot tax the one any more than the other. Nor can they require an importer to take out a license and pay there- for before selling a package of imported goods. In a word, they cannot impose a tax upon any interest or sub- ject of commerce, or enact a license fee from parties engaged in commercial pursuits, or tax messages sent out of their limits by telegraph companies, or create an im- pediment to the free navigation of public waters, or pre- scribe conditions in accordance with which commerce in particular articles or between particular places shall be carried on. Any tax imposed by a state which in effect is a regulation of commerce, either foreign or inter-state, is void on that account. 148. But they may impose a tax on brokers dealing in foreign exchange, and also a tax on legacies payable CONSTITUTION OF THE UNITED STATES. 109 to aliens. And after the introduction of imported goods or imported liquors into a state, and the original pack- ages are broken up for use or retail by the importer, or by a purchaser from him, even though still in the origi- nal packages, then they become subject to the laws of the state, and may be taxed for state purposes, and the sale- regulated by state laws. 149. The power of Congress to regulate commerce extends to the Indian tribes, no matter whether they live within or without the boundaries of particular states. In the exercise of this power Congress may prohibit all intercourse with them, except under a license. The Indian tribes are not regarded as foreign nations in the sense of the Constitution, and as such entitled to sue in the courts of the United States ; but as domestic dependent nations. Naturalization and Bankruptcy. 150. The next power intrusted to Congress is, to* establish a uniform rule of naturalization ; and uni- form laws on the subject of bankruptcies throughout the United States. 151. Naturalization is the investing of foreigners with the privileges of native citizens. The rule for doing this should be uniform, because the citizens of one state are entitled to all the rights of citizenship in every other state. Hence, if the several states 10 i- 110 AN EXPOSITION OF THE could adopt dissimilar rules, it would follow that any one state could render nugatory the rules of all the rest. For by naturalizing aliens upon easy condi- tions, it would enable them to pass into the other states and enjoy all the rights of citizensnip, in spite of their policy and laws. It was to guard against an anomaly like this that the power was confided to Congress of establishing a uniform rule of naturaliza- tion throughout the United States, and this power must necessarily be exclusive. 152. But in the absence of naturalization, under our two-fold form of government, state and federal, an alien may, by the law of a particular state, be clothed with the essential prerogatives of citizenship. He may, for in- stance, be clothed with the right to hold real estate and to exercise the elective franchise. The right to vote does not come from the United States, but from the states themselves. If they choose to give an alien this right, they may do so. In point of fact, many of the states have done so. Thus, without naturalization, the states may confer on foreigners, the right to hold real estate, and to vote at their elections. But notwithstanding these rio-hts they would not be citizens in the sense of the Con- stitution of the United States, nor entitled to sue as such in its courts, nor entitled to the privileges and immu- nities of citizens in the other states. 153. The rule of naturalization, actually established by Congress, requires a previous residence of five years before an alien can become a citizen of the United States CONSTITUTION OF THE UNITED STATES. Ill The steps he must take, in order to be clothed with this character, are few and simple. He must first declare, on oath or affirmation, before a state or United States court, his intention to become a citizer of the United States, and to renounce all allegiance to the government of which he is at the time a subject This declaration must be made at least two years before his application for admission as a citizen. When this latter application is made he must declare, on oath or affirmation, that he will support the Constitution of the United States, and that he doth renounce and abjure all allegiance and fidelity to every foreign prince or state ; and in case he shall have borne any hereditary title, or have been of any of the orders of nobility in the kingdom or state from which he came, he must make an express renunciation of such title or order of nobility. 154. As we have before remarked, he must have resided in the United States five years at least prior to his application, and in the state or territory where he then resides, at least one year, and during that time have behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the gsod order and happiness of the same. His residence and good moral character must be proved in court by the testimony of witnesses ; the oath of the applicant being in no case allowed to prove his residence. 155. Congress, by the act of July 27, 1868, for- 112 AN EXPOSITION OF TIIE mally committed the government of the United States to the support of the doctrine of expatriation, in op- position to the English common law principle that alle- giance is intrinsic and perpetual. In that act Con- gress has assumed and declared that the right of ex- patriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and declared inconsistent with the fundamental principles of the government any declaration, instruction, opinion, order or decision of any officers thereof which denies, re- stricts, impairs or questions the right of expatriation; and moreover, that the naturalized citizen, while in foreign states, is entitled to, and shall receive, the same protection of person and property that is accorded to the native-born citizen in the same situation and cir- cumstances. Bankrupt Laws, 156. A bankrupt law may be defined as a law which discharges a debtor from the legal obligation to pay his debts in such cases and upon such con- dition as the law may specify — the usual condition being that he shall surrender all his property to commissioners for the benefit of his creditors. The English bankrupt laws relate to merchants and traders ; but such laws may equally be made to CONSTITUTION OF THE UNITED STATES. 113 embrace every description of debtors, as the bank- rupt laws of the United States have done. 157. The power to pass uniform laws on the subject of bankruptcies, Congress has, for the most part, permitted to lie dormant. An act of this kind was passed in 1801, but was repealed two years subsequently ; and the act of 1842 was repealed at the very next session of Congress. Meanwhile, several of the states have passed laws of this charac- ter — it being held that so long as Congress abstains from exercising the power it possesses over the subject, the states may exercise it, but with this limitation, namely, that the laws passed by the states cannot discharge contracts made prior to their pas- sage, and only such contracts as are made within their respective states and between citizens of the same. When Congress, too, exercises its power and passes a uniform bankrupt law, the laws of the several states upon the same subject yield to it and become inoperative. Accordingly, the act of March 2, 1867, generally known as the Bankrupt Act, sus- pended, ipso facto, all action upon future cases arising under the insolvency laws of the states, where such laws acted upon the same subject-matter and the same persons as the act of Congress. 10* H 114 AN EXPOSITION OF THE Coinage of Money, &c. 158. Congress have power to coin money, regulate the value thereof, and of foreign coin, and fix the Etaudard of weights and measures. 159. Uniformity in the value of money is vastly important in a country like ours, composed of a great number of states whose intercourse should be freed, as much as possible, from all embarrassment arising from an uncertain and variable currency. Hence the propriety of giving to Congress the power to secure such uniformity by coining money and regulating its value, as well as the value of foreign coin. From the power of coining and regulating the metallic currency Congress has, in part, derived the right of issuing paper, to circulate as its representative. And after the breaking out of the civil war in 1861, Congress, by what are familiarly known as the legal tender acts, made its paper issues a legal tender in payment of private debts, as well as of all public dues except duties on imports and interest on the public debt. In other words, Congress made its paper currency, in the payment of private debts and most of the public dues, equivalent to the metallic currency, however great the nominal disproportion. And the Supreme Court has held that these so-called legal tender acts are constitutional both in their application to pre-existing and subsequently CONSTITUTION OF THE UNITED STATES. 115 contracted debts; and whether passed during the exigen- cies of war or in time of peace. They do not apply, however, to involuntary contributions exacted by a state, but only to obligations for the payment of money founded on contracts, express or implied. Hence a state statute requiring the payment of taxes in gold and silver .coin is valid ; the legal tender act having no reference to taxes imposed by state authority. 160. Money is coined at the Mint of the United States, which was established in 1792, at Philadelphia, where it has since been continued. There have been established also, at different times, branch mints in North Carolina, Georgia, Louisiana, and California. .161. The power to fix the standard of weights and measures Congress has not yet thought proper to exercise. Accordingly the several states, in the absence of a uniform law upon the subject, have continued to use either the standards which existed when the Constitution was adopted, or other stand- ards which the convenience of commerce has led them to adopt since. But by the act of July 28, 1873, Congress made it lawful throughout the United States to employ the weights and measures of the metric system; and no contract or dealing, or plead- ing in any court, can be deemed invalid or liable to objection, because the weights or measures expressed or referred to therein are weights or measures of that system. 116 AN EXPOSITION OF THE Power to punish Counterfeiting. 162. To render more efficient the powers to coin and borrow money, Congress are empowered to pro- vide for the punishment of counterfeiting the securi- ties and current coin of the United States. 163. Congress accordingly has passed several acts, imposing very severe penalties upon those who pro- duce a false representation of the coin of the United States. At one time it was thought, that Congress could not punish for the circulation of such coin, though the states might; that is, the power of Congress was supposed to be confined to the punishing of the offence of making counterfeit coin, the states alone pos- sessing the power of punishing for passing it. But the decision of the Supreme Court was otherwise, and Con- gress by appropriate legislation has provided for the punishment as well for passing as counterfeiting the coins and securities of the United States. And there seems no good reason why, on the other hand, the states may not concurrently provide for the punishment of counterfeiting ; such legislation being in aid of the power of Congress. Post-offices and Post-roads. 164. Congress have power to establish post-offices and post-roads. CONSTITUTION OF THE UNITED STATES. 117 165. In the first year of Washington's administra- tion there were but twenty-five post-offices in all the United States. In the following year the income of the Post-office Department did not reach thirty-eight thousand dollars. Its income and expenditure are now reckoned by millions, and there is scarcely any portion of our immense territory, however remote, that is not visited by the mail. Intercourse between all parts of the country is thus facilitated, knowledge diffused, and the operations of government carried on with promptitude and regularity. 166. In the exercise of the power to establish post-offices and post-roads, Congress have felt them- selves authorized to create the whole system appro- priate to a post-office establishment. They have passed laws for the punishment of those who steal letters from the post-office, or rob the mail ; they have purchased or erected buildings for post-offices, and, in some instances, laid out and made roads for the carrying of the mail, though generally they have merely designated or selected as post-roads such roads as already existed. By an Act of Congress, passed in 1853, all railroads in the United States have been declared post-roads. 167. The general control and supervision of the Post-office establishment are confided to the Post- master-General, who is a member of the President's 118 AN EXPOSITION OF THE Cabinet. He is authorized to establish post-offices, appoint all postmasters whose annual commissions are less than a thousand dollars, make contracts for the carriage of the mails, and direct generally the operations and affairs of the department over which he presides. Science and Useful Arts. 168. Congress have power to promote 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. 169. In the United States an author has no exclu- sive property in a published work, except under some act of Congress. Such property is not recog- nised by the common law. In pursuance of the power confided to them by the Constitution, Con- gress have passed laws giving to authors, who are citizens of the United States or resident therein, the exclusive right to publish their works for a term of twenty-eight years, with the privilege of enjoying the same right for an additional period of fourteen years. Copy rig Jits. 170. This exclusive right of authors is called a copyright, and is granted not only to the authors of books, but to the authors of maps, charts, and mu- CONSTITUTION OF THE UNITED STATES. 119 sical compositions, and to the inventors and designers of prints, cuts, and engravings. If an author, in- ventor, designer, or engraver should not be living at the expiration of the first period of twenty-eight years, the privilege of renewal for the further period of fourteen years, survives to his widow and children. Patents. 171. The inventors or discoverers of any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used by others before their discovery or invention thereof, and which has not been aban- doned to the public or been in public use, or on sale, for more than two years prior to the application for a patent, are entitled to the exclusive right of manu- facturing and selling such invention for the period of fourteen years. This privilege is termed a patent- right, and may, when the inventor, without neglect or fault on his part, has not been adequately remu- nerated, be extended for an additional period of seven years. 172. As patents are granted "to promote the pro- gress of science and the useful arts," the courts give them a liberal construction. Moreover, the power of Congress over them is plenary ; so that, if they do not J 20 AN EXPOSITION OF THE take away the rights of property in existing patents, they may modify them; they may make special grants and special extensions; and they may also give a ret- rospective effect to their grants. Piracies and Felonies. 173. To Congress is intrusted the power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. 174. Piracy is a crime well known to the law of nations, and is robbery or forcible depredations upon the sea, animo furandi, in the spirit and intention of universal hostility. The object of the Constitution is not, therefore, to authorize Congress to define a crime already well and universally defined, but to empower them to enumerate such crimes as shall be deemed piracies. Congress have accordingly de- clared the slave trade piracy, as well as every offence committed at sea, which would be punishable with death if committed on land. 175. JFelonj, in a general sense, is every descrip- tion of crime which the common law punishes either with death or forfeiture of lands and goods. It is a term, as has been justly remarked, of loose significa- tion in the common law, and more vague still in the law of the sea. Hence the propriety of giving Con- gress the power to define as well as to punish it. By CONSTITUTION OF THE UNITED STATES. 121 the "'high seas" is meant the unenclosed waters of the ocean beyond low water mark. 176. By the law of nations is meant that system of principles and usages which regulates the inter- course of nations. Among the more obvious offences against that law may be mentioned the violation of passports, infringement of the rights of ambassadors, and the infraction of treaties. Under the Confede- ration Congress possessed no power to punish such offences, and were compelled to appeal to the states to provide adequate and exemplary punishment in all that class of cases. As the general government represents the country in its external relations, and is bound by the law of nations, it is wisely intrusted with the power to define offences against that law, and punish its citizens for committing them. War. 177. Congress possess the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. 178. In the ancient republics of Greece the right of declaring war resided with the assemblies of the people, who exercised a large portion of the sovereign power. In the aristocratic republic of Carthage it was confided to the senate ; in Rome to the comitia, or assembly of the people. In the monarchies of 11 122 AN EXPOSITION OF THE modern Europe the king alone declares war; but this prerogative is greatly modified in England, where the crown may indeed declare war, but cannot raise a dollar with which to carry it on without the consent of Parliament. The result is, that the real power resides in Parliament, because the crown never would venture upon a declaration of war without being sure of their support and approval. For why declare war in opposition to the views of Parliament, when it possesses the power to nullify the declaration by withholding the supplies necessary to give it effect ? 179. The Constitution of the United States has not thus separated the real and nominal authority, but has given directly to Congress both the power to declare war, and, as we shall presently see, the power to provide the means to carry it on. The check to a wanton and unnecessary exercise of this power is two-fold : first, the virtue of Congress, and, secondly, their responsibility to the people. With one-third of the Senate and the whole of the House of Repre- sentatives to be elected every second year, it may well be presumed that Congress will not declare war except upon grounds that will justify them before the tribunal of public opinion. 180. The power to declare war is exclusive in Con- gress, and necessarily involves the power to prosecute it by all means and in all modes known and recognized CONSTITUTION OF THE UNITED STATES. 123 iu legitimate warfare. Hence it includes the right to seize and confiscate the property of the enemy, or any property which the enemy can use, or which the adher- ents of the enemy have the power of devoting to the enemy's use, whether belonging to an alien or friend, and also to acquire territory, either by conquest or by treaty. And when the authority of the United States is re- sisted by combinations of its citizens too strong for the civil arm of the government, it may assume the attitude of a belligerent, without relinquishing its char- acter as a sovereign, and may enforce its rights in both capacities. But it cannot, in prosecuting its belligerent and sovereign rights against a rebellion of its citizens, create a military department out of one or more states not included in the circle of rebellion, and authorize the military commander within such de- partment to arrest a citizen of such state, and try him before a military commission for an alleged crime. The Constitution secures to the citizen a trial by jury, and in states which have upheld the government, and where the courts are open and their process unob- structed, he cannot be held to answer for a capital or other infamous crime, unless on presentment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, nor be deprived of life, liberty, or property without due process of law. And due process of law in such a case does not mean a court-martial. 1*24 AN EXPOSITION OF THE Letters of Marque and Reprisal. 181. Letters of marque and reprisal are commis- sions or letters which authorize the persons to whom they are granted to capture the property of a foreign state, particularly its merchant vessels. They are usually granted in a time of war, and as a means to distress the enemy. They are also occasionally granted in peace, as, for example, when a nation has been injured in its own rights, or in those of its sub- jects, without being able to obtain justice from the tribunals or sovereign of the country against which they are issued. 182. Before private letters of marque are granted, proof must be produced of the amount of injury which has been sustained, which is set forth in the letters, in order that the surplus of property captured may, after the payment of damages, interest, and expenses, be restored to the owners. Hence all vessels seized under those letters must be brought into some port, and condemned and sold by the order of a competent court in order that the surplus, if any, may be thus restored. 183. The general principles relating to land and maritime captures are defined by the law of nations ; but the rules respecting the division of the captured property, and many other details, each government CONSTITUTION OF THE UNITED STATES. 125 regulates for itself. Congress, as an encouragement and reward of valor, have established a rule that when a captured ship is of equal or superior force to the ship making the capture, she shall be the sole property of the captors. In all other cases the pro- perty is divided equally between the captors and the United States. The Army. 184. As we have already remarked, the" power is confided to Congress to raise and support armies ; but no appropriation of money to that use can be for a longer term than two years. 185. The appropriation is confined to two years, in order to prevent the keeping on foot a standing army without the continued consent of the Representatives of the people. The actual practice is, to make the appropriations not even for two years, but only for the current year. 186. There is no restriction upon the power of Congress in raising armies as to the persons they will enlist. Hence they may enlist minors in the army or navy, without the consent of their parents. Public policy requires that a minor should be at liberty to enter into a contract to serve the state, whenever such contract is not positively forbidden by the state itself. But an Act of Congress directs 11* 126 AN EXPOSITION OF THE that no person under the age of eighteen shall be mustered into the United States service. The Navy. 187. Congress are also empowered to provide and maintain a navy. 188. Congress possessed the same power under the Confederation, but were never able, from want of means, to build and equip a navy. It was not until some years after the adoption of the Constitution, and the organization of the government, that the foundation of a navy was laid. In 1797 three frigates were completed, and were named the Constitution, the United States, and the Constellation. These vessels were the germ, as it were, of our present naval force. Government of the Army and Navy, 189. With the power to raise armies and provide a navy is associated the necessary power to make rules for the government and regulation of the land and naval forces. The Militia. 190. Congress have also the authority to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. CONSTITUTION OF THE UNITED STATES. 127 191. By militia are meant that body of citizens in a state who are enrolled and trained to military exer- cises. They are a very different force from a stand- ing army — being simply citizens who are liable to do military duty, who are regularly enrolled for that purpose, and who assemble occasionally to be taught military duties. 192. By an Act of Congress, passed in 1795, the President is authorized, in certain exigencies, such as invasion, or imminent danger of it, to call forth such number of the militia most convenient to the scene of action as he may judge necessary. It belongs to him exclusively to judge whether the exigency has actually arisen, and his decision is conclusive upon the state authorities. 193. When the militia are called into the service of the United States, and are mustered at the place of rendezvous, they cease to be state militia, and become national militia ; and from that time they are paid by the United States, and are subject to the articles of war. If they neglect or refuse to march to the place of rendezvous they may be tried and fined by a court-martial, constituted under the autho- rity of the United States, but composed of militia officers only. The states may also pass laws pro* viding for the trial of such delinquents by court- martial. And they may employ their own militia, not called into the service of the Union, to aid the govern- 128 AN EXPOSITION OF THE ment in executing the laws, in suppressing insurrec- tions, and in repelling invasions. 194. Congress is not only authorized to provide for calling forth the militia, but also to provide for organizing, arming, and disciplining them, 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 authority of training the militia according to the discipline prescribed by Congress. 195. The object of this power is to secure uni- formity in the organization and discipline of the militia, and, as a consequence, efficiency in case of actual service. By an Act passed in 1820, Con- gress provided that the system of discipline and field exercise, which is observed by the regular army, should also be observed by the militia. Seat of Government. 196. Congress exercise exclusive legislation, in all cases whatever, 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 government of the United States ; and they also 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, dockyards, and other needful buildings. CONSTITUTION OF THE UNITED STATES. 129 197. The seat of government in the first instance was New York." It was then removed to Philadel- phia, and, finally, in 1800, to Washington, a district of ten miles square, called the District of Columbia, having been ceded to the United States by Maryland and Virginia. Having exclusive jurisdiction within the District, Congress possess the means of protecting themselves from insult or interruption, without de- pendence on the state authorities, who might, in par- ticular exigencies, be unable or unwilling to defend them. 198. As the District of Columbia is not a state in the sense of the Constitution, the citizens cannot send Representatives to Congress, nor vote for Presi- dent or Vice-President of the United States. The whole body of Congress is its legitimate government, and to Congress it must look for needful and necessary legisla- tion. Jurisdiction over Forts, &c. 199. If a place is purchased in any state, with the consent of its legislature, for the erection of a fort, magazine, arsenal, dockyard, or other needful build- ings, then Congress possesses exclusive jurisdiction over such place, and neither civil nor criminal pro- cess, issued under the authority of the state, can be executed therein, unless the state expressly reserves I 130 AN EXPOSITION OF THE that privilege. Moreover, the inhabitants of such place cease to be inhabitants of the state, and cannot exercise any civil or political rights under the laws of the state. 200. On the other hand, if a purchase of territory is made by the United States in any state for public purposes, without the consent of its legislature, then the jurisdiction of the state over such territory re- mains full and complete. It has not the right, how- ever, to tax such territory. General Power of Congress. 201. Had the Constitution made no provision to that effect, it would have been implied that Congress might employ the means necessary to execute the powers with which they were invested. But it has not been left to implication : the Constitution ex- pressl} 7 authorizes Congress to make all laws which shall be necessary and proper for carrying into exe- cution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. 202. Congress has no power under this clause of the Constitution, except to provide the means of executing the powers vested in the government of the United States, or in any department or officer thereof. If the means be appropriate to this end, if they are not prohibited, and are consistent with the CONSTITUTION OF THE UNITED STATES. 131 letter and spirit of the Constitution, then they are authorized. Concurrent powers of Legislation in the States. 203. It is important to observe that the powers which the Constitution confides to Congress are not necessarily exclusive. It is only in cases where the Constitution, in express terms, grants an exclusive authority to Congress, or the nature of the authority requires that it should be exclusively exercised by Congress, that the subject is taken from the state legislatures. 204. It is believed that there are only three cases where the authority of Congress is exclusive : First, when it is made exclusive in express terms ; secondly, when a power is confided to Congress, and the states are prohibited from exercising a like power; thirdly, when a power is granted to Congress to which a similar power in the states would be absolutely and totally contradictory and repugnant. 205. In all other cases the states retain concurrent authority with Congress, subject, however, to two (imitations. One is, that if the state legislation con- flicts with that of Congress, then it is void, because the laws of the United States made in pursuance of the Constitution are supreme. The other is, that where, from the nature of the power, its exercise at 132 AN EXPOSITION OF THE the same time by both Congress and the states "would be inconsistent, then the legislation of Congress, in pursuance of that power, absolutely suspends the legislative power of the states over the same subject. Thus, Congress are authorized to establish uniform laws on the subject of bankruptcy, but the states may pass bankrupt laws, provided there be no act of Congress in force establishing a uniform law on that subject. In this instance, it is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. When Congress passes a uniform law, the partial laws of the states must yield to it. CONSTITUTION OF THE UNITED STATES. 133 POWERS DENIED TO CONGEESS. 206. We have seen in the preceding pages what Congress may do. The next step leads us to con- sider what they may not do. The Slave Trade. 207. In the first place, the migration or importa- tion of such persons as any of the states existing at the time of the adoption of the Constitution should think proper to admit, were not to be prohibited by the Congress prior to the year one thousand eight hundred and eight ; but a tax or duty might be im- posed on such importation not exceeding ten dollars for each person. 208. The object of this clause was to prevent Congress from interdicting the slave trade prior to the year 1808. At the time the Constitution was [ framed, there was a strong feeling in several of the states in favor of that trade, and in deference to that feeling Congress were inhibited to abolish it prior to the year above named. Congress, however, at an early day prohibited American citizens from carrying on the traffic between foreign countries; and they 12 134 AN EXPOSITION OF THE passed a prospective Act in 1807, prohibiting the importation of slaves into the United States after January 1, 1808. As the penalties of this Act were not sufficient to put an end to the traffic, another Act was passed in 1820, declaring the slave trade piracy, and punishing those engaged in it with death. Habeas Corpus. 209. The privilege of the writ of habeas corpus cannot be suspended, unless when, in cases of rebel- lion or invasion, the public safety may require it. 210. The words habeas corpus mean " that you have the body," and the writ, so called, is directed to the person charged with illegally detaining another in custody, commanding him to produce the body of the prisoner, and make known the cause of his de- tention. If no sufficient ground of detention appears the party is entitled to an immediate discharge. The courts of the United States issue the writ of habeas corpus in cases falling within their jurisdiction, and ; the state courts possess a like authority in cases falling within theirs ; so that a prompt and efficacious remedy and a convenient tribunal are provided for every case of illegal restraint of a man's liberty. 211. Under the judiciary act of 1789, the justices of the Supreme Court, as well as the district judges, have power to grant writs of habeas corpus for the CONSTITUTION OF THE UNITED STATES. 135 purpose of inquiry into the cause of commitment; pro- vided, however, that such writs shall not extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed to trial before some court of the same, or unless it is necessary to bring them into court to tes- tify. It will be observed, therefore, that by the terms of this act, no judge of a United States court can issue a habeas corpus to extend to a prisoner in cus tody under sentence or execution of a state court, no matter whether the imprisonment is under civil or criminal process, except for the single purpose of using such prisoner as a witness. By subsequent acts, how- ever, the power of the justices of the supreme and district courts was extended to cases of a prisoner or prisoners in jail or confinement, committed or confined by any authority, for any act done or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof; and to cases where subjects or citizens of a foreign state, and domiciled therein, are committed, or confined, or are in custody, under or by any au- thority, or law, or process founded therein, of the United States, or of any one of them, for or on ac- count of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemp- tion, set up or claimed under the commission, or order, or sanction of any foreign state or sovereignty, the validity or effect whereof depends upon the law of 136 AN EXPOSITION OF THE nations, or under color thereof; and, lastly, to cases where any person is restrained of liberty in violation of the Constitution, or of any treaty or law of the United States. 212. It is only in the foregoing cases that the Federal judiciary has jurisdiction of this writ; in all other cases arising under the specific laws of the several states or under the common law, the party aggrieved must seek his remedy in the appropriate state court. But the state tribunals have no right, through the writ of habeas corpus, to inquire into the lawfulness of restraint under the authority of the United States ; they may indeed issue the writ when illegal restraint upon liberty is alleged, yet when it is served upon the Federal officer, having the prisoner in charge, and his return shows that he is held under Federal authority, the state court can proceed no further with the case. Such officer is not bound to obey the state process, except so far as to make known to the state tribunal the authority under which the prisoner is held. 213. In cases of rebellion or invasion, the public safety may require that the government should have the power to imprison dangerous persons on grounds that might not be sufficient to prevent their discharge should they or others for them apply to the courts for a writ of habeas corpus. In such cases, there- fore, Congress may suspend the privilege of the writ ; CONSTITUTION OF THE UNITED STATES. 137 the judicial interpretation of this clause of the Con- stitution being that the President has not the power to suspend the privilege of the writ, and that it can only be done by Congress. The power of the Presi- dent is limited to executing the laws; he has no power to suspend them. The latter, so far as it exists, is a legislative function, and by the Constitution belongs to Congress. We may add, that a suspension of the privilege of the writ, does not suspend the writ itself; the w T rit issues as a matter of course: on its return the court decides whether the applicant is entitled to proceed further Attainder. 214. No bill of attaiuder or ex post facto law shall be passed. 215. The English Parliament exercised, until a very recent period, the power of infiictiug death upon a per- son, and confiscating his property by a special act, with- out allowing him an opportunity to defend himself before a judicial tribunal. Such special act is called a bill of attainder. In passing it Parliament could disregard the rules of evidence and the principles of justice, and con- demn a man to death from mere political rancor, hatred or suspicion. In favorable times such a power is not likely to be exercised ; in bad times it is sure to be abused. Congress are, therefore, prohibited from passing a bill of attainder. 12* I 138 AN EXPOSITION OF THE Ex Post Facto Laws. 216. By an ex post facto law is meant a law that makes an act done before the passing of the law, and which was innocent when done, criminal ; or which aggravates a crime, and makes it greater than when it was committed ; or which changes the punishment, and inflicts a greater punishment than the law an- nexed to the crime when committed ; or which alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender; or subjects an individual to a pecuniary penalty for an act which, when done, involved no re- sponsibility, or deprives him of any valuable right — such as the right to follow a lawful calling — for acts not punishable when committed, or not punishable in that mode, the law will be ex post facto and void. 217. Ex post facto laws relate to penal and crimi- nal proceedings, which impose penalties or forfeitures, and not to civil proceedings, which affect private rights retrospectively. And a law that mitigates the character or punishment of a crime already committed, J does not fall within the prohibition of the Constitu- j tion, such law being in favor of the citizen, and molli* fying, in his behalf, the rigor of the criminal law. Nor j are statutes which enlarge the class of persons who may CONSTITUTION OF THE UNITED STATES. 139 be competent to testify in criminal cases ex post facto in their application to prosecutions for crimes committed prior to their passage. But a statute or constitutional provision which denies to the accused the benefit of a prior law that acquitted him, for example, of a charge of murder in the first degree, on conviction of murder in the second degree, is an ex post facto law within the mean- ing of this clause of the constitution. Capitation Tax. 218. We have elsewhere seen that no capitation or other direct tax can be laid, unless in proportion to the census or enumeration which the Constitutic-n directs to be taken (sec. 136 et seq.), and it is unne- cessary, therefore, to recur to the subject again. Taxes on Exports prohibited. 219. No tax or duty can be laid on articles ex- ported from any state, and this for the obvious reason that such a tax would bear unequally. If a tax, for instance, could be laid on all tobacco exported, then the states producing and exporting tobacco would bear exclusively a portion of the public burthen which ought to be divided among all the states. By impos- ing a heavy tax upon any single article of export, the states not exporting such article might remain 140 AN EXPOSITION OF TIIE exempt from contributing their just share of the public taxes. Indeed, if Congress were not altogether prohibited from laying taxes on exports, they might derive the whole revenue of the government from the exports of particular states. Hence the propriety of the prohibition. 220. In the interpretation of this clause of the Con- stitution it has been held that a state is forbidden to impose a stamp duty on bills of lading for an article of commerce transported from such state to a foreign port, because a bill of lading being a necessary instrument in the transactions of commerce, a duty thereon is in effect a tax on exports. But the requirement of a stamp, under our internal revenue system, on packages of tobacco intended for exportation, as a means of separating and identifying such packages, and of carrying out such intent, is not a tax on exports. No Preference to he given to the Ports of one State over those of another. 221. No preference can be given, by any regula- tion of commerce or revenue, to the ports of one state over those of another ; nor can vessels bound to or from one state, be obliged to enter, clear, or pay duties in another. 222. The object of this clause is to prevent advan- tages being granted to one state at the expense of others ; and also to prevent that system of commer- cial regulation by which, before the Revolution, CONSTITUTION OF THE UNITED STATES. 141 vessels sailing from the colonies for Europe were compelled to proceed first to Great Britain, and sail from some British port. The power thus to interrupt voyages for the benefit of particular states is properly denied to Congress. Appropriations. 223. No money can be drawn from the Treasury, but in consequence of appropriations made by law ; and a regular statement and account of the receipts and expenditures of all public money must be pub- lished from time to time. 224. Two checks are here provided against an improper use of the public money. In the first place, before money can be drawn from the Treasury by the President or any officer of the government, a specific appropriation must be made by Congress. In the second place, a statement of the receipts and expenditures of all public money must be published from time to time, and Congress are thus made responsible to the people for any extravagance in the public expenditures^ Not even the creditors of the government can be paid out of the Treasury, without Congress first making an appropriation for that purpose. Their only remedy is an application to Congress, as they can neither sue the United States nor have a lien on the public property which 142 AN EXPOSITION OF THE may happen to be in their possession. But now, by the act of Feb. 24, 1855, claims against the United States, and counter claims, are determined by a court of claims, from whose decision, in certain cases, an appeal lies to the Supreme Court. Titles of Nobility, &c. 225. No title of nobility can be granted by the United States ; and no person holding any office of profit or trust under them can, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. 226. Titles of nobility are incompatible with that spirit of equality which pervades our system of government, and the United States are, therefore, prohibited to grant them. The states, likewise, in their individual character, as we shall see hereafter, are equally prohibited to grant any title of nobility. 227. Officers of the United States are forbidden to accept, without the consent of Congress, any present, emolument, office, or title, of any kind what- ever, from any king, prince, or foreign state, lest foreign governments should in that manner unduly influence our affairs. When presents are sent to the President, as they sometimes are from foreign princes, they are usually deposited in the public offices — it not being thought courteous to decline them. CONSTITUTION OF THE UNITED STATES. 143 POWERS DENIED TO THE STATES. z28. Having now considered the restrictions which the Constitution imposes upon Congress, we next proceed to consider the restrictions which are im- posed upon the states. Prohibition as to Treaties, &c. 229. The first is, that no state shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attain- der, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. 230. It will be observed that several of these restrictions are among the number of those which we have already enumerated as being imposed on Con- gress : such, for example, as the prohibition to pass any bill of attainder, ex post facto law, or to confer any title of nobility. But for the most part, the powers which are here denied to the states may be exercised by Congress. 144 AN EXPOSITION OF THE 231. It is obvious that if the states were at liberty to make treaties, or form alliances and confederations, there would be no harmony or uniformity in our rela- tions abroad, and no stability or independence at home. The separate states might form conflicting treaties and alliances, and enter into such engage ments as would give foreign powers an opportunity to interfere and exercise a control in our affairs. The treaty-making power, therefore, is denied to the states, and confided to the government of the Union. 232. Not only are the states forbidden to enter into any treaty, alliance or confederation, while in the union, but it has been decided by the Supreme Judicial tribunal of the Federal Government, that they have no lawful power to depart from the Union, and to form Confed- eracies outside of it. Ordinances of secession and acts of legislation, intended to give effect to such ordinances, are absolutely null. In spite of them, the states and their citizens do not cease to be members of the Union. And their acts of legislation, while thus attempting to withdraw from the Union, which do not impair, or tend to impair, the supremacy of the Federal authority, or the rights of the citizens under the Constitution, will be treated as valid and binding. Letters of Marque and Reprisal. 233. Though letters of marque and reprisal are sometimes granted in peace, as a means of redress, CONSTITUTION OF THE UNITED STATES. 145 and not as a measure of hostility, yet they are usually the precursor of war whether so intended or not. Hence it would be most unwise to put it in the power of a single state to involve the whole country in hostilities, by adopting a measure which would be likely to incur them. Coinage. 234. The power to coin money is denied to the- states, and confided exclusively to Congress, in order to secure a uniform currency in place of coins of various forms and weights, which otherwise might be put in circulation. It has been said, and truly, that if the states could coin money and regulate its value,, then there might be as many different currencies as- states. Yet the same practical consequence follows* from the power which the states exercise of authoriz- ing the circulation of bank paper as currency. A. uniform metallic currency is secured by giving to- Congress the exclusive authority to coin money andl regulate its value ; but there is no such uniformity in the paper currency of the states, which is the- actual and well-nigh universal substitute for coin- The paper currency of the states, however, under re- cent legislation, has almost entirely given way to the circulation of the national banks. It has been sup- posed that the taxing power of Congress was confined to the purpose of raising revenue ; yet in aid of the 13 K 146 AN EXPOSITION OF THE circulation of the national banks, the state banks have well-nigh been taxed out of existence, and this too under acts of Congress passed avowedly for the purpose. The constitutionality of this taxation too has been sustained by the Supreme Court of the United States. The force of the decision, however, is much impaired by the fact that it was the decision of a divided court. Bills of Credit. 235. Bills of credit, which the states are prohibited to emit, are bills issued by a state on the faith of the state, and intended to circulate through the commu- nity in the ordinary business of life as money. Bonds or obligations, therefore, issued by or on behalf of a state, binding it to pay money at a future day, for purchases which it has made, or for services re- ceived, or for money borrowed, are not bills of credit within the meaning of the Constitution. Neither are # the bills issued by banks which a state incorporates, though the state may be a stockholder in such banks, or even the exclusive owner of the stock. But if the bills were issued on the credit of the state, instead of the credit of the funds of the bank, it would be otherwise. CONSTITUTION OF THE UNITED STATES. 147 Legal Tender. 236. Though the states may authorize the issue of paper money, they are prohibited to make anything but gold and silver coin a tender in payment of debts. During the Revolutionary War and subsequently, attempts were frequently made to maintain the credit of paper money, by making it a tender in payment of debts — the result being gross wrong and injustice to creditors. Instances were not wanting where the debtor had received gold and silver, and yet was enabled to pay his debt with paper money, which was so depreciated as to be nearly worthless. It was to prevent the possibility of such grievances that the states were inhibited to make anything but gold and silver coin a tender in payment of debts. Bills of Attainder and Ex Post Facto Laws. 237. We have already seen that Congress can pass no bill of attainder or ex post facto law (sec. 214), and for the same reason the states are equally prohibited to pass such laws. A power to do so could scarcely be exercised by the most judicious hands without oppression and injustice, and it is therefore, denied both to Congress and the state 148 AN EXPOSITION OF THE legislatures. But an ex post facto law, it will be recollected, relates to criminal proceedings. Hence the Constitution does not prohibit the states from passing retrospective laws which relate to civil pro- ceedings, though such laws may destroy vested interests or affect private rights. A contract, for example, founded upon an illegal or immoral consi- deration is void ; yet it would not be repugnant to the Constitution for a state to enact that all such contracts should be valid and binding upon the par- ties, though such enactment would be retrospective in its character. 238. A bill of attainder, to repeat what has already been said in a preceding section (215) is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the constitution, bills of attainder iuclude bills of pains and penalties. But under the inhibition of the constitution neither Congress nor the state legislatures can pass such acts. The rights of the citizens are secure against depri- vation or suspension for past conduct by legislative enactment, under any form, however disguised. CONSTITUTION OF THE UNITED STATES. 149 Impairing the Obligation of Contracts. 239. The states can pass no law impairing the obligation of contracts; (nor does the constitution au- %, thorize Congress to pass such laws.^) Any deviation from the terms of a contract, by which the intentions of the parties are enlarged or abridged, or in any manner changed, as by postponing or accelerating the period of perform- ance, imposing conditions not expressed in the contract, or dispensing with those which are expressed, however minute or apparently immaterial in their effect upon the contract, impair its obligation. Laws, however, which merely affect or change the remedy by which a contract is enforced, do not impair its obligation, provided effectual though different means of enforcing it remain. 240. The contracts to which the Constitution refers are those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. Such contracts, whether entered into between individuals, or states, or corpo- rations, or between a state and individuals, cannot be impaired by state legislation. 241. A state is as much inhibited from impairing its own contracts, or contracts to which it is a party, as it is from impairing the obligation of contracts between individuals. When, therefore, a state makes a grant of lands or corporate powers, an implied con- 13* 150 AN EXPOSITION OF THE tract arises that it will not reassert the right with which it has parted. Thus, when a state makes a conveyance of land, such conveyance cannot be re- scinded or revoked by the state. The right of the state is extinguished by the grant, and cannot be resumed. But it may discontinue offices created by statute, or take away the compensation without abol- ishing the office ; or, as we shall see in section 243, abolish or change the organization of municipal cor- porations at any time, unless forbidden by its own fundamental law. It cannot, how T ever ; take from a municipal corporation the power to levy taxes to pay existing debts; nor authorize stay of execution in a case where the debtor has expressly waived it ; nor deprive persons of the right to maintain suits because participating in or sympathizing with rebellion against the United States ; nor invalidate a contract for the purchase or hire of slaves, such contract being valid when made ; nor compel a public creditor to surrender his securities, and accept others bearing a less interest. 242. When a state or city borrows money, and con- tracts to repay it with interest, it cannot detain" any part of the agreed interest by calling the amount detained a tax. This would impair the obligation of the contract. The constitutional provision against impairing contract obligations, is a limitation upon the taxing power, as well as upon all legislation, whatever form it may assume. Nevertheless, a state may tax any of its creditors within its jurisdiction for the debt due to him, and regulate the CONSTITUTION OF THE UNITED STATES. 151 amount of the tax by the rate of interest the debt bears, if its promise be left unchanged. But this cannot be done until payment of the debt or interest has been made, as stipulated, and the money has become a part of the common mass of property. And so a tax may be imposed on income derived from contracts, if it does not prevent the receipt of the income. We may add that when a municipal corporation makes a contract upon the faith that taxes will be levied, any legislation repealing or modifying its taxing power, so as to deprive the holder of the contract of all adequate and efficacious remedy, is within the constitutional inhibition. On the other hand, a right to reimbursement for damages caused by a mob, is not a right founded on contract between such corpora- tion and the sufferers. Its liability is created by law, and the law can be repealed or modified, either before or after the damage has occurred, and even though the statutory right has been converted into a judgment. It is purely a matter of legislative policy. 243. With regard to charters, they are divided into two classes, namely, public and private charters. The former are such as relate to public purposes alone, to charters that incorporate towns, cities, &c. Such charters merely grant political power, and are not contracts within the meaning of the Constitution, and may, therefore, be changed or modified at the pleasure of the state legislatures — care being taken, of course, not to violate or infringe private rights. But private charters, such as are granted to banks, 152 AN EXPOSITION OF THE colleges, insurance or turnpike companies, are con- tracts between the state and the corporators, and canuot, therefore, without the consent of such corpo- rators, be altered or repealed by the state, unless the right to do so has been expressly reserved ; nor can the state subject a private corporation to forfeiture of its franchises for that which was not a cause of forfeiture originally ; nor repeal a statute which made the stockholders liable for its debts contracted while it was in force. 244. But the legislature of a state cannot by any contract divest itself of the power to provide for the pro- tection of the lives, health, morals, and property of its citizens. No legislature by grant or charter can bargain away the public health, or the public morals. And if it does so, a subsequent legislature may repeal such grant or charter, without being obnoxious to the constitutional inhibition against impairing the obligation of contracts. 245. And where a state grants rights to private cor- porators in matters in which the public interest is concerned no implied contract arises that it will not make a simiiai grant to other corporators, though the second grant may operate to the injury of the first. Thus where a state granted a charter to a company authorizing them to build a bridge, and take tolls thereon for a certain period, it was held that it might equally grant a similar charter to another company, though the second bridge should be on the same line of travel as the first, and accom- modate the same passengers, and thus be the means CONSTITUTION OF THE UNITED STATES. 153 of diverting its tolls ; and this for the reason that as no direct engagement was made that no other bridge should be built, no such engagement was to be im- plied ; because in such cases no rights are to be taken from the public and given to corporations by impli- cation. 246. The state under the right of eminent domain, to which all contracts are subject, may appropriate corporate franchises, as well as every other species of property. If suitable provision is made by the legislature for the compensation of those whose prop- erty or franchise is injured or taken away, under this paramount power, there is no violation of public faith or private right. On the contrary, the obligation of the contract created by the charter is thereby re cognized. 247. A state law which discharges a debtor from his obligation to pay a debt which was contracted before the passage of the law, is unconstitutional and void, because it not only impairs, but destroys the obligation of the contract. But a law which operates upon and discharges future contracts is constitutional, provided such contracts are made within the state, and between citizens of the state. And this for the reason that parties to a contract have reference to the existing laws of the place where it is made. They know that these laws act upon their contract and govern its construction, validity, and obligation. A state, too, may prescribe the remedies to enforce con- 154 AN EXPOSITION OF THE tracts, and pass statutes of limitation, as well as change the rules of evidence, applicable to existing causes of action or to pending suits. And it may too abolish ex- isting remedies, provided other and efficient ones are substituted or remain, and may increase exemptions of property from execution arising out of existing contracts, and abolish imprisonment for debt. 248. A statute making the bills of a bank, whereof the state owns the stock, receivable in payment of all debts due the state, constitutes a contract between the state and those who receive the bills ; and the state is thereby precluded from depriving the bill holders of the rights acquired under such statute, by repealing it. So too a state, upon a consideration therefor, may agree to exempt property from taxation, or to exempt it beyond a certain rate or amount, and such exemp- tion cannot be revoked. On the other hand, if the exemption is a mere privilege, it may be revoked at any time, in the legislative discretion. Prohibition as to Imposts, &c. 249. No state can, 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 pro- duce of all duties and imposts, laid by any state on imports or exports, are for the use of the Treasury of the United States ; and all such laws are subject to the revision and control of Congress. CONSTITUTION OF THE UNITED STATES. 155 250. While the states possess a concurrent power of taxation with the United States, there is one source of revenue which they cannot touch without the consent of Congress ; that is, they cannot lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. By this prohibition on the states to impose duties, and confiding the power to Congress alone, a uniform system of duties is secured, and rival systems on the part of the several states pre- vented. 251. For the purpose, however, of executing their inspection laws, the states may impose such duties on imports or exports as may be absolutely necessary ; but the money arising therefrom is not for the use of the state. The net produce must be paid into the Treasury of the United States, and the laws imposing such duties are subject to the revision and control of Congress. Inspection laws are such as require cer- tain commodities specified in the laws themselves, and whether produced at home or imported from abroad, to be examined, and their quality approved before they are exported or offered for domestic use. 252. A state law requiring the importer of goods, by wholesale, bale, or package, to take out a license and pay for it, under certain penalties or forfeitures for neglect or refusal, has been held by the Supreme 156 AN EXPOSITION OF THE Court to be unconstitutional and void, both because it interferes with the power of Congress to regulate commerce, and violates the prohibition which we are now considering, that no state can lay a duty on imports. 253. The Court regarded a tax on the sale of an article imported only for sale, or a tax on the thing imported, in the hands of the importer, as equivalent to a tax or duty upon imports. If such a tax could be imposed at all, it might be made so heavy as to amount to a prohibition, and thus defeat the revenue by import, so far as it is drawn from importations into the state laying the tax. 254. But when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it loses its distinctive character as an import, and becomes subject to the taxing power of the state. 255. A tax on the gross receipts of a railroad com- pany is not invalid under this clause of the constitution. It is not regarded as a tax on inter-state transportation, nor as an impost or duty on imports or exports, but as a tax on the fruits of transportation ; on property, in other words, which has become incorporated into the general mass of the company's property, and lost its distinctive character as freight earned. CONSTITUTION OF THE UNT Tonnage Duties, 256 No state can, without the consent" 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 imminent danger as will not admit of delay. • 257. By tonnage is meant the capacity or burden of a vessel expressed in tons, which is ascertained by measurement, according to a rule prescribed by an Act of Congress ; and a duty of tonnage is a charge for the privilege of entering, or trading or lying in, a port or harbor, after a certain rate for every ton. The states are prohibited to impose such a duty, or any duty on a ship, without the consent of Congress, for the same general reason that they are prohibited to impose duties on im- ports or exports without a similar consent, namely, that there may be a uniform system in all the states: in a word, that harmony may prevail in place of diversity, inequality and discord. 258. Taxes levied by a state upon ships and vessels owned by the citizens of the state as property, based on a valuation of the same as property, are not forbidden by the Constitution, but taxes levied by a state upon ships and vessels as instruments of commerce and navigation are forbidden. Hence a duty, tax or burden imposed under the authority of a state, which is by the law im- 14 158 AN EXPOSITION OF THE posing it to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privi- lege of arriving and departing from a port of the United States, or of trading, or lying therein, is prohibited. But a charge for services rendered or for conveniences provided is not a tax or a duty. Thus a wharf is a con- venience to a vessel, and when used by a vessel, is a ser- vice rendered to it. And for such service wharfage may be charged, and such wharfage may be proportioned to the size or tonnage of the vessel, without being a tonnage tax in the sense of the Constitution. Nor is it a regula- tion of commerce. Troops and Ships of War. 259. The states are prohibited to keep troops or ships of war in time of peace, without the consent of Congress, because the power to declare war, raise and support armies, and to provide and maintain a navy, is confided to Congress, and is supposed to be adequate to the security of the states without their keeping up military armaments themselves. Besides, if the states were at liberty to keep on foot standing forces, it might lead to collisions among them or with the general government, or end in the establishment of military governments in place of civil institutions. CONSTITUTION OF THE UNITED STATES. 159 Compacts. 260. The restriction, that no state shall enter into any agreement or compact with another state, or with a foreign power, without the consent of Con- gress, is intended to prevent any infringement of the rights of the federal government. The words are used in a political sense, and were intended to cut off all negotiation and intercourse between the state authorities and foreign nations. They cannot, for example, without the consent of Congress, enter into any agreement or compact, express or implied, to deliver up fugitives from justice from a foreign state, who may be found within their limits. 261. Coupled with the previous clause, which prohibits any state from entering into any treaty, alliance, or confederation, the door is closed against any political or other arrangements and combinations, on the part of the states, which might interfere with the stability and harmony of the Union, or the rights and controlling authority of the government of the Union. The consent of Congress, however, to agree- ments between states need not be express, but may be implied from its legislation on the subject. J 60 AN EXPOSITION OF THE Prohibition as to War. 262. The power of declaring war being confided to Congress, it is very proper that the states should be prohibited to engage in it without the consent of Congress, unless actually invaded, or in such immi- nent danger as will not admit of delay. Otherwise all the states might become involved in war in con- sequence of the folly, caprice, or rashness of any single state. When actually invaded, or in such imminent danger as will not admit of delay, the states have the right to raise troops without the con- sent of Congress, and provide for their own safety. Implied Prohibition as to Taxation. 263. In addition to the express prohibitions upon the states, which we have mentioned in the preceding sections, there is an important implied one, namely, that the states shall not tax any of the instruments employed by the government in the execution of its powers. They cannot tax the mail, nor the mint, nor patent rights, nor the papers of the custom- house, nor judicial process, nor stock issued for loans to the United States, nor the salaries of officers of the United States, nor ships, nor munitions of war, nor, in a word, any of the means or agencies employed to carry into effect the objects of the government. CONSTITUTION OF THE UNITED STATES. 161 264. But while this is true, it must be remembered that the taxing power of a state is one of its sovereign attributes ; that it is not derived from the Constitution of the United States ; and that in respect to property, busi- ness, and persons within its limits, this power remained, and remains entire, notwithstanding the Constitution. It is, however, a power concurrent with that of the gen- eral government, and in case of a tax upon the same subject by both the state and general governments, the claim of the latter as the supreme authority must be preferred. And as we have seen in the preceding section, it is a power restrained by this condition, namely, that it must not be so used as to burden or embarrass the opera- tions of the general government. But a state tax which remotely affects the efficient exercise of a Federal power is not for that reason alone inhibited by the Constitution. Hence a state may tax the property of a railroad com- pany though it is part of a system of roads constructed under the direction and authority of the United States and largely for the uses and purposes of its government. 14* L 162 AN EXPOSITION OF THE THE PRESIDENT. General Observations. 265. The vigor and efficiency of every government essentially depend upon its executive authority. Hence all lawgivers have bestowed great attention upon its constitution. If too much power is confided to this department, it may be employed to overthrow the other departments, and concentrate all the powers of government in its own hands ; if too little, then its action is languid, and imbecility marks all its move- ments. Various expedients have been resorted to in order to guard against abuse on the one hand, and weakness on the other. In some cases the executive power has been divided among several persons ; in others concentrated in a single hand. In some cases it has been declared hereditary ; in others elective, while again there has been no distinct executive de- partment — all the powers of government being united in a single assembly. This was the case under the Confederation, the whole power of the government being vested in Congress. 266. The evils of this latter system had been too CONSTITUTION OF THE UNITED STATES. 163 clearly demonstrated to admit of any division of opinion in the Convention, as to the necessity of separating the executive from the legislative and judicial departments, and giving it a distinct sphere. The general sentiment too was in favor of confiding it to the hands of a single officer, though there were voices who advocated a plural executive. It was said that an executive composed of three persons, chosen from the three great divisions of the country, would prevent any one division from prejudicing the interests of the other divisions. But the dissensions and factious consequences which had always arisen in governments where the executive authority was divided among several persons, were sufficient to restrain the Convention from repeating that error. Unity of the Executive. 267. The nature of man arid the lessons of history conspired to show the importance of unity in the executive department of the government. Hence the executive power was vested in a President of the United States of America. He holds his office during the term of four years, and, together with the Vice- President, chosen for the same term, is elected in the mode described in a succeeding section. 164 AN EXPOSITION OF THE Term of Office. 268. Though the President is re-eligible for suc- cessive terms, yet, in practice, he never has been a candidate for a third election. It was the opinion of many enlightened statesmen that he should be elected for seven years, and be ineligible afterwards. " But the practice adopted," says Mr. Jefferson, "I think is better, allowing his continuance for eight years, with a liability to be dropped at half way of the term, making that a period of probation." 269. Doubtless the frequent election of an execu- tive magistrate for a great country is attended with evils ; it creates great excitement, involves much expense and loss of time on the part of the electors, and renders the policy of the government in a mea- sure uncertain. But, on the other hand, were he to hold office for life or a long term of years, the struggle to obtain possession of so splendid a prize might break out in dissensions, tumults, and civil war. Besides, such an executive would not have that sense of dependence on the public approbation which is an essential check on his conduct. Mode of Election. 270. Each state appoints, in such manner as the legislature thereof may direct, a number of electors CONSTITUTION OF THE UNITED STATES. 165 equal to the whole number of Senators and Repre- sentatives to which the state may be entitled in the Congress ; but no Senator or Representative, or person holding an office of trust or profit under the United States, can be appointed an elector. 271. The legislature of each state may directly choose the electors itself, or refer the choice to the people. All the state legislatures, it is believed, have adopted the latter course, which is thought to be pref- erable to the former, as giving less opportunity for corrupt combinations or coalitions. 272. That the electors may be impartial persons, and unbiassed by their connection with or dependence on the President in office, who might desire a re-elec- tion, it is provided that no member of Congress, nor any person holding an office of trust or profit under the United States, shall be an elector. Each state has the same number of electors as Senators and Re- presentatives, which gives to the several states in the choice of President the same relative weight that they possess in Congress. 273. When chosen, the electors meet in their re- spective states and vote by ballot for President and Vice-President, one of whom, at least, must not be an inhabitant of the same state with themselves. They must name in their ballots the person voted for as President, and, in distinct ballots, the person 16G AN EXPOSITION OF THE voted for as Vice-President, and they must 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 must sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate is required, in presence of the Senate and House of Representatives, to open all the certificates, and the votes must then be counted. The person having the greatest number of votes for President is President, if such number be a majority of the whole number of electors appointed ; and if no person 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 Repre- sentatives must choose immediately, by ballot, the President. But, in choosing the President, the votes must be taken by states, the representation from each state having one vote. A quorum for this pur- pose consists of a member or members from two- thirds of the states, and a majority of all the states are necessary to a choice. And if the House of Re- presentatives do not choose a President whenever the right of choice devolves upon them, before the fourth day of March next following, then the Vice- President acts as President, as in the case of the CONSTITUTION OF THE UNITED STATES. 167 death or other constitutional disability of the Presi- dent. The person having the greatest number of votes as Vice-President is Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate must choose the Vice-President; a quorum for the purpose consists of two-thirds of the whole number of Senators, and a majority of the whole number is necessary to a choice. But no person constitution- ally ineligible to the office of President is eligible to that of Vice-President of the United States.* * The present mode, as described in the text, of electing the President and Vice-President, is different from the mode originally provided by the Constitution. But, in the year 1804, the Consti- tution was amended, and the amendment superseded the original clause. It may be useful, however, for reference and comparison to insert the original provision in this place. It is as follows : The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an in- habitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the Presi- dent, if such number be a majority of the whole number of elect- ors appointed ; and if there be more than one who have such a majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them 168 AN EXPOSITION OF THE Time of Election. 274. 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 United States. 275. By an Act of Congress, passed in 1845, the electors are required to be chosen in each state on the Tuesday next after the first Monday in November. By a previous Act, passed March 1, 1792, the elect- ors are directed to meet in their respective states, at a place appointed by the legislature thereof, on the first Wednesday in December in every fourth year succeeding the last election, and vote by ballot for President and Vice-President. They are then to make and sign their certificates of all the votes by them given, and to seal up the same, certifying on each that a list of the votes of such state for Presi- dent and Vice-President is contained therein ; and 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 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. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be 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. CONSTITUTION OF THE UNITED STATES. 169 appoint a person to take charge of and deliver one of the certificates to the President of the Senate, at the seat of government, before the first Wednesday of the next ensuing January; another of the certifi- cates is to be forwarded forthwith by the Post-office to the President of the Senate at the seat of govern- ment ; and the third is to be delivered to the' judge of the district in which the electors assembled. 276. The President of the Senate, on the second Wednesday in February succeeding every meeting of the electors, in the presence of both Houses of Congress, opens all the certificates, and the votes are then counted and the result declared. It will be ob- served that the Constitution does not determine how questions which may arise as to the regularity and authenticity of the returns of the electoral votes, or the right of the persons who gave the votes, or the manner or circumstances in which they ought to be counted, shall be decided. In the absence of any rule as to the jurisdiction or mode of proceeding in such cases, a partisan majority in Congress, as has been justly remarked, may always have the power to defeat the will of the people in the count, or to precipitate civil war. It is provided by law, that the term of four years, for which a President and Vice-President shall be chosen, shall, in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given. 15 170 AN EXPOSITION OF THE Qualifications for President 277. No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution, is eligible to the office of President ; neither is any person eligible to that office who has not attained to the age of thirty-five years, and been fourteen years a resident within the United States. 278. Were foreigners or naturalized citizens eligi- ble to the office of President, foreign powers might have an opportunity to intermeddle in our affairs. They might aid by morfey or other influences in elevating to the Presidency men of foreign birth and predilections, and the interests of the country be thus put in jeopardy. The exception in favor of such persons of foreign birth as were citizens of the United States at the time of the adoption of the Constitution, is now practically extinct. The distin- guished patriots who had so faithfully served their adopted country during the revolutionary struggle, and out of respect and gratitude to whom this excep- tion was introduced into the Constitution, have all passed away. No one, therefore, but a natural born citizen can now be elected to the office of President. 279. In respect to the qualification of age, it will be observed that the Constitution has established a gradation, as it were, in the legislative and executive CONSTITUTION OF THE UNITED STATES. 171 departments. A Representative must be twenty-five, a Senator thirty, and the President thirty-five. Without adverting to the relative importance of the duties confided to each, and which may require a higher qualification, in point of age, in the case of the President than is required in the case of a Representative or Senator, it may be remarked that it will rarely happen that the people of all the states will have had an opportunity to become familiar with the character, capacity, and principles of a citizen of any one state before he has attained the age of thirty-five ; or that he will have acquired that expe- rience, knowledge, gravity of character, and solidity of judgment that ought to distinguish a President of the United States. 280. By fixing the qualification, too, at thirty-five, an opportunity is afforded for previous service in both branches of Congress, where the future candi- date may acquire experience in public affairs, and at the same time become known to his countrymen. By requiring, also, a previous residence of fourteen years within the United States, he will be likely to have formed habits of attachment to his country and devo- tion to its institutions. The residence contemplated by the Constitution, however, does not exclude per- sons who are temporarily abroad in the public service, or on their private affairs. 172 AN EXPOSITION OF THE Disability of the President. 281. 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 office, the same devolves on the Vice-President, and the Con- gress 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 be elected. 282. In pursuance of the constitutional provision, Congress have provided that in case of the removal, death, resignation, or inability of the President and Vice-President, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Repre- sentatives, for the time being, shall act as President, until the disability be removed or a President shall be elected. 283. When the Vice-President succeeds to the office of President, upon the removal, death, or resig- nation of the latter, he discharges its duties until the close of the term for which the President was elected. But when he succeeds to the office upon the inability of the President, he discharges its powers and duties CONSTITUTION OF THE UNITED STATES. 173 only so long as such inability continues. On the other hand, when the offices of President and Vice-President both become vacant, Congress have provided that a new election shall take place. Meanwhile the Pre- sident of the Senate pro tempore, or, if there be no President of the Senate, then the Speaker of the House of Representatives, acts as President. 284. Congress have also provided that the only evidence of a refusal to accept, or of a resignation of the office of President or Vice-President shall be an instrument in writing declaring the same, and subscribed by the person refusing to accept or resign- ing, as the case may be, and delivered into the office of the Secretary of State. 285. In order to provide for the exigency of a vacancy in the office of President during the recess of Congress, it has become usual, as we have already seen (sec. 76), for the Vice-President, a few days before the termination of each session of Congress, to vacate the chair of the Senate, to enable that body to elect a President pro tempore. His Salary. 286. The Constitution declares that the President shall, at stated times, receive for his services a com- pensation which shall neither be increased nor dimi- nished during the period for which he shall have 15* 174 AN EXPOSITION OF THE been elected, and he shall not receive within that period any other emolument from the United States, or any of them. 287. In the first term of Washington's administra- tion the salary of the President was fixed at the sum of twenty-five thousand dollars per annum. This sum, together with the use of the Presidential mansion and furniture, was deemed adequate to the becoming sup- port of the President. No change was ever made in respect thereto, until March third, eighteen hundred and seventy-three, when Congress enacted that on and after the fourth day of March ensuing, the President should receive in full, for his services during the term for which he had been elected, the sum of fifty thou- sand dollars per annum, payable monthly. By the same act, the salary of the Vice-President was in- creased from eight to ten thousand dollars per annum. 288. A salary should be granted the President, otherwise persons of moderate fortunes might be deterred from accepting the office, however well qualified in other respects to perform its duties ; or, on the other hand, be impeded in their performance by pecuniary difficulties, and exposed to unworthy temptations in consequence of them. Congress should not have the power to increase or diminish this salary during the period for which the President was elected, because his independence would be thus endangered or destroyed. In order to prevent a diminution of CONSTITUTION OF THE UNITED STATES. 175 his salary on the one hand, or to obtain its augmenta- tion on the other, he would be apt to take the will of Congress for his guide, instead of performing his duties in a firm, impartial manner. It has been justly remarked that a control over a man's living is, in most cases, a control over his actions. His Oath. 289. Before entering upon the execution of his office, the President is required to take the following oath : — " 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, preserve, protect, and defend the Constitution of the United States." His Powers. 290. The President is 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 has power to grant reprieves and pardons for oifences against the United States, except in cases of impeachment. 176 AN EXPOSITION 01 THE Commander-in-Chief of the Army. 291. Experience has demonstrated that the success of military and naval operations essentially depend upon the vigor, promptitude, and energy with which they are executed, and that these qualities are most likely to be displayed where the command is intrusted to a single person. Hence the propriety of confiding the command of the public force to the President. When the legislative authority has declared war, the President, to whom its execution is confided, is bound to carry it into eifect. He has a discretion vested in him as to the manner and extent ; but he cannot law- fully transcend the rules of warfare established among civilized nations. 292. The President is not obliged, in person, to take the command of the army, but he may delegate his right to another officer ; nor is he obliged to command, in person, the militia when they are called into the public service, but may confer the chief command upon another. In his capacity of commander-in-chief of the army and navy, he may establish rules and regulations for their government ; and the rules and orders emanating from the War and Navy Departments are to be considered as emanating from him. CONSTITUTION OF THE UNITED STATES. 177 293. He has no power to initiate or declare war either against a foreign nation or a domestic state. But by Acts of Congress he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a state or of the United States. If a war be made by invasion of a foreign power the President is bound to resist force by force, and without waiting for any special legislative authority. And whether the hostile force be a foreign invader, or states organized in rebellion, it is none the less a war, though the declaration of it be unilateral. In the latter case he may accord to such states the char- acter of belligerents, and proclaim a blockade of their ports. He may too employ secret agents to enter the hostile lines to obtain information, and pay them out of the contingent funds under his control. He may, also, in case of war, whether foreign or civil, establish a pro- visional government, and courts in the hostile territory occupied by the military forces of the United States, and the lawful acts of such government, and the judgments and decrees of such courts will be upheld. And Congress has power, upon the close of the war, and the dissolution of the Provisional Court, to provide for the transfer of cases pending in that court, and of its judgments and decrees, to the proper courts of the United States. M 178 AN EXPOSITION OF THE Executive Departments, 294. To enable the President to perform the vari- ous important duties devolving on him, Congress have at different times created executive departments, to which are allotted functions peculiar to each. These departments are now six in number, and are desig- nated as follows : — First, Department of State ; secondly, Department of War ; thirdly, Department of the Treasury; fourthly, Department of Justice; fifthly, Post-Office Department; sixthly, Department of the Navy ; seventhly, Department of the Interior. 295. These departments are aids and instruments by which the executive authority of the government is administered. The chief officer of each is termed Secretary, and the name of the department over which he presides at once suggests the character of the duties confided to him. 296. Thus the Secretary of State, in subordination to the President, has the general charge of all matters relating to our foreign affairs ; the Secretary of War, of all matters relating to the control and disposition of the army, the erection of fortifications, and the purchase of arms and munitions ; the Secretary of the Navy, of all similar matters relating to the naval establishment of the United States; the Secretary CONSTITUTION OF THE UNITED STATES. 179 of the Treasury has charge of the finances of the government, and is required, at the commencement of every session, to lay before Congress a report on the subject of finance, containing estimates of the public revenue and public expenditures, and plans for increasing the revenue ; and the Secretary of the Inte- rior, has supervision of the patent, laud, pension, and census offices ; and also of Indian affairs, mines, and the public buildings. 297. The Postmaster-General, as we have elsewhere remarked, has charge of the postal affairs of the coun- try ; and the law officer of the government, termed the Attorney-General, is bound to prosecute and conduct all suits in which the United States are a party, and to give his advice and opinion, when required by the Presi- dent, or when requested by the heads of any of the departments, touching any matters that may concern their departments. 298. The Secretaries of the several departments are appointed by the President, with the advice and consent of the Senate, and by recent legislation, are only removable with the like advice and consent. He may require their opinion in writing upon any subject relating to the duties of their respective offices ; but in practice he assembles them as a cabinet council. Hence they are spoken as the Cabinet. This means, however, that they are an advisory body whom the President may con- vene or consult at his discretion. The political respon- sibility of their official acts is upon him, but they are 180 AN EXPOSITION OF THE individually responsible as to any duties specially imposed on them by law. 299. Though the President may require the written opinion of his Cabinet, as above mentioned, he has no such authority with respect to the judiciary. The judges can only be called upon to decide controver- sies brought before them in legal form, and are bound to abstain from extra-judicial opinions upon questions of law. Reprieves and Pardons. 300. The President has power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. 301. A reprieve is a suspension of the punishment awarded to an oifence for a designated time ; a pardon is a total remission of such punishment, and may be granted before as well as after trial and conviction. The President has also power to order a nolle pro- sequi in any stage of a criminal proceeding in the name of the United States. He may pardon too either absolutely or conditionally, provided the con- dition be compatible with the genius of the Constitu- tion and laws. The power to pardon is not limited to any particular grade of offence ; but, with one or two exceptions, which we shall presently notice, ex- tends to all, and includes the remission of fines, penalties, and forfeitures. And as it conferred by CONSTITUTION OF THE UNITED STATES. 181 the Constitution, Congress can impose no limitations or restrictions upon its exercise. 302. The prominent exception to the President's power of pardoning is in cases of impeachment, and he is restrained in those cases lest he should screen from punishment his favorites or dependants, who might be convicted of political or official oifences. It is thought too that he would not have the power to pardon a person sentenced for a contempt of either branch of Congress, though it is admitted that he may pardon for a contempt of court. Treaty Power. 303. The President has also the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. 304. Under this power the President, with the- sanction of the Senate, may make treaties of peace,, commerce, alliance, and of every other description,, subject to only one limitation, namely, that the trea- ties thus made shall not violate the principles of the Constitution. For example, the Constitution pro- vides that no title of nobility shall be granted by the United States. If, therefore, the President should negotiate a treaty, one of the stipulations of which provided that the United States should grant titles of nobility, such stipulation w r ould be absolutely void 182 AN EXPOSITION OF THE 305. In England the power to make treaties is vested in the king. His authority in this respect is absolute — the treaties he makes not being subject to the revision and ratification of either house of Par- liament. In the ancient republics, this power was usually lodged in the legislative branch of the govern- ment. At Athens and Rome, for example, the as- semblies of the people made the determinations respecting peace and war. 306. The Constitution of the United States com- bines the advantages of both systems. By making the President the organ of communication with foreign powers, and the agent in the negotiation of treaties, secrecy and despatch are secured, which are essential in order to profit by new and unexpected information, or new and unexpected changes in the fortune of affairs. On the other hand, by making the validity of his negotiations depend upon the consent of two- thirds of the Senators present, a guard is provided against an abuse of the trust thus confided to him. 307. When a treaty has been adjusted under the direction of the President, it is laid before the Senate for ratification. They deliberate upon it in what is termed executive session, that is, in secret, with closed doors. They may wholly reject it, or ratify a part of its stipulations, rejecting others, or recommend additional articles. If alterations are made, both the CONSTITUTION OF THE UNITED STATES. 183 President and the foreign government must assent to them before the treaty becomes effective and binding. And even where no alterations are proposed by the Senate, and they ratify a treaty in full, the Presi- dent may still withhold his assent to it. The Consti- tution does not determine, when treaties and acts of Congress are in conflict, which shall prevail; but judi- cially, it is held that a treaty may supersede a prior act of Congress, and an act of Congress may super- sede a prior treaty. Nominations to Office. 308. The President nominates, and, by and with the advice and consent of the Senate, appoints am- bassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution, and which shall be established by law ; but 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. 309. The President possesses the power to nego- tiate treaties, and, with obvious propriety, appoints the ministers through whom the negotiations are Car- ried on. He may appoint diplomatic agents of any rank, at any place, and at any time in his discretion, J 84 AN EXPOSITION OF THE and this power, it seems, cannot be limited by Congress. He is also charged with the execution of the laws, and with equal propriety appoints the officers who are to aid him in the performance of his duty. But this power of appointment cannot be exercised without the advice and consent of the Senate, except in the case of inferior officers, whose appointments Congress may, by law, vest solely in the President, or in the courts of law, or in the heads of departments. 310. Knowing, therefore, that the character and fitness of the persons whom he may select for office are to be scrutinized by the Senate, he will naturally be more cautious in making the selection. And if, from misinformation or error, he nominates unsuitable persons, the Senate can save the public from the consequences likely to follow a bad appointment, by rejecting the nomination. The constitutional agency of the Senate in appointments to office, however, is solely confined to a simple affirmation or rejection of the President's nominations ; they cannot originate an appointment. 311. After the President has nominated, and the Senate confirmed his nomination, he may still with- hold the appointment from the nominee. The ap- pointment is not final and complete until the Presi- dent has signed the commission. It has been thought even that it was not complete until delivery of the CONSTITUTION OF THE UNITED STATES. 18*5 commission ; but the Supreme Court have held other- wise. Removals from Office. 312. The power of the President to appoint to office, with the advice and consent of the Senate, was early in the history of the government construed to mean that he might remove, at his pleasure, all officers appointed and commissioned by him, unless the Con- stitution itself had fixed their tenure of office. The Constitution, for example, provides that the judges of the courts of the United States shall hold their offices during good behavior. These the President cannot remove; but most of the officers appointed by him, according to the long established doctrine and prac- tice, whether civil or military, were removable at his pleasure. But Congress, by the act of fifth April, eighteen hundred and sixty-nine, has provided that civil officers, appointed by and with the advice and consent of the Senate, shall not be removed, unless with the like advice and consent. Power to Fill Vacancies. 313. The President has power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which expire at the end of their next session. 314. As vacancies are continually occurring in the 16* 186 AN EXPOSITION OF THE public service from death, resignation, or expiration of office, the President is empowered to fill such vacancies. Were it otherwise it would be necessary, in order to provide for the appointment of officers, to keep the Senate in perpetual session, or summon them together at great expense and inconvenience when- ever a vacancy should occur. 315. The appointments thus made in the recess of the Senate, expire at the end of their next session. If, when the Senate assembles, the President should, with their concurrence, appoint the same person he had appointed in the recess, this would be a new appointment, and not a continuation of the old one. So that the bond for the faithful discharge of duties under the first appointment, would not be applicable to acts done under the second. 316. If the Senate, on the other hand, should not approve the nomination of an officer who had been appointed in the recess, his commission is not thereby determined, but continues in force until the end of the session, unless sooner determined by the Presi- dent. By recent legislation, Congress has declared that if no appointment, by and with the advice and consent of the Senate during its next session, be made to an office w T hich had become vacant and been filled during the recess of the Senate, then such office shall remain in abeyance, without any salary, fees, or emol- uments attached thereto, until such time as it is filled with the advice and consent of the Senate. CONSTITUTION OF THE UNITED STATES. 187 317. Again, if an office should be created by law while the Senate is in session, and the President should neglect to make any nomination to it, he could not, without special authority, appoint to such office after the adjournment of the Senate, because the vacancy does not happen during the recess. His Communications to Congress. 318. The President must, from time 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. 319. In obedience to this injunction of the Consti- tution, the President, annually, at the opening of each session of Congress, addresses a written message to them containing information respecting the foreign and domestic affairs of the country, together with such recommendation of measures as he may deem necessary and proper. He also sends them special messages on other occasions whenever he deems it necessary. President Washington and President Adams were in the habit of meeting both Houses in person, at the opening of each session of Congress, and delivering a speech to them ; but upon the acces- sion of Mr. Jefferson to the Presidency the practice was discontinued and written messages substituted. 188 AN EXPOSITION OF THE His Power to Convene Congress, &c. 320. The President may, on extraordinary occa- sions, 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. 321. The propriety of this power speaks for itself. Unexpected exigencies constantly occur in the affairs of nations which demand immediate action, and when this action should require the co-operation of Con- gress, the public interest might suffer serious detri- ment if that co-operation could not be obtained in advance of the regular session. 322. Of nearly equal necessity as the power to convene Congress on extraordinary occasions, is the power to adjourn them in cases of disagreement. When they cannot agree as to the time of adjourn- ment, the interposition of the President at once puts an end to the controversy, and thus prevents distrac- tion in the public councils. Receives Ambassadors. 323. The President receives ambassadors and other public ministers ; that is, they present their creden- tials to him, and receive his official recognition of CONSTITUTION OF THE UNITED STATES. 189 their character. Until this be done they cannot enter upon the performance of their duties. The President is the representative of his country in all diplomatic negotiations, and naturally is intrusted with the power to appoint and receive the agents through whom such negotiations are carried on. It will be observed, however, that he appoints with the concurrence of the Senate (sec. 808, et seq.), but re- ceives without their participation. The reason of this difference is, probably, to be found in the fact, that it would be attended with too much inconve- nience to summon the Senate together whenever a foreign minister should be sent hither, in order that he might be received and enter upon the discharge of his duties. 324. The President may, in his discretion, refuse to receive a foreign minister ; but if his refusal should be for inadequate cause, and unaccompanied with proper explanations, it might bring on hostilities. He may refuse to receive him upon the ground of his former bad character, or former offensive conduct, or because the special subject of the embassy is not proper or not convenient for discussion ; or because the state from which he is sent may be divided and distracted by civil wars, so as to render it inexpe- dient to acknowledge the supremacy of either party. 325. The President may also, when the language 190 AN EXPOSITION OF THE or conduct of a foreign minister is inadmissible, suspend his functions by a refusal to treat with him, or make application to his sovereign for his recall, or dismiss him and require him to depart within a reasonable time. It is said, too, that where the safety of the state absolutely requires it, force may be applied to confine or send him away. 326. This, however, is all that can be done. A foreign minister may insult the government to which he is deputed, or violate its laws, and he cannot be made amenable either to its civil or criminal jurisdic- tion. By the law of nations, from which the privi- leges of foreign ministers derive their origin and support, he is exempted from all allegiance, and from all responsibility to the laws of the country to which he is sent ; and this immunity extends to the attend- ants attached to his person. 327. To give effect to this principle of the law of nations, Congress, by an Act passed in 1790, declared that all writs and process issued out of any court of the United States, or of a particular state, or by any judge or justice, whereby any ambassador or other public minister of any foreign prince or state, or any servant of any such ambassador or minister, might be arrested, or his goods and chattels be seized, should be deemed utterly void. 328. Public ministers are divided into four classes: CONSTITUTION OF THE UNITED STATES. 191 First, ambassadors and papal legates or nuncios ; second, envoys, ministers, or others accredited to sovereigns ; third, ministers resident accredited to sovereigns ; fourth, charges d'affaires accredited to the minister of foreign affairs. Ambassadors are considered as peculiarly representing the sovereign or state by whom they are delegated, and entitled to the same honors to which their constituent would be entitled, were he personally present. The right of sending ambassadors is exclusively confined to crowned heads, the great republics, and other states entitled to royal honors. So far, however, as the nature of their respective functions is concerned, there is no essential difference between public mini& ters of the first and second class. The United States have always appointed ministers of the second class. 329. Though the President is expressly empowered to appoint consuls, he is not expressly empowered to receive them. He has, however, always exercised the power, it being deemed an incident of his authority ; and foreign consuls have never been allowed to act as such without his exequatur, or written declaration authorizing them to perform the duties of their office. 330. A consul is a commercial agent, and not a public minister in the sense of the law of nations. He is not, therefore, entitled to the immunities which that law confers upon such ministers. Both in civil 192 AN EXPOSITION OF THE and criminal cases he is subject to the laws of the country in which he resides, equally with all other persons. If guilty too of illegal or improper conduct, his exequatur may be revoked, which puts an end to his functions. Executes the Laws. 331. It is the duty of the President to take care that the laws are faithfully executed. 332. The very nature of the executive office would seem to imply that the President should perform this function of executing the laws. But it is expressly enjoined on him by the Constitution, and he may employ the forces of the United States in perform- ing it. Accordingly, when combinations exist among the citizens of one or more of the states to obstruct or defeat the execution of acts of Congress, and hos- tilities thence arise, and assume the dimensions of war, it is the duty of the President to prosecute opposing hostilities, offensive as well as defensive, and upon a scale to suit the exigencies of the occasion. And he cannot, in the exercise of his powers, be restrained by injunction, from carrying into effect an act of Con- gress, upon an allegation that such act is unconstitu- tional. Nor can he be arrested, imprisoned, or de- tained, while discharging the duties of his office; in all civil cases, his person possesses an official inviola- bility. CONSTITUTION OF THE UNITED STATES. 193 Commissions Officers. 333. It is also the duty of the President to com- mission all the officers of the United States. 334. A commission is the official certificate or written evidence of an appointment to office. It is signed by the President, and if a civil commission, it is made the duty of the Secretary of State to affix to it the seal of the United States. May he impeached. 335. We have seen elsewhere (sec. 78) that the President, Vice-President, and all civil officers of the United States are to be removed from office on im- peachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. It is unneces- sary, therefore, to recur to the subject again. 336. We have thus concluded our survey of the office of President ; and we shall now proceed to investigate the powers and duties of the judicial department of the government. 17 N 194 AN EXPOSITION OF THE THE JUDICIAL POWER OF THE UNITED STATES. In whom vested, 337. The judicial power of the United States is vested in one Supreme • Court, and in such inferior courts as Congress may, from time to time, ordain and establish. 338. The object of the Constitution was to consti- tute three great departments of government : the legislative, the executive, and the judicial depart- ment. The first is to pass laws, the second to ap- prove and execute them, and the third to expound and enforce them. The Supreme Court 339. The Supreme Court was instituted by the Constitution itself; but its organization was left to Congress. As at present organized, it consists of a Chief Justice and eight Associate Justices, any six of whom make a quorum, and it holds one term annu- ally, at the seat of government, and such adjourned or special terms as it may find necessary. for the des- patch of business, commencing, formerly, on the first Monday of December; but now on the second Monday CONSTITUTION OF THE UNITED STATES. 195 of October of each year. The salary of the Chief Justice is ten thousand five hundred dollars per annum, that of the Associate Justices ten thousand dollars per annum. 340. The importance of a supreme tribunal, in which may meet and terminate appeals from inferior judicatures, is very obvious. Uniformity of decision is thus secured, and the inferior courts kept within the limits of their jurisdiction. Inferior Courts. 341. While the Constitution imperatively requires that there shall be one Supreme Court, it is left to Congress to determine the number of inferior courts which they will establish. They are bound to create some inferior courts, because the Constitution con- templates cases of which only such courts can, in the first instance, take cognisance ; but whether one or more, Congress must, in their discretion, decide. 196 AN EXPOSITION OF THE Circuit Courts. 342. In the exercise of this discretion, Congress have established Circuit and District Courts. Circuit Courts are established in each of the nine great cir- cuits into which the United States are divided. Each circuft is composed of a certain number of districts ; the states of Rhode Island, Massachusetts, New Hampshire, and Maine, for example, being districts, and together constituting the first circuit. 343. In each of these districts there are annually held two Circuit Courts, which consist of a judge of the Supreme Court, a judge of the Circuit Court, and a judge of the District Court. The judge of the Su- preme Court, however, is not obliged to attend more than one term of the Circuit Court in any district of his circuit during any period of two years. The cir- cuit judge resides in his circuit, and possesses the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. The powers of the justices of the Supreme Court, as judges of the Circuit Court, are unaffected by the act (April 10, 1869) creating the circuit judges, except that the latter have the appointment of the clerks of said court. Jurisdiction of the Circuit Courts. 344. The jurisdiction of the federal courts depends exclusively on the Constitution and laws of the United CONSTITUTION OF THE UNITED STATES. 197 States. And as Congress have the power to establish inferior courts, they have, as a necessary consequence, the right to define their respective jurisdictions. Congress, accordingly, have vested the Circuit Courts with original jurisdiction, concurrently with the courts of the several states, of all suits of a civil nature, where the matter in dispute exceeds, five hundred dollars, exclusive of costs, and the United States are plaintiffs, or an alien is a party, or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. They have, too, original jurisdiction of all suits arising under any law of the United States relative to copyrights, and the rights growing out of inventions and discoveries. 345. They have also exclusive jurisdiction of all crimes and offences against the United States, the punishment of which is capital, and concurrent juris- diction with the District Courts of all such crimes and offences where the punishment is not capital. And they have appellate jurisdiction from all final decrees and judgments in the District Courts, where the matter in dispute, exclusive of costs, exceeds fifty dollars. 17* 198 AN EXPOSITION OF THE Jurisdiction — Original — Exclusive — Concur- rent — Appellate. 346. By original jurisdiction is meant the right vested in a court to hear and determine a cause in the first instance. This may be an exclusive or con- current right. It is exclusive when the particular cause can only be brought before the particular court ; and concurrent when it may be brought in any one of two or more courts. By appellate jurisdiction is meant the right vested in a court to hear and deter- mine appeals from the judgment of another court. The Circuit Courts, it will be observed, exercise jurisdiction of each description, that is, exclusive, concurrent, and appellate. District Courts. 347. The United States are at present divided into forty-five districts, in each of which is established a District Court. These districts, for the most part, consist of an entire state, though in several of the states it has been found necessary to constitute two or more districts. A District Court is composed of a single judge, who holds annually four stated terms, and also special courts, in his discretion. In dis- tricts where the business of the court may require it to be done for the purposes of justice, the judges CONSTITUTION OF THE UNITED STATES. 199 must hold monthly adjournments of the regular terms for the trial of criminal causes. Jurisdiction of the District Courts. 348. The District Courts have concurrent jurisdic- tion with the Circuit Courts of all crimes and offences against the United States, the punishment of which is not capital. They have also exclusive, original cognisance of all civil causes of admiralty and mari- time jurisdiction ; of all seizures under the impost, navigation, or trade laws of the United States, where the seizures are made upon the high seas, or on waters within their districts navigable from the sea with vessels of ten or more tons burthen ; and of all other seizures made under the laws of the United States, and also of all suits for penalties and for- feitures incurred under those laws. 349. They have also cognisance, concurrent with the Circuit and state courts, of causes where an alien sues for a tort committed in violation of the law of nations, or of a treaty of the United States ; and concurrently with the Circuit Courts, and the courts and magistrates of the several states, of all suits at common law where the United States, or any officer thereof, acting under the authority of an Act of Congress, shall sue. They have also jurisdiction, exclusively of the state courts, of all suits against 200 AN EXPOSITION OF TUB consuls, vice-consuls, except for offences of a capital nature. Clerics. 350. The Supreme, Circuit, and District Courts have power to appoint clerks ; and this power of ap- pointment includes that of removal. These clerks have the custody of the seal and records, and are bound to sign and seal all process, and seasonably to record the decrees, judgments, and determinations of their respective courts. In addition to an oath of office, they are required to give security in the sum of two thousand dollars, for the faithful discharge of their duties. Marshals. 351. The President and Senate appoint a Marshal for each judicial district, whose duty it is to attend the District and Circuit Courts when sitting therein, and to execute, within the district, all lawful precepts which are directed to him, and issued under the authority of the United States. He may command all necessary assistance in the execution of his duty, and may appoint one or more deputies, who are re- movable at his pleasure, as well as at the pleasure of the District or Circuit Courts. The Marshal himself is appointed for the term of four years ; but at the same time, with the concurrence of the Senate, is re- CONSTITUTION OF THE UNITED STATES. 201 movable at the pleasure of the President/ Before entering upon the duties of his office, he is obliged to give security in the sum of twenty thousand dollars for the faithful performance of the same by himself and his deputies, and, together with his deputies, to take an oath of office. Tenure of Office. 352. The judges both of the Supreme and inferior Courts hold their offices during good behavior, and at stated times receive for their services a compensa- tion which cannot be diminished during their continu- ance in office. 353. The President, with the advice and consent of the Senate, appoints the judges of the Supreme and inferior Courts ; but he does not possess the power of removing them. Their tenure of office is independent of both government and people ; it depends absolutely upon themselves. Their continu- ance in office is during good behavior. If they behave properly they are secured in their places for life ; if they misbehave, if they violate the trust confided to them, they may be impeached, and, if convicted, removed from office. Their Salary. 354. The Constitution has also secured to the judges a fixed provision for their support. They 202 AN EXPOSITION OF THE receive at stated times for their services a compensa- tion which cannot be diminished during their con- tinuance in office. Owing to the fluctuations in the value of money and in the state of society, it may happen that the salaries given to the judges at one time will be inadequate at another. Congress may, therefore, increase them ; but they have no power to diminish them. Nor can a tax be imposed upon the salary of a judge. Hence the judges can never be deterred from their duty by the apprehension of being placed in a less eligible situation. Extent of the Judicial Power, 355. The judicial power extends to all cases, in law and equity, arising under the 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 jurisdiction ; to controversies to which the United States are a party ; to controversies between two or more states ; to controversies between a state, when plaintiff, and citizens of another state ; to controver- sies between citizens of different states, and 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. CONSTITUTION OF THE UNITED STATES. 203 Meaning of Case. 356. A case, in the sense of the Constitution, is a controversy between parties which has taken a shape for judicial decision. Cases in law mean cases in which relief is sought according to the principles and practice of the common law ; cases in equity mean cases in which relief is sought according to the prin- ciples and practice of equity jurisprudence. A case is said to arise under the Constitution, or a law, or a treaty of the United States, when its correct decision depends upon the construction of either. The several Descriptions of Cases. 357. It will be observed that the Constitution extends the judicial power to eleven descriptions of cases : First, To all cases arising under the Constitution. Second, To all cases arising under the laws of the United States. Third, To all cases arising under treaties made by their authority. ♦ Fourth, To all cases affecting ambassadors or other public ministers, and consuls. Fifth, To all cases of admiralty and maritime jurisdiction. Admiralty and maritime jurisdiction 204 AN EXPOSITION OF THE relates to acts or injuries done upon the high sea, or within the ebb and flow of the tide, or upon the navigable lakes and rivers of the United States ; and to contracts, claims, and services appertaining to commerce and navigation. In civil suits of admiralty and maritime jurisdiction the proceedings are con- ducted according to the course of the civil law, and without a jury. Congress may, however, give to either party the right of trial by jury, or make such other change in the mode of proceeding as it deems proper. 358. Sixth, To controversies to which the United States shall be a party. The United States may sue, but they cannot be sued. Seventh, To controversies between two or more states. Eighth, To controversies between a state, when plaintiff, and citizens of another state, or foreign citizens and subjects. As the Constitution originally stood, a state might be sued by a citizen of another state. But the states deemed this derogatory to their dignity, and the Constitution was therefore amended, so that the states may sue ; but cannot be sued by individuals, whether they be citizens of another state, or citizens or subjects of any foreign state. Ninth, To controversies between citizens of differ- ent states. Citizenship, when spoken of in the Constitution, in reference to the jurisdiction of the CONSTITUTION OF THE UNITED STATES. 205 courts of the United States, means nothing more than residence. But a resident in one of the territories or of the District of Columbia, is not entitled to sue or be sued as a citizen of a state. A corporation resides within the state creating it, and has no legal existence outside, of it. Tenth, To controversies between citizens of the same state claiming lands under grants of different states. Eleventh, To controversies between a state or the citizens thereof and foreign states, citizens, or sub- jects. A foreign state cannot be sued ; she can only appear in the federal courts as plaintiff. Original Jurisdiction of the Supreme Court. 359. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court has original jurisdiction. 360. The original jurisdiction of the Supreme Court is founded entirely on the character of the parties : the nature of the controversy is not contem- plated by the Constitution. And this jurisdiction Congress has no power to extend ; but it is not exclu- sive, and it is within the power of Congress to vest it in the subordinate federal courts also. The Act of Congress organizing the Supreme Court declares, for example, that in all suits or proceedings against ambassadors or other public ministers or their domestics, or do- mestic servants, the jurisdiction shall be exclusive ; 206 AN EXPOSITION OF THE but not exclusive when the suit is brought by an ambassador or other public minister, or where a con- sul or vice-consul is a party. Appellate Jurisdiction. 361. In all the other cases before mentioned (sec. 357), the Supreme Court has appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress may make. 362. Of the eleven descriptions of cases to which the judicial power extends, the Supreme Court, it will be observed, has original jurisdiction of but two, namely, cases affecting ambassadors, other public ministers, and consuls ; and cases in which a state shall be a party. The other nine it can only decide by way of appellate jurisdiction ; that is, they must, in the first instance, be brought in a lower court, and the judgment of such lower court may then be re-ex- amined and reversed, or affirmed in the , Supreme Court. 363. The rule established by Congress, under their power to make exceptions and regulations respecting the appellate jurisdiction of the Supreme Court, pro- vides that the Circuit Courts may re-examine, reverse, or affirm the final decrees and judgments of the Dis- trict Courts in civil actions when the matter in dispute exceeds fifty dollars, exclusive of costs ; and that the Supreme Court may re-examine, reverse, or affirm the final judgments and decrees of the Circuit Courts CONSTITUTION OF THE UNITED STATES. 207 when the matter in dispute exceeds, exclusive of costs, five thousand dollars. But while the appellate power of the Supreme Court extends to all cases within the judicial power of the United States, actual jurisdic- tion under the power is confined within such limits as Congress sees fit to prescribe. Hence in admiralty appeals Cougress may limit the inquiries of the Supreme Court to questions of law arising on the record, and prohibit the re-examination and review of the facts. Appeals from the State Courts. 364. The appellate jurisdiction of the Supreme Court is not limited to the inferior courts of the United States. It is the case, and not the court, that gives the jurisdiction. It extends, therefore, to the state courts as well as to the subordinate courts of the United States. Congress have accordingly pro- vided that a final judgment or decree, in any suit in the highest court of law or equity of a state, may be re-examined and reversed or affirmed in the Supreme Court in three descriptions of cases : — First, When the validity of a treaty, or statute of, or authority exercised under the United States is drawn in question, and the decision is against its validity. Secondly, When the validity of a statute of, or an authority exercised under any state is drawn in ques- tion on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, 208 AN EXPOSITION OF THE and the decision is in favor of their validity. Thirdly, When the construction of any clause of the Constitution, or of a treaty, or statute of, or commis- sion held under the United States, is drawn in ques- tion and the decision is against the title, right, privilege, or exemption specially claimed under the authority of the United States. Territorial Courts. 365. Having now reviewed the provisions of the Constitution which relate to the judicial power, we have only to add, in concluding this branch of oar subject, that the Courts established by Congress for the territories are not among the courts in which is vested any part of such judicial power. They are legislative courts, created in virtue of the sovereignty which exists in the government over its territories ; and the jurisdiction with which they are invested is not a part of the judicial power which the Constitu- tion contemplates. Hence Congress may limit the tenure of office of the judges, and make such pro- vision with regard to their salaries as they deem proper. And, as the President may remove all officers appointed and commissioned by him, when the Constitution has not otherwise provided, he may with the advice and consent of the Senate, remove a territorial judge. CONSTITUTION OF THE UNITED STATES. 209 TRIALS AND IMMUNITIES. Trial by Jury in Criminal Cases. 366. The trial of all crimes, except in cases of impeachment, must be by jury ; and such trial must be held in the state where the crimes were commit- ted. But, when not committed within any state, the trial must be at such place or places as the Congress may by law have directed. 367. A jury is a body of men, selected according to a prescribed mode, 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. Juries of this kind are called petit (or small) juries ; but there is another kind of jury, called a grand jury, whose duties are of a different character, as we shall presently see. A petit jury consists of twelve men ; a grand jury of not less than twelve, nor more than twenty-three, and twelve at least must concur in every accusation. 368. One of the articles of Magna Oharta declares that no man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c, but by the judg- ment of his peers, that is, the judgment of a jury, or by the law of the land. This right of trial by 210 AN EXPOSITION OF THE jury was very dear to our ancestors, who brought it with them to America. It prevailed in all the colonies anterior to the Revolution, and was secured by a special provision in all their constitutions when they became independent states. The Constitution of the United States also requires that the trial of all crimes, except in cases of impeachment, shall be by jury; and, that the accused party may not be subjected to unnecessary expense and difficulty in procuring testimony, the trial must be held in the state where the crime was committed. 369. But when crimes are committed upon the high seas, or elsewhere, out of the limits of any state, then the trial' must be at such place as Con- gress may by law have directed. Congress accord- ingly have directed that the trial, in such cases, shall take place in the district where the offender is appre- hended, or into which he may be first brought. Immunities secured to Accused Persons. 370. In addition to the original provision of the Constitution respecting trial by jury, there are seve- ral amendatory provisions which were designed still further to protect the rights of individuals, and to guard against injustice and wrong. These provisions are found among the amendments to the Constitution, but their consideration seems naturally to belong to this place. The first is as follows : — CONSTITUTION OF THE UNITED STATES. 211 371. No person shall be held to answer 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 militia, when in actual service, in time of war, or public danger; nor shall any person 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 deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation. 372. The constitutional privilege of trial by jury for crimes does not apply to prevent the courts from pun- ishing its officers for contempt, or from removing them in proper cases. Removal from office for an indictable offence is no bar to an indictment. This is in its nature civil, and collateral to prosecution by indictment. Grand Juries. 373. Grand juries are summoned to attend the Circuit and District Courts, whenever a judge of either shall so direct. They are not necessarily summoned at every term, because their services may not be needed. Their duty is to make inquiry and present all offences within the jurisdiction of the court they are summoned to attend. They sit in secret and examine the testimony against the accused 212 AN EXPOSITION OF THE party, which is laid before them by the prosecuting officer of the government. 374. If they do not think it sufficient to support the charge which is set forth in the bill of indictment, that is, in the written accusation, they endorse on the back of the bill the words 'not a true bill,' or 'not found,' or 'ignoramus,' which means, We know nothing of it. The accused is then entitled, if in custody, to be discharged. An innocent party is thus spared the pain and obloquy of being publicly tried upon a criminal charge. 375. On the other hand, if the grand jury think the evidence is sufficient to support the indictment, they endorse on the back of it, 'a true bill.' It is then said to be found, and is publicly taken into court by the jury ; the accused is then held to answer, and may be put on his trial. 376. It will be observed that the intervention of a grand jury is imperatively required only when the crime is capital, that is, punishable with death, or otherwise infamous. In crimes of an inferior grade their services may be dispensed. with, and an accused party be tried without their first having found a bill of indictment against him. But, in practice, all crimes of whatever grade are laid before them, ana only tried upon indictments found by them. 377. The requirement of a grand jury, we may add CONSTITUTION OF THE UNITED STATES. 213 is a limitation upon the powers of the federal govern- ment ; but the states, if they deem it wise and expedient, may abolish the grand jury, and prosecute all crimes by information. There is nothing in the Constitution of the United States which prevents their doing so. Courts-martial. 378. In the government of the army and navy, and also of the militia when in actual service, in time of war, or public danger, offences are tried and punished by courts-martial, according to the rules established by Congress. A court-martial is composed of military or naval officers, for the trial of offences against the laws of the service in the army or navy. It is not applicable, and can never be applied to citizens in states upholding the authority of the government when involved in for- eign or civil war. And no law or usage of war can sanc- tion a military trial in such states for any offence what- ever of a citizen in civil life, in nowise connected w r ith the military service. Congress could grant no such power. No Person to he put twice in Jeopardy. 379. No person shall be subject for the same offence to be twice put in jeopardy of life and limb ; that is, he shall not be again tried for such offence, after having been once acquitted or convicted. The court, however, may discharge a jury from giving a verdict without the consent of the prisoner whenever, in their 214 AN EXPOSITION OF THE opinion, there is a manifest necessity for doing so, or the ends of public justice would be otherwise defeated. In such case he may be tried again, because it is not considered that he has been put in jeopardy of life and limb. He may also be tried again when, after a verdict of conviction, the court grants a new trial in his favor. In neither case is he judicially considered to have been put in jeopardy. Not to be a Witness against himself. 380. No person shall be compelled in any criminal case to be a witness against himself. This is to pre- vent any resort to those cruel and unjust means which have been employed in other countries to extort a confession of guilt. An accused party is presumed to be innocent until his guilt is made to appear by legal proof. His own voluntary confession may be given in evidence ; but he cannot be compelled to testify against himself. Not to be deprived of Life unless, &c. 381. No person shall be deprived of life, liberty, or property, without due process of law, that is, without legal warrant therefor being first obtained in the regular course of legal proceedings. But due pro- cess of law does not mean a suit and a trial by jury, in all cases where property or personal rights are CONSTITUTION OF THE UNITED STATES. 215 involved. A single judge determines the question of personal liberty, on a writ of habeas corpus. And the courts of chancery, bankruptcy, probate and admiralty, administer the most of their respective jurisdictions without trial by jury. Due process of law is that kind of procedure which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts. 382. Lord Hale laid it down as an element in the law of property, that when it is "affected with a public inter- est, it ceases to be juris privati only." That principle has been deemed a part of the law of England and of this country ever since. And property becomes clothed with a public interest when used in a manner to make it of public consequence, and when its use affects the com- munity at large. And the public may control such use for the common good. Hence statutes regulating ferries, warehouses, mills, bridges, turnpike roads, common car- riers, hackmen, bakers, wharfingers, innkeejlfcrs, &c, and fixing a maximum of charge for services rendered, ac- commodations furnished, and articles sold, do not neces- sarily deprive an owner of his property without due pro- cess of law. The power to govern men and things is inherent in every sovereignty, and the states of the Fed- eral Union are as sovereign as the Parliament of England, except so far as they have delegated powers to the United States, and except so far as powers have been reserved by the people. 216 AN EXPOSITION OF THE Private Property not to be taken for Public Use unless, (fee. 383. Private property cannot be taken for public use without just compensation. A similar provision is to be found in the constitutions of the several s-tates, so that neither the government of the United States nor that of the individual states can arbitrarily take private property. It must be taken only for the public use, and just compensation must be made for it. But acts done in the proper exercise of govern- mental powers, and not directly encroaching upon private property, though their consequences may impair its use, are held not to be a taking within the meaning of this provision of the Constitution. They do not entitle the owner of such property to compensation from the state or its agents, nor give him any right of action. Hence a municipal corporation, authorized by law to improve a street, incurs no liability for the damages unavoidably caused to adjoining property, by such improvement. Rights of Defendants in Criminal Cases. 384. Another of the amendatory articles declares that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an CONSTITUTION OF THE UNITED STATES. 217 impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and be informed of the nature and cause of the accusation ; be confronted with the witnesses against. him; have compulsory process for obtaining witnesses in his favor ; and have the assistance of counsel for his de- fence. 385. We have seen in a previous section (sec. 366) that the trial of all crimes must be by jury, and also be held in the state where they were committed ; but this amendment of the Constitution was intended still further to insure justice to a person accused of a criminal offence. It secures to him a speedy and public trial by an impartial jury of the state and dis- trict wherein the crime was committed, which district must have been previously ascertained by law. 386. He is to be informed of the nature and cause- of his accusation. This is done in the indictment,, which carefully sets forth both ; and Congress have- provided that in cases of treason the accused shall; have a copy of the indictment delivered to him three- entire days at least before the trial, and in other capital cases at least two entire days before the trial* 387. He is to be confronted with the witnesses against him, that is, they must give in their testimony in his presence. He is also to have compulsory pro- 19 218 AN EXPOSITION OF THE cess for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. Excessive Bail not to he required. 388. One of the amendments to the Constitution declares that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 389. Bail is the security given for the release of a prisoner, and his appearance in court at a designated time to meet his trial. By Act of Congress bail must be admitted upon all arrests in criminal cases, except where the punishment may be death, in which case it shall not be admitted but by the Supreme or a Cir- cuit Court, or by a justice of the Supreme Court, or a judge of a District Court, who must exercise their discretion whether to admit it or not, upon a con- sideration of the nature and circumstances of the offence, and of the evidence and usages of law. It would be vain, however, to provide for the discharge of persons in custody upon their giving bail, if such provision could be defeated by the courts requiring excessive bail. They might not be disposed to re- quire it ; but the Constitution has very properly put it out of their power to exercise any discretion in the matter. This article of the Constitution is applicable to federal and not to state authority. CONSTITUTION OF THE UNITED STATES. 219 Trial hy Jury in Civil Cases. 390. We have now seen that the Constitution pro- vides that the trial of all crimes, except in cases of impeachment, shall be by jury ; and we have con- sidered the various securities that have been devised to prevent wrong and injustice in criminal prosecu- tions. But it was made a great objection to the Con- stitution that there was no express provision for a trial by jury in civil cases. Besides, it was said that as the Supreme Court had appellate jurisdiction both as to law and fact, they would have the power prac- tically to review and overturn the verdicts of juries, and thus destroy the benefits of that mode of trial. 391. To meet these objections the Constitution was amended, and it was expressly provided that in suits at common law, when the value in controversy should exceed twenty dollars, the right of trial by jury should be preserved; and no fact, tried by a jury, should be otherwise re-examined in any court of the United States than according to the rules of the common law. 392. The common law here meant is the common law of England. This law has been incorporated, so far as it is applicable to their situation, into the jurisprudence of all the states, except the state of 220 AN EXPOSITION OF THE Louisiana, where the civil law prevails. And by suits at common law is meant all suits, not of equity or admiralty jurisdiction, in which legal rights are determined according to the principles of the common law, no matter what may be the peculiar form of the suit. And in all suits of this character, where the value in controversy exceeds twenty dollars, the trial must be by jury, unless the parties to the suit waive the benefit of such trial. 393. Trial by jury is the accustomed mode of trial in the several states, but this provision of the Constitu- tion relates only to trials in the courts of the United States. The states, notwithstanding it, may regulate trials in their own courts in their own way. A state can- not deprive a person of his property without due process of law, but this does not imply that trials in the state courts affecting the property of persons must be by jury. A trial according to the settled course of judicial pro- ceedings, is all that is necessarily required. But in suits at common law, in the United States Courts, when the value in controversy exceeds twenty dollars, the trial must be by jury. 394. According to the common law, facts once tried by a jury are never re-examined, unless a new trial be granted by the court before which the suit is depending ; or unless the judgment of such court be reversed, by a superior tribunal, for some error of law in its proceedings, and a new trial be granted in consequence. It is therefore only in these two modes that a fact, once tried by a jury, can again be CONSTITUTION OF THE UNITED STATES. 221 re-examined in any court of the United States. This amendment of the Constitution being a limitation upon the powers of the federal government, and not upon the states, it follows that it does not prohibit a state court from re-examining, on a writ of error, facts tried by a jury in the court below. But it does so prohibit the federal courts, and the prohibition applies as well to writs of error to state courts, involving Federal questions, as to writs of error to the inferior federal courts. 19* 222 AN EXPOSITION OF THE TREASON. In what it Consists. 395. To prevent subordinate acts from being con- strued as treason, which, in former times, was fre- quently done in England, the Constitution declares that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 396. Levying war is the assembling of a body of men, in a condition to make war, for the purpose of overthrowing the government, or resisting its powers. A conspiracy or agreement to levy war does not amount to treason. There must be an actual assem- bling of men, with the intention and capacity to levy war, to constitute a levying of war, or, in other words, treason. But if war be actually levied, all those who perform any part, however minute, or however remote from the scene of action, and who are really leagued in the general attempt, are to be considered traitors. 397. Treason against the United States may also consist in adhering to their enemies, giving them aid and comfort. Delivering up prisoners and deserters to the enemy is treason within this clause. And so »< TT W T TTT? SkX? T CONSTITUTION OF THE UNITED STATES. it has been held is the carrying of provisions towards the enemy with intent to supply him, though that intention should be defeated. How many Witnesses necessary in cases of Treason. 398. 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. Punishment of Treason. 399. Congress have power to declare the punish- ment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. 400. The common law prescribes the following mode of punishment fur the crime of treason : 1. That the offender be drawn to the gallows, and not be carried or walk, though usually (by connivance, at length ripened into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and cut down alive. 3. That his entrails be taken out and burned while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal. 224 AN EXPOSITION OF THE 401. Such a barbarous and cruel mode of punish- ment could only have been devised in an uncivilized and ferocious age. It is a source of just pride and congratulation, that a spirit of mildness and humanity characterizes all the provisions of the Constitution of the United States that relate to crimes and punish- ments. In a previous section we have seen that it is expressly provided that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted. So that, although Congress may declare the punish- ment of treason, such punishment must not be cruel or unusual. The punishment actually declared by Congress is death by hanging. 402. Another restraint upon the power of Con- gress to declare the punishment of treason is, that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person at- tainted. 403. By attainder of treason is meant that stain or corruption of blood which, by the common law, follows upon conviction of treason. A person thus attainted forfeits all his lands, and tenements, and goods, and can neither inherit an estate from his ancestors, nor transmit one to his posterity. To prevent this unjust punishment of the innocent descendants of a man convicted of treason, the Con- stitution provides that no attainder of treason shall CONSTITUTION OF THE UNITED STATES. 225 work corruption of blood or forfeiture, except during the life of the person attainted. And Congress by law have declared that no conviction or judgment, for any capital or other oifences, shall work corruption of blood or any forfeiture, of estate. 226 AN EXPOSITION OF THE INTERSTATE PRIVILEGES AND REGULATIONS. State Records, etc. 404. Full faith and credit must be given in each state to the public acts, records, and judicial pro- ceedings of every other state. And Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. 405. Before full faith and credit can be given to the public acts, records, and judicial proceedings of another state, it must first be shown that they are authentic ; in other words, it must be shown that they are in fact such public acts, records, and judicial proceedings. The judgment of a state court, for example, when duly authenticated, must have full faith and credit given to it in every other court within the United States ; but there must first be the authentication, or such effect does not follow. 406. It is left to Congress to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect of such proof. Congress have accordingly provided that the acts of the legislatures CONSTITUTION OF THE UNITED STATES. 227 of the several states shall be authenticated by having the seal of their respective states affixed thereto ; and the records and judicial proceedings of their courts shall be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the attestation is in due form. 407. Records and judicial proceedings, when thus authenticated, are to have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence they are taken. 408. Hence the judgment of a state court has the same credit, validity, and effect in every other court within the United States which it had in the state where it was rendered. The merits of the. judgment cannot be re-examined. It may be shown, however, that it was obtained by fraud, or that the court rendering it had no jurisdiction, in which cases it is entitled to no faith or credit. Nor would it be entitled to any faith or credit in or out of the state in which it was rendered, if recovered, against a non-resi- dent party without service of process upon him. If without personal service within the state, judgments in personam, obtained ex parte against non-residents, upon mere publication of process, could be upheld and en- forced, they would be the constant instruments of fraud and oppression. 228 AN EXPOSITION OF THE Privileges of Citizens. 409. The citizens of each state are entitled to all privileges and immunities of citizens in the several states. 410. The privileges and immunities which are here secured to the citizens of each state in all the other states may be summed up as follows : — The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise ; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state ; to take, hold, and dispose of property of every kind; to be exempted from higher taxes or impositions than are paid by the other ^citizens of the state ; and to exercise the elective franchise as regu- lated and established by the laws or constitution of the state. In a word, the citizens of one state going into another are entitled to protection by the govern- ment of such state ; to the enjoyment of life and liberty, and the pursuit of happiness, subject, how- ever, to such restraints as the laws and Constitution may have prescribed for the general good of the whole. 411. But a citizen of one state cannot claim any rights which under the laws of another state belong CONSTITUTION OF THE UNITED STATES. 229 only to residents of the state. To enjoy such rights he must become domiciled there. He is, however, en- titled to protection against any discriminating legis- lation which would place him in a worse situation than belongs to the proper citizen of the particular state. Hence a state license tax, which discriminates against commodities of other states is void, as abridging the privileges and immunities of the citizens of such other states. We may add, that the privileges and immunities referred to in the foregoing clause are those which belong to the citizens of the states as such, and are left to the state governments for security and protection, and are beyond the scope of the legislative and constitutional power of the government of the United States. 412. Corporations are not within the meaning of this clause of the Constitution, and hence a state may exclude a corporation of another state from its jurisdiction. But it would be otherwise, if the corporation were engaged in inter-state commerce. Because, then, it would be under the regulating power of Congress, and not of the states. Fugitives from Justice. 413. 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 execu- tive authority of the state from which he fled, be deli- vered up to be removed to the state having jurisdiction of the crime. 414. It is a question upon which jurists differ, 230 AN EXPOSITION OF THE whether it is the duty of a nation, in the absence of a positive engagement, to surrender fugitives from justice who have sought shelter within its limits. It might, perhaps, be clearly implied that, in such a union of states as ours, every state is bound to deny an asylum to the criminals of the other states. But the Constitution has not left so important a question to inference or implication ; it has enjoined it as a mutual obligation upon the states to deliver up, on demand, fugitives from justice. And Congress by law have prescribed the mode of proceeding when a fugitive from justice is demanded. 415. The words "treason, felony, or other crime " include every offence forbidden and made punishable by the laws of the state where the offence is commit- ted. And it must appear from the papers that the alleged fugitive committed the crime with which he is charged in the state from which the requisition pro- ceeds. The obligation to surrender fugitives from justice rests upon the mutual good will and good faith of the states; and, hence, if the governor of a state should refuse on proper demand to deliver up such fugitive, the Federal courts have no power to compel him to perform the duty. Fugitives from Labor. 416. No person held to service or labor in one state, under the laws thereof, escaping into another, CONSTITUTION OF THE UNITED STATES. 231 shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such ser- vice or labor may be due. 417. Before the adoption of the Constitution, a slave escaping from one state into another could only be recovered as a matter of comity and favor, not as a matter of right. Because, by the law of nations, no independent state is bound to recognise the state of slavery as to foreign slaves found within its terri- tory, when such recognition is in opposition to its own policy and institutions. 418. Hence the constitutional provision which makes that a matter of legal right which before could be claimed only as a matter of favor. Under the Constitution, therefore, a fugitive from service or labor cannot, in consequence of any law or regula- tion of the state into which he may have fled, be discharged from such service or labor, but must be delivered up on claim of the party entitled to his service or labor. 419. There must, however, be an escape. The Constitution does not extend to the case of a slave voluntarily carried by his master into a state in which slavery is not tolerated, or who goes there with his master's permission, and then escapes or refuses to return. Whether such a person shall be 232 AN EXPOSITION OF THE delivered up, or be deemed free, depends wholly upon the local law and regulations, and not at all upon the Constitution or laws of the United States. Happily all questions growing out of the state of slavery are now at an end by its entire abolition. CONSTITUTION OF THE UNITED STATES. 233 NEW STATES AND TERRITORIES. Admission of New States into the Union. 420. New states may be admitted by Congress into the Union ; but no new state can 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 legisla- tures of the states concerned, as well as of the Con- gress. 421. At the time of the adoption of the Constitu- tion, the United States possessed a vast extent of vacant territory which had been acquired, along with our independence, from England. We have since ob- tained immense acquisitions of territory from France, Spain, Mexico, and Russia; from France — the terri- tory known as Louisiana; from Spain — Florida; and from Mexico — California, New Mexico, Utah, and ex tensive districts of country lying along the southern boundary of the United States; and from Russia — ■ Alaska. 422. Out of these various acquisitions twenty-five 20* 234 AN EXPOSITION OF THE new states have already been admitted into the Union, originally composed of thirteen states ; and territory yet remains sufficient when peopled to form perhaps fifteen or twenty more. 423. The usual mode of proceeding in the creation and admission of new states is as follows : When a territory has acquired such a population as fits it to become a state, the territorial legislature, with the permission of Congress, pass a law authorizing a con- vention to be chosen for the purpose of forming a constitution and state government. The constitution when formed is submitted to Congress by the conven- tion, with the request that the territory may be admitted into the Union as a state. If the constitu- tion is found to be republican, and is approved, Con- gress admit it on an equal footing with the original states. 424. To prevent Congress from arbitrarily creating new states by the division of the larger states, or the junction of the smaller ones, or of parts of states, it is provided that such division or junction shall not take place without the consent of the legislatures of the states concerned. Territories. 425. Congress have power to dispose of and make all needful rules and regulations respecting the terri- CONSTITUTION OF THE UNITED STATES. 235 tory or other property belonging to the United States ; and nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state. 426. The term "territory," as here used, is merely descriptive of one kind of property, and is equivalent to the word lands. The power of Congress to " dis- pose of" the public lands is not limited to making sales : they may be leased. But no property belong- ing to the United States can be disposed of, except by the authority of Congress. 427. It is observable that the right to acquire territory is nowhere expressly granted in the Consti- tution : but the power to make war and treaties is granted, and from this results the power to acquire territory in either of those modes, that is, by war or treaty. And the right to govern would seem to be the inevitable consequence of the right to acquire territory. 428. Congress may govern the territories in such mode, within the scope of its constitutional powers, as it thinks proper, either directly, by its own legislation, or by means of territorial governments — the latter being the usual mode. But Congress may not only abrogate laws of the territorial legislatures ; it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void. That 236 AN EXPOSITION OF THE is, it has full and complete legislative authority over the people of the territories and the territorial governments. And all measures commenced and prosecuted with a design to subvert the territorial government, and to es- tablish and put in force in its place a new government, without the consent of Congress are unlawful. 429. But the people of any territory may peace- ably meet together in primary assemblies, or in conventions chosen by such assemblies, for the pur- pose of petitioning Congress to abrogate the territo- rial government, and to admit them into the Union as an independent state, and if they accompany their petition with a constitution, framed and agreed to by their primary assemblies, or by a convention of delegates duly authorized, there is no objection to their power to do so, nor to any measures which may be taken to collect the sense of the people in respect to it : provided such measures be prosecuted in a peaceable manner, in subordination to the existing government, and in subserviency to the power of Congress to adopt, reject, or disregard them, at their pleasure. CONSTITUTION OF THE UNITED STATES. 237 GUARANTY OF REPUBLICAN GOVERNMENT. Injunction respecting. 430. The United States shall guarantee to every state in the 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. 431. A confederacy of states, founded on dissimi- lar principles, some of the states having a republican form of government, some an aristocratic form, and others a monarchical form, would be very apt, from opposing views and policy, to be discordant, and fail into distraction. To avoid such a condition of affairs, the Constitution has provided that in all the states of the Union a republican form of government must be maintained. 432. It has been justly remarked that the only restriction imposed on the states by this clause of the Constitution is, that they shall not exchange republican for anti-republican institutions. They may alter or amend their respective constitutions as they please, only they must take care and preserve 238 AN EXPOSITION OF THE the republican form. If they should adopt aristo- cratic or monarchical systems, or such systems should be imposed on them by the violence of parties or factions, the government of the United States would be bound to interpose and restore the republican form. 433. And the standard by which the question must be determined whether the actual government is re- publican in form or not, is, does it correspond with the governments in existence when the Constitution was adopted ? When a state is admitted into the Union, Congress determines, by the fact of admission, that the government of such state is republican in form. If changes are afterwards made which do not essentially alter the character of such government, as it stood when the state was admitted into the Union, Congress cannot interpose, however distasteful such changes may be. But, it seems, by recent decisions of the Supreme Court of the United States, that if Congress should unjustly, erroneously, and arbitrarily determine and declare that a particular state govern- ment was not republican in form, and refuse thereupon to recognize it, the citizens of such state are without redress. The judicial tribunals, in political questions, accept and follow the conclusions of the political department. 434. The United States are also bound to protect each state from invasion ; and also against domestic CONSTITUTION OF THE UNITED STATES. 239 violence, such as insurrection or rebellion, on appli- cation of the legislature, or of the executive when the legislature cannot be convened. 240 AN EXPOSITION OF THE AMENDMENTS. Mode of. 435. Congress, whenever two-thirds of both Houses deem it necessary, must propose amendments to the Constitution, or, on the application of the legislatures of two-thirds of the several states, must call a con- vention for proposing amendments, which, in either case, are valid to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the several states, or by conven- tions in three-fourths thereof, as the one or the other mode of ratification may be proposed by 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. 436. As useful alterations in the Constitution might be suggested by experience, a mode is pro- vided for making them. This mode combines two great advantages; that is, changes can be made, but without too much facility on the one hand, or too CONSTITUTION OF THE UNITED STATES. 241 much difficulty on the other. If changes are too easily made, there will be instability in the govern- ment ; if with too great difficulty, the community may be deprived of the benefit of salutary reforms, or seek a remedy in revolution or civil dissension. 437. No amendments, it will be observed, can be made to the Constitution unless two-thirds of Con- gress propose them, or they are proposed by a con- vention called by Congress, on the application of two-thirds of the legislatures of the several states , and also, unless three-fourths of the states, either by their legislatures or by conventions called for that purpose, ratify them. 438. No amendment, made prior to the year 1808, could affect, in any manner, those clauses which relate to the migration or importation of such per- sons as the states might think proper to admit, and to the manner in which direct taxes should be laid : in other words, no changes could be made in those clauses which relate to the importation of slaves, or the apportionment of taxes, until after the year 1808. A permanent limitation upon the power of amendment is, that no state, without its consent, shall be deprived of its equal suffrage in the Senate. It should be observed that a proposed amendment to the Constitution need not be presented to the Presi- dent for his approval. 21 Q 242 AN EXPOSITION OF THE PUBLIC DEBT, SUPREMACY OF THE CONSTITU- TION, &c. Public Debt. 439. All debts contracted and engagements en- tered into before the adoption of the Constitution, are as valid against the United States, under the Consti- tution, as under the Confederation. 440. When a nation changes one form of govern- ment for another, the government under the new form becomes liable for all the obligations of the pre- ceding government. Hence the government of the United States under the Constitution necessarily became liable for the debts and engagements entered into by the government of the United States under the Confederation. The object of expressly asserting this principle of the law of nations in the Constitu- tion itself was, doubtless, to allay any apprehensions that the public creditors might be supposed to feel. Supremacy of the Constitution. 441. The Constitution and the laws of the United States made in pursuance of it, and all treaties made, or which shall be made, under the authority of the CONSTITUTION OF THE UNITED STATES. 243 United States, are the supreme law of the land ; and the judges in every state are bound thereby, anything in the constitution or laws of any state to the con- trary notwithstanding. 442. The propriety and the necessity of making the Constitution, and the laws passed in pursuance of it, the supreme law of the land, are very obvious. The very existence of the federal government depends upon it. If the powers conferred on that govern- ment could be overridden by contradictory powers in the several state governments, they might as well not have been conferred at all. Necessarily, there- fore, powers conferred for national purposes must be supreme over those conferred for state purposes. But those powers cannot be exceeded. If Congress pass laws not in pursuance of the Constitution, they are void, and it is the duty of the judiciary to declare them void. And it is equally their duty to declare void acts of the state legislatures which are repug- nant to the Constitution of the United States. 443. A treaty ratified with proper formalities is, by the Constitution, the supreme law of the land, and the courts have no power to examine into the authority of the persons by whom it was entered into on behalf of the foreign nation. Whenever a right grows out of, or is protected by, a treaty, it is sanc- tioned against all the laws and judicial decisions of 244 AN EXPOSITION OF THE the states; and whoever may have this right, it is to be protected. Oath of Office. 444. The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, are bound by oath or affirmation to support the Con- stitution ; but no religious test can ever be required as a qualification to any office or public trust under the United States. 445. The solemn sanction of an oath or affirmation is required of all officers, legislative, executive, and judicial, both of the state and United States govern- ments, in order to secure their faithful support of the Constitution. Members and officers of the state governments are bound to take this oath, because they have an important agency in carrying the Con- stitution into effect ; the state legislatures, for ex- ample, elect the Senate ; and the state courts may be called on to decide cases in whieh are involved ques- tions arising out of the Constitution, laws, and treaties of the United States. No Religious Test 446. Religious tests as a qualification to any office or public trust under the United States are prohibited, CONSTITUTION OF THE UNITED STATES. 245 because the Constitution contemplates entire freedom of religious belief and worship. It, therefore, forbids any test or oath by which adherence to any particu- lar sect or form of belief shall be made a qualification for office. Ratification of the Constitution. 447. The last article of the Constitution is as fol- lows : — The ratification of the conventions of nine states shall be sufficient for the establishment of this Constitution between the states so ratifying the same. 448. The ratification of all the states as a condi- tion to the establishment of the Constitution, would have put it in the power of any one state to have defeated the wishes of all the others. If a simple majority of states had been sufficient, it might happen that seven of the smaller states would ratify it, while the six larger would reject it — the consequence being the dissolution of the original union and probable dissension between the unequal parts. The Conven- tion, therefore, avoided the danger of requiring a unanimous ratification on the one hand, and a mere majority ratification on the other. As we have already seen, only eleven of the states ratified it in the first instance ; Rhode Island and North Carolina not ratifying until the government had gone into operation. 21 * 246 AN EXPOSITION OF THE AMENDMENTS TO THE CONSTITUTION. History of. 449. The conventions of a number of the states having, at the time of adopting the Constitution, ex- pressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, something, in fact, in the nature of a bill of rights, Congress, at their first session in 1789, proposed ten articles as additional to and amendatory of the Constitution. These articles, having been ratified by the requisite number of states, that is, by three-fourths, became a part of the Constitution. 450. In 1794 another amendment (the eleventh) was proposed by Congress, and, in 1803, the twelfth. Both of these proposed amendments were ratified by the constitutional number of states, and, equally with the first ten articles, became a part of the Constitu- tion. Subsequently, to wit, in 1865, the thirteenth amendment was adopted ; in 1866 the fourteenth ; and in 1869 the fifteenth. CONSTITUTION OP THE UNITED STATES. 247 Character of the Amendments. 451. It is well settled that the first ten amend- ments to the Constitution have no application to the legislation of the states. They are exclusively limi- tations of the power of the general government, and were intended to prevent interference with the rights of the states and of their citizens. Freedom of Religion, &c. 452. Article first of the amendments declares that 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 assem- ble and to petition the government for a redress of grievances. 453. The subject of religion is left exclusively to the state governments. Congress is prohibited to create a religious establishment, or to intermeddle with the free exercise of religion ; nor can a religious test ever be required as a qualification for any office or public trust under the United States. The perse- cutions, intolerance, and jealousy which had ever marked the establishment of a state religion or a national church were, doubtless, among the efficient 248 AN EXPOSITION OF THE reasons why the Constitution thus forbids any union of civil and ecclesiastical authority, or any alliance between church and state. It regards with equal eye all religious sects ; and prohibits Congress from in- terfering with the freedom of public worship. The religious liberties of the people are left to the respect- ive state constitutions and laws. Congress have no- thing to do with the subject. 454. But while Congress is deprived of all legislative power over mere religious opinion, it may, in a territory, or other place over which the United States have exclu- sive jurisdiction, legislate with regard to actions, the result of religious opinion or belief, which are in viola- tion of social duties or subversive of good order. Hence plural marriage or polygamy cannot be allowed in a territory, on the ground that it is a part of a man's reli- gious belief. His religious belief and opinions are one thing ; his practices another. With the former Congress cannot interfere ; but it may punish the latter. A man may believe that human sacrifices are a necessary part of religious worship ; but within the sphere of its jurisdiction, Congress may prevent or punish such sac- rifices. Freedom of Speech and of the Press, 455. When it is said that Congress shall make no law abridging the freedom of speech, or of the press, CONSTITUTION OF THE UNITED STATES. 249 it is not meant that every man may, with impunity, speak or print whatever he pleases, no matter how false, immoral, and malicious such speech or writing may be ; but only that uo previous restraints by Congress shall be laid on speech or publication. 456. While, therefore, every citizen may, with en- tire freedom, speak, write, and publish his sentiments on all subjects, and while no law can rightfully be passed by Congress to restrain or abridge this free- dom, he is, nevertheless, under the common law and the statutory law of the several states, responsible for every abuse of it. If he speaks or publishes what injures any other person in his rights, person, property, or reputa- tion, without some legal justification, or disturbs the public peace, or corrupts the public morals, he is answer- able in damages for the injury to the individual, and is punishable, criminally, for the injury to society. 457. This amendment is no limitation upon the powers of the state governments in. respect to their ow T n citizens, but operates upon Congress alone. Hence for freedom of speech and of the press, the people must look to the states alone. Under what conditions that freedom is enjoyed, in what instances it is complete and perfect, such as the official utterances of the governors of the several states, the testimony of witnesses in judicial proceedings, the reports of proceedings in legislative bodies and the courts, &c. ; and in what instances it is conditionally privileged, must be determined by the laws of the states. 250 AN EXPOSITION OF THE Right of Petition. 458. The right of a people peaceably to assemble for the purpose of petitioning the government for a redress of grievances, would seem to be inherent. A denial of that right would be totally inconsistent with the spirit and genius of free institutions. The Con- stitution, however, with that caution which is equally observable in other provisions, expressly recognises the right, and prohibits Congress from any abridgment of it. But the right was not created by the amendment, nor its continuance guaranteed, except as against con- gressional iuterference. It must be enforced and enjoyed trader the laws of the states. Nevertheless, it is doubt- less within the power of Congress by appropriate legis- lation to secure to the people the right to assemble and petition Congress for a redress of grievances, or for any nvatter connected with the powers or the duties of the general government. This right is an attribute of citi- zenship of the United States. Right of the People to keep and bear Arms. 459. The second amendment is as follows : — 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. CONSTITUTION OF THE UNITED STATES. 251 460. With arms in their hancta, the people will not be likely to permit the overthrow of their institutions by the unscrupulous ambition of a civil magistrate or military chieftain. The very fact of their being armed will serve as a check to any arbitrary or forcible invasion of their constitutional rights. Be- sides, a well regulated militia prevents the necessity of keeping on foot a large standing army, which, in addition to the expense it entails, has ever been deemed dangerous to the liberties of a people. (Quartering Soldiers on Citizens. 461. The third amendment is, that 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. 462. This is to prevent the practice which has often prevailed in arbitrary governments, and par- ticularly in times of violence, of billeting soldiers upon private citizens without regard to their consent or wishes. This is manifestly a great grievance, and, in time of peace, is prohibited. But in time of war it may be necessary ; but the manner of doing it must be prescribed by law. 252 AN EXPOSITION OF THE Search Warrants. 463. The fourth amendment provides that 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, sup- ported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 464. This refers only to warrants and process issued under the authority of the United States, and was doubtless intended to guard against the practice which formerly prevailed in England, in one class of cases, of issuing, warrants in a general form, which authorized the officer to search houses and arrest persons, without naming any persons or places in particular. This was a sort of roving commission to the officer to search any place and arrest any person whom he might suspect of being the accused party. The King's Bench, in the time of Chief Justice Pratt, pronounced general warrants to be totally illegal, and Parliament subsequently passed resolutions against them ; resolutions by which the personal liberty of the subject was confirmed, and the lawful secrets of business and friendship were rendered inviolable. 465. Under the Constitution of the United States CONSTITUTION OF THE UNITED STATES. 253 a warrant cannot issue but upon probable cause,, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. The warrant, and the com- plaint under oath upon which it is founded, must not only state the name of the party, but also the time,, and place, and nature of the offence, with reasonable certainty. Reserved Rights. 466. The fifth, sixth, seventh, and eighth amend- ments have already been considered, and it is unne- cessary to recur to them again : (See sec. 371, 384,, 388, 391.) The ninth Article declares that the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others* retained by the people. 467. It is often said that the expression of one- thing is the exclusion of another ; and Bacon remarks, that enumeration weakens the force of a law in cases^ not enumerated. It was to prevent the application', of maxims like these, that the Constitution expressly declares that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. 22 254 AN EXPOSITION OF THE Potoers not delegated reserved. 468. The tenth Article is as follows : — The powers not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 46*9. The government of the United States being a government of limited and enumerated powers, it would seem naturally to follow, that powers not con- ferred were withheld, and belonged to the states or to the people of the states. But to quiet the fears of those who thought differently, this amendment was proposed and adopted, by which it is in effect declared that the government of the United States shall assume no powers beyond those which are granted. 470. The eleventh and twelfth amendments, which relate to the jurisdiction of the judiciary and the mode of electing the President and Vice-President, have been already considered under those heads. (See sec. 273 et seq.) 471. The thirteenth amendment declares that "neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. " And the second clause of this amendment provides CONSTITUTION OF THE UNITED STATES. 255* that " Congress shall have power to enforce this article by appropriate legislation." Appropriate legislation, under the latter clause, would seem to be limited, strictly, to such legislation as is essen- tial to accomplish the purpose of the first clause, to wit, to eradicate all forms and incidents of slavery or invol- untary servitude in the Uni-ted States. But Congress cannot legitimately, under pretence of that purpose, pass laws, for example, which perhaps might add to the privi- leges or enjoyments of the state of freedom, but which, according to the import and genius of our constitutional system, are the proper subject of local and state legislation. 472. The first paragraph of the fourteenth amend- ment provides as follows: "All persons born or natu- ralized in the United States, and subject to the juris- diction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." 473. A person may be a citizen, that is, owe allegiance to the government and be entitled to protection from it, and yet not possess the qualifications required by law to do certain things that other citizens do. For example, the mere fact of citizenship does not entitle 256 AN EXPOSITION OF THE any person to exercise the right of suffrage. He must in addition to such fact possess the qualifications required by law as the condition of such exercise. Consequently when the first clause of the fourteenth amendment declares who shall be citizens of the United States and of the several states, it does not thereby confer on them the right to vote. 474. The privileges and immunities which the four teenth article forbids the several states to abridge, are, it seems, only those belonging to citizens of the United States, and not to those of the several states. What those privileges and immunities are it would be difficult to de- termine in a general definition. Among them, however, may be mentioned the right of the citizen to visit the seat of government to assert any claim he may have upon the government, or to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several states. Another privilege of a citizen of the United States is to demand the protection of the Fed- eral government over his life, liberty, and property when on the high seas, or within the jurisdiction of a foreign government. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right CONSTITUTION OF THE UNITED STATES. 257 to use the navigable waters of the United States, how- ever they may penetrate the territories of the several states, all rights secured to citizens by treaties with for- eign nations, are dependent upon citizenship of the United States and not citizenship of a state. 475. The clause we are considering does not, it seems, restrain a state from granting the exclusive privilege of carrying on any lawful industrial business (not injurious to the community, nor the proper subject of police regula- tion), and prohibiting its exercise by others than the mo- nopolists, except upon certain terms. Such a grant, it is held, does not abridge the privileges of citizens of the United States.* But a statute conferring such exclusive privileges is repealable, if such exclusive privileges in- volve the lives, morals, health and property of the citi- zens. The legislature of a state cannot by any contract divest itself of the power to provide for these objects. 476. The duty of protecting all its citizens in the en- joyment of an equality of rights was originally assumed by the states, and notwithstanding the Fourteenth amend- ment, it remains there. It is state action of a particular kind that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. If the state has been guilty of no violation of its provisions, the amendment imposes no duty and confers no power un Congress. It does not authorize Congress to create a code of municipal law for the regulation of private rights, * It is the right of the state courts to decide finally whether any such exclusive privileges are forhidden by the state Constitutions, 22* R 258 AN EXPOSITION OF THE and hence the so-called Civil Rights Act, approved April 20th 1871 (as to equal accommodations at inns, in public conveyances, places of amusement, &«.)> was unconstitu- tional and void. But if state laws are subversive of the fundamental rights specified in the amendment, then Congress may provide modes of redress against such laws. 477. The Fourteenth amendment was designed to secure to the colored race, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons. Hence, a denial to that race, because of their race, of the right or privilege accorded to white citizens, of partici- pating as jurors in the administration of justice, is a dis- crimination against the former inconsistent with the amendment, and which Congress by appropriate legisla" tion may prevent. 478. The fifteenth amendment is as follows : "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state, on account of race, color, or previous condition of servi- tude. The Congress shall have power to enforce this article by appropriate legislation-" 479. The fifteenth amendment gives no affirmative right to the colored man to vote. It is intended to pre- vent discrimination against him whenever the right to vote may be granted to others. Hence, at the time of its adoption, those state constitutions which limited the right of voting to "white" men alone, became annulled so far as the limitation went, and thereby gave the col- ored man the same right as white persons enjoyed. That right is an exemption from discrimination in the exercise CONSTITUTION OF THE UNITED STATES. 259 of the elective franchise on account of race, color, or previous condition of servitude. And Congress has power to protect this right. 480. This amendment does not confer on Congress the power to regulate the suffrage laws of the several states. But whatever qualifications may be prescribed by those laws, or whatever inequalities may exist under them, or however the privilege of the ballot may be denied or abridged on other grounds, no qualification or inequality, or denial or abridgment of the elective franchise can be made on account of race, color, or previous condition of servitude. Conclusion. 481. We have thus concluded our examination of the Constitution of the United States : Adopted at a time when public affairs were sinking into disorder and confusion, and when the firmest patriots had begun to fear that the benefits of the revolutionary struggle were to be lost, it restored the public confi- dence, revived the public credit, and laid the founda- tions of order, stability, and unequalled prosperity. If we would preserve it, and transmit it as a rich heritage to posterity, an habitual reverence for it should be inculcated, and its principles be studied and maintained. APPENDIX. I. THE DECLARATION OF INDEPENDENCE. II. THE ARTICLES OF CONFEDERATION. III. RES.LUTIONS AND LETTER TRANSMITTED TO CONGRESS BY THE FEDERAL CONVENTION. IV. WASHINGTON'S FAREWELL ADDRESS. APPENDIX. A DECLARATION BY THE REPRESENTATIVES OF THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED. When, in the course of human events, it becomes neces- sary for one people to dissolve the political bands which have connected them with another, and to assume, amoncr 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 mankind 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 Creator 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 becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such 263 204 APPENDIX. principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happi- ness. Prudence, indeed, will dictate that governments long established, should not be changed for light and transient causes; and, accordingly, all experience hath shown, that mankind are more disposed to suffer, while evils are suffer- able, than to right themselves by abolishing the forms to 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 govern- ment, and to provide new guards for their future security. Such has been the patient sufferance of these colonies, and such is now the necessity which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history 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 accommodation of large districts of people, unless those people would relin- quish 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 unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compli- ance with his measures. He has dissolved representative houses repeatedly, for APPENDIX. 285 opposing, with manly firmness, his invasions on the rights of the people. He has refused, for a long time after such dissolutions, to cause others to be elected ) whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the State remaining, in the mean time, exposed to all the danger of invasion from without, and convulsions within. He has endeavored to prevent the population of these States } for that purpose, obstructing the laws for naturali- zation of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands. He has obstructed the administration of justice, by refus- ing 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. He has kept among us, in times of peace, standing armies, without the consent of our legislature. 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 legis- lation : For quartering large bodies of armed troops among us : For protecting them, by a mock trial, from punishment, for any murders which they should commit on the inhabit- ants of these States : For cutting off our trade with all parts of the world « 23 266 APPENDIX. 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 pretended offences : For abolishing the free system of English laws in a neigh- boring province, establishing therein an arbitrary govern- ment, 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 valua- ble laws, and altering, fundamentally, the powers of our governments : For suspending our own legislatures, and declaring them- selves 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 cruelty 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 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 frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction, of all ages, sexes, and conditions. APPENDIX. 267 In every stage of these oppressions, we have petitioned for redress, in the most humble terms ; our repeated peti- tions 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 attention to our British brethren. We have warned them, from time to time, of attempts made by their legislature to extend an unwarrantable juris- diction over us. We have reminded them of the circum- stances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them, by the ties of our common kindred, to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They, too, have been deaf to the voice of justice and 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 assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the 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 con- nection between them and the state of Great Britain, is, and ought to be, totally dissolved \ and that, as free and inde- pendent States, they have full power to levy war, con- clude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And, for the support of this declaration, 268 APPENDIX. with a firm reliance on the protection of DIVINE PROVI- DENCE, we mutually pledge to each other, our lives, our fortunes, and our sacred honor. JOHN HANCOCK. New Hampshire. josiah bartlett, William Whipple, Matthew Thornton. Massachusetts Bay. Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry. Rhode Island. Stephen Hopkins, William Ellery. Connecticut. Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott. New York. William Floyd, Philip Livingston, Francis Lewis, Lewis Morris. New Jersey. Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark. Pennsylvania. Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross. Delaware. Cesar Rodney, George Read, Thomas M'Kean. Maryland. Samuel Chase, William Paca, Thcmas Stone, Charles Carroll, of Carrollton Virginia. George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, APPENDIX. 269 Thomas Nelson, Jr. Francis Lightfoot Lee, Carter Braxton. North Carolina. William Hooper, Joseph Hewes, John Penn. South Carolina. Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton. Georgia. Button Gwinnett, Lyman Hall, Geo. Walton. II. ARTICLES OF CONFEDERATION And perpetual union between the states of New Hamp- shire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsyl- vania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Article I. The style of this Confederacy shall be, "The United States of America/' -^Article II. Each state retains its sovereignty, freedom, and independence, 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 23* 270 APPENDIX. any of them, on account of religion, sovereignty, trade, or any other pretence whatever. Article IV. The better to secure and perpetuate mutuai friendship and intercourse among the people of the different states in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice ex- cepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each v 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, impositions, and restrictions as the inhabitants thereof respectively ; pro- vided, that such restriction . shall not extend so far as to prevent the removal of property imported into any state to any other state, of which the owner is an inhabitant; pro- vided 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, felony, or other high misdemeanor, in any state, shall flee from justice, and be found in any of the United States, he shall, 4-upon demand of the governor or executive power 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 0+ annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time APPENDIX. 271 within the year, and send others in their stead for the re- mainder of the year. No state shall be represented in Congress by less than v. 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, being 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 meeting ^ of the states, and while they act as members of the commit- tee 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 Con- . gress ; and the members of Congress shall be protected in their persons from arrests and imprisonment during the time of their going to, and from, and attending 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 receive any embassy from, or enter into any confer- ence, 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, con- federation, or alliance whatever between them, without the consent of the United States in Congress assembled, speci- 272 APPENDIX. fying accurately the purposes for which the same is to be eutered into, and how long it shall continue. No state shall lay any imposts or duties, which may inter- fere 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 proposed 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 assembled, 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 judgment of the United States — in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state : but every state shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred; and shall provide _ and constantly 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 received cer- tain 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 com- missions to any ship or vessels of war, nor letters of marque T 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 APPENDIX. 273 case 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 vacancies shall be filled up by the state which first made the appointment. Article VIII. All charges of war, and all other ex- penses that shall be incurred for the common defence or general welfare, and allowed by the United States in Con- gress assembled, 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 assembled 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 United States in Congress assembled. Article IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of deter- + mining 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 legislative 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 importa- tion of any species of goods or commodities whatever : Of establishing rules for deciding, in all cases, what captures S 274 APPENDIX. 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 determining, finally, appeals in all cases of captures; provided 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 differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever ; which authority shall always be exercised in the manner following : Whenever the legislative or executive authority, or lawful agent of any state, in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given, by order of Congress, to the legislative or executive authority of the other state in controversy ; and a day assigned 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 peti- tioners beginning, until the number shall be reduced to thirteen ; and from that number not less than seven nor more than nine names, as Congress shall direct, 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, who APPENDIX. 27-5 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 suffi- cient, 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 judgment and sentence of the court, to be appointed in the manner before pre- scribed, 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 pronounce sentence or judgment, which shall in like manner be final and decisive; the judg- ment 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 : Pro- vided that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the state where the cause shall be tried, " Well and truly to hear and determine the matter in question, according to the best of his judg- ment, without favor, affection, or hope of reward :" Provided 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 jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding (lis-. 276 APPENDIX putes 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 Indians, not members of any of the states ; provided that the legislative 4 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 ser- vice of the United States, excepting regimental officers : Appointing all the officers of the naval forces, and commis- sioning all officers whatever 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, and to ap- point 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 num- *■ ber to preside ) provided that no person be allowed to serve In the office of president more than one year in any term of three years : To ascertain the necessary sums of money to - be raised for the service of the United States, and to appro- priate and apply the same for defraying the public expenses: To borrow money or emit bills on the credit of the United States, transmitting every half year to the respective states APPENDIX. 277 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 there- upon the legislature of each state shall appoint the regi- mental 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 assem- bled : 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 legis- lature 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; nor coin money; nor regulate the value thereof; nor ascer- tain 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 States ; nor appropriate money ; nor agree upon the number of vessels of war to be built or purchased, or the number of land or 24 278 APPENDIX. 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 adjourn- ing from day to day, be determined, unless by the votes of a majority of the United 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 adjournment 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 judgment 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 committee, for the exercise of which, by the Articles of Confederation, the voice of nine states in the Congress of the United States assembled is requisite. Article XI. Canada, acceding to this Confederation, and joining 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 bor- APPENDIX. 279 rowed, 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 public faith, are hereby solemnly pledged. Article XIII. Every state shall abide by the determi- nations 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 inviolably 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 Con- gress 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 respec- tively 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 pur- pose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confedera- tion 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 respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them; and that the articles thereof shall be inviolably observed by the states we respectively represent ; and that the Union shall be per- petual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia, in the state of 280 APPENDIX. Pennsylvania, the 9th day of July, in the year of our Lord 1778, and in the 3d year of the Independence of America. III. In Convention, Monday, September 17, 1787. Present: The States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Caro- lina, South Carolina, and Georgia. Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this convention that it should afterwards be submitted to a Convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification j and that each convention, assenting to and ratifying the same, should give notice thereof, to the United States in Con- gress assembled. Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine states shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the states which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Constitution. That after such publication the electors should be appointed, and the Senators and Representatives elected ; that the electors should meet on the day fixed for the election of the President, and should transmit their APPENDIX. 281 votes certified, signed, sealed, and directed as the Constitution requires, to the Secretary of the United States in Congress assembled; that the Senators and Representatives should convene at the time and place assigned; that the Senators should appoint a president of the Senate, for the sole pur- pose of receiving, opening, and counting the votes for Pre- sident; and that, after he shall be chosen, the Congress, together with the President, should, without delay, proceed to execute this Constitution. By the unanimous order of the Convention. GEORGE WASHINGTON, President. William Jackson, Secretary. In Convention, September 17, 1787. Sir : We have now the honor to submit to the consi- deration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable. The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the corres- pondent executive and judicial authorities, should be fully and effectually vested in the General Government of the Union ; but the impropriety of delegating such extensive trust to one body of men is evident : hence results the necessity of a different organization. It is obviously impracticable, in the Federal Government of these States, to secure all rights of independent sove- reignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance as on the object to be obtained. It is at all times difficult •>4* 282 APPENDIX. to draw with precision the line between those rights which must be surrendered and those which may be reserved ; and on the present occasion this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American — the consolidation of our Union — in which is involved our prosperity, felicity, safety, perhaps our national existonce. This important consideration, seri- ously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magni- tude than might have been otherwise expected ; and thus the Constitution which we now present is the result of a spirit of amity, and of that mutual deference and conces- sion which the peculiarity of our political situation rendered indispensable. That it will meet the full and entire approbation of every state, is not, perhaps, to be expected ; but each will doubt- less consider that, had her interest been alone consulted, the consequences might have been particularly disagree- able or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. With great respect, we have the honor to be, sir, your excellency's most obedient, humble servants. By unanimous order of the Convention. GEORGE WASHINGTON, President. His Excellency the President of Congress. APPENDIX. 283 IV WASHINGTON S FAREWELL ADDRESS TO THE PEOPLE OP THE UNITED STATES, SEPTEMBER 17, 1796. Friends and Fellow-citizens: — The period for a new election of a citizen to administer 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 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 dimi- nution 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 con- stantly hoped that it would have been much earlier in my power, consistently with motives which I was not at liberty 284 APPENDIX. 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 inclination incompatible with the sentiment of duty or propriety; and am persuaded, whatever partiality may be retained for my services, that, in the preseut circumstances of our country, you will not disapprove my determination to retire. The impressions, with which I first undertook the ardu- ous 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 judgment was capable. Not uncon- scious, in the outset, of the inferiority of my qualifications, experience in my own eyes, perhaps still more in the eyes of others, has strengthened the, motives to diffidence of myself; and, every day, the increasing weight of years admonishes me, more and more, that the shade of retire- ment 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 I owe to my beloved country, for APPENDIX. 28 3 the many honors it has conferred upon me ; still more for the steadfast confidence with which it has supported mp ; and for the opportunities I have thence enjoyed, of mani- festing 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 id 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 beneficence ; that your union and brotherly affection may be perpetual ; that the free Constitution, which is the work of your hands, may be sacredly maintained; that its administration, in every department, maybe 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 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 appre- hension of danger, natural to that solicitude, urge me, on an occasion like the present, to offer to your solemn contem- plation, and to recommend to your frequent review, some sentiments which are the result of much reflection ; of no 286 APPENDIX. inconsiderable observation ; and which appear to me all im- portant 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 disinterested 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 maiu 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 employed, 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 con- stantly and actively (though often covertly and insidiously) 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; accus- toming yourselves to think and speak of it as of the palla- dium of your political safety and prosperity ; watching for it? preservation with jealous anxiety ; discountenancing what- ever may suggest even a suspicion that it can, in any event, be abandoned ; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our APPENDIX. 287 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 country, 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 patriotism, more than any appellation derived from local discrimina- tions. With slight shades of difference, you have the same religion, manners, habits, and political principles. 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 address 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 commanding 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 Government, finds, in the productions of the latter, great additional resources of maritime and commercial enterprise, and precious mate- rials 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 intercourse with the West, already finds, and in the progressive improvement of interior communiea- 288 APPENDIX. tions, by land and water, will more and more find, a valuable vent for the commodities which it brings from abroad, or manufactures at home. The West derives from the East supplies 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, directed by an indissoluble community of interest as one nation. Any other tenure by which the Wesl can hold this essential ad- vantage, whether derived from its own separate strength, or from an apostate and unnatural connection with any foreign power, must be intrinsically precarious. While, then, every part of our country thus feels an imme- diate 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 inestima- ble value, they must derive from union an exemption from those broils and wars between themselves, which so fre- quently afflict neighboring countries, not tied together by the same governments; which their own rivalships 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 establishments, 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 con- sidered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the. other. These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of APPENDIX. 289 the Union as a primary object of patriotic desire. 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 criminal. We are autho- rized to hope, that a proper organization of the whole, with the auxiliary agency of governments for the respective sub- divisions, will afford a happy issue to the experiment. It is well worth a fair and full experiment. With such powerful and obvious motives to Union, affecting all parts of our country, while experience 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 endea- vor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts, is to misrepre- sent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart- burnings which spring from these misrepresentations ; 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 useful 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 satisfaction at that event throughout the United States, a decisive proof how unfounded were the suspicions propagated among them of a policy in the general government, and in the Atlantic states, unfriendly to their interests in regard to the Mississippi : 25 T 290 APPENDIX. they have been witnesses to the formation of two treaties — that with Great Britain and that with Spain, which secure to them everything 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 connect them with aliens ? To the efficacy and permanency of your Union, a govern- ment for the whole is indispensable. No alliances, however strict, between the parties, can be an adequate substitute ; they must inevitably experience the infractions and inter- ruptions 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 Constitution of govern- ment better calculated than your former for an intimate Union, and for the efficacious management of your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full inves- tigation 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 your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government: but the Constitu- tion 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, presupposes the duty of every individual to obey the established government. APPENDIX. 291 All obstructions to the execution of the lawsj all combi- nations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted autho- rities, are destructive of this fundamental principle, 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 commu- nity; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans, digested by common counsels and modified by mutual interests. However combinations or associations of the above de- scription may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government ; 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 oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretext. .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 govern- ments as of other human institutions; that experience is 292 APPENDIX. 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 hypothesis and opinion, exposes to perpetual change from the endless variety of hypothesis and opinion ; and remember, especially, that for the efficient management of your common interests, in a coun- try so extensive as yours, a government of as much vigor as is consistent with the perfect security of liberty, is indispen- sable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name where the government is too feeble, to withstand the enterprises of faction, to con- fine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranouil 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 solemn manner, against the baneful effect of. the spirit of party generally. 1 This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, 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 dissen- sion, which, in different ages and countries, has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads, at length, to a more formal and permanent despotism. The disorders and miseries which result, gra- dually incline the minds of men to seek security and repose APPENDIX. 293 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 commu- nity with ill-founded jealousies and false alarms ; kindles the animosity of one part against another ; foments, occasionally, riot and insurrection. It opens the door to foreign influ- ence 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 governments 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 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 warming, it should consume. It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted 294 APPENDIX. with its administration, to confine themselves within their respective constitutional spheres, avoiding, in the exercise of the powers of one department, to encroach upon another. 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 pre- dominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power by dividing and distributing, it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments, ancient and modern ; some of them in our own 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 distri- bution 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 in- stance, 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 the dispositions and habits which lead to political 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 happi- ness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, where is the security for property, for APPENDIX. 295 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 morality can be maintained without reli- gion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and expe- rience both forbid us to expect that national morality can prevail in exclusion of religious principles. It is substantially true, that virtue or morality is a neces- sary 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 foundation of the fabric ? Promote, then, as an object of primary importance, insti- tutions for the general diffusion of knowledge. In propor- tion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlight- ened. 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 representatives, but it is necessary that public opinion should co-operate. To facili- tate to them the performance of their duty, it is essential that you should practically bear in mind that towards the 296 APPENDIX. payment of debts there must be revenue; that to have revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment inseparable from the selec- tion 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 acquiescence in the measures for obtaining revenue, which the public exigencies may at any time dictate. Observe good faith and justice towards all nations; culti- vate peace and harmony with all. Religion and morality enjoin this conduct; and can it be that good policy does not equally enjoin it? It will be worthy of a free, enlight- ened, 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 benevolence. 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 connected the per- manent felicity of a nation with its virtue? The experiment at least is recommended by every sentiment which ennobles human nature. Alas ! is it rendered impossible by its vices ? In the execution of such a plan uothing is more essential 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 APPENDIX. 297 offer insult and injury, to lay hold of slight causes of um- brage, and to be haughty and intractable when accidental or trifling occasions of dispute occur. Hence frequent collisions, obstinate, envenomed, and bloody contests. The nation, prompted by ill-will and resentment, sometimes impels to war the government, contrary to the best calcula- tions of policy. The government sometimes 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 sinister and pernicious motives. The peace often, sometimes perhaps the liberty, of nations has been the victim. So likewise a passionate attachment of one nation to another produces a variety of evils. Sympathy for the favorite nation, facilitating the illusion of an imaginary com- mon interest, in cases where no real common interest 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 nations making the concessions; by unnecessarily parting with what ought to have been retained, and by exciting jealousy, ill- will, and a disposition to retaliate 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 popularity; gilding with the appearance of a virtuous sense of obligation 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, 298 APPENDIX. such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportu- nities do they afford to tamper with domestic factions, to practise the art of seduction, to mislead public opinion, to influence or awe the public councils ! Such an attachment of a small or weak towards a great and powerful nation dooms the former to be the satellite of the latter. Against the insidious wiles of foreign influence (I con- jure 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 of the most baneful foes of republican government. But that jealousy, to be useful, must be impartial ; else it becomes the instru- ment of the very influence to be avoided, instead of a defence against it. Excessive partiality for one foreign nation, and excessive dislike for another, cause those whom they actuate to see danger only on one side, and serve to veil, and even second the arts of influence on the other. Real patriots, who may resist the intrigues of the favorite, are liable to become suspected and odious j while its tools and dupes usurp the applause and confidence of the people to surrender their interests. 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 en- gaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissitudes of her politics, or the APPENDIX. 299 ordinary combinations and collisions of her friendships or enmities. Our detached and distant situation invites and enables us to pursue a different course. If we remain one people, under an efficient government, the period is not far off when we may defy material injury from external annoyance; 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 Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice ? 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 misunder- stood as capable of patronizing infidelity to existing engage- ments. I hold the maxim no less applicable to public 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 uid would be unwise to extend them. Taking care always to keep ourselves, by suitable esta- blishments, 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 impartial hand ; neither seeking nor granting exclusive favors or 300 APPENDIX. preferences; consulting the natural course of things; dif- fusing 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 enable the government to support them, conventional rules of intercourse, the best that present circumstances and mutual opinions will permit, but temporary and liable to be, from time to time, aban- doned or varied, as experience and circumstances shall dictate ; constantly keeping in view that it is folly in one nation to look fur disinterested 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 equiva- lents 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 nation. 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 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 prevent our nation from running the course which has hitherto marked the destiny of nations; but if I may even flatter myself that they may be productive of some partial benefit, some occa- sional good ; that they may now and then recur to moderate the fury of party spirit, to warn against the mischief of foreign intrigues, to guard against the impostures of pre- tended patriotism; this hope will be a full recompense for the solicitude for your welfare 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 delineated; APPENDIX. 301 the public records and other evidences of my conduct must witness to you and 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 pro- clamation 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, uninfluenced 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 posi- tion. Having taken it, I determined, as far as should depend upon me, to maintain it with moderation, perseve- rance, and firmness. The considerations which respect the right to hold thus 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 anything more, from the obligation which justice and humanity impose on every nation, in cases in which ifc 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 experience. With me a predominant motive has been to endeavor to gain time to our country to settle and mature its yet receut institutions, and to progress, without interruption, to that degree of strength and consistency which is necessary to give it, humanly speaking, the command of its own fortunes 26 302 APPENDIX. Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless 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 forty-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 mansions of rest. Relying on its kindness in this, as in other things, and actuated by that fervent love towards it which is so natural to a man who views in it the native soil of himself and his progenitors for several generations, I anticipate, with pleas- ing expectation, that retreat in which I promise myself to realize, without alloy, the sweet enjoyment of partaking, 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, 17th September, 1796. INDEX. (The Numbers refer to the Pages of the Work.) ADJOURNMENTS OF CONGRESS, 88. ADMISSION, Of new states, 233. AMBASSADORS, The President appoints, 183. The President receives, 188. Immunities of, 190. How regarded, 191. What states may send, 191. Their functions, 191. AMENDMENTS TO THE CONSTITUTION, Mode of, 240. Exceptions to power of, 240. History of, 246. ANNAPOLIS, Convention at, 45. APPEALS, From state courts, 207. APPOINTMENTS, In the recess of the Senate, 185. How long they last, 185. APPORTIONMENT OF REPRESENTATIVES, 59. Slaves considered in, 60. Mode of, 62. APPROPRIATIONS, 141. ARMS, Right to bear, 250. ARMY, Appropriation for, 125. Government of, 126. Commander-in-Chief of, 176. 303 304 INDEX. ARREST, Members of Congress exempt from, except, 90, et scq. ARTICLES OF CONFEDERATION, Final ratification of, 42. When laid before Congress, 42. When agreed to by Congress, 42. Powers confided to, 42. Result of, 44. Washington's opinion of, 44. ASSOCIATE JUSTICES, Of Supreme Court, 194. Salary of, 195. By whom appointed, 183, 202. Tenure of office, 201. ATTAINDER, Congress and the states prohibited to pass bills of, 137, 148. Of treason, 222, et eeq. ATTORNEY-GENERAL, Duties of, 179. BAIL, W T hatis, 218. Excessive, 218. When admitted, 218. BANKRUPT LAWS, Congress may pass, 112. What are, 112. In what cases the states may pass, 113, 154, BILLS OF CREDIT, The states cannot emit, 146. What are, 146. BRIBERY, What is, 78. BURKE, MR., His opinion of a senate, 65. CABINET, THE, Of whom composed, 178, 179. CAPTURES, Rule of Congress respecting, 124. CASE, Meaning of, 203. In law, 203. In equity, 203. Several descriptions of, 203, et eeq. INDEX. 305 CENSUS, Required to be taken, 61. When the first was taken, 61. CHARGES D'AFFAIRES, 191. CHARTERS, How divided, 151. Power of the states respecting, J 51, 152. CHIEF JUSTICE, Presides when the President is impeached, 76. Salary of, 195. By whom appointed, 201. Tenure of office, 201. CIRCUIT COURTS, 196. How constituted, 196. Terms of, 201. When justice of S. C. must hold, 196. Jurisdiction of, 196. CLERKS, Of courts, 200. By whom appointed, 200. By whom removable, 200. COINAGE OF MONEY, 114. The states prohibited to coin, 145. COLONIES, Union of, 37. Distinet government of, 37. COLUMBIA, DISTRICT OF, May be taxed, 103. COMMANDER-IN-CHIEF, Of the army and navy, 176. Of the militia when in actual service, 175. Who is, 175. COMMERCE, Condition of under the Confederation, 104. Congress has power to regulate, 105. What regulation of means, 105. Meaning of, 105. Regulation of, variously applied, 106. Power over, exclusive in Congress, 106. What laws states may pass respecting, 106, et aeq. With the Indians, 109. COMMISSION, What is, 193. Signing and delivery of, 184. 26 U 306 INDEX. COMMON LAW, In what states it prevails, 219, Punishment of treason by, 223. COMPACTS, The states cannot enter into, Ac, 159. COMPULSORY PROCESS, "When accused persons entitled to, 2IT. CONCLUSION, 259. CONCURRENT POWERS OF LEGISLATION, In what cases the states have, 131. CONCURRENT VOTE, What is, 66. CONFEDERATION, See Articles of. CONFESSION, Of accused person, 214. CONGRESS, Stamp- act, 39. Continental, 40. Measures of, 40. Second meeting of, 41. Powers exercised by 41. Adopt Articles of Confederation, 42. Submit the Constitution, 46. Organiie the government, 46. Under the Constitution, 47. Of what it consists, 52. Importance of two branches, 52. May alter state regulations as to time and manner of choosing Senators and Representatives, 79. Regulation as to manner of choosing Representatives, 79. How often to assemble, 81. Each house of, to judge of the elections, Ac, of its own menbers, 82. Each house of, determines its rules of proceeding, 83. Members of, liable to punishment, 85. May punish for contempt, when, 85. May sit with closed doors, 86. Adjournments of, 88. Duration of, 88. Members of, not to be questioned elsewhere for any speech or debate, 92. Members of, not to hold civil office under the U. S., 93. Every bill, resolution, Ac, must be presented to the President, 97. Have power to lay taxes. 94. INDEX. 307 CONGRESS, May borrow money, 104. May regulate commerce, 104. Limitation upon the power to regulate commerce, 107. Power over naturalization, and bankruptcies, 109, 112. Power with respect to the coinage of money, 114. Power with respect to counterfeiting, 116. Power with respect to post-offices and post-roads, 116. Power with respect to other matters, 118, 130, et *eq. Powers denied to, 133-142. May vest appointment of inferior officers, 184. When the President may convene and adjourn, 188. May establish inferior courts, 195. Power as to state records, *, -•*.*• •2^71 .R / *l *' : ;:%£.■ mi*