LIBRARY 
 
 OF THE 
 
 UNIVERSITY OF CALIFORNIA. 
 
 GIFT OF" 
 
 Mrs. SARAH P. WALSWORTH. 
 
 Received October, 1894. 
 Accessions No.*5*~J f> // ... Class No. 
 

OUTLINES 
 
 OF THE 
 
 CONSTITUTIONAL JURISPRUDENCE 
 
 OF THE 
 
 UNITED STATES; 
 
 DESIGNED AS A TEXT BOOK FOR LECTURES, 
 
 \v*. 
 
 AS A CLASS fJOOK FOR 
 ACADEMIES AND COMMON SCHOOLS, 
 
 AND AS A 
 
 MANUAL FOR POPULAR USE. 
 
 BY WILLIAM ALEXANDER DUER, L.L.D. 
 
 PRESIDENT OF COLUMBIA COLLEGE IN THE CITY 
 OF NEW-YORK. 
 
 Est omn 6u necessarium, nosse rempublicam. Cic. 
 
 NEW- YORK : 
 PUBLISHED BY COLLINS AND HANNAY. 
 
 W. E. DEAJV, PRINTER. 
 
 1833. 
 

 
 Entered according to the Act of Congress, in the year One Thousand Eight 
 Hundred and Thirty-three, by WILLIAM ALEXANDER DUER, in the 
 Clerk's Office of the Southern District of New- York. 
 
TO 
 
 JAMES MADISON. 
 
 To you, Sir, as the surviving member of 
 the august assembly that framed the Con- 
 stitution, and of that illustrious triumvirate 
 who, in vindicating it from the objections of 
 its first assailants, succeeded in recommend- 
 ing it to the adoption of their country; to 
 you, who, in discharging the highest duties of 
 its administration, proved the stability and 
 excellence of the Constitution, in war as well 
 as in peace, and determined the experiment 
 in favour of republican institutions and the 
 right of self-government ; to you, who in your 
 retirement, raised a warning voice against 
 those heresies in the construction of that 
 Constitution which for a moment threatened 
 to impair it ; to you, Sir, as alone amongst the 
 earliest and the latest of its defenders, this 
 brief exposition of the organization and prin- 
 ciples of the National Government, intended 
 especially for the instruction of our American 
 youth, is most respectfully, and, in reference 
 to your public services, most properly inscrib- 
 ed. 
 
 Columbia College, JV. F. I 
 August 1st, 1833. f 
 
PREFACE. 
 
 THE following sheets are submitted to the 
 Public in consequence of a resolution of" The 
 American Lyceum," requesting the Author 
 " to prepare and publish ; Outlines of the Con- 
 stitutionalJurisprudence of the United States,' 
 in a form suitable for a text book for Lectures, 
 and a class book to be used in Academies 
 and Common Schools." 
 
 This resolution avowedly originated from 
 a conviction, on the part of the respectable 
 body who adopted it, of the advantage and 
 propriety of including the study of our politi- 
 cal institutions in the system of general edu- 
 cation ; and the proposal seems to have been 
 prompted by the opinion or experience of the 
 individuals by whom it was brought forward, 
 and who are practically engaged in the instruc- 
 tion of youth, that none of the existing Trea- 
 tises upon Constitutional Law, were of a suffi- 
 ciently popular character for the design con- 
 templated ; whilst the selection of the Author 
 
VI PREFACE. 
 
 to compile such a work, is doubtless to be 
 ascribed to his official connection with the 
 "Lyceum," and to the circumstance of his hav- 
 ing, to the knowledge of several of its mem- 
 bers, been for some time previously engaged 
 in lecturing upon ConstitutionalJurisprudence 
 in the College over which he has the honour 
 to preside. 
 
 It was indeed at his suggestion that this 
 branch of study had been added to the sub- 
 graduate course of instruction in that Institu- 
 tion, and the duty of conducting it confided 
 to his charge ; and it was with peculiar satis- 
 faction, though not without a due sense of its 
 responsibility, that he had engaged in a task 
 which, grateful as it was to him from its con- 
 geniality with his former studies and pursuits, 
 he nevertheless apprehended would prove ar- 
 duous in its execution, both from the nature 
 of the subject, and his own views of its impor- 
 tance. 
 
 A knowledge of the history, organization, 
 and principles of the political institutions un- 
 der which he lives, is essential to the scholar, 
 and must necessarily be advantageous to eve- 
 ry man, wheresoever he may have been born, 
 and under whatsoever form of government he 
 
PREFACE. 
 
 may dwell. But it is obviously of more im- 
 mediate necessity and benefit in free States, 
 where every citizen may exercise a voice, 
 more or less potential, in the administration 
 of public affairs ; and it may even be deemed 
 indispensable in our own favoured land, where 
 the political rights of all are equal, and where 
 the obscurest individual is eligible to the high- 
 est and most responsible stations in the go- 
 vernment. It may therefore well be regard- 
 ed as a defect in the prevailing systems of 
 education, that this study should so generally 
 have been either altogether omitted, or defer- 
 red to that period of life when our youth are 
 called on to participate in the active duties 
 of society ; or that it should be considered 
 appropriate to those only who are designed 
 for a particular profession, or aspire to public 
 employments. 
 
 Necessary, however, as is a profound know- 
 ledge of the Constitution, to the lawyer and 
 the statesman, a general acquaintance with 
 its principles and details is requisite to all 
 who entertain just views of liberal education, 
 or correctly estimate their privileges as citi- 
 zens of a free Republic ; and the increasing 
 interest which has of late been manifested by 
 the more intelligent portion of the community, 
 
VHI PREFACE. 
 
 in discussions relative to the origin, structure, 
 and principles of our political system, certain- 
 ly evince that this class of citizens appre- 
 ciate their political rights, and that so far, 
 they are understood. But the information 
 requisite cannot be implanted too soon after 
 the mind has been prepared to receive it ; 
 and it should remain no longer a reproach to 
 any of our higher seminaries of learning, that 
 its graduates are sent forth into the world 
 more familiar with the Constitution of the 
 Roman Republic, and the principles of the 
 Grecian confederacies, than with the funda- 
 mental institutions of their own country. 
 
 Recent events, moreover, demonstrate that 
 a correct knowledge of the powers and duties 
 of the National and State Governments can- 
 not be too widely diffused nor too early in- 
 culcated ; whilst, from the nature and value of 
 that knowledge, the public interest and safe- 
 ty, if not the stability of our political institu- 
 tions, no less than the happiness and security 
 of individuals, require that it should be ex- 
 tended, in common with all the essential 
 branches of general education, to every por- 
 tion, and, if possible, to every member, of the 
 community. 
 
PREFACR. IX 
 
 With this special end in view, the applica- 
 tion of " The American Lyceum" was made 
 to the Author, and was acceded to by him 
 with similar feelings of mingled satisfaction 
 and diffidence to those with which he had 
 assumed the duty assigned to him in rela- 
 tion to the subject in Columbia College. In 
 order in any measure to effect the object in 
 contemplation, he conceived it proper to re- 
 cast the materials he had already used in a 
 different form, and to compose from them a 
 new work divested, as far as practicable, of 
 the professional character and aspect com- 
 mon to all previous publications on Consti- 
 tutional Law. He has accordingly revised 
 and remodelled his manuscript notes ; and 
 in thus attempting to furnish a new outline of 
 this branch of Jurisprudence, he has avoided, 
 as far as possible, the use of all purely tech- 
 nical terms, and has never introduced them 
 unaccompanied by the explanation requisite 
 for those to whom they are not familiar; 
 whilst in all other respects he has endeavour- 
 ed to render his production useful as a popu- 
 lar manual, rather than that it should be dis- 
 tinguished as a scientific treatise. 
 
 In a work of this description, of which the 
 essential value must depend on the fidelity 
 
PREFACE. 
 
 with which the provisions of the Constitution, 
 the legislative enactments for giving it ef- 
 fect, and the judicial construction which both 
 have received, are stated and explained, it 
 must be evident that, except as to method 
 and arrangement, there can be little scope 
 for originality. To that merit, therefore, the 
 Author makes no pretensions. Upon such 
 points of Constitutional Law as have been 
 definitively settled, he has implicitly followed 
 those guides whose decisions are obligatory 
 and conclusive : upon questions which have 
 arisen in public discussion, but have neither 
 been presented for judicial determination, nor 
 received an approved practical interpretation 
 from the other branches of the Government, 
 he has had recourse to those elementary wri- 
 ters whose opinions are acknowledged to 
 possess the greatest weight, either from their 
 intrinsic value, or their conformity with the 
 general doctrines of the authoritative ex- 
 pounders of the Constitution : and in the ab- 
 sence both of authority and disquisition, the 
 Author has ventured to rely upon his own 
 reasonings, and has advanced his own opi- 
 nions, so far only as he conceives them to be 
 confirmed by undeniable principles, or esta- 
 blished by analogous cases. 
 
PREFACE. XI 
 
 Besides the reported adjudications of the 
 Supreme Court of the United States, the 
 sources which have been resorted to are, the 
 contemporaneous exposition of the Constitu- 
 tion by the authors of " The Federalist ;" that 
 portion of the " Lectures" of the late Chan- 
 cellor of this State, Mr. Kent, which relate to 
 the subject ; Mr. Rawle's " View of the Con- 
 stitution ;'' and the more elaborate " Com- 
 mentaries" of Mr. Justice Story. To all these 
 works the Author acknowledges his obliga- 
 tions, although he must lament that the last 
 mentioned invaluable repository of Constitu- 
 tional learning did not reach him in time to 
 consult it more at large; and in regard to the 
 abridgment of it lately published by the learn- 
 ed commentator, " for the use of Colleges and 
 High Schools," it may be observed, that both 
 from its size and mode of execution it seems 
 to aim at more select and limited objects 
 than those proposed by the present treatise. 
 
 With respect to the two preceding elemen- 
 tary treatises to which the Author has refer- 
 red, it will be found that he has not coincided 
 with the restricted views taken, in the former, 
 of the supremacy, and in the latter, of the 
 perpetual obligation, of the Federal Consti- 
 tution ; but has maintained, upon both these 
 
Xll PREFACE. 
 
 important points, principles more favourable, 
 as he conceives, to the power and stability of 
 the National Government than those which 
 seem to be entertained respectively by the 
 learned authors of the Lectures on " Ameri- 
 can Law," and of the " View of the Constitu- 
 tion." He has not, however, differed from 
 such distinguished jurists without being sup- 
 ported by the opinions of some of the most 
 eminent statesmen of the present day, and of 
 different parties; by the doctrines officially 
 proclaimed by the President of the United 
 States, and sustained in the speeches of Mr. 
 Webster; nor without being sanctioned, as he 
 conceives, by the judicial authority of Chief 
 Justice Marshall, expressly, upon one of the 
 points in question, and virtually, upon the 
 other, by his affirmance of principles which 
 are involved in its consideration, and must 
 eventually govern its decision. 
 
 In referring to the venerable name of the 
 present Chief Justice of the United States, 
 the Author must be understood, on this and 
 on all other occasions, as adopting his indi- 
 vidual opinions, not less from deference to 
 their official authority, than from the convic- 
 tion wrought by the luminous and profound 
 reasonings by which they are elucidated and 
 
PREFACE. Xll 
 
 supported. As that eminent and revered 
 Judge has himself declared it auspicious to 
 the Constitution and to the country, that the 
 new Government found such able advocates 
 and interpreters as the illustrious authors of 
 * c The Federalist," so it may be regarded 
 as one of the most signal advantages attend- 
 ing its career, that its principles should have 
 been developed and reduced to practice un- 
 der a judicial administration so admirably 
 qualified in every respect to expound them 
 truly, and firmly to sustain them. 
 
 The nature and design of the present pub- 
 lication dispense with the, necessity, if they 
 do not exclude the propriety, of marginal re- 
 ferences to authorities in support of the posi- 
 tions advanced in the text. But it is believ- 
 ed that none are assumed without either a 
 direct adjudication upon the point, or that 
 collateral support which is derived from ana- 
 logical reasoning and precedents, to sustain 
 it, or without being warranted by the prac- 
 tice of the Government and the acquiescence 
 of the People. From the phraseology adopt- 
 ed, it may perhaps in every instance be per- 
 ceived whether any point of regulation or 
 construction be authoritatively laid down or 
 argumentatively stated. In the former case. 
 B 
 
XIV PREFACE. 
 
 the nature of the authority may be gathered 
 from the language of the proposition ; and 
 in the latter, the premises from which a co- 
 rollary or an analogy is deduced, are distinct- 
 ly designated. 
 
 In arranging the materials thus collected 
 and derived, the form of consecutive and de- 
 pendent propositions has been preferred, as 
 recommended by Professor Dugald Stewart 
 in reference to Moral Science. This method 
 had in substance been adopted by Sir W. 
 Blackstone in the outlines of his original Lec- 
 tures on the English Law, and has since 
 been pursued by Mr. Justice Story in his 
 Commentaries on *the Constitution of the 
 United States. It is, indeed, peculiarly ap- 
 propriate to a work intended both as a text 
 to be enlarged on, explained and illustrated 
 by a Lecturer, and as a class book to be 
 used by Teachers who must necessarily ex- 
 ercise a discretion in selecting such parts for 
 recitation as may be best adapted to the age 
 and capacities of their pupils ; whilst with 
 the aid of a proper index, it will be found 
 equally convenient for the purposes of im- 
 mediate and general reference. As to the 
 order and distribution of the matter > the Au- 
 thor has again to acknowledge his obliga- 
 
PREFACE. XV 
 
 tions to "The Federalist;" whose plan in 
 this respect he has followed with very little 
 other alteration than that of transposing the 
 two branches into which the subject is natu- 
 rally divided. 
 
 One word more remains to be added in re- 
 gard to the relation which the work may be 
 supposed to bear to the politics of the day. 
 That it may derive an additional interest, and, 
 it is to be hoped, an additional value from its 
 reference to topics which have of late so 
 much occupied the public mind, and so much 
 excited the passions of at least a portion of 
 the community, will not be denied. But this 
 arises unavoidably from the nature of the sub- 
 ject. It will be recollected that the adoption 
 of the Constitution of the United States gave 
 birth to the two great parties into which the 
 country was divided for many years after it 
 went into operation; and, that to this day, 
 the different opinions prevailing in regard to 
 its construction, as well as to the principles 
 of interpretation applicable to it, are in- 
 fluenced, if not governed, by the different 
 views originally taken of the nature of the 
 compact. By those whose intention it had 
 been to establish a Supreme National Go- 
 vernment, operating upon the citizens of the 
 
PREFACE. 
 
 several States as individuals receiving protec- 
 
 tion and owing allegiance to the Union, it 
 
 was liberally and beneficially expounded in 
 
 order to effect their end. By those who, in 
 
 opposition to that design, had been anxious 
 
 to maintain the full sovereignty of the States, 
 
 and to render the new Constitution a mere 
 
 league or treaty between them, similar in its 
 
 character to the former Confederation, a 
 
 strict interpretation was contended for. It is 
 
 therefore impossible to adopt a particular 
 
 construction of the Constitution upon any 
 
 point involving these original principles of op- 
 
 position, without conflicting with the opi- 
 
 nions, awakening the jealousies, or offending 
 
 the prejudices, of one or the other of these par- 
 
 ties ; or, what is more to be deprecated, with- 
 
 out appearing to enter the lists in defence of 
 
 party doctrines, or being considered as en- 
 
 rolled under the banners of party leaders, and 
 
 hazarding the hostility of those zealots upon 
 
 whom the mantles of the old parties are now 
 
 claimed to have descended. 
 
 To which of these parties the Author was 
 attached; what principles he originally pro- 
 fessed, and has ever adhered to, he is far, 
 very far from wishing, were it even possible, 
 to conceal. But it must be remembered that 
 
PREFACE. XVII 
 
 - 
 
 the original distinctions between those par- 
 ties had for a long time disappeared, and al- 
 though the collisions and hostility between 
 them were occasionally continued and reviv- 
 ed, yet these contests were maintained on new 
 and independent grounds; and the ancient 
 tests were so far omitted or forgotten with 
 
 3 
 
 respect to individuals, that their original creed 
 as to the Constitution, was either lost sight 
 of, or deemed obsolete and* unimportant. 
 It is true, indeed, that in some parts of the 
 Union these original distinctions were to a 
 certain degree preserved, and that of late 
 years they have been more extensively reviv- 
 ed ; but 'in the contentions which have thence 
 arisen the Author has had no personal con- 
 cern or sympathy as a partizan. It is long 
 since he withdrew from political life ; and in 
 the Judicial office which he held for some 
 years previous to being called to his present 
 station, he endeavoured to cultivate those 
 qualities which the faithful performance of 
 judicial duties imperiously demands. He 
 trusts, therefore, that as he approached the 
 present subject with no views or feeling of 
 party interest, he has been actuated, in treat- 
 ing it, neither by the spirit of a mere politi- 
 cian, the partiality of an advocate, nor the 
 
XVIU PREFACE 
 
 zeal of a polemic ; but that he has proceeded 
 under the influence of sentiments and habits 
 more recently and sedulously cherished, and 
 been enabled, as if bound by the solemn sanc- 
 tion of an inquest of life ? "to present aft 
 things truly, to the best of bis ability, without 
 fear, favour, affection, or hope of reward." 
 
 Columbia College, JV. F. 
 August 1st, 1833. 
 
 . 
 
ANALYSIS. 
 
 
 Introduction. 
 
 I. Definition and origin of political Constitutions, as derived",, 
 
 1. From tradition, or the act of the Government itself. 
 
 2. From written fundamental compacts. 
 Either of which may be formed 
 
 1. On a simple principle of 
 
 1. Monarchy. 
 
 2. Aristocracy* 
 
 3. Democracy. 
 
 2. Or combine these three forms in due proportions, 
 by means of the principle of representation ap- 
 plied 
 
 1. To the poivors of Government ; which are, 
 
 1. Tlie Legislative. 
 
 2. The Executive. 
 
 3. The Judicial. 
 
 2. To tire persons represented in the Govern- 
 ment. 
 
 II. Foundations of representative Governments were laid 
 
 1. Partially* in the British Colonies, in which were es- 
 tablished 
 
 1. Royal Governments. 
 
 2. Proprietary Governments. 
 
 2. Universally, in the American States, open the esta- 
 blishment of independent Governments, which secured 
 the enjoyment of 
 
 1. The inalienable natural rights of individuals. 
 
 2. The political and civil privileges of the citizens, 
 designed for maintaining, or substituted as equiva- 
 lents for, natural rights. 
 
 HI. The same fundamental principles were recognized and 
 adopted upon the establishment of a Federal Government 
 by the people of the several Slates. 
 
 1, In regard to the principle of representation, as applied 
 
XX ANALYSIS. 
 
 1. To the three great deportments of Government. 
 
 2. To the individual citizens of the United States, 
 and to the several States of the Union. 
 
 2. In regard to the distribution of the powers of Govern- 
 ment, as the Constitution of the United States contains. 
 
 1. A general delegation of the Legislative, Execu- 
 tive and Judicial Powers, to distinct departments ;. 
 and 
 
 2. Defines the powers and duties of each department 
 respectively. 
 
 OUTLINES of that branch of Jurisprudence which treats of 
 the principles, powers, and construction of the Constitution, 
 are therefore to be traced, 
 
 FIRST. With regard to the particular structure and or- 
 ganization of the Government. 
 SECOND. In relation to the powers vested in it, and the 
 
 restraints imposed on the States. 
 
 PART I. Of the structure and organization of the Govern- 
 ment, and tho distribution of its powers amongst 
 its several departments. 
 
 Ch. 1. Of the Legislative power, or Congress of the United 
 States. 
 
 1. Of the constituent parts of the Legislature, and 
 the modes of their appointment. 
 
 1. Of the House of Representatives. 
 
 2. Of the Senate. 
 
 2. Their joint and several powers and privileges. 
 
 3. Their method of enacting laws, with the times 
 and modes of their assembling and adjourning. 
 
 Clu 2. Of the Executive power, as vested in the President. 
 
 1. His qualifications ; the mode and duration of 
 his appointment, and the provision for his sup- 
 port. 
 
 2. His powers and duties. 
 Ch. 3. Of the Judicial power. 
 
 1. The mode in which it is constituted. 
 
 2. The objects and extent of its jurisdiction. 
 
 3. The manner in which its jurisdiction is distrK 
 buted. 
 
 1 . Of the Court for the trial of Impeachments. 
 
 2. Of the Supreme Court. 
 
 3. Of the Circuit Courts. 
 
 4. Of the District Courts. 
 
 5. Of the Territorial Courts. 
 
 6. Of powers vested in State Courts and Ma- 
 gistrates by laws of the United States. 
 
ANALYSIS. XXI 
 
 PART II. Of the nature, extent, and limitation of the powers 
 vested in the National Government, and the re- 
 straints imposed on the States, reduced to diiferent 
 classes, as they relate 
 
 Ch. 1. To security from foreign danger; which class com- 
 prehends the powers 
 
 1. Of declaring war, and granting letters of marque 
 and reprisal. 
 
 2. Of making rules concerning captures by land 
 and water. 
 
 3. Of providing armies and fleets, and regulating 
 and calling forth the militia. 
 
 4. Of levying taxes and borrowing money. 
 
 Cb. 2. To intercourse with foreign nations; comprising the 
 powers 
 
 1. To make treaties, and to send and receive am- 
 bassadors and other public ministers and con- 
 suls. 
 
 2. To regulate foreign commerce, including the 
 power to prohibit the importation of slaves. 
 
 3. To define and punish piracies and felonies com- 
 mitted on the High Seas, and offences against the 
 laws of nations. 
 
 Ch. 3. To the maintenance of harmony and proper inter- 
 course amongst the States t including the pow- 
 ers 
 
 1. To regulate commerce amongst the several 
 
 States, and with the Indian tribes. 
 
 2. To establish Post-offices and Post-roads. 
 
 3. To coin money, regulate its value, and to fix 
 the standard of weights and measures. 
 
 4. To provide for the punishment of counterfeiting 
 the securities andpubliccoinof theUnited States. 
 
 5. To establish an uniform rule of naturalization. 
 
 6. To establish uniform laws on the subject of 
 bankruptcies. 
 
 7. To prescribe, by penal laws, the manner in which 
 the public acts, records, and judicial proceedings 
 of each State shall be proved, and the effect they 
 shall have in other Slates. 
 
 Ch. 4. To certain miscellaneous objects of general utility ; 
 comprehending the powers 
 
 1. To promote the progress of science and the 
 useful arts. 
 
 2. To exercise exclusive legislation over the dis- 
 trict within which the seat of government should 
 be permanently established; and over all places 
 
ANALYSIS. 
 
 purchased by consent of the State legislatures 
 for the erection of forts, magazines, arsenals, 
 dock-yards, and other needful buildings. 
 
 3. To declare the punishment of treason against 
 the United States. 
 
 4. To admit ne\v States into the Union. 
 
 5. To dispose of, and make all needful rules and 
 regulations respecting the territory, and other 
 property of the United States. 
 
 6. To guarantee to every State in the Union a re- 
 publican form of government; and to protect 
 each of them from invasion and domestic vio- 
 lence. 
 
 7. To propose amendments to the Constitution, 
 and to call conventions for amending it, upon the 
 application of two thirds of the States. 
 
 Ch. 5. To the Constitutional restrictions on the powers of 
 the several States ; which are 
 
 1. Absolute restrictions, prohibiting the States 
 from 
 
 1. Entering into any treaty of alliance or 
 confederation. 
 
 2. Granting letters of marque and reprisal. 
 
 3. Coining money; emitting bills of credit; 
 or making any thing but gold or silver coin 
 a lawful tender in payment of debts. 
 
 4. Passing any bill of attainder, ex post facto 
 law, or law impairing the obligation of con- 
 tracts. 
 
 5. Granting any title of nobility. 
 
 2. Qualified limitations ; prohibiting the States, 
 without the consent of Congress, from 
 
 1. Laying imposts on imports or exports, or 
 duties on tonnage. 
 
 2. Keeping troops or ships of war in time of 
 peace. 
 
 3. Entering into any agreement or compact 
 with another State, or with a foreign power. 
 
 4. Engaging in war, unless actually invaded, 
 or in such imminent danger as will not ad- 
 mit delay. 
 
 Ch. 6. To the provisions for giving efficacy to the powers 
 vested in the Government of the United States; 
 consisting of 
 
 1. The power of making all laws necessary and 
 proper for carrying into execution the other 
 enumerated powers, 
 
ANALYSIS. XX111 
 
 2. The declaration that the Constitution and laws 
 of the United States and all treaties under their 
 authority, shall be the Supreme Law of the land. 
 
 3. The powers specially vested in the Executive 
 and Judicial departments, and particularly the 
 provision extending the jurisdiction of the latter 
 to all cases arising- under the Constitution. 
 
 4. The requisition upon the Senators and Repre- 
 sentatives in Congress ; the members of the 
 State Legislatures ; and all Executive and 
 Judicial officers of the United States and of the 
 several States, to be bound by oath or affirma- 
 tion to support the Constitution of the United 
 States. 
 
 5. The provision that the ratifications of the Con- 
 ventions of nine Slates should be sufficient for 
 the establishment of the Constitution between 
 the States ratifying the same. 
 
 Conclusion. 
 
OUTLINES 
 
 OP 
 
 CONSTITUTIONAL LAW, 
 
 INTRODUCTION. 
 
 1. A Constitution, in its legal and political sense, 
 signifies the fundamental principles on which a Go- 
 vernment is formed. 
 
 2. Constitutional Law, is that branch of jurispru- 
 dence which treats of those principles of the prac- 
 tical exercise of the powers of Government in con- 
 formity with them ; and of the construction to be 
 given to them in such their application. 
 
 3. The origin of political Constitutions is as various 
 as their different forms ; and Governments in their 
 form are either simple or mixed. 
 
 4. The simple forms of Government are 
 
 1. Monarchy, where all power is vested in a sw- 
 
 gle individual. 
 
 2. An Aristocracy, where the powers of Govern- 
 
 ment are exercised by a select number, or 
 a single body of men. And, 
 
 3. A Democracy, in which all power is retained 
 
 in the hands of the People, or of the society 
 at large. 
 
 5. A mixed Government, is where all three, 01 
 any two of the simple forms are united. 
 
 C 
 
26 INTRODUCTION. 
 
 6. A Constitution may exist under any of these 
 forms, if the Government be administered according 
 to established rules and principles, and be the result 
 of general consent, either actually expressed or fairly 
 to be implied. 
 
 7. Hence a Constitution may be derived from tradi- 
 tionary information, or from the acts and proceedings 
 of the Government itself, as well as from a written 
 compact. 
 
 8. The formation of a Constitution, on a single prin- 
 ciple, whether of Monarchy, Aristocracy, or Demo- 
 cracy, is the most practicable and easy mode ; but 
 the union of the three simple forms in due propor- 
 tions, so that each shall be sufficient to support itself 
 in the exercise of its appropriate functions, and all be 
 made to harmonize and co-operate, is the most per- 
 fect system, and the only true basis for a Democrati- 
 cal Republic. 
 
 9. This is effected by the proper relative distribu- 
 tion of the powers of Government amongst the several 
 branches, according to the principle of representation ; 
 \vhereby each is constituted, in its respective depart- 
 ment, the immediate and co-equal representative of 
 the People, as the direct source of its authority, and 
 the sole ultimate depositary of the sovereign power. 
 
 10. The powers of Government, are distinguished 
 from each other, as appertaining to the Legislative, 
 Executive, and Judicial departments. In the first of 
 which is vested the power of making Laws, or pre- 
 scribing rules for the Government of the community ; 
 in the second, that of executing or carrying into effect 
 those Laws ; and in the third, the power of expound- 
 ing and applying them, in their operation upon indi- 
 viduals. 
 
INTRODUCTION. 27 
 
 11. In the proper organization of these depart- 
 ments, and the just distribution of authority amongst 
 them, with the application of proper aids and checks 
 to secure the necessary independence and efficiency 
 of each, " THK BEST CONSTIIUTED REPUBLIC" is alone 
 to be attained. 
 
 12. These three powers of Government cannot be 
 wholly united, or injudiciously blended in the same 
 department, consistently with the liberties and se- 
 curity of the People ; and the danger to public free- 
 dom would be equal, whether the same powers were 
 delegated to a single magistrate, or to a numerous 
 body. 
 
 13. If the principle of representation be extended 
 only to a part of the Government, and other parts 
 exist in it independent of that principle, the security 
 afforded by the one is partial and uncertain ; whilst 
 the danger to be apprehended from the other, will 
 be in proportion to its predominance in the system. 
 
 14. As representation may be partial in regard to 
 the powers of Government, so it may be confined to 
 a portion of the community ; and in this respect the 
 system would be objectionable in proportion to the 
 numbers unnecessarily excluded from representation, 
 or from the exercise of a free and intelligent voice 
 in the appointment of their representatives. 
 
 15. According to the theory of a Republican Con- 
 stitution, the right ojf representation is universal in re. 
 ference both to the powers of the Government, and 
 the delegation of their exercise ; but in practice there 
 are exceptions in the application of the rule, which 
 do not, however, impair it as a general principle. 
 
 16. The great advantage of a written Constitution 
 
98 INTRODUCTION. 
 
 consists in its accurately defining the limits of the 
 three great departments of Government, and by pro- 
 per checks and securities preserving unimpaired the 
 principle of representation in regard to the exercise 
 both of the powers of Government, and the right of 
 delegating them to the representative. 
 
 17. Where the Constitution depends on tradition, 
 or is to be collected from the proceedings of the Go- 
 vernment itself, there can be no stability in the sys- 
 tem, and of course no certainty of security under it; 
 as every new act of the Government may introduce 
 a new principle, and the Legislative power may, from 
 its omnipotence, alter the Constitution at its pleasure. 
 
 18. A written Constitution, therefore, is most con- 
 ducive to the freedom, security, and happiness of in- 
 dividuals, as it may be appealed to by the People 
 and enforced by the Judicial power as a fundamen- 
 tal and paramount law, binding en the Legislature it- 
 self. 
 
 19. The foundations of a Government formed on 
 the principle of popular representation, were laid in 
 the United States by the institutions which, as Colo- 
 nies, they received from England. 
 
 20. Two sorts of provincial Governments were 
 established by Great Britain in her American Colo- 
 nies ; first, Royal Governments, in which limited ter- 
 ritorial grants were made to settlers, reserving the 
 general domain to the Crown, and providing for the 
 exercise of the whole political and civil jurisdiction 
 under its authority ; and secondly, Proprietary Go- 
 vernments, in which the whole territory and jurisdic- 
 tion were granted by the king to one or more indivi- 
 duals. 
 
INTRODUCTION. 29 
 
 21. In the one, the Chief 'Executive Magistrate wag 
 appointed by the Crown ; in the other, by the Pro- 
 prietaries. In both, the Legislative power was vested 
 wholly or partially in the People, subject in the one 
 case to the control of the king in council, and in the 
 other to that of the proprietaries. 
 
 22. In some few of the Colonies the Supreme Ex- 
 ecutive Magistrate, and one branch of the legislature, 
 were at first elected by the 'People, and in two of 
 them so continued to be chosen until the Revolution ; 
 and in all these cases the power of legislation was 
 uncontrolled by the parent State. 
 
 23. The powers of the Crown being abrogated by 
 the declaration of independence, the People remain- 
 ed the only source of legitimate authority in all the 
 Colonies ; and . Governments, representative in all 
 their branches, were established by them as free arid 
 Sovereign States. 
 
 24. In general, the Legislative, Executive, and Ju* 
 dicial departments were kept so far distinct as to 
 render them, in a great degree, independent of each 
 other. 
 
 25. The State Legislatures were for the most part 
 divided into two branches, both chosen by the Peo- 
 ple ; and all persons holding offices of trust or pro- 
 fit were excluded from them. 
 
 26. The Supreme Executive Magistrate was uni- 
 versally rendered elective for a limited time ; and 
 the superior officers in the Judicial department re- 
 ceived their appointments from the Legislature or the 
 Executive, and in most cases held their offices during 
 good behaviour. 
 
 c2 
 
30 INTRODUCTION. 
 
 27. The civil and municipal institutions derived 
 from Great Britain were in general preserved by the 
 several States, so far as they were compatible with the 
 abolition of regal authority and Colonial dependence. 
 
 28. Amongst these institutions was the Common 
 Law of England, which, before the American Revo- 
 lution, had been generally established as the munici- 
 pal code of the British Provinces, so far as it was ap- 
 plicable to their situation and circumstances ; and the 
 benefit of it was claimed by the first general Con- 
 gress as a branch of those " indubitable rights and li- 
 berties" to which the respective Colonies were enti- 
 tled. 
 
 29. By this system of Law, the absolute and inalien- 
 able rights of the Colonists as individuals, were recog- 
 nized and secured to them ; their relative rights, or 
 political and civil privileges as members of society, 
 regulated and maintained ; and offences against public 
 justice investigated and punished. 
 
 30. The most essential of these privileges were 
 those natural rights which are common to all man- 
 kind, and which, in virtue of certain fundamental laws 
 of England, were held to be the peculiar birthright 
 and inheritance of every British subject. 
 
 31. They consist either of that portion of natural 
 liberty which is not required by the Laws of society 
 to be surrendered for the public benefit ; or, of those 
 civil privileges which society engages to provide in 
 lieu of them. 
 
 32. The former comprehend 
 
 1. The right of personal security ; which con- 
 sists in the uninterrupted legal enjoyment 
 of life, health, and reputation. 
 
INTRODUCTION. 31 
 
 2. The right of personal liberty ; which includes 
 
 the power of removing the person to what- 
 soever place inclination may direct without 
 restraint, unless by due course of law. And, 
 
 3. The right of private property ; or the free use 
 
 and enjoyment of a man's own acquisitions, 
 without control or diminution, except by the 
 Laws of the land. 
 
 33. The subordinate privileges of a similar cha- 
 racter, to which the Colonists were entitled in lieu of 
 those natural rights surrendered for the general bene- 
 fit, were, 
 
 1. The constititution, powers, and privileges of 
 
 their provincial assemblies, which were in- 
 tended to preserve the Legislative power 
 exercised over them in due health and vi- 
 gour, and to prevent the enactment of Laws 
 destructive to general liberty. 
 
 2. The limitation of the King's prerogative by 
 
 certain arid notorious bounds ; which was 
 designed as a guard upon the Executive 
 power by retaining it within the rules esta- 
 blished by fundamental Laws. 
 
 3. The right of applying to the Courts of jus- 
 
 tice for the redress of injuries, and of hav- 
 ing justice administered impartially and 
 speedily; the most valuable incidents to 
 which were the right of trial by jury ; and 
 the benefit of the writ of Habeas Corpus, 
 as the most effectual security of the right of 
 personal liberty. 
 
 4. The right of petitioning the King, or either 
 
 branch of the Legislature, for the redress of 
 grievances; and, 
 
 5. The right of every individual to keep arms 
 
 for his defence, suitable to his condition and 
 degree ; which was the public allowance, un- 
 
02 INTRODUCTION. 
 
 der due restrictions, of the natural right of 
 resistance and self-preservation. 
 
 34. Upon the establishment of independent Go- 
 vernments, the several States provided for the secure 
 and permanent enjoyment by their respective citizens 
 of their natural rights, and of the civil privileges de- 
 signed for their maintenance, or substituted as their 
 equivalents. 
 
 35. As additional safeguards, they secured to every 
 individual freedom of speech, and the liberty of the 
 press, uncontrolled by any but proper moral re- 
 straints. 
 
 36. Some of the States expressly recognized, and 
 others tacitly adopted, the English Common Law as 
 further modified by the change of Government ; but 
 they universally abolished that feature of the system, 
 which is essentially political, the right of primogejii- 
 ture. 
 
 37. The same natural, political, and civil rights 
 and privileges which had been declared to be the 
 inalienable inheritance of the People as citizens of the 
 respective States, were, on their becoming parties to 
 the federal compact, expressly asserted to belong to 
 them as citizens of the Union, 
 
 38. The Common Law, in its modified form, con- 
 stitutes, therefore, the basis of the laws of all the ori- 
 ginal members of the Union ; and the Constitution of 
 the United States, as well as the Constitutions and 
 Laws of the several States, were made in ^reference 
 to the pre-existing validity of that system, both under 
 the Colonial and State Governments. 
 
 39. Although the existence of the Common Law 
 
INTRODUCTION. 33 
 
 is presupposed by the Constitution of the United 
 States, and referred to for the construction of its 
 powers, yet it seems, that under the Federal Govern- 
 ment, the Common Law, considered as a source of 
 jurisdiction, never was in force ; but, considered as 
 the means or instrument of exercising jurisdiction, that 
 system of municipal jurisprudence does exist in full 
 validity. 
 
 40. The Constitution, founded on this basis and 
 on these principles, and formed from these materials, 
 was " ordained and established" by " the People of 
 the United States, in order to form a more perfect 
 Union, establish justice, insure domestic tranquillity, 
 provide for the common defence, promote the gene- 
 ral welfare, and secure the blessings of liberty to 
 them and their posterity." 
 
 41. By the terms of the compact, the States, as 
 members of the Union, are no longer regarded in 
 their sovereign and corporate capacities, as they sur- 
 rendered such portions of their sovereignties as were 
 requisite for the purposes of National Government ; 
 retaining, however, their previous organization and 
 the exclusive control of their local concerns. 
 
 42. The former compact between the States, was 
 annulled ; and the People of the several States, by 
 their ratification and adoption, in their respective con- 
 ventions, of the new Constitution proposed to them 
 by the General Convention who framed that instru- 
 ment, united with each other in establishing a per- 
 manent system of National Government, operating 
 directly upon individuals, for the attainment of speci- 
 fic objects, for which neither the States separately, 
 nor the former confederation between them, had 
 proved competent. 
 
34 ORGANIZATION PART I. 
 
 43. The principle of representation is nevertheless 
 applied in this Constitution, not only to the individual 
 citizens of the United States, but also to the indivi- 
 dual States of the Union ; and it pervades the three 
 great departments amongst which the powers of Go- 
 vernment are distributed and apportioned. 
 
 44. The Constitution of the United States contains 
 a general delegation of the Legislative, Executive, 
 and Judicial powers to distinct departments, and de- 
 fines the powers and duties of each branch respec- 
 tively. 
 
 45. It may therefore be most conveniently exa- 
 mined ; first, with regard to the particular structure 
 and organization of the Government, and the distri- 
 bution of its powers amongst its several departments ; 
 and, secondly, in relation to the nature, extent, and 
 limitation of the powers vested in the National Go- 
 vernment, and the restraints imposed on the States. 
 
 PART FIRST. 
 
 ON THE STRUCTURE AND ORGANIZATION OF THE GOVERN- 
 MENT, AND THE DISTRIBUTION OF ITS POWERS AMONGST 
 ITS SEVERAL BRANCHES. 
 
 46. The Legislative power, granted by the Federal 
 Constitution, Ts vested in a Congress of the United 
 States, consisting of a Senate and a House of Repre- 
 sentatives ; both chosen periodically, the former by 
 the States, the latter by the People. 
 
 47. The Executive power is vested in a President 
 of the United States, elected, with a Vice President, 
 
PART I. OP THE GOVERNMENT. 35 
 
 for a term of years, in a mode and upon a principle 
 which in effect combine the suffrages of the People 
 with those of the States. 
 
 48. The Judicial power is vested in one Supreme 
 Court, and in such inferior Courts as Congress may 
 from time to time establish, the Judges of which 
 hold their offices for life, unless sooner removed on 
 conviction for misbehaviour. 
 
 49. The rule inculcating the separation of the Le- 
 gislative, Executive, and Judicial departments, is not 
 understood to require, in its application, that those 
 branches should be wholly unconnected with each 
 other. 
 
 50. For unless they be so far connected and blend- 
 ed as to give to each one a constitutional check upon 
 both the others, the degree of separation which the 
 rule requires cannot in practice be maintained. 
 
 51. The powers proper to one department should 
 not be directly and completely administered by ano- 
 ther, nor should either branch possess, directly or in- 
 directly, an overruling influence or control in the ad- 
 ministration of the powers of both or either of the 
 others. 
 
 52. In order to maintain the requisite partition of 
 power amongst the respective departments, the inte- 
 rior structure of the Government should be so con- 
 trived as to render its several constituent parts, by 
 their mutual relations, the means of keeping each 
 other within their proper spheres. 
 
 53. The Constitution of the United States renders 
 the mutual participation, to a limited extent, of the 
 several branches of the Government in each other's 
 
36 LEGISLATIVE DEPARTMENT. PART I. 
 
 power, subservient to their mutual independence ; 
 and thus the apparent violation of a fundamental prin- 
 ciple affords the best security for its preservation. 
 
 CHAPTER I. 
 
 OF THE LEGISLATIVE POWER. 
 
 54. Under this head may be considered : First, 
 The constituent parts of the Legislature, and the 
 modes of their appointment : Secondly, Their joint 
 and several powers and privileges : and Thirdly, 
 Their method of enacting Laws, with the times and 
 modes of their assembling and adjourning. 
 
 I. Of the constituent parts of the Legislature, and 
 the modes of their appointment. 
 
 55. All Legislative powers granted by the Consti- 
 tution, are vested in a Congress of the United States 
 consisting of a Senate, and a House of Representa- 
 tives. 
 
 56. This division of the Legislature into two co- 
 ordinate branches, was meant to guard against the 
 evil consequences of sudden and strong excitement 
 and precipitate measures, which had been found to 
 prevail in single legislative bodies. 
 
 57. A hasty decision is by no means so likely to be 
 made, when a measure is liable to be arrested in its 
 progress ; and after its adoption by one branch of the 
 Legislature, to be again subjected to the same forms 
 and solemnities of deliberation, and to the jealous and 
 critical revision of another body sitting in a different 
 place, and from the delay thus induced, if from no 
 other cause, enabled to avoid the prepossessions and 
 correct the errors of the first. 
 
CHAP. I. CONGRESS. 37 
 
 58. Single Legislative assemblies without check or 
 counterpoise, or a Government with all authority col- 
 lected in one body or department, have been found, 
 in all ages in which they have existed, corrupt and 
 tyrannical dominations of majorities over minorities, 
 uniformly and rapidly terminating in despotism. 
 
 59. The instrbility and passion which had marked 
 the proceedings of two of the State Legislatures, con- 
 sisting originally of a single House, were the subject of 
 much public animadversion at the time of the con- 
 templated establishment of the new Federal Govern- 
 ment ; and in subsequent reforms of their Constitu- 
 tions, the People of the. particular States referred to, 
 were so sensible of this de.fect, that in each a Senate 
 was introduced. 
 
 60. These examples, as well as the experience af- 
 forded by some of the proceecliDgs of a Congress cou- 
 rt s : ngle branch, and uniting in itself all the 
 
 Executive and Judicial authority of the Union, with 
 all the Legislative powers granted by the articles of 
 confederation, must have had due influence in deter- 
 mining the Federal Convention to divide the national 
 Legislature into two branches. 
 
 61. A further reason for this division of the Lc 
 lative power in the Government of the L T nited States, 
 arose from the combination of the national and fede- 
 rative principles in the new Constitution. 
 
 62. Upon just principle* of public polity, it is essen- 
 tial, when a People are thoroughly incorporated into 
 one nation, that every district or territorial subdivi- 
 sion of the c''m~iunity should have its proportional 
 share in the Government ; and that amongst indepen- 
 dent sovereigns, bound together by a simpl league, 
 the parties, however unequal in respect to territory 
 
 D 
 
38 LEGISLATIVE DEPARTMENT. PART I, 
 
 a--H popu'rtion, should each have an equal voi e in 
 the public councils. 
 
 63. It was therefore proper, that in a Republic, 
 partaking both of the national and federal characters, 
 the Government should be founded on a combination 
 of the principles of proper,. onal, and equal, represen- 
 tation. 
 
 64. The application of this rule of combined repre- 
 sentation afforded a convenient and effectual mode of 
 dividing the Legislature of the Union into two co-or- 
 dinate branches, by constructing o,.e of them upon 
 the principle of proportional, and th other upon that 
 of equal, representation. 
 
 65. The House of Representatives is accordingly 
 constituted with as much conformity as practicable, 
 to the principle of 'proportional representation ; but not 
 entirely so. as it is composed of representatives of the 
 People of the several States, and thus far partakes of 
 the federative quality. 
 
 66. It consists " of members chosen every second 
 year by the People of the several States," and " the 
 times, places, and manner of holding elections for 
 representatives are prescribed in each State by the 
 Legislature ;" but to guard against the neglect or re- 
 fusal of the States to exercise this power, " Congress 
 may at any time by law make or alter such regula- 
 
 67. The electors of representatives in each State 
 must possess " the qualifications requisite for elec- 
 tors of the most numerous branch of the State Legis- 
 lature ;" and these qualifications are not uniform, as 
 the Constitutions and practice of the several States in 
 relation to them are different and various. 
 
CHAP. I. HOUSE OF REPRESENTATIVES. 39 
 
 68. In general, the qualifications of electors of the 
 most numerous branch of the State Legislatures, are, 
 that they be of the age of twenty-one years and up- 
 wards, free resident citizens of the State, and have 
 paid taxes thereto. 
 
 69. In some of the States they are, morever, re- 
 quired to possess property of a certain description 
 and amount ; in some to be white, as well as free, citi- 
 zens ; and in others to possess all these qualifications, 
 either together, or in different combinations. 
 
 70. A representative in Congress must have at- 
 tained the age of twenty-five years, and been seven 
 years a citizen of the United States ; and must, when 
 elected, be an inhabitant of the State in which he 
 is chosen. 
 
 71. Representatives are apportioned amongst the 
 several States according to their respective num- 
 bers, which are determined in each State by adding 
 to the whole number of free persons, (including those* 
 bound to service for a term of year.*, and excluding 
 Indians not taxed), three fifths of all other persons, 
 
 72. The Constitution provides for an actual enu- 
 meration of the people within three years after the 
 first meeting of Congress ; and directs one to be 
 taken within every subsequent term of ten years in 
 such manner as Congress shall by law direct. 
 
 73. The number of Representatives cannot ex- 
 ceed one for every thirty-thousand of the persons to 
 be computed ; but each State is entitled to at least one 
 Representative. 
 
 74. The ratio of representation is applied to the 
 representative numbers of the respective States, and 
 
40 LEGISLATIVE DEPARTMENT. PART 1. 
 
 not to the aggregate numbers in all the States ; nor 
 can an additional representative be assigned to any 
 State on account of any fractional number, which may 
 .emain after the- application of the >atio to its re- 
 presentative numbers, even though the fraction ex- 
 ceed 30,000. 
 
 75. The Senate of the United States is constituted 
 upon the principle of equal representation; which, 
 whjle it gave effect to the main design of a separa- 
 tion of -the two branches of the national Legislature, 
 was evidently the result of a compromise between 
 the larger and the. smajler States. 
 
 76. The Senate accordingly consists of two Sena- 
 tors from each State ; and each Senator has one 
 vote : each State, therefore, has its equal voice and 
 weight in the Senate of the Union, without regard 
 to disparity of population, wealth, or territory ; yet 
 as the Senators vote individually, without regard to 
 States, the Senate, in that "respect, partakes of the 
 proportional or national quality. 
 
 77. The Senators are chosen by the respective 
 State Legislatures ; and if vacancies happen during 
 the recess of the Legislature, the Executive power 
 of the State may make temporary appointments 
 until its next meeting, when the vacancy must be 
 filled in the ordinary manner. 
 
 78. This mode of electing Senators favours a se- 
 lect appointment, and gives to the States such an 
 agency in the formation of the general Govern ,ient 
 as preserves their separate existence, and readers 
 them, in their political capacities, active members of 
 the federal body. 
 
 79. The State Legislatures respectively prescribe 
 
CHAP. I. SENATE. 41 
 
 the times, places, and manner of holding the elec- 
 tions for Senators, as well as of Representatives hi 
 Congress ; and Congress cannot alter such regula- 
 tions with respect to the place, of choosing Sena- 
 tors. 
 
 80. The Constitution does not direct whether the 
 appointment of Senators shall be made by the^'owf, 
 or by the concurrent vote of the two branches of the 
 State Legislatures ; hence difficulties have arisen as to 
 its true construction. 
 
 81. The difference between the two modes is, that 
 on a joint vote, the members of both branches assenv 
 ble together and vote numerically; whilst a concur- 
 rent vote is taken by each House voting separately^ 
 when the decision of the one is subject to the ap- 
 proval of the other ; and the difficulties in question 
 have arisen in cases of their disagreement. 
 
 82. It has been considered in some of the States, 
 that, consistently with the Constitution, the Law may 
 direct Senators to be chosen by the joint vote or 
 ballot of the two branches of the Legislature, in case 
 they cannot separatery concur in a choice, or even hi 
 the first instance, without making such attempt. 
 
 83. This construction has been found too conve- 
 nient in practice, and has been loo long settled by the 
 repeated recognitions of Senators so elected, to be 
 now disturbed. But if the question were a new one, 
 it might be maintained, that when the Constitution 
 directed the Senators " to be chosen in each State 
 by the Legislature thereof," it meant the LegisUv- 
 ture in its true technical sense, consisting of two co- 
 ordinate branches acting in their separate capacities, 
 WJthu constitutional negative on each other's proceeif 
 
42 LEGISLATIVE DEPARTMENT. PART X. 
 
 ings, and not the members of the two Houses assem- 
 bled in one body and voting indiscriminately. 
 
 84. Senators are elected for a term of six years, 
 and are arranged in three classes in such a manner 
 that the seats of one class become vacant, and one 
 third of the Senate must be regularly chosen, every 
 two years ; corresponding with the expiration of the 
 term for which the House of Representatives is 
 chosen. 
 
 85. From the superior weight and delicacy of the 
 trusts confided to the Senate, the Constitution de- 
 clares that " no person shall be a Senator that shall 
 not have attained the age of thirty years, and have 
 been nine years a citizen of the United States ; and 
 who shall not, when elected, be an inhabitant of the 
 State for which he shall be chosen." 
 
 86. No Senator or Representative can, during the 
 time for which he is elected, be appointed to any 
 civil office under the authority of the United States, 
 which shall have been created, or of which the emolu- 
 ments shall have been increased, during that time ; 
 and no person holding any office under the United 
 States, can be a member of either House during his 
 continuance in office. But it is sufficient if he resign 
 the same previously to taking his seat in Congress. 
 
 87. The next subject of consideration, in regard to 
 the Legislative power, is, 
 
 II. The privileges and powers of the two Houses of 
 Congress, both aggregately and separately. 
 
 88. In order to preserve a pure and genuine repre- 
 sentation, and to control the evils of irregular and 
 tumultuous elections, each House is made the sole 
 
CHAP. I. PRIVILEGES OF CONGRESS. 43 
 
 judge of the elections, returns, and qualifications of 
 its own members. 
 
 89. As each House acts in cases where this power 
 is exercised, in a judicial capacity, its decisions are 
 regulated by known principles of Law ; and they 
 should be strictly adhered to as precedents, for the 
 sake of uniformity and certainty. 
 
 90. A majority of each House constitutes a quorum 
 for the transaction of 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. 
 
 91. Each House is bound to keep a journal of its 
 proceedings, and from time to time publish such parts 
 of them as do not require secrecy ; and to enter the 
 yeas and nays on its journal on any question, if de- 
 manded by one fifth of the members present. 
 
 9*2. The members of both Houses are entitled to 
 receive a compensation for their services, to be as- 
 certained by Law, and paid out of the Treasury of 
 the United States. And they are in all cases, ex- 
 cept treason, felony, and breach of the peace, privi- 
 leged from arrest during their attendance at the ses- 
 sions of their respective Houses, and in going to and 
 returning from the same. 
 
 93. In order to preserve inviolate the freedom of 
 deliberation, no member of either House can be ques- 
 tioned in any other place, for any speech or debate 
 therein. 
 
 94. Although no express power is given to either 
 House to punish for contempts, unless when commit- 
 
44 LEGISLATIVE DEPARTMENT. PART 1. 
 
 ted by its own members ; yet a power, extending be- 
 yond their own precincts, and affecting other per- 
 sons, is exercised by both Houses, as incident to the 
 nature of every Legislative body. 
 
 95. As the People are entitled to the utmost puri- 
 ty and independence in the conduct of their repre- 
 sentatives, and as each House is, in this respect, the 
 guardian of the interests of the People, as well as of 
 its own character, it is its duty to make immediate 
 inquiry into any attempt on the freedom or integrity 
 of any of its members. 
 
 96. From the duty to inquire, arises the right to 
 punish in such cases, as well as in cases of immedi- 
 ate insult or disturbance, preventing the exercise of 
 Is ordinary functions ; the existence and the exer- 
 cise of the right in both cases, being equally founded 
 in the necessity of self-preservation. 
 
 97. But the power to punish in either case, extends 
 only to imprisonment, which can continue no longer 
 than the duration of the authority that awards it ; 
 and which necessarily terminates (if no shorter pe- 
 riod be limited) with the adjournment or dissolution 
 of the Congress. 
 
 98. Attempts to bribe or intimidate members of 
 the Legislature, are, moreover, offences against the 
 Public, and subject the offender to the usual course of 
 prosecution in a court of law. But this liability 
 does not exclude the jurisdiction of the Legislative 
 body, nor does the interference of the latter, in vin- 
 dication of its character and safety, preclude the Ju- 
 dicial power from taking cognizance of the same act, 
 as a violation of the general Law. 
 
 99. The Legislative powers of the two Houses of 
 
CHAP. 1. PRIVILEGES OF CONGRESS. 45 
 
 Congress extend to all subjects of a national charac- 
 ter, and will be particularly enumerated and consi- 
 dered in examining the powers vested in the general 
 Government at large. There are, however, some 
 constitutional powers which are peculiar to each 
 branch of the national Legislature. 
 
 100. The House of Representatives possesses the 
 sole power of impeachment, or of presenting accu- 
 sations to the Senate against the public officers of 
 the United States, for misconduct in their offices : 
 and it has also the exclusive right of originating all 
 bills for raising revenue ; but the Senate may pro- 
 pose amendments as to other bills. 
 
 101. Every bill which may indirectly or conse- 
 quentially raise or increase revenue, or every money- 
 bill, in the sense of the English law, is not considered 
 a revenue-bill, within the meaning of the Federal 
 Constitution ; end in the practical construction of 
 this power, it Ims accordingly been confined to bills 
 for levying taxes, in the strict sense of the term, and 
 has not been extended to bills for other purposes 
 which may incidentally create revenues. 
 
 102. The Senate has the sole power of trying im- 
 peachments ; and in its exclusive connexion with the 
 Executive power, it possesses a negative voice in the 
 appointment of all officers, whose appointments are 
 not otherwise provided for in the Constitution. 
 
 103. The advice and consent of two-thirds of the 
 Senators present are requisite to the ratification of 
 treaties, which must be submitted to the exclusive 
 consideration of the Senate. 
 
 104. 
 are 
 
 04. Treaties with foreign powers, if made abroad, 
 negotiated on the part of the United States, by 
 
46 LEGISLATIVE DEPARTMENT. PART I. 
 
 ministers accredited to those powers, under the in- 
 structions of the President ; and if made in the Unit- 
 ed States, they are negotiated between the Secretary 
 of State, under the like instructions, and ministers 
 accredited from foreign Governments. 
 
 105. The Senate is not consulted in the first in- 
 stance, but when the terms of the treaty are agreed 
 upon by the agents or plenipotentiaries employed for 
 that purpose, the President (unless he altogether dis- 
 approve it), submits it to the Senate, in whose delibe- 
 rations he does not participate, but renders them from 
 time to time such information relative to it as they 
 may require. 
 
 106. The Senate may wholly reject a treaty, or 
 they may ratify it in part, or recommend additional 
 or explanatory articles ; which, if the President ap- 
 prove, become the subject of further negotiation 
 with the foreign power ; and when the whole is 
 agreed to, on the other part, and receives the sanc- 
 tion of the Senate, the ratifications are exchanged 
 between the respective Governments, and the treaty 
 becomes obligatory upon both nations. 
 
 107. From the reason and exigency of the case, 
 the proceedings of the Senate, on these occasions, are 
 always conducted with closed doors ; and the con- 
 tents of the treaty, and all information connected 
 with it, are, from motives of delicacy and policy, kept 
 secret until the termination of the business renders 
 such reserve no longer necessary. 
 
 108. The subjects remaining for consideration un- 
 der the present general head, are, 
 
 III. The method of enacting Laws by the two 
 Houses of Congress ; and the times and 
 modes of their assembling and adjourning. 
 
CHAP. I. FORMS OF PROCEEDING. 47 
 
 109. The rules of proceeding in each House are 
 substantially the same ; and are such as are essential 
 to the transaction of business with order and safety. 
 
 110. The House of Representatives chooses its 
 Speaker, or presiding officer, from amongst its own 
 members ; and it also chooses its other officers. 
 
 111. The Vice President of the United States is 
 ex officio President of the Senate ; but has no vote 
 therein, unless the Senators be equally divided. 
 
 112. The Senate chooses its other officers; and 
 also a President pro tempore, from its own body, in 
 the absence of the Vice President, or when he exe- 
 cutes the office of President of the United States. 
 
 113. The proceedings and debates in both Houses 
 are conducted in public, except upon very special 
 occasions, and in the transaction of Executive busi- 
 ness by the Senate. 
 
 114. Bills, or the original drafts or projects of 
 laws, are introduced into both Houses respectively, 
 either upon the order of the House on the reports of 
 standing, or select Committees, or upon leave granted 
 to an individual member on motion, after due notice 
 of his intention to move the House to grant it. 
 
 115. Standing Committees are appointed for the 
 session upon all the usual subjects of ordinary legis- 
 lation, and upon the general matters incident to the 
 proceedings of each House respectively. 
 
 1 16. Select Committees are appointed from time 
 to time upon special subjects as they arise, and their 
 powers cease upon the performance of the tempo- 
 rary duties assigned to them. 
 
48 LEGISLATIVE DEPARTMENT. PART I. 
 
 117. Both standing and select Committees are ap- 
 pointed in the House of Representatives on the nomi- 
 nation of the Speaker, and in the Senate most gene- 
 rally by ballot, but sometimes, and in some cases, on 
 the nomination of the President of the Senate. 
 
 118. Bills are introduced by standing Committees 
 upon the order of the House upon subjects embraced 
 within the general objects of their appointment, 
 either accompanied by a report upon those general 
 objects, or upon a particular subject, relative thereto, 
 or specially referred to them ; or upon the mere mo- 
 tion of the Chairman, or any other member of the 
 Committee under its direction, without previous no- 
 tice. 
 
 119. Bills are in like manner introduced by .elect 
 Committees, upon the order of the House on a report 
 relative to the special matter referred to them, or 
 upon motion, without previous notice, for leave to 
 report by bill. 
 
 120. Every bill must receive three readings be- 
 fore it can be passed by either House ; and these se- 
 veral readings must be on different days, unless upon 
 a special order made by the unanimous consent of 
 the House, to the contrary. 
 
 12L No bill can be committed or amended in 
 either House, until it has been read twice ; and upon 
 the second reading of the bill, it is declared to be 
 ready for commitment or engrossment ; if commit- 
 ted, it is committed either to a standing, or a select 
 Committee, or to a Committee of the whole House ; 
 or if the bill, instead of being committed, be ordered 
 to be engrossed, the House then appoints the day on 
 which it shall be read the third time. 
 
CHAP. 1. FORMS OF PROCEEDINGS. 49 
 
 122. If a bill be committed to a Committee of the 
 whole, the House determines on what day the Com- 
 mittee shall consider it ; and when the House resolves 
 itself into such Committee, the Speaker leaves the 
 chair, after appointing another member to preside as 
 chairman of the Committee ; and the Speaker may 
 take part in the debates of the Committee as an ordi- 
 nary member. 
 
 123. In the Senate, the Committee of the whole 
 is called a quasi Committee, because the President of 
 the Senate acts as chairman of the Committee. 
 
 124. Important bills are generally referred to a 
 Committee of the whole House; and every motion 
 or proposition for a tax or charge upon the People, 
 or for a variation in the sum or quantum of a tax 
 or duty, and for an appropriation of money, is requir- 
 ed first to be discussed in a Committee of the whole. 
 
 125. The object of referring any matter to a Com- 
 mittee of the whole, is to allow greater latitude and 
 freedom in discussing its merits, and settling the 
 details, than is generally allowed by the rules of 
 either House when the proceeding is in the House 
 itself. 
 
 126. After commitment and report to the House, 
 and at any time before its passage, a bill may be 
 recommitted at the pleasure of the House : and 
 when a bill, either upon a report of a Committee, or 
 after full discussion and amendment in the House, 
 stands for the next stage of its progress, the question 
 is, whether it shall be engrossed and read a third 
 time ; and this is the proper time for those who are 
 opposed to the principle of the bill, to take their 
 stand against it as it is now supposed to be as 
 perfect, or as little exceptionable, as it can be made. 
 
 E 
 
50 LEGISLATIVE DEPARTMENT. PART it 
 
 127. When a bill has been engrossed for a third 
 reading, and, upon being read the third time, has pass- 
 ed one House, it is transmitted for concurrence to 
 the other, in which it is subjected to similar forms of 
 examination and discussion. 
 
 128. If it be altered or amended, or agreed to 
 without amendment, or totally rejected, in the House 
 to which it has been transmitted for concurrence, it 
 is, in either case, returned, to the House in which it ori- 
 ginated, with a message communicating the result. 
 
 129. If amendments are made in one House which 
 are not agreed to in the other, a message to that 
 effect is sent to the former, which may either recede 
 from, or insist on, its amendments ; and if the two 
 
 Houses cannot agree, they appoint Committees of 
 conference, and upon receiving their report, either 
 House may recede from its amendment, or from its 
 vote of concurrence therein, or accept a compro- 
 mise suggested by the Committee ; or it may adhere 
 to its former vote of disagreement ; in which last ease 
 the bill falls to the ground. 
 
 130. These checks and formalities, which are in- 
 tended to guard against surprise or imposition, were 
 originally borrowed, although much contracted and 
 simplified, from the proceedings of the British Par- 
 liament ; and they prevailed substantially in the 
 Colonial Assemblies, from which they were immedi- 
 ately adopted by the State Legislatures, and from 
 them, by each house of Congress. 
 
 131. When a bill, or any other vote or resolution, 
 to which the concurrence of both Houses is neces- 
 sary, (except the question on the adjournment of the 
 Congress), is passed by both branches of the Legis- 
 lature, it is rccmired by the Constitution to be pre- 
 
CHAP. 1. MEETINGS OF CONGRESS. 51 
 
 sented to the President of the United States for his 
 approval. 
 
 132. If he approve of the bill or resolution, he 
 signs it ; but if not, he must return it, with his objec- 
 tions, to the House in which it originated, which 
 must enter the objections at large on its journal, and 
 proceed to reconsider it. 
 
 133. If, after such reconsideration, two thirds of 
 that House agree to pass the bill or resolution, it 
 must be sent, together with the objections, to tho 
 other House, by which it must likewise be reconsi- 
 dered ; and if approved by two thirds of that House 
 also, it becomes a Law, notwithstanding the objec- 
 tions of the President. 
 
 134. In all such cases, the votes of both Houses 
 must be determined by yeas and nays, or openly 
 ascertained ; and the names of the persons voting 
 for. or against the bill or resolution, must be entered 
 on the journal of each House respectively. 
 
 135. If a bill is not returned "by the President 
 within ten days (Sundays excepted) after it is pre- 
 sented to him, it becomes a Law, in like manner as 
 if he had signed it, unless Congress, by their adjourn- 
 ment, prevent its return. 
 
 136. Congress must assemble at least once in 
 every year for the despatch of the public business, 
 and such meeting is fixed by the Constitution for 
 the first Monday in December, unless Congress shall 
 by Law appoint a different day. 
 
 137. Until the day fixed by the Constitution or 
 appointed by Law, the action of Congress cannot 
 commence, unless the President, in the exercise of 
 
52 EXECUTIVE POWER. 
 
 PART I. 
 
 his Constitutional power, sooner convene it, on some 
 extraordinary occasion. 
 
 138. Congress, by a concurrent resolution, to which 
 the assent of the President is not required, fixes the 
 times of its own adjournments within the period of 
 its dissolution ; but during a session, neither House 
 can adjourn for more than three days without the as- 
 sent of the other ; nor can they agree to adjourn to 
 any other place than that in which they shall be sit- 
 ting. And in cases of disagreement between the two 
 Houses, as to the time of their adjournment, the Pre- 
 sident may adjourn them to such time as he may 
 think proper. 
 
 139. But as the term for which the House of Re- 
 presentatives and one third of the Senate are elected, 
 expires at the end of every second year, Congress 
 must of necessity adjourn at the expiration of that 
 period ; as the Congress, for the time being, is in fact 
 dissolved by the operation of the Constitution and 
 Laws, on the third day of March in every alternate 
 year. 
 
 CHAPTER II. 
 
 OF THE EXECUTIVE POWER. 
 
 140. The object of this department is the execu- 
 tion of the Laws ; and good policy requires that it 
 should be organized in the mode best calculated to 
 effect that end with fidelity and precision. 
 
 141. No discretion is vested in the Executive Ma- 
 gistrate in regard to the wisdom and expediency of 
 he Laws after they are duly made and promulgated. 
 
II. REQUISITE QUALITIES. 53 
 
 It is his duty then to execute them, whatever may be 
 his opinion as to their justice or policy. 
 
 142. What has once been declared under the forms 
 prescribed by the Constitution to be the meaning and 
 intention of the Legislature, must be carried into 
 prompt execution, and due effect continued to be gi- 
 ven to it by the Executive department, until repealed 
 by; the Legislature, or pronounced by the Judicial de- 
 partment to be repugnant to the Constitution. 
 
 143. Every individual is bound to obey a Consti- 
 tutional Law, however objectional in other respects 
 it may appear to him ; and whosoever refuses obe- 
 dience to a Law on the ground of its unconstitution- 
 ally, does so at his peril, and is liable to the legal 
 consequence of disobedience, if the Law be judicially 
 declared to be warranted by the Constitution. 
 
 144. The legal presumption is always in favour of 
 an act passed by the Legislature according to the 
 forms of the Constitution ; and where the Chief Ex- 
 ecutive Magistrate possesses a negative upon those 
 acts, the presumption is stronger against him than 
 against an inferior officer, or a private person. 
 
 145. As the Executive power is not only bound to 
 obey, but to execute, the Law, the essential qualities 
 required in this department are prompiness^ vigour^ 
 and responsibility. 
 
 146. A prompt submission to the Law, and a prompt 
 preparation to enforce it, arc requisite both in respect 
 to the authority from whicK it emanates, and in order 
 to give it due operation and effect, which should be 
 immediate and decisive. 
 
 147. The Executive power must also be endowed 
 
54 EXECUTIVE DEPARTMENT. PART I. 
 
 with energy in other respects ; for feebleness in this 
 department implies feebleness in the Government - r 
 and the vigour of action imparted to the Executive 
 power, must be duly proportioned to the exigencies 
 which may arise under the system. 
 
 148. The power vested in this department should, 
 however, be proportioned as exactly as possible to 
 the occasions which may be expected to require its 
 exercise; for if it fall short of them, the public sense 
 of the protection and control of the Government will 
 be weakened, and violations of the Law escape with 
 impunity ; and if the quantum of power exceed the 
 exigency of the case, the liberties of the People will 
 be in jeopardy. 
 
 149. In a written Constitution, it is difficult to 
 adopt general expressions precisely descriptive of the 
 proper extent and limitation of this power ; but ta 
 guard against its abuse, as well as to insure the faith- 
 ful execution of the general trusts confided to this de- 
 partment, the Chief Executive Magistrate should be 
 held responsible to the People for official misconduct. 
 
 150. These three qualities of promptness, vigour, 
 and responsibility, are most likely to exist in union 
 with each other where the chief Executive authority 
 is limited to a single person. 
 
 151. Unity is conducive to energy, which includes 
 both promptness and vigour, as well as decision, ac- 
 tivity, secrecy, and despatch ; all of which will gene- 
 rally characterise the proceedings of one man in a 
 much more eminent degree than. the proceedings of a 
 greater number ; and in proportion as the number is 
 increased, those qualities will be diminished. 
 
 152. This unity in the Executive department may 
 
CHAP. II. THE PRESIDENT. 55 
 
 be destroyed, either by vesting the power in two or 
 more Magistrates of equal dignity ; or by vesting it 
 ostensibly in one, subject, in whole or in part, to the 
 control and advice of a council ; both of which me- 
 thods are liable to similar, if not to equal, objections. 
 
 153. History and experience confirm the theoreti- 
 cal reasoning which renders it obvious that a division 
 of the Executive power in any form, between two or 
 more persons, must always tend to produce dissen- 
 tions and fluctuating measures, and diminish the re- 
 spectability, as well as the authority and efficiency of 
 the Government. 
 
 154. The division of the Executive power has also 
 a direct tendency to destroy responsibility ; for there 
 will always be much less temptation to depart from 
 duly, and much greater solicitude for character, where 
 there are no partners to share the odium of bad mea- 
 sures, or to communicate by their example, confi- 
 dence in the perpetration of abuses, from the greater 
 probability of escaping punishment. 
 
 155. Phirnlily in the Executive department, be- 
 sides depriving the People of these" great securities 
 for the faithful exercise of delegated power, tends to 
 depress the character of the nation abroad ; whilst 
 unity in that branch of the Government not only 
 affords greater security at home, but increases that 
 efficacy which is requisite to command the respect 
 of foreign nations. 
 
 156. In accordance with these principles, the Ex- 
 ecutive power is vested by the Constitution in a single 
 Chief Magistrate, under the name of " HIE PRESIDENT 
 OF THE UNITED STATES ;" and, in the examination of 
 the functions of this" high officer, 
 
 I. The qualifications required by the Constitu- 
 
56 EXECUTIVE DEPARTMENT. PART I. 
 
 tion for the office of President, the mode 
 and duration of his appointment, and the 
 provision for his support, are first to be con- 
 sidered. 
 
 157. No person is eligible to the office of President, 
 except a natural-born citizen, or a citizen of the 
 United States at the time of the adoption of the Con- 
 stitution, and who shall not have attained the age of 
 thirty-five years, and been fourteen years resident 
 within the United States. 
 
 158. To avoid the dangers and difficulties to be 
 apprehended, under the most favourable circumstan- 
 ces, from the popular election of a Supreme Executive 
 Magistrate for a whole. nation, the Constitution does 
 not refer the election of the President directly to the 
 People ; but confides the power to a small body of 
 electors, representing for that purpose the People at 
 large, and appointed jn each State under the direction 
 of the Legislature. 
 
 159. Each State appoints, in such manner as its 
 Legislature may direct, a number of electors, equal 
 to the whole number of Senators and Representa- 
 tives, which it may be entitled to send to Congress. 
 
 160. To prevent the person in office at the time of 
 the election from having an improper influence in 
 procuring his re-election, it is provided that no Sena- 
 tor or Representative in Congress, nor any person 
 holding an office of trust or profit under the United 
 States, shall be an elector. But in no other respect 
 does the Constitution define the qualifications of the 
 electors. 
 
 161. In some few of the States the electors are 
 appointed by the Legislature itself, in a mode pre- 
 
CHAP. II. MODE OF ELECTION. 57 
 
 scribed by Law ; but in a great majority of States, 
 the choice of electors is, in accordance with the clear 
 sense and expression of public opinion, as well as with 
 the spirit of the Constitution, referred to the People 
 at large. 
 
 16*2. Congress may determine the time of choosing 
 the electors ; and has prescribed by Law that they 
 shall be chosen within thirty-four days previous to 
 the election of the President. 
 
 163. Congress has also a discretionary power to 
 appoint the day on which the electors shall give their 
 votes, which must be the same day throughout the 
 Union ; and is, in like manner, fixed for the first 
 Wednesday in December in every fourth year suc- 
 ceeding the last election. But the pl;ice for the 
 meeting of the electors is left to the discretion of the 
 State Legislatures, and is usually the seat of the State 
 Government. 
 
 1G4. The electors, when assembled on the day 
 appointed, within their respective States, and duly 
 organized by the appointment of a Chairman and 
 Secretary from amongst themselves, and by the votes 
 of those present, filling up vacancies occurring from 
 death or absence, proceed to vote by ballot for two 
 persons, one of whom, at least, must not be an inha- 
 bitant of the same State with themselves. 
 
 165. According to the original Constitution, the 
 electors were not to designate, by their ballots, which 
 of the two persons voted for, was intended as Presi- 
 dent, and which as Vice President ; which last officer 
 was nevertheless to be elected at the same time, in 
 the same manner, and for the same term, as the Pre- 
 sident ; but it merely provided that the person hav- 
 ing the greatest number of aggregate votes should be 
 
58 EXECUTIVE DEPARTMENT. PART I. 
 
 President, if such number were a majority of the 
 whole number of electors ; and that the person hav- 
 ing the next greatest number, if constituting such ma- 
 jority, should be Vice President. 
 
 166. But a subsequent amendment of the Consti- 
 tution requires the electors to name, in distinct ballots, 
 the persons voted for as President and Vice Presi- 
 dent ; and declares that the person having the great- 
 est number of votes for President shall be President, 
 if such number be a majority of the whole number of 
 electors appointed ; and that the person having the 
 greatest number of votes for Vice President, if con- 
 stituting such majority, shall be Vice President. 
 
 167. The electors in the several States are then 
 to make distinct lists of all persons voted for as Pre- 
 sident, and of all voted for as Vice President ; and of 
 the number of votes given for each respectively ; 
 which lists they are required by Law to sign and cer- 
 tify, and transmit sealed to the seat of Government of 
 the United States. 
 
 168. The Act of Congress also directs the certi- 
 ficates of the votes to be delivered before the first 
 Wednesday in January next ensuing the election, to 
 the President of the Senate, who, before the second 
 Wednesday in February thereafter, in the presence 
 of both Houses of Congress, opens all the certificates ; 
 when the votes are counted, and the result declared. 
 
 169. The Constitution does not declare by whom 
 the votes are to be counted and the result declared ; 
 but the practice has been for the President of the 
 
 . Senate to perform those duties ; the two Houses of 
 Congress being present to witness the proceedings, 
 and to be prepared to act in case no choice be made 
 by the electors, 
 
CHAP. tt. VICE PRESIDENT. 
 
 170. The person having the requisite number of 
 votes for President, is declared to be elected to that 
 office. But if no person have such number, then, from 
 the persons having the highest numbers, not exceed- 
 ing three, on the list of those voted for as President, 
 the House of Representatives are immediately by 
 ballot to choose the President. 
 
 171. In thus choosing the President, the votes are 
 taken by States ; the representation from each State 
 having one vote. A quorum for this purpose consists 
 of a member or members from two-thirds of the 
 States, and a majority of all the States is necessary 
 to a choice. 
 
 172. Although the Constitution directs the choice 
 in this case to be made immtdiattly by the House of 
 Representatives, yet the amendment expressly de- 
 clares their choice to be valid if made before the 
 fourth day of March following the day on which the 
 electoral votes are counted and the result declared, 
 
 173. In case no choice of President be made by 
 the House of Representives, within the period limited 
 for that purpose, the Vice President acts as President, 
 as in the case of the death, or constitutional disability 
 of the President. 
 
 174. The person found to have the requisite num- 
 ber of votes, upon the counting of the same in the 
 presence of both Houses of Congress, is declared to 
 be Vice President; but if no person have such num- 
 ber, then from the two highest numbers on the list, 
 the Senate choose the Vice President : a quorum for 
 that purpose consists of two-thirds of the whole num- 
 ber of Senators, and a majority of the whole is ne- 
 cessary to a choice. JRut no person constitutionally 
 ineligible to the office of President, is eligible to that 
 of Vice President. 
 
60 EXECUTIVE DEPARTMENT. PART I, 
 
 175. The Constitution, as amended, does not pre- 
 scribe the time and place, when and where the Se- 
 nate is to choose the Vice President in case no choice 
 be made by the electors ; but from analogy to the 
 provision and practice in regard to the President, it 
 is presumed that the Senate may elect by them- 
 selves at their ordinary place of meeting, and at any 
 time previous to the ensuing fourth of March. 
 
 176. Congress has by Law provided that the 
 term of four years, for which the President and Vice 
 President are elected, shnll commence on the fourth 
 day of March next succeeding the day on which the 
 votes of the electors are given ; and the amendment 
 of the Constitution adopts the same day as the limi- 
 tation of the period within which the House of Re- 
 presentatives, in case of no choice by the electors, 
 are to elect the President. 
 
 177. The effect, therefore, of this amendment, is 
 to render the provisions of the Act of Congress re- 
 lative to the times appointed for the several duties 
 enjoined by the Constitution, and the amendment in 
 regard to the election of President and Vice Presi- 
 dent, as fundamental and permanent as the Constitu- 
 tion itself. 
 
 178. The appointment of an extraordinary per- 
 son as Vice President of the United States, and ex 
 officio President of the Senate, is recommended prin- 
 cipally by two considerations: the first is, th;it to 
 secure at all times a definite resolution of the Senate, 
 it is necessary that the President of that body should 
 have a casting vote ; and to take a Senator from his 
 seat as such, and place him in that of the presiding 
 officer, would, in regard to the State he represents, 
 be to exchange a constant, for a contingent, vote. 
 
CHAP. il. THE VICE PRESIDENT. 61 
 
 179. The other consideration is, that as the Vice 
 President may occasionally become a substitute for 
 the President in the supreme executive office, all the 
 reasons which recommend the mode of election pre- 
 scribed in the first instance for the one, apply with 
 great, if not with equal force, to the other. 
 
 180. The powers and duties of the President de- 
 volve on the Vice President, not only when no choice 
 is made of a President either by the electors or the 
 House of Representatives, but also in case of the 
 removal of the President from office, or of his death> 
 resignation, or inability to discharge his duties ; and 
 Congress are authorized to provide by Law for the 
 case of a vacancy in both offices. 
 
 181. In pursuance of this power, Congress has 
 declared, that in the event of such vacancies, the 
 President of the Senate pro tempore, and, in case 
 there should be no President of the Senate, the 
 Speaker of the House of Representatives, should act 
 as President of the United States until the vacancy 
 should be supplied. 
 
 182. The evidence of a refusal to accept, or of a 
 resignation of the office of President or Vice Pre- 
 sident, is declared by the same law to be a declara- 
 tion in writing filed in the office of the Secretary of 
 State. 
 
 183. As it may become a question who would be 
 the person to succeed if the office of President should 
 devolve on the Speaker, after the Congress for which 
 he was chosen has expired, it is usual for the Vice 
 President to withdraw from the Senate previously 
 to the adjournment of the session, in order to afford 
 an opportunity to that body to choose a President 
 pro tempore. 
 
 F 
 
62 EXECUTIVE DEPARTMENT. PART f, 
 
 184. But if the President pro temper e of the Se* 
 nate should die, during a casual vacancy in the offices 
 of President and Vice President, the Speaker of the 
 House of Representatives then extinct, would proba- 
 bly be deemed the person upon whom the office was 
 intended to devolve. 
 
 185. If the Vice President succeed to the office of 
 President, he continues in it until the expiration of 
 the term for which the President was elected, unless 
 a temporary disability of the President be sooner 
 removed ; and if both offices be vacant, it is by law 
 made the duty of the Secretary of State to take 
 measures for the election of a President. But, from 
 a defect in the amendment, a Vice President, as the 
 Constitution now stands, cannot be elected until the 
 regular period. 
 
 186. The term of four years, for which the Presi- 
 dent and Vice President are elected, was intended 
 to be long enough to render the Executive Magis- 
 trate firm and independent in the discharge of his 
 trust, and to give stability to his system of adminis- 
 tration ; and short enough to retain him under a due 
 sense of his dependence on public approbation. 
 
 187. A practice which has prevailed from the 
 commencement of the Government, for the Presi- 
 dent to decline a second re-election, seems now to 
 be permanently established, and to have acquired the 
 force of a legal precedent ; and it has, in effect, limit- 
 ed the period of service to eight years, subject to an 
 intermediate re-election. 
 
 188. The support of the President is secured by 
 a provision of the Constitution, which declares that 
 he shall at stated times receive for his services a 
 compensation, which shall neither be increased nor 
 
CHAP. H. POWER OP THE PRESIDENT. 63 
 
 diminished during the period for which he shall have 
 been elected. 
 
 189. This provision was obviously intended to 
 strengthen and preserve the proper independence 
 and energy of the Executive department ; but the 
 President cannot receive any other emolument from 
 the United States, or from any of the States. 
 
 190. In pursuing the examination of the Executive 
 department, 
 
 II. The powers and duties of the President, are 
 next to be considered. 
 
 191. The first power vested in the President, con- 
 nects him with the Legislature in the exercise, to a cer- 
 tain extent, of Legislative powers, as a security for his 
 own independence, and a check upon that most pow- 
 erful branch of the Government ; and it consists in 
 the qualified negative he possesses upon the acts of 
 Congress. 
 
 192. Every act, order, resolution, or vote, to which 
 the concurrence of the two houses of Congress is 
 necessary, (except on the question of their adjourn- 
 ment,) must be presented to the President, and must 
 be approved by him before it can take effect, unless, 
 after being disapproved by him, it be again passed 
 by two thirds of both Houses. 
 
 193. Without this power the Executive depart- 
 ment would be unable to sustain itself against the 
 propensity of the Legislature to encroach upon the 
 rights, and absorb the powers, of the weaker branches? 
 of the Government. 
 
 194. The President might gradually be stripped 
 of his authority by successive concurrent resolutions 
 
64 EXECUTIVE DEPARTMENT. PART 1. 
 
 of the Senate and House of Representatives, or so 
 weakened as to be ultimately annihilated by a single 
 vote of the more popular branch of the Legislature, 
 unless he possessed this check, as a means of pre- 
 venting the Legislative and Executive powers, from 
 being united in the same hands. 
 
 195. This power, not only serves as a defence to 
 the Executive authority, but furnishes an additional 
 safeguard against the enactment of improper Laws, 
 and secures the community against the effects of pre- 
 cipitancy, or of any impulse or excitement hostile to 
 the public welfare, that may happen temporarily to 
 influence a majority of the Congress. 
 
 196. The President is constituted 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 Union. 
 
 197. The command and disposal of the public 
 force to execute the Laws, maintain domestic tran- 
 quillity, and resist foreign oppression, are powers ob- 
 viously of an Executive nature ; and particularly re- 
 quire the exercise of the qualities characteristic of 
 this department ; and' they have uniformly been ap- 
 propriated to it, in every well organized Government. 
 
 198. The President has the sole power of granting 
 reprieves and pardons for offences against the United 
 States, except in cases of impeachment ; the neces- 
 sity of which authority in every Government, arises 
 from the infirmities incident to the administration of 
 human justice. 
 
 199. But were that administration perfect, policy 
 would sometimes require the remission of a punish- 
 ment strictly due, for a crime clearly ascertained j 
 
CHAP. II. DUTIES OF THE PRESIDENT. 65 
 
 and both humanity and policy dictate that this power 
 should be as unrestricted as possible ; and hence the 
 expediency of vesting it in the President alone. 
 
 . 
 
 200. The President has power, by and with the 
 advice and consent of the Senate, to make Treaties, 
 provided two thirds of the Senators present concur. 
 
 201. As Treaties are declared by the Constitution 
 to be a part of the supreme Law of the land, as by 
 their means new relations are formed, and obliga- 
 tions contracted with foreign powers, it would seem 
 most consonant with the principles of a Republican 
 Government, that the right of making Treaties should 
 be vested in the Legislative department. 
 
 202. But the preliminary negotiations which are 
 required, and the secrecy and despatch proper to 
 take due advantage of a sudden and favourable turn in 
 public affairs, render it more expedient that this pow- 
 er should be confided to the Executive. 
 
 203. Although the power of making treaties par- 
 takes more of the Legislative than of the Executive 
 character, yet it does not fall strictly within the de- 
 finition of either. It relates neither to the enacting 
 of new Laws, nor to the execution of those which 
 exist. Its objects are contracts, which have, indeed, 
 the force of Law, but derive that force from the 
 obligations of good faith amongst nations. 
 
 204. Treaties are not rules of action prescribed 
 by the Supreme Legislative power, to the citizens of 
 the State ; but agreements between sovereign and 
 independent States. 
 
 205. The power in question accordingly consti- 
 tutes a distinct department in the Government of the 
 
66 EXECUTIVE DEPARTMENT. PART I. 
 
 United States ; formed from the association of one 
 branch of the Legislature with the Executive power, 
 and for this purpose, the Constitution invests the 
 Senate with the attributes of an Executive Council. 
 
 206. The qualities requisite in the management of 
 national intercourse, indicate the President as the 
 most fit organ of communication with foreign powers, 
 and the efficient agent in the conclusion of treaties ; 
 whilst the importance of the trust, and the operation 
 of Treaties as Laws, strongly recommend that they 
 should be made under the advice and control of a 
 portion of the Legislative power. 
 
 207. The Senate was selected for this purpose, 
 not only because the deposit of the power in that 
 body, imparts additional weight and security to it as 
 the weaker branch of the Legislature, but because, 
 from its smaller number, it may be more easily as- 
 sembled, and from its greater permanence, it is pre- 
 sumed to be governed by steadier and more syste- 
 matic views of public policy, than the House of Re- 
 presentatives ; whilst these causes combined, would 
 enable it to act with promptitude and vigour. 
 
 208. The President is further invested with the 
 power to nominate, and by and with the advice and 
 consent of the Senate to appoint, Ambassadors, other 
 public Ministers and Consuls, the Judges of the Su- 
 preme Court, and all other officers of the United 
 States whose appointments are not otherwise provid- 
 ed for, and which may be established by Law. But 
 Congress may vest the appointment of such inferior 
 officers as they may think proper, in the President 
 alone, in the Courts of Law, or in the heads of de- 
 partments. 
 
 209. The exercise of such a power by the People 
 
CHAP. H. DUTIES OF THE PRESIDENT. 67 
 
 at large would be impracticable ; and a concurrent 
 right of nomination in the two Houses of Congress, 
 or between the President or any other select body of 
 men, would afford greater temptation and opportunity 
 to intrigue, favouritism, and corruption, and release 
 the appointing power from all real responsibility. 
 
 210. The power of selecting the heads of the de- 
 partments established to aid the President in the dis- 
 charge of his Executive duties, of nominating agents 
 to whom the immediate conduct and management of 
 international affairs and the negotiation of treaties are 
 confided ; and of those officers to whom the adminis- 
 tration of justice is committed, is, with peculiar pro- 
 priety, vested in the Chief Magistrate, who is held 
 responsible for those acts of his immediate assistants 
 and confidential advisers, which receive his sanction ; 
 who is charged with the superintendence of foreign 
 relations, and who is bound to see both Treaties and 
 the Laws faithfully executed. 
 
 211. The association of the Senate with the Presi- 
 dent, in the exercise of this power, is an exception to 
 the general delegation of Executive authority, which 
 can never be attended with a mischievous effect, but 
 must at all times operate as a salutary check upon 
 the misinformation or errors of the President ; whilst 
 it serves further to increase the weight of the Senate, 
 as a counterpoise to the other more numerous and 
 popular branch of the Legislature, 
 
 212. To prevent the inconvenience which would 
 arise from occasional vacancies in office, when the 
 Senate is not in session, the President has power to 
 fill up all vacancies which may happen during its re- 
 cess ; by granting commissions which expire at the 
 end of the next session of Congress* 
 
68 EXECUTIVE DEPARTMENT. PART I. 
 
 213. The "vacancies" in question are understood 
 to be such as occur from death, resignation, promo- 
 tion, or removal ; and the Constitutional authority of 
 the President, has been held by the Senate not to ex- 
 tend to appointing and commissioning during the re- 
 cess of the Senate, Ambassadors or Ministers to fo- 
 reign nations, where no such appointments had before 
 been made. 
 
 214. The word " happen" has also been held by 
 the Senate, to bear relation to some casualty not pro- 
 vided for by Law. If, therefore, the Senate are in 
 session when new offices are created by Law, and 
 nominations are not then made to them by the Presi- 
 dent, he cannot appoint to such offices during the re- 
 cess, as the vacancy does not then happen. 
 
 215. When a commission has been signed by the 
 President, the appointment is final and complete ; and 
 the officer has then conferred on him legal rights 
 which cannot be resumed. Until then, the discretion 
 of the President, as to 'the appointment, may be exer- 
 cised ; but from that moment, the latter is irrevoca- 
 ble ; and the power of the President over the office is 
 then terminated, in all cases where by Law the of- 
 ficer is not removable by him. 
 
 216. The Constitution mentions no power of re- 
 moval, by the Executive department, of any of the 
 officers of the United States. But as the tenure of 
 office of none, except those in the Judicial depart- 
 ment, is declared to be during good behaviour, it fol- 
 lows that all others must hold their offices during 
 pleasure ; unless in cases where Congress has provid- 
 ed for some other duration of office. 
 
 217. So far as Congress constitutionally possesses 
 the power to regulate and delegate the appointment 
 
CHAP. II. DUTIES OF THE PRESIDENT. by 
 
 of " inferior officers ;" so far, it may prescribe the 
 term of office, and the manner in which, and the per- 
 sons by whom the removal, as well as the appoint- 
 ment, shall be made. 
 
 218. In the absence of all legislation upon the sub- 
 ject, it is settled that the power of removal is impli- 
 citly vested in the President, without any control or 
 co-operation on the part of the Senate ; and, in regard 
 to appointments confided to him by the Constitution, 
 it seems also to be settled, that Congress can give no 
 duration of office which is not subject to the Presi- 
 dent's power of removal ; as all its legislation hitherto 
 in such cases, recognizes the .Executive power of re- 
 moval. 
 
 219. The President may, on extraordinary occa- 
 sions, convene both Houses of Congress, or either of 
 them ; and in case of disagreement between them, 
 with respect to the time of their adjournment, he may 
 adjourn them to such time as he may think proper. 
 
 220. He may require the opinion, in writing, of the 
 principal officers in each of the Executive depart- 
 ments, upon any subject relating to the duties of their 
 respective offices. But he does not possess a like 
 authority with regard to the Judicial department. 
 
 221. It is the duty of the President to receive Am- 
 bassadors and other public ministers from abroad ; 
 and, as incident to this duty, he is undertsood to pos- 
 sess authority to refuse to receive or acknowledge 
 them ; and to dismiss those who, after having been 
 received, become obnoxious to censure, or unfit to be 
 allowed their privileges, by reason of their improper 
 conduct, or from political events. 
 
 222. The remaining duties of the President consist 
 in giving information from time to time to Congress, 
 
70 EXECUTIVE DEPARTMENT. PART I. 
 
 of the state of the Union, and recommending to their 
 consideration such measures as he shall judge neces- 
 sary or expedient. He is moreover required to com- 
 mission all officers of the United States, and general- 
 ly and comprehensively tl to take care that the Laws 
 be faithfully executed."*"* 
 
 223. The incidental powers belonging to the Exe- 
 cutive department, are necessarily implied from the 
 nature of the duties confided to it ; and amongst them 
 is included the power to perform the duties speci- 
 fically entrusted to that branch of the Government, 
 Without obstruction or impediment. 
 
 224. The President, therefore, is not liable to ar- 
 rest, imprisonment, or detention, whilst in the dis- 
 charge of his office ; and for this purpose, his person 
 is deemed, in civil cases at least, to possess an official 
 inviolability. 
 
 225. In the exercise of his political power, as dis- 
 tinguished from his ministerial duties in the execution 
 of the Laws, he is to use his own discretion, and is 
 amenable only to his country and his own conscience. 
 His decision in relation to these powers is subject to 
 no direct control ; and his discretion, when exercis- 
 ed, is conclusive. But he has no authority to control 
 other officers of the Government, with respect to 
 duties imposed on them by Law, in cases not within 
 his political power. 
 
 226. Before he enters on the execution of his of- 
 fice, he is required by the Constitution to take an oath 
 or affirmation, that he will " faithfully execute the 
 office of President of the United States, and to the 
 best of his ability, preserve, protect, and defend the 
 Constitution of the United States,'* 
 
CHAP. II. SUBORDINATE BRANCHES. 71 
 
 227. But, in addition to all the precautions to pre- 
 vent abuses of the Executive trust, manifest in the 
 mode of his appointment, the limitation of his term of 
 service, the restrictions imposed on the exercise of 
 his powers, and the solemn oath required to be taken 
 by him, the Constitution renders him amenable to jus- 
 tice for mal-administration in his office ; and he may 
 be impeached for treason, bribery, and other high, 
 crimes and misdemeanors, and, on conviction, be re- 
 moved from office. 
 
 228. To aid the President in the discharge of the 
 several branches of his Executive functions, the Con- 
 stitution contemplates and recognizes certain subordi- 
 nate departments, with their respective heads ; which 
 have accordingly been defined and established by 
 Law. 
 
 229. The first of these auxiliary branches of the 
 Executive power, is " the Department of State," and 
 the principal officer therein is denominated " the 
 Secretary of State," who performs such duties as 
 from time to time are committed to him by the Pre- 
 sident, relative to foreign intercourse and public mi- 
 nisters and consuls, or to negotiations with foreign 
 powers, or to memorials or other applications from 
 foreign ministers or other foreigoers, or to such other 
 matters as the President shall assign to his depart- 
 ment. 
 
 230. The Secretary of State conducts the business 
 of his office in such manner as the President from 
 time to time directs ; keeps the Seal of the United 
 States, and makes out records, and seals all civil com- 
 missions to officers of the United States, who are ap- 
 pointed by the President, by and with the advice and 
 consent of the Senate, or by the President alone. 
 
72 EXECUTIVE DEPARTMENT. PART I. 
 
 231. The next subordinate and auxiliary depart- 
 ment, is the " Treasury Department ;" the principal 
 officer or head of which is styled " The Secretary of 
 the Treasury ;" whose duties relate to the superin- 
 tendence of the finances, the support of the credit, 
 the collection and management of the revenue, and 
 the regulation of the expenditure and accounts of the 
 United States. 
 
 232. " The Secretary of the Treasury" is required 
 by Law, to prepare and lay before Congress at the 
 commencement of every session, a report on the 
 finances, containing estimates of the public revenues 
 and expenditures, and plans for improving the public 
 resources ; and to report and give information to 
 either branch of the Legislature, in person or in writ- 
 ing as he may be required, respecting all matters re- 
 ferred to him, or which appertain to his office ; and 
 generally to perform all such services relative to the 
 public finances as he shall be directed. 
 
 233. The next subordinate branch of the Execu- 
 tive department, is " The Department of War ;" the 
 head of which is denominated " The Secretary for 
 the Department of War," and executes such duties 
 as are entrusted to him by the President, relative to 
 military commissions, or to the land forces or warlike 
 stores of the United States, or to such other matters 
 respecting military affairs, and the granting of lands 
 for military services, or relative to " Indian affairs," 
 as are assigned to his department. 
 
 234. The last branch of the Executive department, 
 established as auxiliary to the President, is " The De- 
 partment of the Navy ;" the chief officer of which 
 is styled " the Secretary of the Navy ;" whose duty 
 it is to execute such orders as he receives from the 
 President, relative to the procurement of naval stores 
 
CHAP. III. JUDICIAL POWER. 73 
 
 and materials, and the construction, armament, equip- 
 ment, and employment of vessels of war, as well as 
 all other matters connected with the naval establish- 
 ment of the United States. 
 
 235. In case of a vacancy in any of these Execu- 
 tive offices, the President may authorize any person 
 at his discretion, to perform the duties of head of the 
 department, until a successor be appointed, or such 
 vacancy be filled. 
 
 CHAPTER III. 
 
 OF THE JUDICIAL POWER. 
 
 236. The Judicial Power, is that branch of the 
 Government to which the administration of justice, 
 and the interpretation of the Constitution and Laws 
 is entrusted ; and no Government can be complete 
 in its form, nor perfect in its principles, without such 
 a distinct and independent department. 
 
 237. A Constitution which omitted to establish an 
 adequate Judicial Power, could not be successfully 
 carried into effect ; and if, instead of being separated 
 and rendered independent, that Power were blended 
 with one or both of the other departments, or if the 
 officers charged with its administration were depend- 
 ent on either of the former, the dignity, efficiency, 
 and utility of this department would be destroyed. 
 
 238. The Judicial and the Executive departments 
 are mutually auxiliary, and the former partakes, in a 
 measure, of the nature of the latter. It also partici- 
 pates, in some degree, in the Legislative Power, as 
 the Judicial construction of Legislative acts is receiv- 
 ed as binding and conclusive. 
 
 G 
 
74 JUDICIAL DEPARTMENT. PART t. 
 
 239. To make Laws, and to execute them, are the 
 respective objects of the Legislative and Executive 
 departments, and are, indeed, the two principal ope- 
 rations of Government ; but Laws cannot be correct- 
 ly and fully executed, without a power in the Consti- 
 tution to expound and apply them. 
 
 240. Under a written Constitution, founded upon 
 the principle of representation, and establishing a just 
 division of the three branches of Government, the 
 Judicial department exercises, moreover, the higher 
 function, of expounding the Constitution, and thereby 
 testing the validity of the acts of the Legislature ; and 
 hence the greater necessity of securing, by funda- 
 mental provisions, the independence of the Judiciary. 
 
 241. The Judicial Power in every Government 
 must be co-extensive with the power of legislation ; 
 and if by express terms it should be restricted to a 
 part only of the subjects of legislation, the whole sys- 
 tem would, in that proportion, be impaired in effi- 
 ciency and value. But the authority of the Judiciary 
 cannot be made to exceed the Legislative power, as 
 such excess would be inconsistent with its nature. 
 
 242. The Constitution of the United States recog- 
 nizes a Judicial Power, not as an adjunct to the Ex- 
 ecutive, but as a necessary and substantive part of 
 the Government ; and this was the more requisite, 
 from the extraordinary complications, unavoidably 
 resulting from the nature of the Union, of the autho- 
 rity of the United States, with that of the several 
 States. 
 
 243. The Judicial Power of the United States is 
 accordingly vested "in one Supreme Court, and in 
 such inferior Courts as Congress may from time to 
 time ordain and establish." 
 
CHAP. HI. MODE IN WHICH CONSTITUTED. 75 
 
 244. A Chief Justice, and other Judges are con- 
 templated by the Constitution ; but the complete or- 
 ganization of the Supreme Court, as well as of the 
 tribunals inferior and subordinate to it, is provided 
 for by Law. 
 
 245. In reviewing the organization of the Judicial 
 Power under the Constitution and Laws of the United 
 States, it will be proper to consider : First, The mode 
 in which this department is constituted ; Secondly, The 
 objects and extent of its jurisdiction ; and, Thirdly^ 
 The manner in which that jurisdiction is distributed 
 amongst the several Courts. 
 
 I. Ms to the mode in which this department is con- 
 stituted. 
 
 246. The mode of appointment, by the President 
 and Senate, as prescribed by the Constitution, is not 
 only generally advantageous, but peculiarly proper, 
 in regard to Judicial officers. 
 
 247. The just and vigorous investigation and pu- 
 nishment of every species of fraud and violence, and 
 the exercise of the power of compelling every man 
 to the punctual performance of his contracts, are du- 
 ties which, although the faithful discharge of them 
 will command the calm approbation and respect of 
 the candid and judicious portion of the community, 
 are not in their nature of the most popular character.; 
 and the fittest men would seldom be selected to fulfil 
 them, by any more open and general mode of ap- 
 pointment. 
 
 248. The same considerations recommend the pe- 
 culiar tenure by which Judicial magistrates hold their 
 offices ; which is, in effect, for life, if not sooner re- 
 moved on impeachment and conviction for official 
 delinquency ; and it is esteemed one of the most va- 
 
76 JUDICIAL DEPARTMENT. PART I. 
 
 luable of modern improvements in the practice of 
 Government. 
 
 249. The Judges, both of the Supreme Court, and 
 of the inferior Courts of the United States, accord- 
 ingly hold their offices, during good behaviour ; which 
 is deemed sufficient as a defence against the encroach- 
 ments of the Legislative and Executive Powers, and 
 the best expedient that can be devised to secure a 
 steady, upright, and impartial administration of jus- 
 tice, 
 
 250. The Judiciary department, from the nature 
 of its functions, must always be the weakest of the 
 three great departments of power ; and although in- 
 dividual oppression may sometimes proceed from 
 Courts of justice, yet the liberties of the People can 
 never be endangered, so long as the Judicial Power 
 remains distinct from both the Legislative, and the Ex- 
 ecutive departments ; and nothing can contribute so 
 much to the firmness and independence of the Judi- 
 ciary, as permanency in office. 
 
 251. In addition to the tenure by which the Judges 
 hold their offices, the permanent provision for their 
 support is calculated to secure their independence. 
 The Constitution accordingly declares, that they 
 " shall, at stated times, receive for their services a 
 compensation, which shall not be diminished during 
 their continuance in office." 
 
 252. This provision is considered an improvement 
 on all former Constitutions ; and tends to secure a 
 succession of learned men as Judges, who, in conse- 
 quence of a certain undiminished support, are in- 
 duced to relinquish the lucrative pursuit of their pro- 
 fessional practice, for the duties of an important and 
 honourable station in the Government, 
 
CHAP. HI. OBJECTS OF ITS JURISDICTION. 77 
 
 253. The perfect independence of the Judges is 
 peculiarly requisite in a Constitution, containing, like 
 that of the United States, certain specified restric- 
 tions upon the Legislative authority, both of the ge- 
 neral and State Governments ; which can only be 
 preserved in practice through the instrumentality of 
 the Courts. 
 
 254. But whilst the Constitution secures the inde- 
 pendence of the Judges, it renders them amenable 
 for any corrupt violation of their trust ; and, on im- 
 peachment and conviction, they may be removed 
 from office, and disqualified for the future from hold- 
 ing any office whatever under the Government of the 
 United States. 
 
 255. The Judicial power being established on prin- 
 ciples essential to maintain its independence, and to 
 secure a vigorous administration of the Law, the 
 Constitution next designates, 
 
 II. The objects of its jurisdiction. 
 
 256. The Judicial power of the United States ex- 
 tends, 
 
 1. To all cases arising under the Constitution; 
 
 because the meaning, construction, and 
 operation of a compact, ought always to be 
 ascertained by an authority derived from all 
 the parties, and not by an authority derived 
 from any one of them. 
 
 2. To all cases arising under the Laws of the 
 
 United States ; because, as such Laws con- 
 stitutionally made, are obligatory on each 
 State, the measure of obligation and obe- 
 dience ought not to be decided and fixed by 
 the party from whom they are due, but by 
 a tribunal deriving authority from both 
 parties. 
 
T8 JUDICIAL DEPARTMENT. PART I, 
 
 3. To all cases arising under Treaties made by 
 
 the authority of the Union; because, as Trea- 
 ties are compactsmade by, and obligatory on, 
 the whole nation, their operation ought not 
 to be regulated or affected by the local 
 Laws or Courts of a part of the nation, 
 
 4. To all cases affecting Ambassadors, other pub- 
 
 lic Ministers, and Consuls ; because, as these 
 are officers of foreign nations, whom this 
 nation is bound to protect, and treat accord- 
 to the Law of Nations, cases affecting them 
 ought only to be cognizable by national 
 authority. 
 
 5. To all cases of Admiralty and Maritime juris- 
 
 diction ; because, as the sea is the joint pro- 
 perty of all Nations, whose rights and privi- 
 leges relative to it, are regulated by the 
 Law of Nations and Treaties, such cases ne- 
 cessarily belong to national jurisdiction. 
 
 6. To all controversies, to which the United 
 
 States shall be a party ; because, in cases in 
 which the whole People are interested, it 
 would not be equal or wise, to permit any 
 one State to decide and measure out the 
 justice due to others. 
 
 7. To controversies between two or more States ; 
 
 because domestic tranquillity requires that 
 the contentions of States should be peace- 
 ably terminated by a common judicatory ; 
 and justice ought not to depend on the will 
 of either of the litigants. 
 
 8. To controversies between a State when plain- 
 
 tiff', and citizens of another State ; because, 
 in such a case, it is better that a State 
 should prosecute its demands in a national 
 court, than in its own courts, or in the 
 courts of the State to which those citizens 
 belong ; the danger of irritations arising 
 
CHAP. IH. OBJECTS OF ITS JURISDICTION. 79 
 
 from apprehensions or suspicions of partial- 
 ity being thus avoided. 
 
 9. To controversies between citizens of different 
 
 States ; because the immediate fellow-citi- 
 zens of neither of the parties should be the 
 sole judges in such cases ; and the free and 
 equal citizens of the General Government 
 should have free and equal justice in tribu- 
 nals common to them all. 
 
 10. To controversies between citizens of the 
 
 same State, claiming lands under grants of 
 different States ; because, as the rights of the 
 two States to grant the land are drawn in 
 question, neither of them ought to decide 
 the controversy. 
 
 11. To controversies between a State when plain- 
 
 tiff, or between the citizens thereof, and fo- 
 reign States, Citizens, or Subjects ; because, 
 as every nation is responsible for the con- 
 duct of its citizens towards other nations, 
 all questions touching the justice due to fo- 
 reign States or People, should be ascertain- 
 ed by, and depend on, national authority. 
 
 257. The propriety of vesting these powers in the 
 Judiciary department of the United States, seems to 
 result, as a necessary consequence, from their union 
 as one nation ; and the exercise of jurisdistion in all 
 these cases, by the national tribunals, may be consi- 
 dered requisite to the existence of the national Go- 
 vernment. 
 
 258. By " cases" in this article of the Constitution, 
 are understood criminal, as well as civil cases ; and 
 the fitness of extending the Judicial power to all cases 
 of both descriptions, arising under the Constitution, in 
 contradistinction to those arising under Laws passed 
 in virtue of its authority, depends on the obvious 
 
80 JUDICIAL DEPARTMENT. PARTI. 
 
 necessity of giving efficacy to those constitutional 
 provisions which neither require nor admit of an Act 
 of the national Legislature to sanction and enforce 
 them. 
 
 259. The individual States are prohibited by the 
 Federnl Constitution, from the performance of certain 
 acts, some of which are incompatible with the inte- 
 rests and objects of the Union, and others with the 
 principles of good Government ; but such prohibi- 
 tions would be ineffectual without some power in the 
 General Government, to restrain or correct their vio- 
 lation. 
 
 260. From the nature of the case, this power must 
 have been either the authority actually vested in the 
 national Courts, to overrule such Laws of the several 
 States, as contravene the Federal Constitution ; or 
 instead of it, a direct negative upon the Laws must 
 have been vested in the Executive department of the 
 national Government. 
 
 261. The latter expedient was indeed proposed as 
 a substitute for that which was adopted ; and there is 
 no other alternative that can be devised, without in- 
 volving a power in any one State to suspend or sub- 
 vert, within its limits, the acts and operations of every 
 department of the General Government, though every 
 other member of the Union may admit their validity. 
 
 262. That the jurisdiction of the Federal Courts 
 should extend to all cases, whether civil or criminal, 
 arising under Laws passed in virtue of the Federal 
 Constitution, is evident from the principle already 
 stated, " that the Judicial power in every Govern- 
 ment must be co-extensive with the power of legisla- 
 tion." 
 
 263. In a Government formed from the union of 
 
CHAP. III. POWER OVER LAWS. 81 
 
 the People of so many separate and independent 
 States, as well as of those States themselves, into 
 one nation, organized under a written compact of 
 government, the necessity of uniformity in the inter- 
 pretation of the national Laws, is of itself sufficient 
 to render this provision indispensable. 
 
 264. The extension of the Judicial power " to cases 
 arising under Treaties, made under the authority of 
 the United States, 11 was equally necessary and pro- 
 per ; as without this jurisdiction in the Courts of the 
 Union, there would be perpetual danger of collision, 
 and even of war, with foreign powers, and an utter 
 incapacity on the part of the Government to fulfil 
 these national contracts. 
 
 265. As the Constitution, and the Laws of the 
 United States made in pursuance of it, and all Trea- 
 ties made under the authority of the Union, are de- 
 clared tO be " THE SUPREME LAW OF THE LAND ;" and 
 
 the Judges in every State are bound thereby, " any 
 thing in the Constitution or Laws of any State to the 
 contrary notwithstanding^ as every Act of Con- 
 gress, or of the State Legislatures, and every part of 
 the Constitution of any State which is repugnant 
 to the Federal Constitution, is null and void, and 
 as the Judicial Power of the Union extends " to 
 all cases in law or equity, arising under the Constitu- 
 tion, Laws, and Treaties of the United States," it 
 necessarily belongs to that Power, whenever a case 
 judicially arises, to determine what is the Supreme 
 Law of the land ; and the determination of the Su- 
 preme Court of the United States must be final and 
 conclusive, because the Constitution gives to that tri- 
 bunal power to decide in every such case, and gives 
 no appeal from its decision. 
 
 266. The right of Courts of Justice to pronounce 
 
82 JUDICIAL DEPARTMENT. PART 1. 
 
 Legislative acts void, on the ground of their uncon- 
 stitutionally, has sometimes been doubted or denied, 
 either from a misconception of the principle on which 
 it rests, or from an apprehension that the doctrine 
 would establish a superiority of the Judicial, over the 
 Legislative Power. 
 
 267. But no position is founded on clearer princi- 
 ples, than that every act of delegated authority, con- 
 trary to the tenor of the commission under which it 
 is exercised, must be void ; and no Legislative act 
 contrary to the Constitution, which is the commis- 
 sion from which every department of the Govern- 
 ment derives its authority, can therefore be valid. 
 
 268. Without an express provision to that effect, 
 it is not to be presumed that the Constitution intend- 
 ed to enable the representatives of the People, in the 
 Legislature, to substitute their will in the place of 
 the will of their constituents ; and to render a con- 
 struction by the Legislature of their own powers con- 
 clusive upon the other departments. 
 
 269. It is more reasonable to conclude, that the 
 Courts of Justice were intended, not only to repre- 
 sent the sovereign authority of the People in a sepa- 
 rate and co-ordinate department ; but were designed 
 in that capacity, to act as an intermediate body be- 
 tween the People and the Legislature, in order, 
 amongst other things, to keep the latter within the 
 limits assigned to its authority. 
 
 270. The interpretation of the Laws is the pecu- 
 liar province of Courts of Justice ; and as the Consti- 
 tution is in fact, a fundamental Law, and the Courts 
 are bound to regard it as such, it is as much their duty 
 to ascertain its meaning, as to ascertain the meaning 
 of any act proceeding from the Legislative body. 
 
CHAP. IB. POWER OVER LAWS. 83 
 
 271. If in any case there should be found an irre- 
 concileable variance between a Law and the Consti- 
 tution, that which has the superior obligation and va- 
 lidity ought of course to be preferred ; the Constitu- 
 tion should prevail over the statute, and the intention 
 of the People themselves be carried into effect, in- 
 stead of the intention of their agents. 
 
 272. This conclusion by no means supposes a supe- 
 riority of the Judicial, over the Legislative Power : 
 it merely supposes that the People are superior to 
 both ; and where the will of the Legislature declared 
 in the Law, stands opposed to the will of the People 
 declared in the Constitution, the Judges are to be go- 
 verned by the latter rather than by the former ; and 
 Courts are bound to regulate their decisions by that 
 fundamental Law over which the Legislature has no 
 control, rather than by those which it may at any time 
 alter or repeal, and which derive their validity and 
 effect from the Constitution. 
 
 273. There is no weight in the objection, that 
 Courts of Justice, on the pretence of a repugnancy 
 between a Law and the Constitution, may substitute 
 their own pleasure in the place of the constitutional 
 intentions of the Legislature ; because this might as 
 well happen in the case of two contradictory statutes, 
 or in every adjudication upon any single Legislative 
 Act. 
 
 274. The Courts are bound to declare the meaning 
 of the Law ; and if they should be disposed to exer- 
 cise will, instead of judgment, the consequence in all 
 cases equally, would be the substitution of their own 
 pleasure, to that of the Legislature ; and therefore, 
 if the objection proved any thing, it would prove that 
 there ought to be no Courts or Judges distinct from 
 the Legislative body. 
 
84 JUDICIAL DEPARTMENT. PART 1. 
 
 275. But the separation of the Judicial from the 
 Legislative Power, was designed not only to create 
 a distinct and independent body to expound and ex- 
 ecute the Law ; but to create a bulwark to protect a 
 Constitution conferring limited powers, from Legisla- 
 tive encroachments and Executive usurpation ; whilst 
 this restraining power was itself confined within its 
 proper limits, by corresponding checks, in the hands 
 of the other departments, or arising from its own 
 constitution. 
 
 276. A further object of the separation of the Ju- 
 dicial Power from the other departments in the Con- 
 stitution of the United States, and of the precautions 
 for maintaining its independence from their control, 
 was to afford security to the General Government, in 
 the exercise of its limited powers, against the inroads 
 and influence of the several States. 
 
 277. All the reasons that support the right and 
 duty of the Courts, in the ordinary exercise of their 
 power, to declare void those Acts of Congess which 
 in their judgment, are repugnant to the Constitution, 
 apply with equal force to establish a similar control 
 and authority in the Judiciary of the Union, over the 
 acts and proceedings of the State Governments. 
 
 278. The People of the several States, by their 
 adoption of the Constitution of the United States, in 
 many instances superseded and modified in effect 
 their State Constitutions, which the People of each 
 State respectively alone could alter ; and in those 
 instances they were competent to do so, and to ac- 
 knowledge and declare, not only the Federal Consti- 
 tution itself, but the Laws and Treaties made in pur- 
 suance of its authority, to be the Supreme Law of the 
 land, and of paramount obligation to either the 
 Constitution or the Laws of any of the States. 
 
CHAP. III. OBJECTS OP ITS JURISDICTION. 85 
 
 279. By declaring that the Judicial Power of the 
 United States should extend to all cases arising under 
 the Constitution, the People vested in that department 
 of the Government authority to determine the con- 
 struction of that instrument, in every case in which 
 such a question should arise judicially, whether direct- 
 ly between the parties to the suit, or collaterally be- 
 tween the parties to the national compact. 
 
 280. This authority of the Judiciary of the Union, 
 necessarily results from the operation of the Laws of 
 the United States upon the individual citizens of the 
 several States ; and if this distinct, independent, and 
 appropriate department, were not expressly created 
 as an intermediate body between the National and 
 State Governments, it is, at all events, that in which, 
 from its nature and constitution, this high and indis- 
 pensable power necessarily resides, and could be 
 most safely deposited. 
 
 281. But the Judiciary of the United States has 
 no authority to declare void acts of 3 State Legisla- 
 ture, on the ground of their repugnancy to the State 
 Constitution, unless in administering the local law of 
 the State ; in which case the Courts of the United 
 States act exactly as the State tribunals are bound to 
 act. 
 
 28'2. The propriety of extending the Judicial Pow- 
 er of the Union " to all cases affecting Ambassadors, 
 other public Ministers, and Consuls," will appear from 
 the consideration, that all diplomatic officers, like the 
 two former descriptions of these public agents, are 
 the immediate representatives of their sovereigns, 
 and, as such, owe no subjection to any Laws but those 
 of their own country and the Law of Nations ; and 
 that the acts of the latter description of officers are not 
 in all cases subject to the private law of the country in 
 which they are appointed to reside ; and where they 
 H 
 
86 JUDICIAL DEPARTMENT. PART I. 
 
 are liable to its jurisdiction, the reasons applicable to 
 all foreigners render it proper that they should be ame* 
 nable only to the National tribunals. 
 
 283. Public ministers, in order to perform their duty 
 to their own sovereign, should be independent of any 
 other authority ; their powers, duties, and privileges, 
 are therefore determined, not by any municipal regu- 
 lations or enactments, but by the Law of Nations, 
 which is equally obligatory upon all sovereigns ; and 
 every question in which their rights or the rights of 
 Consuls are involved, is so intimately connected with 
 the peace of the nation, that it would be unsafe to 
 submit them to any other than the national judica^ 
 ture. 
 
 284. The clause extending the Judicial Power "to 
 all cases of Admiralty and Maritime Jurisdiction," is 
 supported by the same considerations relative to the 
 public peace, as respect public Ministers and Consuls ; 
 as Maritime causes generally depend on the Law of 
 Nations, and commonly affect the rights of aliens. 
 
 285. Unless jurisdiction had been given to the na- 
 tional Courts of " cases to which the United States 
 are a party," all the rights, powers, contracts, and 
 privileges, which they possess in their sovereign ca- 
 pacity, would be at the mercy and control of the seve- 
 ral States ; and it would, besides, be a novelty in ju- 
 risprudence to prevent a sovereign power from suing 
 in its own Courts^ 
 
 286. But the terms in which this jurisdiction is 
 conferred, does not vest in the Federal Courts juris- 
 diction in all controversies to which the United States 
 shall be a party so as to justify a suit to be brought 
 against the United States without the consent of Con- 
 gress ; and according to ap established maxim of 
 
CHAP. 111. OBJECTS OF ITS JURISDICTION. 
 
 public Law, it is inherent in the nature of sovereignty 
 not to be amenable to the suit of a private person 
 without its own consent. 
 
 287. The extension ^of the Judicial Power of the 
 United States " to controversies between two or more 
 States," is essential to the peace and stability of the 
 Union ; which, before the adoption of the Constitu- 
 tion, had been frequently endangered, and sometimes 
 interrupted by territorial disputes, and interfering 
 claims of boundary between the States : and it may 
 justly be presumed, that under the National Govern- 
 ment, the decision of all such controversies will be 
 impartial. 
 
 288. As " controversies between a State and the 
 citizens of another State," might excite animosities 
 amongst the members of the Union, the Federal Courts 
 are properly designated as the tribunals to decide 
 them ; and by the first Judiciary act, Congress con- 
 ferred jurisdiction on the Courts of the United States, 
 in suits prosecuted by a citizen of another State of 
 the Union, or by citizens or subjects of foreign States. 
 
 289. The individual States, however, wore not 
 willing to submit to be arraigned as dependants, be- 
 fore the Federal Courts, at the instance of private 
 persons ; and it was subsequently declared by an 
 amendment of the Constitution, that " the Judicial 
 Power should not be construed to extend to any suit 
 of Law or Equity commenced or prosecuted against 
 any one of the United States, by citizens of another 
 State, or foreign citizens or subjects." 
 
 290. Although the necessity of vesting jurisdiction 
 in the Federal Courts in " controversies between citi- 
 zens of different States," may not stand upon ground 
 equally as strong as some of the preceding instances ; 
 
88 JUDICIAL DEPARTMENT. PART 1. 
 
 it may, nevertheless, be vindicated by high motives 
 of public justice and policy ; and there are many- 
 cases in which such a power may be highly expedient,, 
 if not indispensable, to carry into effect some of the 
 privileges and immunities conferred by the Union ; 
 and some of the prohibitions upon the States. 
 
 291. The clause relative to " controversies between 
 citizens of the same State claiming lands under grants 
 of different States," is the only instance in which the 
 Constitution directly provides for the cognizance of 
 disputes between citizens of the same State in the 
 Federal Courts ; but it is not the only one in which 
 it contemplates their being incidentally and ultimately 
 subject to the national jurisdiction ; as all the citizens 
 of the United States are equally entitled to the benefit 
 of that jurisdiction, in all cases arising under the 
 Constitution, Laws, and Treaties of the Union. 
 
 292. The direct jurisdiction, in this particular in- 
 stance, is founded on the reasonableness and propriety 
 of giving the National Courts cognizance of all cases 
 in which the State tribunals cannot be supposed to 
 be impartial ; and it attaches, not only to grants made 
 by different States which were never united, but also 
 to grants made by different States which were ori- 
 ginally comprehended within the same jurisdiction 
 and government, if made after the separation, even 
 though the origin of the title may be traced back to 
 an antecedent period. 
 
 293. The jurisdiction of " controversies between 
 a State, or the citizens thereof, and foreign States, 
 citizens, or subjects," is founded on the responsibility 
 of the Union for the conduct of its members ; and on 
 the necessity that this national responsibility for 
 injury, should be accompanied by the faculty of pre- 
 venting iU 
 
CHAP. IH. COURT OF IMPEACHMENTS. 89 
 
 294. As the perversion or denial of justice to fo- 
 reigners, is with reason classed amongst the just 
 causes of war, and as a great proportion of the con- 
 troversies to which they are parties, involve national 
 questions, it is not less essential to the preservation 
 of the public faith, than of the public tranquillity, that 
 all causes in which aliens are concerned should be 
 referred to the National tribunals. 
 
 295. In order to ascertain, 
 
 III. The manner in which the jurisdiction vested 
 in the Judicial Powtr of the Union has been 
 diffused and distributed, 
 
 either by the Constitution, or by the Laws passed by 
 Congress for giving it effect, it will be necessary to 
 review the powers vested in the several Courts of 
 the United States, established by the Constitution OF 
 created by law, 
 
 296. The first of these is a high and peculiar juris- 
 diction, not otherwise mentioned in the Constitution 
 than by way of exception to the ordinary modes of 
 trial ; and which is denominated " the Court for the 
 trial of impeachments f a tribunal which seems ra- 
 ther, to have been necessarily called into existence 
 by the mere formation of the Constitution, than to be 
 expressly created by it. 
 
 297. Impeachment is introduced into the Consti- 
 tution as a known term of definite signification, to 
 ascertain which we must have recourse to the En- 
 glish Common Law, from which it is derived. 
 
 298. The practice of impeachments arose from the 
 experience, that persons entrusted with the adminis- 
 tration of public affairs, would often infringe upon 
 the rights of the People, and commit such crimes as 
 
90 JUDICIAL DEPARTMENT, PART 1. 
 
 the ordinary Courts and Magistrates did not dare, or 
 had no power, to punish. 
 
 299. Of such offences, the Representatives of the 
 People in the Legislature, would not be proper judges, 
 because they and their constituents are in such cases 
 the parties injured ; and are therefore properly the 
 accusers. 
 
 300. As the ordinary Courts of Justice would na- 
 turally be swayed by the authority of such powerful 
 accusers, the charge is brought for trial before the 
 other branch of the Legislature; the members of 
 which are supposed not to have the same interests 
 and passions with the popular Assembly. 
 
 301. In accordance with this theory, the Constitu- 
 tion of the United States declares that " the House 
 of Representatives shall have the sole power of im- 
 peachment," and that " the Senate shall have the sole 
 power to try all impeachments." 
 
 302. The power of originating the inquiry, and of 
 preferring and conducting the prosecution, is thus 
 lodged with that branch of the Legislature which im- 
 mediately represents the People; and the reasons 
 which establish the propriety of this arrangement, 
 indicate the necessity of admitting the other branch 
 of the Legislative body, to its appropriate share in the 
 investigation. 
 
 303. As the members of the Senate are by one 
 degree further removed from the People, and are 
 elected upon a different principle of representation ; 
 as they are chosen for a longer period, are more in- 
 dependent of popular favour, and are presumed to be 
 more secure from party influence ; they are more fit 
 to sit as Judges, than the members of the House of 
 Representatives. 
 
CHAP. III. COURT OF IMPEACHMENTS. 91 
 
 304. Besides, as the Senators are chosen with the 
 knowledge that they may, whilst in office, be called 
 upon to exercise this high jurisdiction, they bring with 
 them the confidence of their constituents as to their 
 qualifications for this special duty ; and an implied 
 compact on their own parts, that it will be faithfully 
 and honestly discharged. 
 
 305. The objects of this jurisdiction are all acts 
 which involve, or proceed from, the abuse or viola- 
 tion of a public trust, and are with propriety denomi- 
 nated political offences, or " high crimes and misde- 
 meanors," as their effects and consequences are im- 
 mediately injurious to the body politic itself. 
 
 306. The causes of impeachment have reference 
 only to public character and official duty, though the 
 terms of the Constitution comprehend " treason," as 
 well as " bribery, or other high crimes and misde- 
 meanors." But the treason contemplated, is treason 
 against the Government of the United States. 
 
 307. With the exception of treason, offences of 
 every description, not immediately connected with 
 the exercise of a public trust, are left to the ordinary 
 course of Judicial proceedings ; and neither branch 
 of the Legislature can regularly inquire into them, 
 except in relation to their own members, and with the 
 view of expelling them if guilty. But the ordinary 
 tribunals are not precluded, either before, or after an 
 impeachment, from taking cognizance of public and 
 official delinquency. 
 
 308. The only subjects, therefore, or persons liable 
 to impeachment, are those who hold or have held a 
 public office under the United States ; and all Execu- 
 tive and Judicial officers of the United States, of 
 every rank and description, are included. 
 
92 JUDICIAL DEPARTMENT'. ^AfcT f, 
 
 309. A construction has been given to the Consti- 
 tution by the Court of Impeachments, by which a 
 member of the Senate was held not to be liable to an 
 impeachment ; the term " officers," as used in the 
 Constitution, having been adjudged not to include 
 Senators ; and upon 'the same principle, members of 
 the House of Representatives must also be exempt 
 from impeachment^ 
 
 310. The Articles of Impeachment, as the document 
 containing the formal specification of the charge is 
 technically called, need not be drawn up with the 
 precision required in ordinary Indictments, or accusa- 
 tions at Law ; but they must be distinct and inteHi" 
 gible, as no one is bound to answer to a charge that 
 eannot easily be understood. 
 
 311. As Articles of Impeachment can be exhibited 
 only by the House of Representatives, if the Senate, 
 in the exercise of its Executive functions or other-' 
 wise, become apprized of the commission of unlawful 
 acts by a public officer, requiring, in its opinion, a 
 public investigation, it is its duty to communicate the 
 evidence it may possess to the House of Representa-- 
 tives, 
 
 312. But the bare communication of the facts 
 would be all that would be consistent with the duty 
 of the Senate on such an occasion. It should care- 
 fully avoid recommending or suggesting an impeach- 
 ment ; and the same course should be pursued by the 
 President of the United States, under similar circum- 
 stances. 
 
 313. No definite number of members is required 
 to constitute a Court ; but, as it is in " the Senate," 
 that the power of trying impeachments is vested, the 
 number requisite to constitute a quorum of that body 
 
CHAP. in. COURT OF IMPEACHMENTS. 93" 
 
 (i. e. a majority of all the Senators appointed,) must 
 also be necessary to constitute the Court ; and must 
 be sufficient for that purpose, although no conviction 
 can take place without the concurrence of two-thirds 
 of the members present. 
 
 314. The Vice President of the United States, be- 
 ing President of the Senate, presides, when present, 
 in the Court; except when the President of the 
 United States is tried, on which occasion the Chief 
 Justice presides ; and the reason which forbids the 
 Vice President to preside in such a case, requires that 
 he should retire wholly from the Court. 
 
 315. The Constitution does not declare that the 
 Vice President shall be restricted on the trial of im- 
 peachments, as in Legislative proceedings, to a cast- 
 ing vote ; and as he is constituted one of the Judges 
 of the Court, by being appointed to preside without 
 any restriction, it seems to follow that he is entitled 
 to vote in the same manner as the other Judges. The 
 same reasoning would establish a similar right in the 
 Chief Justice, when presiding on the trial of the Pre- 
 sident. 
 
 316. The same general rules of evidence prevail 
 on the trial of impeachments, as in ordinary trials at 
 Common Law ; and the respondent or accused party, 
 is entitled to the benefit of counsel ; but it is not ne- 
 cessary that he should be personally present, as the 
 trial may proceed in his absence, if he have had due 
 notice to appear* 
 
 317. When sitting as a Court for the trial of im- 
 peachments, the members are put under oath or af- 
 firmation. Their consultations, as well on collateral 
 and incidental points, as on the main question, are 
 conducted in private ; but the judgment must be ren- 
 
94 JUDICIAL DEPARTMENT. PART 1. 
 
 dered in public ; and can extend no further than to 
 removal from office, and disqualification to hold any 
 office of trust or profit under the United States. 
 
 318. Although the party impeached may be found 
 guilty of the highest political crime, viz. treason 
 against the United States, yet his life is not thereby 
 put in jeopardy before the Court for the trial of im- 
 peachments ; and in no case is the liberty or property 
 of a person convicted, affected by the judgment of 
 this tribunal ; as prosecution and punishment await 
 him elsewhere, according to the usual course of Law. 
 
 319. As by the sentence pronounced on conviction 
 in cases of impeachment, an appointment made by 
 the Executive authority is superseded, and the party 
 is rendered incapable of re-appointment to any office ; 
 the President is disabled from granting a pardon, and 
 thus restoring the competency of the offender. 
 
 320. But there is no restriction on the power of 
 pardoning for the same act, in case of a conviction in 
 the common course of Law; for the pardon in that 
 case extends only to the punishment imposed by the 
 ordinary tribunals, without affecting the sentence of 
 the Court for the trial of impeachments. 
 
 321. The distribution of the Judicial authority of 
 the Union, amongst the several Courts of ordinary 
 Judicature, except in a few specified cases, is devolved 
 on Congress ; and in the execution of that power, 
 Congress is not bound to enlarge the jurisdiction of 
 the respective tribunals to every subject, or to vest it 
 in every form, which the Constitution might warrant 
 in reference to each of them in particular. 
 
 322. The whole Judicial Power, in some form or 
 Other, must nevertheless, in all cases at least in which* 
 
CHAP. III. SUPREME COURT. 95 
 
 it is exclusive of the States, be at all times duly vested 
 and distributed amongst the National Courts ; and 
 in all cases where the Judicial Power of the United 
 States is to be exercised, it is for Congress alone to 
 prescribe the rules of proceeding, to direct the pro- 
 cess, and to declare its nature and effect, and the 
 mode in which the judgments consequent thereon shall 
 be executed. 
 
 323. As the Judicial Power of the United States 
 extends to all the cases enumerated in the Constitu? 
 tion, it may be extended to them by Congress where 
 not restricted by the Constitution, in any form in 
 which the Judicial Power may be exercised either 
 in the shape of origittal, or appellate jurisdiction, or 
 both ; for there is nothing in the nature of these cases 
 which binds to the exercise of the one, in preference 
 to the other. 
 
 324. In order to ascertain to what extent, and in 
 what manner the Federal jurisdiction, both original 
 and appellate, has actually been disposed of, either by 
 the Constitution or by Law, it will be necessary to 
 examine specifically the organization and powers of 
 the several Courts, as ordained by the one, or esta- 
 blished by the other. 
 
 325. The Supreme Court of the United States, al- 
 though created by the Constitution, received its pre- 
 sent organization from the Judiciary Act of 1789, and 
 the several Laws subsequently passed by Congress 
 in addition to that Statute, 
 
 326. The Constitution merely declares that there 
 shall be a Supreme Court, with certain original and 
 appellate powers ; and it is only to be implied from 
 that instrument, that the Chief Justice of the United 
 States shall preside in it, with an indefinite number of 
 Judges, to be associated with him. 
 
JUDICIAL DEPARTMENT. PART I. 
 
 327. But the Acts of Congress declare that this 
 Court shall consist of the Chief Justice and six as- 
 sociate Judges, any four of whom constitute a quo- 
 rum ; and they also direct, that it shall hold one term 
 annually, at the seat of the national Government, 
 .commencing on the first Monday in January. 
 
 328. Although the presence of four of the Judges 
 is required for the general business of the Court ; 
 yet any one or more of them may make all necessary 
 orders in a suit, preparatory to the hearing or trial ; 
 and it is made the special duty of a particular asso- 
 ciate Judge, to attend at Washington annually, on the 
 first Monday in August, for that purpose. 
 
 329. The Constitution vests in the Supreme Court, 
 original jurisdiction in all cases affecting Ambassa- 
 dors, other public Ministers, and Consuls ; and in 
 those in which a State may be a party ; but the ju- 
 risdiction conferred in relation to suits and proceed- 
 ings against foreign Ambassadors and Ministers, and 
 their domestics, is only such as a Court of Law can 
 exercise consistently with the Law of Nations. 
 
 330. In all the other cases enumerated in the 
 Constitution, it vests in the Supreme Court " appellate 
 jurisdiction, both as to the Law and the fact, with 
 such exceptions, and under such regulations, as Con- 
 gress shall make." 
 
 331. In suits and proceedings against Ambassadors, 
 or other public Ministers, or their domestics ; and 
 in all controversies of a civil nature, where a State 
 can be made a party, except in suits by a State 
 against one or more of its citizens, against citizens of 
 other States, or against aliens, the original jurisdiction 
 of the Supreme Court is rendered exclusive by Con- 
 
CHAP, III. SUPREME COURT. 97 
 
 332. In suits brought by Ambassadors, or other 
 public Ministers, or in which a Consul or a Vice 
 Consul is a party, and in suits by a State against one 
 or more of its citizens, against citizens of other States, 
 or against aliens, its jurisdiction remains concurrent 
 either with the inferior National Courts, or with the 
 Courts of the several States. 
 
 333. It has been made a question, however, whe- 
 ther the whole original jurisdiction of the Supreme 
 Court, was not intended to be exclusive, both of the 
 inferior Courts of the United States, and of the State 
 Courts. But if any portion of this original jurisdiction 
 may, in the discretion of Congress, be shared with 
 other Courts, it cannot be enlarged. 
 
 334. Congress can neither invest the Supreme 
 Court with original jurisdiction in those cases in 
 which the Constitution declares that its jurisdiction 
 shall be appellate, nor invest it with appellate juris- 
 diction in those cases in which the Constitution de- 
 clares that it shall be original. 
 
 335. The cases in which a State is a party, to 
 which the original jurisdiction of the Supreme Court 
 extends, either exclusively or .concurrently, must be 
 cases in which a State is either nominally or substan- 
 tially the party ; and it is not sufficient that a State 
 may be consequentially affected. 
 
 336. Although the Judicial Power of the Union 
 extends to controversies between a State and foreign 
 States, Citizens, or Subjects, and the Constitution 
 gives to the Supreme Court original jurisdiction in all 
 such cases; yet the " Indian Tribes" are not consi- 
 dered " foreign States," within the meaning of the 
 Constitution. 
 
 337. The most usual modes of exercising appellate 
 
98 JUDICIAL DEPARTMENT. FART I. 
 
 jurisdiction are by Writ of Error, which is a Common 
 Law process for the removal of a suit from an inferior 
 Court, but which removes nothing for re-examination 
 but the Law of the case ; and by Appeal, which is 
 a proceeding of Civil Law origin, and removes a 
 cause entirely, and subjects the facts, as well as the 
 Law, to a review and re-trial t 
 
 338. Writs of Error are applicable only to suits at 
 Law tried by a Jury ; whilst Appeals are adapted to 
 cases of Equity and Admiralty jurisdiction ; and it is 
 declared, by an amendment to the Constitution, that 
 " in suits at Common Law, where the value in con- 
 troversy shall exceed twenty dollars, the right of trial 
 by Jury shall be preserved : and no fact tried by a 
 Jury shall be otherwise re-examined in any Court of 
 the United States, than according to the rules of the 
 Common Law :" which is a prohibition to the National 
 Courts, to re-examine facts tried by a Jury, in any 
 other manner. 
 
 339. Final Judgments and decrees in Civil actions, 
 and suits in Equity, in the Circuit Courts of the United 
 States, whether brought there by original process, or 
 removed thither either from the State Courts, or from 
 the District Courts of the United States, in the enu- 
 merated cases of Federal cognizance, of which the 
 Supreme Court has not the exclusive original juris^ 
 diction, and where the matter in dispute exceeds the 
 sum of two thousand dollars, may be re-examined, and 
 reversed or affirmed in the Superior Court. 
 
 340. Final Judgments and decrees of the Circuit 
 Courts, in cases of Admiralty and Maritime jurisdic- 
 tion, and in prize causes, where the matter in dispute 
 exceeds the same amount, may be reviewed on Appeal 
 in the Supreme Court ; and in Admiralty and prize 
 causes new evidence is admitted on Appeals, conform. 
 
CHAP. HI. SUPREME COURT. 99 
 
 ably with the general doctrines and usages of Appel- 
 late Courts of Admiralty. 
 
 341. A final Judgment or decree of the highest 
 Court of Law or Equity in a State, may be brought 
 up, on the allegation of error in point of Law, to the 
 Supreme Court of the United States, in the following 
 cases, viz : 
 
 1. If the validity of a Treaty, of an Act of Con- 
 
 gress, or of an authority exercised under 
 the Government of the United States, was 
 drawn in question in the State Court, and 
 the decision was against that validity. 
 
 2. If the validity of any State Law or authority, 
 
 was drawn in question on the ground of its 
 repugnancy to the Constitution, Treaties, or 
 Laws of the United States, and the decision 
 was in favour of its validity. 
 
 3. If the construction of any clause of the Con- 
 
 stitution, or of a Treaty, or of a Statute of 
 the United States, or of a commission held 
 under them, was drawn in question, and 
 the decision was against the title, right, pri- 
 vilege, or exemption specially claimed un- 
 der the authority of the Union. 
 
 342. But upon Appeals from a decision of a State 
 Court, no other error can be assigned or regarded in 
 the Supreme Court, than such as appears on the face 
 of the record, and immediately respects the question 
 of the validity or construction of the Constitution, 
 Treaty, Statute, commission, or authority in dispute. 
 
 343. In case of a reversal of the Judgment or de- 
 cree of the highest State Court, the cause may either 
 be remanded to that Court, or the Supreme Court of 
 the United States may, if the cause has once before 
 been remanded, proceed to a final disposition of it, 
 and award Execution accordingly. 
 
100 JUDICIAL DEPARTMENT. PART I. 
 
 344. If the highest Court in a State reverse the 
 Judgment of a subordinate Court, and on Appeal the 
 Judgment of the highest State Court be in its turn 
 reversed in the Supreme Court of the United States, 
 the latter Judgment so reversed, becomes a mere 
 nullity, and the mandate for Execution may issue di- 
 rectly from the Supreme Court of the United States 
 to the inferior State Court. 
 
 345. The validity of th'is proceeding depends on 
 the constitutionality of the 25th section of the Judi- 
 ciary Act of 1789, which provides for the prosecution 
 of Appeals from decisions of the. highest State Courts 
 in the cases enumerated ; which provision has been 
 declared by the Supreme Court to be warranted by 
 the Constitution* 
 
 346. The grant of the Judicial Power in the Con- 
 stitution was declared, on that occasion, to be abso- 
 lute ; and it was held to be imperative upon Congress 
 to provide for the appellate jurisdiction of the Federal 
 Courts, in all cases in which Judicial Power was ex- 
 clusively granted by the Constitution, and not already 
 given, by way of original jurisdiction, to the Supreme 
 Court. 
 
 347. The Constitution intended that the Judicial 
 Power, either in an original or appellate form, should 
 extend absolutely to all cases in Law or Equity^ 
 arising under the Constitution and Laws of the Unit- 
 ed States, and the Treaties made under its authority ;. 
 to all cases affecting Ambassadors, other public Mi- 
 nisters, and Consuls ; and to all cases of Adfniralty 
 and Maritime jurisdiction, because these cases were 
 of vital importance to the sovereignty of the Union, 
 entered into the national policy, and affected national 
 rights. 
 
 348. But with respect to the other cases enumerat- 
 
CHAP. III. SUPREME COURT. 101 
 
 ed, the Constitution seems designedly to have dropped 
 the word " a//," so as not absolutely to extend the 
 jurisdiction of the Federal Judiciary to "all contro- 
 versies," but merely to " controversies," in which the 
 United States are a party, or between two or more 
 States, or between citizens of different States, &c. 
 and has left it to Congress to qualify the jurisdiction, 
 whether original or appellate, in such manner as pub- 
 lic policy may dictate. 
 
 349. Whatever weight is due to this distinction, it 
 is manifest that the Judicial Power is, in some cases, 
 unavoidably exclusive of all State authority, and in 
 all others enumerated in the Constitution, may be 
 made so at the election of Congress ; and the Judi- 
 ciary Act accordingly assumes that, in all the cases to 
 which the Judicial Power of the United States ex- 
 tends, Congress may rightfully vest exclusive juris- 
 diction in the national Courts. 
 
 350. The Criminal and the Admiralty jurisdiction, 
 are necessarily exclusive ; and it is only in those cases 
 where, previously to the Constitution, the State tribunals 
 possessed jurisdiction independently of national autho- 
 rity, that they can now exercise a concurrent Jurisdic- 
 tion. 
 
 351. The exercise of appellate jurisdiction is not 
 limited by the Constitution to the Supreme Court. 
 Congress may create a succession of inferior tribu- 
 nals, in each of which it may vest appellate, as well 
 as original, jurisdiction. But in all cases where a 
 concurrent original jurisdiction is vested in the Su- 
 preme Court by the Constitution, it must possess an 
 appellate power over the decisions of those Courts 
 upon which Congress confer, in the same cases, con- 
 current jurisdiction, whether in its original or appellate 
 form. 
 
102 JUDICIAL DEPARTMENT. PART I 
 
 352. The appellate jurisdiction of the Supreme 
 Court is alone declared by the Constitution, to be 
 subject to such exceptions and regulations as Con- 
 gress may prescribe ; so that, in cases falling within 
 that jurisdiction, it alone remained in the discretion 
 of Congress, to provide for the exercise of the Judi- 
 cial Power in all the various forms of Appeal. 
 
 353. The appellate Power of the National Judi- 
 ciary is not limited to cases pending in the Courts of 
 the United States ; for if it had been so limited, the 
 jurisdiction of the Federal Courts must have beer* 
 exclusive of the State Courts,, in all the cases enu- 
 merated in the Constitution. 
 
 354. As the Judicial Power of the United States 
 extends to all cases arising under the Constitution,. 
 .Laws, and Treaties of the Union, and to all cases of 
 Admiralty and Maritime jurisdiction, &c. the State 
 Courts cannot, consistently with the express grant of 
 the Constitution, entertain any jurisdiction without 
 the right of appeal ; otherwise the appellate jurisdic- 
 tion of the Supreme Court, as to those cases, would 
 be defeated, contrary to the manifest intent of the 
 Constitution* 
 
 355. The appellate Power of the Federal Courts 
 must, therefore, extend to the State Courts, so long 
 as the latter entertain, any concurrent jurisdiction; 
 over any of the cases which the Constitution has de- 
 clared to be within the Judicial cognizance of the 
 United States., 
 
 356. The Constitution contemplated that sucfe 
 cases would arise in the State Courts,, not only in the- 
 ordinary exercise of their concurrent jurisdiction ; 
 but that those tribunals would incideataHy take cogni- 
 sance of questions under the Constitution, Laws, andi 
 
CHAP. IH SUPREME COURT. 103 
 
 Treaties of the United States, of which the National 
 Courts have exclusive jurisdiction ; and as the Judi- 
 cial Power of the Union embraces both classes of 
 cases, by the very terms of the Constitution it extend- 
 ed the appellate jurisdiction of the Supreme Court to 
 the State tribunals, by making it attach upon every 
 case comprised within the Judicial Power of the Ge- 
 neral Government. 
 
 357. This appellate jurisdiction is required, to give 
 efficacy to the power of deciding in all cases of con- 
 flict between the several States, or of collision be- 
 tween the powers claimed by a State, and those 
 claimed by the United States ; and to maintain the 
 supremacy of the Constitution, Laws, and Treaties 
 of the Union, over the Constitutions and Laws of the 
 several States, as well as to preserve uniformity of 
 decision throughout the United States, upon all sub- 
 jects embraced by the Federal Constitution. 
 
 358. The appellate Power of the Federal Judi- 
 ciary over the State tribunals, extends to a final judg- 
 ment in a State Court, in a case within the cognizance 
 of the Union, although a State be a party ; and the 
 amendment declaring that the Judicial Power of the 
 United States is not to be construed to extend to any 
 suit in Law or Equity, commenced or prosecuted 
 against a State by an individual, does not apply to a 
 Writ of Error, as it is not a suit against a State, within* 
 the meaning of the Constitution. 
 
 359. Jurisdiction is given to the Courts of the 
 United States in two classes of cases ; in the first, it 
 depends on the character of the cause, whosoever 
 may be the parties ; and in the second, it depends 
 entirely upon the character of the parties, and it is 
 then immaterial what may be the subject of contro- 
 versy 
 
104 JUDICIAL DEPARTMENT. PART I, 
 
 360. In an ordinary case of a controversy between 
 a State and one of its citizens, an Appeal does not lie 
 from the State to the Federal Courts, for, in such a 
 case, the jurisdiction is determined by the character 
 of the parties ; but when, in a suit between a State 
 and one of its citizens, the validity of an act of Con- 
 gress is drawn in question, and the decision is against 
 its validity, the appellate Power of the Supreme 
 Court extends to it, because, in all cases arising under 
 the Constitution, the Jurisdiction of that Court may 
 be exercised in an appellate form, whoever may be 
 the parties. 
 
 361. Neither does it make any difference in cases 
 arising under the Constitution, Laws, and Treaties of 
 the Union ; whether the cause in which the appellate 
 jurisdiction of the Supreme .Court is exercised, be a 
 criminal prosecution, or a civil controversy ; as the 
 parties are not less interrested in the operation of an 
 unconstitutional Law, nor less entitled to the protec- 
 tion of the Constitution, when the judgment of the 
 State Court inflicts a disgraceful punishment, than 
 when it merely affects their property. 
 
 362. The Supreme Court Is, moreover, clothed 
 with that superintending authority over the inferior 
 Courts of the United States, which is requisite and 
 proper in the highest tribunal, and last resort for jus- 
 tice, of the people of the United States - r and conse- 
 quently it has power to issue prohibitory and manda- 
 tory writs in cases warranted by the principles and 
 usages of Law, to any Courts appointed, or persons 
 holding office, under the United States. 
 
 363. All the Courts of the United States have 
 power to issue all writs not specially provided by 
 statute, which may be necessary for the exercise of 
 their respective jurisdictions, and agreeable to the 
 
CHAP. III. CIRCUIT COURTS. 105 
 
 principles and usages of law ; and the individual 
 Judges^may, by writ of Habeas Corpus, relieve the 
 citizen from all manner of unjust imprisonment oc- 
 curring under, or by colour of, the authority of the 
 United States. 
 
 364. Under the power granted to Congress, to 
 erect tribunals inferior to the Supreme Court, Circuit 
 Courts are established in each of the Judicial Dis- 
 tricts (with some few exceptions)- of the seven Cir- 
 cuits, into which the United States are by Law di- 
 vided. 
 
 365. Some Districts are not embraced within any 
 Circuit, and have merely District Courts ; which, 
 however, exercise the powers of a Circuit Court, 
 within their respective districts, except in cases of 
 error and appeal ; and writs of Error and Appeals lie 
 from their decisions, directly to the Supreme Court, 
 under the same regulations that apply to the Circuit 
 Courts of other Districts. 
 
 366i In the District of Columbia, (which comprises 
 the Territory ceded to the United States for the seat 
 of the General Government, and is under the exclu- 
 sive jurisdiction of Congress,) there is a Circuit Court 
 composed of a Chief Justice, and two Associate 
 Judges. 
 
 367. In each Judicial District comprehended with- 
 in the seven Circuits, two sessions of the Circuit 
 Court are annually held by one of the Judges of the 
 Supreme Court, and the Judge of the District Court ; 
 and to each Circuit respectively, a particular Judge 
 of the Supreme Court is assigned by Law. But the 
 Supreme Court, in cases where special circumstances 
 in their judgment render it necessary, may assign two 
 Judges of the Supreme Court to attend a Circuit 
 Court, 
 
106 JUDICIAL DEPARTMENT. PART I. 
 
 368. If a vacancy happen by the death of the Judge 
 of the Supreme Court to whom the Circuit is as- 
 signed, the District Judge may discharge all the duties 
 of the Circuit Court for his district, except that he 
 cannot sit on a writ of Error on a judgment of the 
 District Court ; and when the District Judge is ab- 
 sent, or has been Counsel, or is interested in the cause, 
 the Circuit Court may be held by a Judge of the Su- 
 preme Court alone. 
 
 369. If an opposition of opinions between the 
 Judge of the Supreme Court and the District Judge 
 arise in a case in which the Circuit Court has original 
 jurisdiction, it is certified to the {Supreme Court, and 
 thereupon the case is removed into that Court for a 
 final judgment or decree ; but in all cases of appeal 
 or removal from a District, to a Circuit Court, judg- 
 ment is to be rendered in the latter, in conformity 
 with the opinion of the Judge of the Supreme Court. 
 
 370. The Circuit Courts have original and exclu- 
 sive cognizance (except in certain cases hereafter 
 mentioned,) of all crimes and offences cognizable 
 under the authority of the United States, exceeding 
 the degree of ordinary misdemeanors ; and of those 
 they have concurrent jurisdiction with the District 
 Courts. 
 
 371. They have original cognizance, concurrently 
 with the Courts of the* several States, of all suits of a 
 civil nature at Law or in Equity, where the matter in 
 dispute exceeds five hundred dollars, and the United 
 States are plaintiffs, or an alien is a party, or the suit 
 is between a citizen of the State where it is brought 
 and a citizen of another State. 
 
 372. The Circuit Courts have also original juris- 
 diction in Equity and at Law, of all suits arising un- 
 
CHAP. III. CIRCUIT COURTS. 107 
 
 der the acts of Congress relative to copyrights, and 
 the rights growing out of Patents for new inventions 
 and discoveries in the useful arts. 
 
 373. They have likewise original jurisdiction, con- 
 current with the District Courts, and with the Courts 
 and Magistrates of the several States, of all suits at 
 Common Law where the United States, or an officer 
 thereof, sues under the authority of an act of Con- 
 gress ; although the matter in dispute does not exceed 
 one hundred dollars. 
 
 374. The Circuit Courts have appellate jurisdiction 
 in all final decrees and Judgments of the District 
 Courts, where the matter in dispute exceeds fifty dol- 
 lars ; and if any suit be commenced in a State Court 
 against an alien, or by a citizen of the State in which 
 the suit is brought, against a citizen of another State, 
 and the matter in dispute exceeds five hundred dol- 
 lars, the defendant, on giving security, may remove 
 the cause to the Circuit Court for the District ; and 
 this right of removal is founded on the appellate pow- 
 er vested in the Courts of the United States over the 
 State Courts in all cases of federal cognizance, which 
 may be exercised as well before, as after Judgment 
 
 375. The Circuit Courts of the United States, 
 though inferior Courts in the language of the Con- 
 stitution, are not so in the sense which the Common 
 Law attaches to the term ; nor are their proceedings 
 subject to the narrow rules of interpretation which 
 apply to inferior Courts of Common Law, and Courts 
 of special jurisdiction. On the contrary, they are 
 Courts of original and durable jurisdiction, and, as 
 such, are entitled to liberal intendments in favour of 
 their powers. 
 
 376. They are, nevertheless, Courts of limited ju- 
 jrisdiction ; and have cognizance, not of cases gene- 
 
108 JUDICIAL DEPARTMENT. PART I. 
 
 rally, but only of a few cases under special circum- 
 stances, amounting to a small proportion of those 
 which an unlimited jurisdiction would embrace ; and 
 the legal presumption is, that a cause is without their 
 jurisdiction until the contrary be shewn. 
 
 377. The District Courts of the United States were 
 also created in virtue of the power granted to Con- 
 gress by the Constitution, of erecting tribunals infe- 
 rior to the Supreme Court. 
 
 378. The United States are at present divided into 
 thirty-two Judicial Districts ; and in general each Dis- 
 trict is composed of an entire State ; but in some of 
 the larger States there are two Districts. 
 
 379. A Court is established in each District, con- 
 sisting of a single Judge, who holds annually four 
 stated terms, and also special Courts at his discretion ; 
 and there is also a District Court for the ^District of 
 Columbia, held by the Chief Justice of the Circuit 
 Court for that District. 
 
 380. The District Courts have, exclusively of the 
 State Courts, cognizance of all lesser crimes and of- 
 fences cognizable under the authority of the United 
 States, and committed either within their respective 
 Pistricts, or upon the high seas, and which are pu- 
 nishable by fine not exceeding one hundred dollars, 
 and imprisonment not exceeding six months. 
 
 381. They have also exclusive original cognizance 
 of all civil causes of Admiralty and Maritime jurisdic- 
 tion ; of seizures under the impost, navigation, and 
 trade Laws of the United States, where the seizures 
 are made on the high seas, or in waters within their 
 respective Districts, navigable from the sea by ves- 
 sels of ten or more tons burden ; and of all other 
 seizures under the Laws of the United States ; and of 
 
CHAP. III. DISTRICT COURTS. 109 
 
 all suits for penalties, or forfeitures incurred under 
 those Laws, 
 
 382. They have, moreover, jurisdiction concurrently 
 with the Circuit Courts, and with the State Courts, of 
 causes in which an alien sues for a violation of rights 
 accruing to him under the Law of Nations, or a 
 Treaty of the United States ; and of all suits at Com- 
 mon Law, in which the United States are plaintiffs, 
 and the matter in dispute amounts to one hundred 
 dollars. 
 
 383. They have jurisdiction exclusive of the State 
 Courts of all suits against Consuls or Vice Consuls, 
 except of offences of which the Circuit Courts of the 
 United States have the exclusive cognizance. 
 
 384. They have, lastly, exclusive original cogni- 
 zance of proceedings to repeal Patents obtained sur- 
 reptitiously and upon false suggestions, and of com- 
 plaints, by whomsoever instituted, in cases of capture 
 made within the waters of the United States, or 
 within a marine league of their coasts. 
 
 385. The Judges of the District Courts have, in 
 cases where the party has not had reasonable time to 
 apply to the Circuit Court, as full power as is exer- 
 cised by the Judges of the Supreme Court, in grant- 
 ing Writs of Injunction in Equity causes, to operate 
 within their respective Districts, and continue until 
 the next sitting of the Circuit Court for the District. 
 
 386. The Courts of the Territories of the United 
 Slates, have been created from time to time by Acts 
 of Congress establishing TERRITORIAL Governments, 
 in those parts of the Union which were either ceded 
 by individual States for the common benefit, or, hav- 
 ing been obtained by Treaty from foreign Nations, 
 
 K 
 
110 JUDICIAL DEPARTMENT. PART I. 
 
 were never comprised within the boundaries of any 
 of the original members of the Confederacy. 
 
 387. In the Territory of Michigan, Congress has 
 adopted the principle of the ordinance for the Go- 
 vernment of the " Territory of the United States 
 north-west of the river Ohio," passed under the Con- 
 federation, by which the Judges hold their offices 
 during good behaviour. 
 
 388. There is in Michigan a Supreme Court, con- 
 sisting of three Judges (appointed by the .President, 
 with the advice and consent of the Senate), any two 
 of whom form a Court, which possesses both a Com- 
 mon Law and Equity jurisdiction throughout the 
 Territory. But a fourth Judge was subsequently 
 added for certain remote counties, with an appeal to 
 the Supreme Court of the Territory ; and the powers 
 and duties of the subordinate Magistrates are regu- 
 lated by the local Legislature. 
 
 389. Tn the Territories of Arkansas and Missouri, 
 the Judicial Power is vested in a Superior Court, and 
 in such inferior Courts as their respective Legisla- 
 tures shall from time to time establish, and in Justices 
 
 .of the Peace. The Judges of the Superior Court are 
 appointed by the President, with the advice and con- 
 sent of the Senate, and those of the inferior Courts, 
 as well as the local Magistrates, by the Governor of 
 the Territory. 
 
 390. The Superior Court in each of these Territo- 
 ries is held at such times and places as the local Le- 
 gislature directs, and is composed of throe Judges, 
 who continue in office for four years, unless sooner 
 removed by the President, and have jurisdiction in 
 all civil and criminal cases, and exclusive cognizance 
 of all capital cases within their respective Territories. 
 
CHAP. HI. TERRITORIAL COURTS. Ill 
 
 But any two of the Judges constitute a Court of ap- 
 pellate, and any one a Court of original, jurisdiction. 
 
 391. In Florida, the Judicial Power is vested in 
 two Superior Courts, and in such inferior Courts and 
 Magistrates as the Legislative Council of the Terri- 
 tory may establish. 
 
 392. The Judges and the inferior Magistrates are 
 respectively appointed in the same manner, and hold 
 their offices for a similar term as the Judges and 
 Magistrates of the Arkansas and Missouri Territo- 
 ries. 
 
 393. One of the Superior Courts is for East Flo- 
 rida, and the other for Weet Florida ; and cno.h con- 
 sists of one Judge. Each Court has jurisdiction in 
 all criminal cases, and exclusive cognizance of all 
 capital cases, within its respective subdivision of the 
 Territory. 
 
 394. These Superior Courts are invested with ori- 
 ginal jurisdiction in all Civil cases of the value of one 
 hundred dollars, arid cognizable by the Laws of the 
 Territory ; and they have, moreover, within their re- 
 spective limits, the same jurisdiction in all cases aris- 
 ing under the Constitution and Laws of the United 
 States, as is vested in the District Courts of the 
 United States, in those Districts in which the latter 
 have the powers of a Circuit Court, subject to the 
 like rules and regulations in regard to Writs of Error 
 and Appeals. 
 
 395. The Superior Courts of the other Territories 
 in which a District Court of the United States has 
 not been established by Congress, exercise within 
 their respective limits the same jurisdiction, subject 
 to the like appeal, as the District Courts having the 
 
112 JUDICIAL DEPARTMENT. PARTI, 
 
 powers of Circuit Courts, in those cases only in which 
 the United States are concerned. 
 
 396. The functions of the Judges of all the Courts 
 of the United States are strictly and exclusively Ju- 
 dicial, except in cases where the Territorial Judges 
 exercise Legislative Powers. They cannot, there- 
 fore, be called upon to advise the President in any 
 Executive measures, or to give extra-judicial inter- 
 pretations of the Law, or to act as Commissioners 
 under an Act of Congress. 
 
 397. The Judges of the District and Territorial 
 Courts, are required to reside within their respective 
 jurisdictions ; and no Judge of the United States can 
 act as counsel, or be engaged in the practice of the 
 Law. 
 
 398. The State Courts a$d Magistrates are in some 
 cases invested by Congress with cognizance of cases, 
 arising under the Laws of the United States. 
 
 399. Congress, in the course of its legislation upon 
 the objects entrusted to it by the Constitution, may 
 indeed commit the decision of causes arising under a 
 particular Law, solely, if deemed expedient, to the 
 Courts of the United States ; but in every case in 
 which the State Courts are not expressly excluded, 
 they may take cognizance of causes growing out of 
 an Act of Congress. 
 
 400.. Although Congress cannot confer jurisdiction 
 on any Courts but such as exist under the Constitu- 
 tion and Laws of the United States ; yet the State 
 Courts may exercise jurisdiction in cases authorized 
 by the Laws of the State, and not prohibited by the 
 exclusive jurisdiction of the Federal Courts. 
 
 401. Various duties have been imposed by 
 
CHAP.III. STATE COURTS AND MAGISTRATES. 113 
 
 gress on State Courts and Magistrates, and they have 
 been invested with jurisdiction in Civil suits, and in 
 complaints and prosecutions for fines, penalties, and 
 forfeitures, arising under the Laws of the United 
 States, in Civil suits the State Courts entertain that 
 jurisdiction ; but in penal and criminal cases, they 
 have in several instances declined its exercise. 
 
 40'2. In what cases, and to what extent, they will 
 exercise criminal jurisdiction under the Laws of the 
 Union; and under what circumstances, and how far, 
 the Judges of the State Courts have power to issue 
 on Habeas' Corpus, and decide on the validity of a 
 commitment or detainer under the authority of the 
 National Government, are questions which have been 
 variously determined in the State Courts, and have 
 never been definitely settled in the Supreme Court 
 of the United States. 
 
 403. It seems, however, to be admitted, that Con- 
 gress cannot compel a State Court to entertain juris- 
 diction in any case. It only permits State Courts 
 which are competent to the purpose, and have an 
 inherent jurisdiction adequate to the case, to entertain 
 suits in given cases ; and such State Courts do not 
 thereby become " inferior Courts," in the sense of the 
 Constitution, because they are not " ordained and 
 established by Congress." 
 
 404. The State Courts are in these cases left to 
 consult their own duty in reference to their own 
 State authority and organization ; but if they do vo- 
 luntarily entertain jurisdiction of causes cognizable 
 under the authority of the United States, they do so 
 on the condition that the appellate jurisdiction of the 
 Union shall apply to them. 
 
 405. Their jurisdiction of Federal causes must, 
 
114 POWERS OF THE GOVERNMENT. PART II. 
 
 nevertheless, be confined to Civil actions for civil de- 
 mands, or to enforce penal statutes ; for they cannot 
 hold jurisdiction of offences exclusively against the 
 United States, as every criminal prosecution must 
 charge the offence to have been committed against 
 the sovereign whose Court sits in judgment upon the 
 offender, and whose Executive authority may pardon 
 him. 
 
 406. In all cases where the jurisdiction of the 
 State Courts is concurrent with that of the Federal 
 Courts, the sentences of either, whether of acquittal 
 or conviction, is a bar to a prosecution in the other 
 jurisdiction for the same offence. 
 
 PART SECOND. 
 
 #N THE NATURE, EXTENT, AND LIMITATION OF THE POW- 
 ERS VESTED IN THE NATIONAL GOVERNMENT, AND THE 
 RESTRAINTS IMPOSED ON THE STATES. 
 
 407. All the powers requisite to secure the objects 
 of the Union are vested in the General Government ; 
 whilst all such powers as are not essential to those 
 objects, are reserved to the State Governments or to 
 the People. 
 
 408. In all other respects the sovereignty of the 
 individual States remains unimpaired ; and the re- 
 spective obligations of allegiance and protection, in 
 reference to them are unaltered, except that, in all 
 cases within the range of the Federal jurisdiction, the 
 paramount obligations of allegiance and protection 
 with respect to the General Government, necessarily 
 
PART II. POWERS OF THE GOVERNMENT. 115 
 
 supersedes those which would otherwise have been 
 reciprocally due to and from the several States. 
 
 409. From the nature of the case, the National 
 and State Governments cannot be coequal ; for two 
 Governments, of entirely concurrent right and au- 
 thority, cannot exist in the same society. 
 
 410. Superiority was therefore conferred on the 
 General Government, as the Government of the 
 whole nation, over the State Governments, or the Go- 
 vernments of its several parts. 
 
 411. The Constitution, in the name of the whole 
 People, accordingly declares its own supremacy, and 
 that of the Laws made in pursuance thereto, and of 
 Treaties made under the authority of the United 
 States, over the Constitutions and Laws of the seve- 
 ral States. 
 
 412. The Powers conferred on the National Go- 
 vernment may be reduced to different classes, as they 
 relate to the following different objects, viz : 
 
 1st. Security from foreign danger. 
 
 2d. Intercourse with foreign nations. 
 
 3d. Maintenance of harmony amongst the States. 
 
 4th. Certain miscellaneous objects of general 
 utility. 
 
 5th. Restrictions on the powers of the States ; 
 and, 
 
 6th. Provisions for giving efficacy to the Powers 
 vested in the Government of the United 
 States. 
 
116 SECURITIES FROM FOREIGN DANGER. PART II. 
 
 CHAPTER I. 
 
 OF THE TOWERS VESTED IIV THE GENERAL GOVERNMENT, 
 RELATIVE TO SECUK1TY FROM FOREIGN DAGGER. 
 
 413. As security from foreign danger is one of the 
 primary objects of civil society, so it was an avowed 
 and essential purpose of the union of the States ; and 
 the powers requisite to attaining it were effectually 
 confided to the National Government, and consist 
 1. Of the Powers of declaring War, and grant- 
 ing letters of marque and reprisal. 
 
 2. Of making rules concerning captures by land 
 
 and water. 
 
 3. Of providing armies and fleets ; and of re- 
 
 gulating and calling forth the militia ; and, 
 
 4. Of the Powers of levying taxes, and of bor- 
 
 rowing money. 
 
 414. The right of self-defence is derived from the 
 Law of Nature ; and it is the indispensable dutv of 
 civil society to protect its members in the enjoyment 
 of their rights, both of person and property. 
 
 415. It is in virtue of this fundamental principle of 
 every social compact, that an injury done or threaten- 
 ed to the perfect rights of a Nation, or of any of its 
 members, and susceptible of no other redress, is 
 deemed by all approved writers upon public Law, 
 to afford just cause of war. 
 
 416. But as the evils of war are certain, whilst its 
 results are doubtful, both wisdom and humanity re- 
 quire that every possible precaution should be used, 
 and every necessary preparation made, before a 
 Nation engages in it. 
 
CHAP. I. POWERS RELATIVE TO WAR. 117 
 
 417. It was formerly usual to precede hostilities 
 by a public declaration, communicated formally to 
 the enemy ; but in modern times this practice has 
 been discontinued, and the Nation proclaiming war 
 now confines itself to a declaration within its own 
 territory, and to its own People. 
 
 418. The Power of declaring war is vested by the 
 Constitution of the United States in Congress ; with- 
 out whose consent no State can engage in war, unless 
 actually invaded, or in such imminent danger as will 
 not admit of delay. 
 
 419. Although Congress alone, by an Act passed 
 like other Laws, according to the forms of legislation, 
 can of itself subject the Nation to war ; yet a smaller 
 portion of the Government is competent to restore 
 peace ; as hostilities may be terminated by a truce, 
 which, it is presumed, the President of himself may 
 make, and of which the duration may be indefinite ; 
 whilst Treaties of Peace are made by the President 
 and Senate, without the intervention of the House of 
 Representatives. 
 
 420. As the delay of making war may sometimes be 
 detrimental to individuals who have suffered from the 
 depredations of foreign Nations, Congress are invest- 
 ed with the Power of issuing Letters of Marque and 
 Reprisal ; the latter signifying a taking in return ; the 
 former, passing the frontier, in order to such taking. 
 
 421. This Power is plainly derived in all cases 
 from that of making war ; and induces, in its exercise, 
 an incomplete state of hostilities, which generally 
 ends in a formal denunciation of war. 
 
 422. By the Law of Nations, Letters of Marque 
 and Reprisal may be granted whenever the subjects 
 
118 SECURITIES FROM FOREIGN DANGER. PART II. 
 
 of one State are oppressed and injured by those of 
 another, and justice is denied by the JState to which 
 the oppressor belongs. 
 
 423. They are in the nature of a Commission 
 granted by the Government to particular citizens, au- 
 thorizing them to seize the bodies or goods of citizens 
 of the offending Nation, wherever they may be found, 
 until satisfaction be made. 
 
 424. The necessity of calling in the Sovereign 
 Power to determine when this proceeding may be 
 resorted to, is obvious ; as otherwise every private 
 individual might act as a judge in his own cause, and 
 at his pleasure involve the Nation he belongs to in 
 war to avenge his private injury. 
 
 425. The Power of making "rules concerning Cap- 
 hires on Land and IVuter" which is superadded to 
 the Power of declaring war, is not confined to cap- 
 tures made beyond the territorial limits of the United 
 States ; but comprehends rules respecting the pro- 
 perty of an enemy found within those limits. 
 
 426. It is an express grant to Congress of the 
 Power of confiscating such property, as an independ- 
 ent substantive Power, not included in the Power to 
 declare war. 
 
 427. When a war breaks out, the question as to 
 the disposition of enemy's property in the country is 
 a question of policy for the consideration of the Na- 
 tional Legislature, and not proper for the considera- 
 tion of the Judiciary, which can only pursue the Law 
 as it is written. 
 
 428. A declaration of war by the sovereign pow- 
 er of one State against another, implies that the 
 
CHAP. I. PROVIDING ARMIES AND FLEETS. 119 
 
 whole Nation declares war ; and that all the subjects 
 of the one are enemies to all the subjects of the 
 other. 
 
 429. Although a declaration of war has this effect, 
 with regard to individuals, and thus gives to them 
 those mutual and respective rights under the Law of 
 Nations, which a state of war confers ; yet the mere 
 declaration does not, by its single operation, produce 
 any of those results which are usually effected by 
 further measures of the Government, consequent up- 
 on the declaration of war. 
 
 430. By a strict interpretation of the ancient pub- 
 lic Law, War gives to a Nation full right to take the 
 persons, and confiscate the property, of its enemy 
 wherever it may be found ; and tin; mitigation of this 
 rule, which the policy of modern times has introduced 
 into practice, although it may aftect its exercise, can- 
 not impair the right itself; and whenever the Legis- 
 lature chooses to lrin<r it into operation, the Judicial 
 department must give it effect. 
 
 431. Until the Legislative will, however, is dis- 
 tinctly declared, no power of condemnation can exist 
 in the Courts; and proceedings to condemn enemy's 
 property found in the country at the declaration of 
 war, can be sustained only on the principle of their 
 having been commenced in execution of an existing 
 Law. 
 
 432. An act of Congress simply declaring war, 
 does not, by its own operation, so vest such property 
 in the Government as to support Judicial proc e lings 
 for its seizure and condemnation ; but vests merely 
 a right, of which the assertion depends on the future 
 action of the Legislature. 
 
 433. The Power of raising armies and equipping 
 
120 SECURITIES FROM FOREIGN DANGER. PART il. 
 
 fleets, seems to be involved in the power of declaring 
 war ; and to have left it to be exercised by the States 
 under the direction of Congress, would have invert- 
 ed a primary principle of the New Constitution, 
 and transferred in practice, the care of the common 
 defence, from the Federal head, to the individual 
 members of the Union. 
 
 434. From the nature of the Federal Government, 
 there can be little danger from a standing army in 
 time of peace ; whilst the impolicy of restraining the 
 discretion of Congress is manifest, from considering 
 that the efficiency of the power depends on its being 
 indefinite ; and upon its extending to the maintenance 
 of an army and navy in peace as well as in war. 
 
 435. Unless the National Government could set 
 bounds to the ambition, injustice, or exertions of other 
 nations, no restraints should be imposed on the dis- 
 cretionary powers of Congress in relation to the sub- 
 ject ; nor any limits prescribed to its efforts for the 
 defence and preservation of the Nation. 
 
 436. A readiness for war in time of peace is not 
 only necessary for self-defence, but affords the most 
 certain means of preventing aggression, by exhibiting 
 such resources and preparations for repelling it, as 
 may discourage or deter an enemy from attempts 
 which would probably prove unavailing. 
 
 437. A jealousy of the power of raising and main- 
 taining armies and fleets in time of peace, arose from 
 the prevailing sentiment at the time of the Revolution, 
 in regard to the undefi ed power of making war, and 
 supporting, by its own authority, regular troops in time 
 of peace, which was the acknowledged prerogative of 
 the British crown. 
 
CHAP, 1. MILITARY ESTABLISHMENTS. 121 
 
 438. The abuse of this prerogative had led to the 
 adoption of that article in the Bill of Rights, framed 
 by the Convention-Parliament of England in 1688, 
 which declares, that " raising or keeping a standing 
 army in time of peace, unless with the consent of Par- 
 liament, is against Law." 
 
 439. The principles which had inculcated in the 
 Colonists, jealousy of the power of an hereditary 
 monarch, seem to have extended it, after indepen- 
 dence was declared, to the Representatives of the 
 People in the State Legislatures, 
 
 440. In the Constitutions of two of the States, 
 prohibitions of Military establishments in time of 
 peace were introduced ; and in those of some others 
 of the States in which the absolute prohibition was 
 not adopted, a clause similar to that of the English 
 Bill of Rights, was inserted. 
 
 441. This clause, however, was not, from its terms, 
 applicable to the State Governments ; as the power 
 of raising armies could by no construction, be held 
 to reside any where else than in the Legislatures 
 themselves ; and its introduction was in effect to de- 
 clare, that a measure should not be adopted without 
 the consent of that body, which alone had power to 
 originate and sanction it. 
 
 442. In the Constitutions of the other States, there 
 is no provision on the subject ; and even in those 
 which seemed to have intended a total interdiction 
 of Military establishments in time of peace, the ex- 
 pressions are monitory, rather than prohibitory ; whilst 
 their ambiguity appears to have resulted from a con- 
 flict between the desire of excluding such establish- 
 ments, and the conviction that their absolute exclu- 
 sion would be unwise and unsafe. 
 
 L 
 
122 SECURITIES FROM FOREIGN DANGER. PART II. 
 
 443. The only direct restriction on the power of 
 Congress, in relation to the subject, is contained in an 
 amendment of the Constitution, which provides 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," 
 
 444. The Union of the States under the National 
 Constitution, removes every pretext for a Military 
 establishment which could prove dangerous ; and the 
 distance of this Continent from the powerful Nations 
 of Europe, affords a security that the Government 
 will never be able to persuade or delude the People 
 into the support of large and expensive peace esta- 
 blishments. 
 
 445. The Union itself is, moreover, the principal 
 security against danger from abroad, as well as against 
 internal commotion or domestic usurpation ; whilst 
 it is the only source of the Maritime strength of the 
 Nation ; and the necessity of a Navy, and the proof 
 of its efficacy as an arm of National defence, have 
 removed the scruples which at one period prevented 
 due attention to encouraging it in time of peace. 
 
 446. The Power of regulating the Militia, and of 
 commanding its services in times of insurrection or 
 invasion, are incident to the duties of superintending 
 the common defence and internal tranquillity of the 
 Union, 
 
 447. The advantages of uniformity in the organiza- 
 tion and discipline of the Militia, could only be at- 
 tained by expressly confiding its regulation to the 
 General Government ; and it was essential that Con- 
 gress should have authority not only " to provide for 
 pajling forth the Militia to execute the Laws of the 
 
CHAP. I. REGULATING THE MlLlTlA. 123 
 
 Union, suppress insurrections, and repel invasions ;" 
 but also " to provide for organizing, arming, and dis- 
 ciplining the Militia, and for governing such parts of 
 them as may be employed in the service of the United 
 States/' 
 
 448. The President being constituted Commander 
 in Chief of the Militia when called into the actual 
 service of the Union, is authorized by Law, in case of 
 invasion, or of imminent danger thereof, to call forth 
 such numbers of them, most convenient to the scene 
 of action, as he may judge necessary. 
 
 449. The Militia so called out are subject to the 
 rules of war, and the Law imposes a h'ne upon every 
 delinquent, to be adjudged by a Court-Martial, com- 
 posed of Militia Oflicers only, and held and conduct- 
 ed in the manner prescribed by the Articles of War. 
 
 450. The manner in which the Militia are to be 
 organized, armed, disciplined, and governed, is pre- 
 scribed by Law ; and provision is made for drafting, 
 detaching, and calling forth the State quotas, when 
 required by the President. 
 
 451. The Act of Congress renders the President 
 the sole and exclusive judge of the existence of the 
 exigency in which the Constitution authorizes the 
 Militia to be called forth into the service of the 
 United States ; and his decision is conclusive upon 
 all other persons. 
 
 452. This construction necessarily results from 
 the nature of the power given by the Constitution, 
 and from the manifest object contemplated by the 
 Act of Congress. 
 
 453. The power itself is to be exersised upon sud- 
 
124 SECURITIES FROM FOREIGN DANGER, PART II. 
 
 den emergencies, and under circumstances which 
 may affect the existence of the Union, and a prompt 
 and unhesitating obedience is indispensable to the 
 complete attainment of the object. 
 
 454. As the power of regulating the Militia, and 
 of commanding its services in times of insurrection 
 and invasion, are incident to the duty of superintend- 
 ing the common defence and internal tranquillity of 
 the Union, that power must be so construed, with 
 respect to the modes of its exercise, as not to defeat 
 the end in view. 
 
 455. If the Governor of a State, or other superior 
 officer, had a right to contest the orders of the Pre- 
 sident, upon their own doubts as to the existence of 
 the exigency, it would be equally the right of every 
 inferior officer and soldier ; and an act done by any 
 person in furtherance of such orders, would subject 
 the party to a civil suit, in which his defence would 
 rest upon his ability to establish, by competent proof, 
 the facts upon which the exigency was alleged to 
 have arisen. 
 
 456. This would be subversive of military disci- 
 pline, and expose the best intentioned persons to the 
 chances of a ruinous litigation ; and in many instan- 
 ces, the evidence upon which the President might 
 decide, would not constitute technical proof; or its 
 disclosure might reveal important secrets of State 
 which the public safety might require to be concealed. 
 
 457. The President being constituted the judge of 
 the existence of the exigency, is bound to act accord- 
 ing to his belief of the facts ; and if he decides to 
 call forth the Militia, and his orders for this purpose 
 are in conformity with the provisions of the Law, it 
 follows as a necessary consequence, that every sub- 
 ordinate officer is bound to obey them. 
 
CHAP. I. CALLING FORTH THE MILITIA. 125 
 
 458. Whenever an Act of Congress gives to the 
 President a discretionary power, to be exercised by 
 him upon his own opinion of certain facts, it is a sound 
 rule of construction, that the statute constitutes him 
 the sole and exclusive judge of the existence of those 
 facts ; and it is not considered a valid objection, that 
 such power may be abused ; for there is no power 
 which is not susceptible of abuse. 
 
 459. The remedy for the abuse of this and all other 
 powers, is afforded by the Constitution itself ; and in 
 a free Government such dangers must be remote, 
 since, in addition to the high qualities which the Chief 
 Executive Magistrate must be presumed to possess, 
 the frequency of elections, the watchfulness of the 
 immediate representatives of the People, and the re- 
 sponsibility of the President, are all the securities 
 which can be useful to guard against usurpation or 
 tyranny. 
 
 460. Nor is it necessary that it should appear that 
 the particular exigency in fact existed, upon the be- 
 lief of which the President may have exercised his 
 discretion in the execution of this power ; for the 
 same principles are not applicable to the delegation 
 and exercise of the power entrusted to the Supreme 
 Executive of the Nation, for great political purposes, 
 as are applied to subordinate agents, acting under the 
 most narrow and special authority. 
 
 461. When the President exercises an authority 
 confided to him by Law, the presumption is that it 
 is exercised in pursuance of the Law ; for every pub- 
 lic officer is presumed to act in pursuance of his duty, 
 until the contrary be shewn ; and this rule applies 
 with greater force to the Chief Magistrate of the 
 Union. 
 
 462. If the non-existence of the exigency could be 
 
 12 
 
126 SECURITIES FROM FOREIGN DANGER. PART II 
 
 averred and shewn by the delinquent party, it would 
 then be liable to be inquired into as a fact by a jury ; 
 and thus the legality of the order of the President 
 would depend, not on his own judgment as to the 
 fact, but upon the decision of a Jury upon such proofs 
 
 of its existence as could be submitted to them. 
 
 
 
 463. The orders of the President are to be given 
 to the Chief Executive Magistrate of the State, or to 
 any Militia officer he may think proper ; and neglect 
 or refusal to obey such orders, is declared to be a 
 public offence, subjecting the offender to trial and 
 punishment by a Court-martial. 
 
 464. The Militia, when called into the service of 
 the United States, are not considered as being in that 
 service, until they are mustered at the place of ren~ 
 dezvous ; and until that be done, a State has a right, 
 concurrent with the United States, to punish their 
 delinquencies. 
 
 465. After the Militia have- been actually mustered 
 at the place of rendezvous, into the service of the 
 United States, their character changes from State, to 
 National Militia ; and the authority of the General 
 Government over them becomes exclusive. 
 
 466. The Power of levying taxes, and borrowing 
 money, is properly included in the same class with the 
 power of providing for the national defence ; as the 
 latter is specified in the Constitution as one of the 
 leading objects of vesting the power of taxation in 
 Congress. 
 
 467. The support of the National forces, the ex- 
 pense of raising troops, of building and equipping 
 fleets, and all other expenditures in any wise con- 
 nected with military and naval operations, are not, 
 
CHAP. f. OF LEVYING TAXES. 127 
 
 however, the only objects to which the jurisdiction 
 of Congress with respect to revenue, extends. 
 
 468. The terms of the Constitution by which the 
 power is conferred, embrace a provision for the sup- 
 port of the civil establishment of the United States, 
 for the payment of the National debts, and, in gene- 
 ral, for all those objects for which the general welfare 
 requires the disbursement of money from the Na- 
 tional Treasury. 
 
 469. The necessity of vesting this power in the 
 Government of the United States, is obvious ; as no 
 Government can b supported without possessing the 
 means within itself of procuring a regular and ade- 
 quate supply of revenue, so far as the resources at 
 its command will permit. 
 
 470. There must of necessity be conferred on 
 every Government, a power of taxation in some shape 
 or other ; and in the Government of the United 
 States, it is co-extensive with the purposes of the 
 Constitution. 
 
 471. Congress is accordingly invested with power 
 " to lay and collect taxes, duties, imposts, and excises ; 
 to pay the debts, and provide for the common de- 
 fence, and general welfare ;" and it is also invested 
 with a distinct power " to borrow money on the 
 credit of the United States." 
 
 472. The power of taxation is qualified, in its exer- 
 cise, by a provision requiring " that capitation and 
 other direct taxes, shall be apportioned among the 
 several States according to their respective numbers, 
 as ascertained by the census, and determined by the 
 rule for the apportionment of Representatives in 
 Congress." 
 
128 SECURITIES FROM FOREIGN DANGER. PART II. 
 
 473. This power is further qualified by a provision 
 that " all duties, imposts, and excises, shall be equal 
 throughout the United States ;" and it is absolutely 
 restricted by a prohibition upon Congress, to " lay 
 any tax or duties on articles exported from the United 
 States." 
 
 474. The Constitution does not define the exclu- 
 sive subjects of national taxation ; although in some 
 instances an interference with many of the sources 
 of State revenue, must have been foreseen, from the 
 exercise of a concurrent power in the General Go- 
 vernment. 
 
 475. But it was better that a particular State should 
 sustain this inconvenience, than that the general ne- 
 cessities should fail of supply ; and it was manifestly 
 intended that Congress should possess full power, 
 subject only to the specified qualifications and restric- 
 tions, over every species of taxable property. 
 
 476. The term Taxes is general ; and is used in 
 the Constitution to confer a plenary authority on 
 Congress, in all cases of taxation to which the powers 
 vested in the- 'Union extend. 
 
 477. The most familiar general division of taxes, 
 is into direct and indirect ; and although the Consti- 
 tution designates only the former species, it necessa- 
 rily implies the existence of the latter. 
 
 478. The general term, then, includes 
 
 1st. Direct taxes, which are properly capitation 
 
 taxes, and taxes upon Land. 
 2d. Duties, imposts, and excises ; and, 
 3d. All other taxes of an indirect operation. 
 
 479. A direct Tax, operates and takes effect inde- 
 
CHAP. I. OP LEVYING TAXES. 129 
 
 pendently of consumption or expenditure ; whilst 
 indirect Taxes affect expense or consumption ; and 
 the revenue arising from them is dependent there- 
 upon. 
 
 480. The practical importance of this distinction, 
 arises from the different modes in which the different 
 species of taxes are levied ; direct taxes being re- 
 quired to be apportioned amongst the several States, 
 according to the respective numbers of their inhabit- 
 ants ; whilst indirect taxes, not admitting of this ap- 
 portionment, are directed to be " uniform throughout 
 the United States," on the articles subjected to taxa- 
 tion. 
 
 481. If Congress thinks proper to raise a sum of 
 money by direct taxation, the quota of each State 
 must be fixed according to the census, and in confor- 
 mity with the rule of apportionment prescribed by the 
 Constitution ; but if indirect taxation be resorted to, 
 the same duty must be imposed throughout the Union 
 on the article liable to it, whether its quantity or con- 
 sumption be greater or less in the respective States. 
 
 482. The Constitution considers no taxes as direct 
 taxes, but such as may be laid in proportion to the 
 census, and the rule of apportionment is held not to 
 apply to a tax on carriages ; nor could such a tax be 
 laid by that rule, without great inequality and injustice. 
 
 483. A tax on carriages was accordingly consider- 
 ed as an indirect tax on expense or consumption, and 
 as included within the power to lay duties; and the 
 better opinion seems to be, that the direct taxes con- 
 templated by the Constitution are only two, viz ; a 
 capitation or poll-tax, and a tax on land. 
 
 484. Although duties must be uniform, and direct 
 
130 SECURITIES FROM FOREIGN DANGER. PART It. 
 
 taxes apportioned according to numbers, yet the pro- 
 vision of the Constitution, with respect to the latter, 
 does not limit the power of Congress to the imposi- 
 tion of taxes upon the inhabitants of the several 
 States only ; but that power extends equally to all 
 places over which the National Government has ju- 
 risdiction, and applies to the District of Columbia, 
 and to the organized Territories, although their inha- 
 bitants are not represented in Congress. 
 
 485. The power of Congress to exercise exclusive 
 jurisdiction over the District of Columbia, and to go- 
 vern the Territories of the United States, includes the 
 power of taxing their inhabitants ; but Congress is 
 not bound absolutely to exercise that power ; and 
 may, in their discretion, extend a tax, or not, to all 
 the Territories, as well as to the States. 
 
 486. A direct tax, if laid at all, must be laid on 
 every State conformably to the census ; and there- 
 fore Congress has no power to exempt a State from 
 its due share of the burthen ; and although it is not 
 under the same necessity of extending the tax to the 
 District of Columbia, or to the National Territories, 
 yet, if the tax be actually extended to either of them, 
 the same constitutional rule of apportionment, must 
 be applied in its imposition. 
 
 487. The construction which allows Congress, in 
 the exercise of its discretion, to omit extending a tax 
 to those portions of the Union which are not directly 
 represented in the National Legislature, is not only 
 the most convenient interpretation, as the expense of 
 collecting a direct tax in the more remote Territo- 
 ries might exceed its amount, but it enables Congress 
 to avoid the imputation of violating, even in appear- 
 ance, the fundamental principle which regards taxa- 
 tion and representation as inseparable. 
 
CHAP. I. PROTECTING DUTIES. 131 
 
 488. No State can, " without the consent of Con- 
 gress, lay any tonnage duty, or imposts, or duties on 
 imports or exports, except what may be absolutely 
 necessary for executing its inspection Laws," and the 
 net produce of all duties and imposts laid by any 
 State on imports or exports, are declared to " be for 
 the use of the Treasury of the United States/' and all 
 such State Laws are subject to the revision and con- 
 trol of Congress. 
 
 489. Under this power, " to lay and collect duties, 
 imposts, and excises, to pay the debts and provide 
 for the common defence and general welfare of the 
 United States," Congress has, from the earliest pe- 
 riod of the Government, claimed, and exercised au- 
 thority to lay duties for the purpose of encouraging 
 and protecting articles of domestic produce or ma- 
 nufacture, as well as for raising a revenue on im- 
 ports. 
 
 490. But this authority has been questioried, upon 
 a construction of the Constitution, which excludes 
 "the general welfare" as one of the objects for which 
 this branch of the power of taxation was surrendered 
 by the several States ; and denies that it can be ap- 
 plied to any other purposes than that of paying the 
 debts, supporting the civil and military establishments 
 of the Union, and of carrying into effect the powers 
 specificallyenumerated in the Constitution, and vested- 
 by it in Congress. 
 
 491. It is, nevertheless, a sound rule of construc- 
 tion, and universal in its application, that the different 
 parts of the same instrument ought to be so expound- 
 ed, as to give effect, if possible, to the whole, and to 
 every part susceptible of meaning. 
 
 492. As it cannot be presumed that the term " ge- 
 
132 SECURITIES FROM FOREIGN DANGER. PART II. 
 
 neral welfare," was introduced into the Constitution 
 for no purpose whatever, those words cannot be ex- 
 cluded from all share in the meaning, unless they are 
 incapable of bearing any signification in the con- 
 nexion in which they are used, or of being reconciled 
 either to the remainder of the clause of which they 
 form a part, or to other parts of the Constitution. 
 
 493. If objects capable of being embraced by 
 these general expressions, cannot be deemed to be 
 comprised amongst the more definite objects pre- 
 viously or subsequently enumerated, it must be intend- 
 ed that other objects than either of these, were in- 
 tended to be accomplished by means of the taxing 
 power ; and that such further objects comprehend 
 every thing to which " the general welfare" requires 
 this power of Congress to be applied, as the direct 
 means of effecting the end proposed. 
 
 494. Unless Congress have power to afford this 
 encouragement and protection, by the means in ques- 
 tion, such power exists no where in the Union ; as 
 the State Legislatures cannot impose duties on arti- 
 cles of importation without the consent of Congress, 
 and have surrendered to Congress the exclusive pow- 
 er of regulating commerce with foreign nations. 
 
 495. Whether " the general welfare" be, in fact, 
 promoted by imposing duties for the encouragement 
 and protection of domestic manufactures, is a ques- 
 tion of National policy, involving facts and opinions 
 from their nature not cognizable in Courts of Justice, 
 and depending for their determination upon the sound 
 exercise of Legislative discretion. 
 
 496. Whatever may be the opinions of enlightened 
 men, as to the policy of protecting domestic manu- 
 factures, or as to the question, whether " the general 
 
CHAP. I. PROTECTING DUTIES. 133 
 
 welfare" be indeed promoted by the imposition of 
 duties on articles of foreign importation ; those opi- 
 nions must be founded on views of national policy, 
 and principles of political economy, upon which 
 none but the National Legislature can, for any prac- 
 tical purpose, authoritatively decide. 
 
 497. Unless Congress had authority to decide on 
 the facts and principles upon which the exercise of 
 its Legislative discretion depends, those facts and 
 principles would be subject to judicial examination, 
 and a construction might be given to the Constitu- 
 tion, not merely by the judgment of a Court upon the 
 question of law, whether Congress has power " to 
 lay duties to provide for the general welfare," but, 
 upon the opinion of a Jury upon the question of fact, 
 whether the" general welfare" was, upon sound prin- 
 ciples of public policy, actually promoted by protect- 
 ing duties. 
 
 498. The objects to which the surplus revenue 
 arising from protecting duties are applied, unless de- 
 signated in the Law authorizing them to be levied 
 and collected, can have no bearing on the general 
 question of the Constitutionality of Laws, providing 
 merely for their being levied and collected. 
 
 499. When collected and paid into the Treasury 
 of the United States, the proceeds of such duties are 
 at the disposal of Congress ; and as " no money can 
 be drawn from the Treasury, but in consequence of 
 appropriations made by Law," no question as to the 
 constitutionality of the objects to which that portion 
 of the public revenues may be applied, can arise until 
 a Law be proposed for their specific appropriation. 
 
 500. Neither is an inequality in the operation of 
 protecting duties, contrary to the provision of the 
 
134 FOREIGN INTERCOURSE. PART H. 
 
 Constitution, which requires all duties to be uniform 
 throughout the United States ; as the uniformity re- 
 quired is in the imposition, and not in the operation, 
 of the duties ; and whatever may be the fact, in re- 
 gard to their operation, it must depend on the expense 
 and consumption of individuals, which are beyond 
 the control of Legislation. 
 
 501. The power of borrowing money on the credit 
 of the United States, is conferred on the National Go- 
 vernment in general terms ; but as the public credit 
 of the Union must depend on the financial resources 
 placed at its command, this power must have been 
 intended to be exercised in anticipation of the Na- 
 tional resources, and must consequently be subject to 
 the same restrictions, as to its objects, to which the 
 power of taxation is limited and confined. 
 
 CHAPTER II. 
 
 OF THE POWERS VESTED IN THE GENERAL GOVERNMENT, 
 FOR REGULATING INTERCOURSE WITH FOREIGN NA- 
 TIONS. 
 
 502. The powers vested in the General Govern- 
 ment for regulating intercourse with foreign nations, 
 consist 
 
 1st. Of the Powers to make Treaties, and to 
 send and receive Ambassadors, and other 
 public Ministers and Consuls. 
 2d. Of the Power to regulate foreign Com- 
 merce, including a Power to prohibit, after 
 a certain period, now elapsed, the importa- 
 tion of slaves ; and, 
 
 3d. Of the Power to define and punish piracies, 
 and felonies committed on the high seas, 
 and offences against the Law of Nations. 
 
CHAP. II. TREATIES. 135 
 
 503. The Powers to make Treaties, and to send 
 and receive Ambassadors, are essential attributes of 
 National sovereignty; and of that international equali- 
 ty which the interests of every sovereignty require 
 it to preserve. 
 
 504. As Treaties existed between the United States 
 and foreign Nations, at the adoption of the Constitu- 
 tion, it was proper to vary its terms in regard to 
 Treaties, from its general expressions relative to 
 Laws, of the United States ; and to declare, in refe- 
 rence to the former, that " Treaties, made, or -which 
 should be made, under the authority of the United 
 States," should constitute a part of the Supreme Law 
 of the land. 
 
 505. These expressions were considered as includ- 
 ing both Treaties made previously to the Constitution, 
 and those which might be subsequently negotiated ; 
 and it has accordingly been adjudged, that the clause 
 not only applies to Treaties subsisting at the ratifica- 
 tion of the Constitution, as well as to those since con- 
 cluded ; but that it effectually repeals so much of all 
 State Constitutions and Laws as are repugnant to 
 such previously existing Treaties. 
 
 506. More general and extensive terms are used, 
 also, in vesting the power with respect to Treaties, 
 than in conferring that relative to Laws ; and whilst 
 the latter is laid under several restrictions, there are 
 none imposed on the exercise of the former, notwith- 
 standing it is committed to the President and Senate, 
 in exclusion of the House of Representatives. 
 
 507. Although the President and Senate are in- 
 vested with this high and exclusive control over all 
 those subjects of negotiation with foreign Nations, 
 which may eventually affect important domestic in* 
 
136 FOREIGN INTERCOURSE. PART 11. 
 
 terests, yet it would have been impossible to have 
 defined a power of this nature ; and therefore gene- 
 ral terms only were used in conferring it. 
 
 508. These general expressions, however, ought 
 to be scrupulously confined to their legitimate signi- 
 fication ; and in order to ascertain whether the exe- 
 cution of the Treaty-making power can be supported 
 in any given case, the principles of the Constitution, 
 from which the power proceeds, must be carefully 
 applied to it. 
 
 509. The power must be construed in subordination 
 to the Constitution ; and, however in its operation it 
 may qualify, it cannot supersede or interfere with, any 
 other of its fundamental provisions ; nor can it be so 
 interpreted as to authorize the destruction of other 
 powers given in that instrument. 
 
 510. A Treaty to change the organization of the 
 Government, or annihilate its sovereignty, or overturn 
 its Republican form, or to deprive it of its Constitu- 
 tional powers, would be void ; because it would de- 
 feat the will of the People, which it was designed to 
 fulfil. 
 
 511. A Treaty, in its general sense, is a compact 
 entered into with a foreign Power, and extends to all 
 matters which are usually the subject of compact be- 
 tween independent nations. 
 
 512. It is, in its nature, a contract, and not a Le- 
 gislative act ; and does not generally effect, of itself, 
 the objects purposed to be accomplished by conclud- 
 ing it ; but requires to be carried into execution by 
 some subsequent act of sovereign power by the con- 
 tracting parties, especially in cases where it is intend- 
 ed to operate within their respective territories, 
 
CHAP. II. TREATIES. 137 
 
 513. In the United States, however, it is settled 
 by a decision of the Supreme Court, that as the Con- 
 stitution declares a Treaty to be the " Law of the 
 Land," it is to be regarded in Courts of Justice as 
 equivalent to a Legislative Act, whenever it operates 
 of itself, without the aid of any Legislative provi- 
 sion. 
 
 514. But when the terms of the stipulation import 
 an executory contract, the Treaty refers for its exe- 
 cution to the political, and not to the Judicial depart- 
 ment of the Government ; and Congress must pass a 
 Law in execution of the contract, before it can be- 
 come a rule for the Courts. 
 
 515. The Constitution does not distinctly declare 
 whether Treaties are to be held superior to Acts of 
 Congress, or whether Laws are to be co-equal or 
 superior to Treaties ; but the representation held forth 
 to foreign Powers is, that the President, by and with 
 the consent of the Senate, has power to bind the Na- 
 tion in all legitimate compacts ; and if pre-existing 
 Laws, contrary to a Treaty, could be abrogated only 
 by Congress, this representation would be fallacious. 
 
 516. The immediate operation of a Treaty must 
 therefore be, to overrule all existing Legislative Acts 
 incompatible with its provisions; as otherwise the 
 public faith would be subjected to just imputation and 
 reproach, and all confidence in the national engage- 
 ments would be destroyed. 
 
 517. This is not inconsistent with the power of 
 Congress to pass subsequent Laws, qualifying, alter- 
 ing, or wholly annulling a Treaty ; for such an autho- 
 rity, in certain cases, is supported on grounds wholly 
 independent of the power of making Treaties, and is 
 incident to the power of declaring war. 
 
138 FOREIGN INTERCOURSE. PART II. 
 
 518. The exercise of such a right may become ne- 
 cessary to the public welfare and safety, from mea- 
 sures of the party with whom the Treaty was made, 
 contrary to its spirit, or in open violation of its letter ; 
 and on such grounds alone can this right be recon- 
 ciled, either with the provisions of the Constitution, 
 or the principles of public Law. 
 
 519. All Treaties, as soon as finally ratified by the 
 competent authorities, become of absolute efficacy ; 
 and as long as they continue in force, are obligatory 
 upon the whole Nation. 
 
 520. If a Treaty require the payment of money to 
 carry it into effect, and the money can only be raised 
 or appropriated by an Act of the Legislature, the ex- 
 istence of the Treaty renders it morally obligatory 
 on Congress to pass the requisite Law; and its re- 
 fusal to do so, would amount to a breach of the public 
 faith, and afford just cause of war. 
 
 521. That department of the Government, which 
 is entrusted by the Constitution with the power of 
 making "Treaties, is competent to bind the National 
 faith at its discretion ; for the power to make Trea- 
 ties must be co-extensive with the national exigencies, 
 and necessarily involves in it every portion of the 
 national sovereignty, of which the co-operation may 
 be necessary to give effect to negotiations and con- 
 tracts with foreign Nations. 
 
 522. If a Nation confer on its Executive depart- 
 ment, without reserve, the right of treating and con- 
 tracting with other Sovereignties, it is considered as 
 having invested it with all the power necessary to 
 make a valid contract ; and that it is competent to 
 alienate the public domain and property by Treaty ; 
 because that department is the organ of the Nation 
 
CHAP. II. TREATIES. 139 
 
 in making such contracts ; and such alienations are 
 valid, because they are made by the deputed assent 
 of the Nation. 
 
 523. The fundamental Laws may withhold from 
 the Executive department the power of alienating 
 what belongs to the State ; but if there be no express 
 provision to that effect, the inference is, that the Con- 
 stitution has confided to the department charged with 
 the power of making Treaties, a discretion commen- 
 surate with all the great interests and necessities of 
 the Nation. 
 
 524. A power to make Treaties of Peace, neces- 
 sarily implies a power to settle the terms on which 
 they shall be concluded ; and foreign States could 
 not deal safely with the Government, upon any other 
 presumption. 
 
 525. That branch of the Government, which is 
 entrusted thus generally with authority to make valid 
 Treaties of Peace, must, of course, have power to 
 bind the Nation by the alienation of part of its ter- 
 ritory, whether that territory be already in the oc- 
 cupation of the enemy, or remain in possession of 
 the Nation, or whether the property be public or pri- 
 vate. 
 
 526. Individual rights acquired by war, and vested 
 rights of the citizens, may be surrendered by Treaty 
 for national purposes, as it is a clear principle of Na- 
 tional Law, that private rights may be sacrificed for 
 the public safety ; but the Government is bound to 
 make compensation and indemnity to the individuals 
 whose rights are surrendered for the public benefit. 
 
 527. Treaties of every kind, when made by the 
 competent authority, are not only to be observed with 
 
140 FOREIGN INTERCOURSE. PART II, 
 
 the most scrupulous good faith, but are to receive a 
 fair and liberal interpretation ; and their meaning is 
 to be ascertained by the same rules of construction 
 which are applied to the interpretation of private 
 contracts. 
 
 528. If a Treaty should be, in fact, violated by one 
 of the contracting parties, by proceedings incompa- 
 tible with its nature, or by an intentional breach of 
 of any of its articles, it rests with the injured party- 
 alone to pronounce it broken. 
 
 529. The Treaty in such cases is not absolutely 
 void, but voidable at the election of the injured party ; 
 and unless he choose to consider it void, it remains 
 obligatory, as he may either waive or remit the in- 
 fraction, or demand a just satisfaction. 
 
 530. But the violation of any one article, is a vio- 
 lation of the whole Treaty ; for all the articles are 
 dependent on each other, each' of them is deemed a 
 condition of the rest ; and the breach of a single 
 article overthrows the Treaty, if the injured party so 
 elect. 
 
 531. This consequence may, however, be prevent- 
 ed by an express provision in the Treaty itself, that 
 if one article be broken, the others shall nevertheless 
 continue in full force ; and in such a case it would 
 not be competent for Congress to annul the Treaty 
 on the ground of the breach of a single article. 
 
 532. The annulling of a Treaty by an Act of the 
 Legislative Power under the circumstances in which 
 such a measure is justifiable, or its termination by 
 war, does not divest rights of property acquired 
 under it; nor do Treaties in general become ipso 
 facto extinguished by war between the parties : those 
 
CHAP. II. REGULATION OF FOREIGN COMMERCE. 141 
 
 articles which stipulate for a permanent, arrangement 
 of territorial and other national rights, are at most 
 suspended during the war, and revive at the peace, 
 unless waived by the parties, or new or repugnant 
 arrangements are made in a new Treaty. 
 
 533. The Power to regulate Commerce with foreign 
 Nations, is intimately connected with that of con- 
 cluding Treaties, especially with those of Commerce 
 and Navigation ; and its exercise is with equal propri- 
 ety submitted to the National Government. 
 
 534. From the very nature of this power, it must 
 be exclusive ; for if the several States had retained 
 the right of regulating their own Commerce with fo- 
 reign Nations, each of them might have pursued a 
 different system ; mutual jealousies, rivalries, restric- 
 tions, and prohibitions would have ensued, which a 
 common superior alone could prevent, and at the 
 same time command by its authority that confidence 
 of foreign Nations which is necessary to the negotia- 
 tion of foreign Treaties. 
 
 535. The general power of Congress to regulate 
 Commerce, is not restricted to the mere buying and 
 selling, or exchanging, of merchandise and commo- 
 dities, but includes Navigation, as well as commercial 
 intercourse in all its branches, and extends to all ves- 
 sels by whatsoever force propelled, and to whatsoever 
 purposes applied. 
 
 536. The word " Commerce," as used in the Con- 
 stitution, must have been understood, at its adoption, 
 to include " Navigation ;" as the power over both, in 
 conjunction, was a primary object in forming the new 
 Government ; and in this comprehensive sense the 
 term has always been understood, and actually inter- 
 preted, both by the Legislative and Judicial depart- 
 ments of the Government, 
 
142 FOREIGN INTERCOURSE. PART II. 
 
 537. Unless it were so used and understood, the 
 National Government would have no direct power 
 over Navigation ; and could make no Laws prescrib- 
 ing the requisites to constitute " American Vessels," 
 or requiring them to be navigated by " American 
 Seamen ;" which powers have been exercised from 
 the commencement of its action, with the universal 
 consent of the States, and the universal understanding 
 that they were "commercial regulations." 
 
 538. The power to regulate Commerce, thus un- 
 derstood, extends to every species of commercial 
 intercourse between the United States and foreign 
 Nations, and amongst the States of the Union, and 
 the Indian tribes. 
 
 539. Although, in regard to the several States, the 
 power was not intended to comprehend that Com- 
 merce which is completely internal, yet, in regulating 
 Commerce with foreign Nations, the power of Con- 
 gress, in reference to that subject, is not limited by 
 the jurisdictional boundaries of a State. 
 
 540. The Commerce of the United States with fo- 
 reign Nations, is the Commerce of the whole Union ; 
 and each State or JDistrict has an equal right to par- 
 ticipate in it, by means of the navigable streams 
 which penetrate the country in all directions, and 
 pass through the interior of almost every Stale in the 
 Union. 
 
 541. The power of Congress to regulate foreign 
 Commerce, must be exercised wherever the subject 
 exists ; and as a foreign voyage may commence and 
 terminate at a port within the same State, this power 
 of Congress may be exercised within a Slate. 
 
 54*2. The power to prescribe the rule by which 
 
CHAP. II. REGULATION OF FOREIGN COMMERCE. 143 
 
 Commerce is to be governed, like all other powers 
 vested in Congress, is complete in itself, and may be 
 exercised to its utmost extent, without any limitations 
 but such as are prescribed in the Constitution. 
 
 543. As none of the restrictions upon the powers 
 of Congress, which are expressed in the Constitution, 
 affect the power in question ; and as the sovereignty 
 of Congress, though limited to specific objects, is ple- 
 nary in regard to those objects ; the power over Com- 
 merce is vested in the Government of the Union, as 
 absolutely as it would exist in the Government of a 
 single State, if the Union had not been formed, and 
 the State Constitution had contained no further re- 
 strictions on the Legislative Power than are contain- 
 ed in the Constitution of the United States. 
 
 544. The discretion and wisdom of Congress, 'the 
 identity of its members with the People of the seve- 
 ral States, their dependence on their constituents, and 
 their responsibility for misconduct in office, are in 
 this case, as in many others, the only restraints upon 
 which the community has relied to secure it from 
 the abuse of the power ; and these comprehend all 
 the securities upon which the People must often of 
 necessity rely in a Representative Government. 
 
 545. The power of Congress then comprehends 
 Navigation within the limits of every State in the 
 Union, so far as that Navigation may be in any man- 
 ner- connected with " Commerce with foreign Na- 
 tions, or among the several States, or with the Indian 
 tribes." 
 
 546. Although the individual States are important 
 parts of the Federal system, and have retained a 
 concurrent power of Legislation over many subjects 
 of National jurisdiction ; yet when a State proceeds 
 
144 FOREIGN INTERCOURSE. PART II. 
 
 to regulate any but its purely internal Commerce, it 
 exercises the identical power which is granted to the 
 Union, and does the very thing which Congress alone 
 is authorized to do. 
 
 547. As the power of Congress to regulate Com- 
 merce extends to Navigation carried on in vessels 
 exclusively employed in carrying passengers, whether 
 propelled by steam, or by the instrumentality of wind 
 and sails, on waters wholly within a State, but which 
 are navigable from the ocean, an exclusive privilege 
 of Steam Navigation upon such waters claimed under 
 a State, was judicially held to conflict with an au- 
 thority to navigate the same waters, derived from 
 the Laws of Congress ; and so far as this interference 
 extended, the State Law w 7 as declared void, as repug- 
 nant to the Federal Constitution. 
 
 548. As the power of regulating Commerce 
 reaches the interior of a State, and may there be 
 exercised, it is capable of authorizing the sale of 
 those commodities which it introduces ; because the 
 efficacy of the power would be incomplete, if it ceased 
 to operate at the point where the continuance of its 
 operation is indispensable to its value. 
 
 549. The power to allow importation would be 
 nugatory, if unaccompanied by the power to authorize 
 the sale of the thing imported ; for sale is the object 
 of importation, and an essential ingredient in that 
 Commercial intercourse of which importation con- 
 stitutes a part, and as indispensable to the existence 
 of that intercourse, as importation itself. 
 
 550. The right of sale, as well as the right to im- 
 port, being therefore considered as involved in the 
 power to regulate Commerce, Congress has a right, 
 not only to authorize importation, but to authorize the 
 importer to sell. 
 
CHAP. H. REGULATION OP FOREIGN COMMERCE. 145 
 
 551. An Act of a State Legislature, requiring 
 wholsale importers and sellers of foreign goods to 
 obtain a licence from the State, and to pay a sum of 
 money for the privilege of selling, was consequently 
 held to be void, as repugnant not only to that provi- 
 sion of the Constitution which restricts a State from 
 laying duties on imports, but to that which invests 
 Congress with the power "to regulate Commerce." 
 
 552. The power to regulate foreign Commerce 
 extends to the regulation and government of seamen 
 on board merchant ships belonging to citizens of the 
 United States ; to conferring privileges upon ships 
 built and owned in the United States ; to quarantine, 
 pilotage, and embargo Laws ; to wrecks of the seas ; 
 the construction of light-houses ; the placing of 
 buoys and beacons ; the removal of obstructions to 
 Navigation in creeks, rivers, sounds, and bays ; to 
 the establishment of securities to Navigation against 
 inroads of the ocean ; and to the designation of par- 
 ticular ports of entry and delivery for the purposes 
 of foreign Commerce. 
 
 553. The regulation of Commerce has also been 
 employed for the purposes of Revenue ; of prohibi- 
 tion, retaliation, and commercial reciprocity ; to en- 
 courage domestic Navigation ; and to promote the 
 shipping and mercantile interests by bounties, discri- 
 minating duties, and special preferences ; and some- 
 times to regulate intercourse with a view to mere 
 political objects. 
 
 554 It seems to be admitted that Congress may 
 incidentally, in its arrangements for countervailing 
 foreign restrictions, encourage the growth of domes- 
 tic manufactures ; but whilst, on the one hand, it is 
 denied that Congress has a right permanently to pro- 
 hibit any importations unreasonably for the purpose 
 
146 FOREIGN INTERCOURSE. PART II, 
 
 of fostering an interest in favour of which it has no 
 power directly to interfere ; it is insisted, on the other, 
 that Congress does possess Constitutional power to 
 encourage and protect manufactures, by appropriate 
 regulations of Commerce. 
 
 555. The terms of the Constitution, in relation to 
 this power, in connection with the power of laying 
 and collecting duties, are supposed to be sufficiently 
 large to embrace the protection of domestic industry ; 
 and both powers have been applied in practice to 
 the encouragement of manufactures as well as of 
 agriculture, from the commencement of the Go- 
 vernment. 
 
 556. If Congress does not possess the power to 
 encourage domestic manufactures, by regulations of 
 Commerce, that power must, as has appeared, be 
 annihilated for the whole Union ; but as the People 
 of the several States have made a voluntary surren- 
 der of the means essential to the exercise of that 
 power, it seems more reasonable to conclude that 
 the power exists in the National Government, than 
 that it does not exist at all. 
 
 557. The Power of pi ohibiting the importation of 
 Slaves into the United States after the year 1808, 
 and of imposing an intermediate duty on their impor- 
 tation, is included in the power to regulate Com- 
 merce, as the restriction which postponed its exer- 
 cise, arose from an express exception in the grant of 
 the general power. 
 
 558. This power was fully exercised by Congress 
 as soon as the limitation permitted, and in time to 
 afford the first example of the abolition of a spe- 
 cies of traffic which had long been the opprobrium 
 of modern policy ; and the interdiction has been fol- 
 
CHAP. II. OFFENCES AGAINST LAW OF NATIONS. 147 
 
 lowed up, by declaring the Slave trade piracy, and 
 rendering it punishable with death when pursued by 
 citizens of the United States. 
 
 559. The Power^ to define and punish piracies and 
 felonies committed on the high seas, and offences 
 against the Law of Nations, is substantively and se- 
 parately vested in Congress ; although, as to the for- 
 mer objects, it seems unavoidably incident to the 
 power to regulate foreign Commerce ; and as to the 
 latter object, it might be implied from the authority 
 of the National Government to declare war and make 
 Treaties. 
 
 560. The power to define, as well as punish, seems 
 rather applicable to felonies and offences against the 
 Law of Nations, than to piracies ; as piracy is well 
 defined by the Law of Nations to be robbery, or a for- 
 cible depredation on the high seas, without lawful au- 
 thority ; and by thu high seas is understood not only 
 the ocean out of sight of land, but waters on the sea- 
 coast beyond the boundary of low water mark. 
 
 561. The term Felony, in relation to offences on 
 the high seas, is necessarily indeterminate, as it is a 
 term of rather loose signification in the Common 
 Law, from which it is derived ; nor is it used in the 
 criminal jurisdiction of the Admiralty Courts in the 
 same technical sejise it bears at Common Law. 
 
 562. Offences against the Law of Nations are not 
 completely ascertained and defined by any particular 
 code recognized by the common consent of Nations ; 
 so that with respect to them, as well as to felonies, 
 there was a peculiar fitness in granting to Congress 
 the power to define, as well as to punish. 
 
 563. In executing the power to define piracy, it 
 
148 FOREIGN INTERCOURSE. PART tt, 
 
 was not necessary for Congress to insert in the Sta- 
 tute a definition of the crime in terms ; but it was 
 sufficient to refer for its definition to the Law of Na- 
 tions, as it is there defined with reasonable certainty, 
 and does not depend on the particular provisions of 
 any municipal code, either for its definition or punish- 
 ment. 
 
 564. Pirates have been regarded by all civilized 
 nations as enemies of the human race, and the most 
 atrocious violators of the universal law of society ; 
 and they are accordingly every where punished with 
 death. 
 
 565. Every Nation has a right to attack and exter- 
 minate pirates without a declaration of war ; for al- 
 though they may form a loose and temporary asso- 
 ciation amongst themselves, and re-establish in some 
 degree those laws of justice which they have vio- 
 lated with the rest of the world ; yet they are not 
 considered as a National body, or entitled to the laws 
 of war as belonging to the community of Nations. 
 
 566. Pirates acquire no rights by Conquest or the 
 Law of Nations ; and the municipal Laws of every 
 country authorize the true owner to reclaim his pro- 
 perty taken by pirates, wheresoever it can be found ; 
 for those Laws do not recognize any title to be de- 
 rived from an act of piracy. 
 
 567. Congress has the right to pass laws to punish 
 pirates, though they be foreigners, and may have 
 committed no particular offence against the United 
 States ; and for the purpose of giving jurisdiction, it 
 is of no importance on whom, or where, a piratical 
 offence has been committed. 
 
 568. In executing the Power of providing for the 
 
CHAP. II. PIRACY. 149 
 
 punishment of piracy, as defined by the Law of Na- 
 tions, Congress, in conformity with that Law, has 
 declared that it shall be death ; and has, moreover, 
 enacted that if any person concerned in any particu- 
 lar enterprize, or belonging to any particular crew, 
 shall land and commit robbery on shore, such of- 
 fender shall be adjudged a pirate ; in which respect 
 the Statute seems also, to be merely declaratory of 
 the Law of Nations. 
 
 569. Piracy under the Law of Nations, is an of- 
 fence against all Nations, and punishable by all ; and 
 a pirate, who is such by that law, may be punished in 
 any country where he may be found ; but the muni- 
 cipal Laws of any country may declare any offence 
 committed on board its own vessels to be piracy, and 
 it will be punishable exclusively by the Nation which 
 passes such Statute. 
 
 570. The Act of Congress, by which certain of- 
 fences are declared to be piracy, which are not so by 
 the Law of Nations, was intended to punish them as 
 offences against the United States, and not as offences 
 against the human race ; and such an offence, com- 
 mitted by a person not a citizen of the United States, 
 on board of a vessel belonging exclusively to subjects 
 of a foreign State, is not piracy under the Statute, or 
 punishable in the Courts of the United States. 
 
 571. The offence in such cases must be left to be 
 punished by the Nation under whose flag the vessel 
 sails, and whose particular jurisdiction extends to all 
 on board ; for it is a clear and settled principle, that 
 the jurisdiction of every Nation extends to its own 
 citizens, on board of its own public and private ves- 
 sels at sea. 
 
 572. But murder or robbery committed on the 
 
150 FOREIGN INTERCOURSE. PART II- 
 
 high seas, by persons on board of a vessel not at the 
 time belonging to any foreign power, but in posses- 
 sion of a crew acting in defiance of all law, and ac- 
 knowledging obedience to no Government, is within 
 the act of Congress, and punishable in the Courts of 
 the United States. 
 
 573. For although the Statute does not apply to 
 offences committed against the particular sovereignty 
 of a foreign power, and on board of a vessel belong- 
 ing at the time, in fact as well as of right, to a subject 
 of a foreign State, and in virtue of such property sub- 
 ject to his control ; yet it extends to all offences com- 
 mitted against all Nations, by persons who, by com- 
 mon consent, are equally amenable to the Laws of all 
 Nations. 
 
 574. In pursuance of this principle, the moment a 
 vessel assumes a piratical character, she loses all 
 claim to National character, whatever it may have 
 been ; and the crew, whether citizens or foreigners, 
 are equally punishable under the Statute for acts de- 
 clared by it to be piracy. 
 
 575. The Laws of Congress declare those acts pi- 
 racy in a citizen of the United States when commit- 
 ted on a citizen, which would only be belligerent acts 
 if committed on a foreigner ; and a citizen of the 
 United States, who offends against the Government 
 or its citizens, under colour of a foreign commission, 
 is punishable in the same manner as if he had no 
 commission. 
 
 576. The acts of an alien, under the sanction of a 
 national commission, may be hostile, and his Govern- 
 ment responsible for them, but they are not regarded 
 as piratical ; and this rule extends to the Barbary 
 Powers, who are now regarded as lawful Powers, 
 and not as pirates. 
 
CHAP. II. FELONIES ON THE HIGH SEAS. 151 
 
 577. Felony, when committed on the high seas, 
 in effect amounts to piracy ; and has, to a considera- 
 ble extent, been so declared by Congress ; who, in 
 pursuance of the authority vested in them by the Con- 
 stitution, have enacted that any person on the high 
 seas, or in any open roadstead or bay, where the sea 
 ebbs and flows, committing the crime of robbery, in 
 and upon any vessel, or its crew or lading, shall be 
 adjudged a pirate. 
 
 478. The power to define and punish piracy and 
 felonies on the high seas, is exclusive in its nature ; 
 but it has been doubted whether the power to punish 
 other offences against the Law of Nations, ought to 
 be considered as exclusively vested in Congress, on 
 the ground that the Law of Nations forms a part of 
 the Common Law of every State of the Union, and 
 violations of it may be committed on land, as well as 
 at sea. 
 
 579. The jurisdiction of the several States is, how- 
 ever, superseded in regard to those offences against 
 the Law of Nations which are committed at sea ; but 
 it does not seem necessarily to follow, that it is also 
 superseded in regard to those which are committed 
 on shore. 
 
 580. Offences of the latter description are of va- 
 rious kinds, and the power to define and punish them 
 is with great propriety given to Congress ; and so far 
 as they have been denned by the Acts of Congress, 
 they may be said to arise under the Constitution and 
 Laws of the United States, and to be finally, if not 
 exclusively, cognizable under their authority. 
 
 581. But there are some such offences which are 
 not enumerated in the Acts of Congress ; and if the 
 doctrine be sound, that the criminal jurisdiction of 
 
152 FOREIGN INTERCOURSE, PART II. 
 
 the Union is confined to cases expressly provider! for 
 by Congress, either those violations of the JLaw of 
 Nations of this description, of which the punishment 
 remains unprovided for by Congress, must go unpu- 
 nished, or the State Courts must entertain jurisdic- 
 tion of them. 
 
 582. The United States being alone responsible to 
 foreign Nations for all that affects their mutual inter- 
 course, it rests with the National Government to de- 
 clare what shall constitute offences against the Law 
 regulating that intercourse, and to prescribe suitable 
 punishments in case of their commission. 
 
 583. But if cases arise for which no provision has 
 been made by Congress, both the National and State 
 Courts, within the spheres of their respective juris- 
 dictions, are thrown upon those general principles 
 which, being enforced by other Nations, those Na- 
 tions have a right to require to be applied and enforc- 
 ed in their favour. 
 
 584. The offences falling more immediately under 
 the cognizance of the Law of Nations, are, besides 
 piracy, violations of Safe Con ducts, and infringements 
 of the rights of Ambassadors and other foreign Minis- 
 ters. 
 
 585. A safe conduct, or passport, contains a pledge 
 of the public faith that it shall be duly respected, 
 the preservation of which is essential to the character 
 of the Government ; and Congress, in furtherance of 
 the general sanction of public Law, has provided 
 that persons violating safe conducts shall be subject 
 to fine and imprisonment. 
 
 586. The same punishment is provided for persons 
 who infringe the Law of Nations, by offering vio- 
 
CHAP. III. PROHIBITION OP SLAVE TRADE. 153 
 
 lence to Ambassadors, or other public Ministers ; or 
 by being concerned in prosecuting or arresting them ; 
 and the process whereby their persons, or those of 
 their domestics, may be imprisoned, or their goods 
 seized, is declared void. 
 
 587. The policy of these Laws regards such pro- 
 ceedings against foreign Ministers as highly injurious 
 to a free and liberal communication between differ- 
 ent Governments, and mischievous in their conse- 
 quences to any Nation ; as they tend to provoke the 
 resentment of the Sovereign whom the Minister re- 
 presents, and to bring upon the country in which he 
 resides the calamity of war. 
 
 588. The Slave trade is now considered as a pirati- 
 cal trade, not indeed as absolutely prohibited by the 
 Law of Nations, but condemned as such by our own 
 Law, and the Laws of several other civilized Na- 
 tions, as well as by the general principles of justice 
 and humanity. 
 
 CHAPTER III. 
 
 OF THE POWERS VESTED IN THE GENERAL GOVERNMENT, 
 FOR THE MAINTENANCE OP HARMONY AND PROPER IN- 
 TERCOURSE AMONGST THE STATES. 
 
 589. The authority vested in the General Govern- 
 ment, for the maintenance of harmony and proper 
 intercourse amongst the States, includes the particular 
 restraints on the authority of the States, and certain 
 powers vested in the Judicial department. But the 
 former are reserved for a distinct head of considera- 
 tion, and the latter have already been reviewed in 
 examining the structure and organization of the Go- 
 vernment. 
 
154 INTERCOURSE AMONGST THE STATES. PART IT* 
 
 590. The remaining Powers comprehended under 
 this head, are the following, viz : 
 
 1. "To regulate Commerce amongst the several 
 
 States, and with the Indian tribes." 
 
 2. " To establish post-offices and post-roads." 
 
 3. " To coin money ; to regulate the value 
 
 thereof; and to fix the standard of weights 
 and measures." 
 
 4. " To provide for the punishment of counter- 
 
 feiting the securities and public coin of the 
 United States." 
 
 5. " To establish an uniform rule of naturaliza- 
 
 tion throughout the United States." 
 
 6. " To establish uniform rules on the subject of 
 
 bankruptcies ;" and, 
 
 7. " To prescribe, by penal Laws, the manner 
 
 in which the public acts, records, and ju- 
 dicial proceedings of each State shall be 
 proved, and the effect they shall have in 
 other States." 
 
 591. Without the supplemental power to regulate 
 Commerce amongst the States, the primary and indis- 
 pensable power of regulating foreign Commerce, 
 would have been incomplete and ineffectual. 
 
 592. A material object of this power was to se- 
 cure those States which import and export through 
 other States, from unjust contributions levied on them 
 by the latter ; for, had the several States been left at 
 liberty to regulate the trade between each other, ar- 
 ticles of produce and merchandize might have been 
 subjected, during their transit, to duties which would 
 eventually have fallen on the growers or manufac- 
 turers of the one, and the consumers of the other. 
 
 593. The Power " to regulate Commerce among 
 the several States," does not extend to that Com- 
 
CHAP. III. INTERNAL COMMERCE. 155 
 
 merce which is completely internal ; and, compre- 
 hensive as are the terms in which it is conferred, it 
 is, nevertheless, restricted to that Commerce which 
 concerns more States than one. 
 
 594. For the genius and character of the Govern- 
 ment evince that its action is to be applied to all the 
 external concerns of the Nation, and to the internal 
 concerns which affect the States generally ; but not 
 to those which are completely within a State, which 
 do not affect other States, and with which it is not 
 necessary to interfere for the purpose of executing 
 any of the general powers of the National Govern- 
 ment. 
 
 595. The completely internal Commerce of a 
 State is therefore reserved for the State itself; but 
 as the power of Congress, in regulating foreign Com- 
 merce, does not stop at the jurisdictional lines of the 
 States, so the power to regulate Commerce amongst 
 the States, is not limited by State boundaries. 
 
 596. For, not only do waters communicating with 
 the ocean penetrate into the interior, and pass in their 
 course through the several States ; but in many cases 
 there are waters in and upon the boundaries of seve- 
 ral of the States, which, though not navigable to the 
 sea, afford means of Commercial intercourse between 
 those States, and furnish occasions to Congress for 
 the exercise of the power in question. 
 
 597. This power may be exercised wherever the 
 subject exists ; and if the means of Commercial in- 
 tercourse exist within a State ; if, for instance, a 
 coasting voyage may commence or terminate within 
 a State, then the power of Congress to regulate Com- 
 merce amongst the States, may be exercised within 
 a State. 
 
156 INTERCOURSE AMONGST THE STATES. PART II. 
 
 598. As the States which join each other, are se- 
 parated merely by a mathematical line, a trading 
 expedition between them cannot commence and ter- 
 minate without the limits of either; and as other 
 States lie between two States remote from each other, 
 a trading intercourse between the latter, must com- 
 mence in one, terminate in another, and pass through 
 at least a third. 
 
 599. Hence Commerce amongst the States must 
 of necessity be Commerce within the States ; and in 
 the regulation of the Indian trade, the action of the 
 Law is chiefly within individual States ; whilst in this 
 case, as well as with respect to Commerce amongst 
 the States, the power of Congress being co-exten- 
 sive with the subject on which it acts, cannot be 
 stopped at the external boundary of the State, but 
 must enter its limits, and be exercised within its ter- 
 ritorial jurisdiction. 
 
 600. The power of Congress to regulate Com- 
 merce among the States, extends to regulating Navi- 
 gation, and to the coasting trade and fisheries within 
 as well as without any State, wherever they are con- 
 nected with the Commercial intercourse with any 
 other State, or with foreign Nations. 
 
 601. It extends also to the regulation and govern- 
 ment of seamen ; to conferring privileges upon ves- 
 sels engaged in the coasting trade ; and to the navi- 
 gation of vessels engaged solely in carrying passen- 
 gers, as well as of those engaged in traffic, whether 
 propelled by steam or otherwise. 
 
 602. The principles upon which a State Law, re- 
 quiring importers and venders of foreign goods to 
 obtain a licence from the State Government, was 
 declared repugnant to the Constitution of the United 
 
in. INTERNAL COMMERCE. 157 
 
 States, were held to apply equally to a similar in- 
 terference with importations from one State to ano- 
 ther. 
 
 603. Although the power of a State to regulate its 
 purely internal Commerce, and establish its own 
 police to control and promote that trade, and to 
 guard the health and safety of its citizens, are un- 
 doubted ; yet neither these, nor any other acknow- 
 ledged State powers, can, consistently with the Fede- 
 ral Constitution, be so used as to obstruct or defeat 
 the power of Congress to regulate Commerce among 
 the States. 
 
 604. Nevertheless, if measures within the power 
 of State Legislation do not come into actual collision 
 with the powers of the General Government over 
 navigable streams within a State, the National 
 Codrts can take no cognizance of these measures or 
 their effects, where there has been no legislation of 
 Congress, with which the operation of the State Law 
 could interfere. 
 
 605. The power of Congress to regulate Com- 
 merce with the Indian tribes is to be construed in 
 the same manner; and it extends equally to tribes 
 living within, or without, the boundaries of particular 
 States ; or within, or without, the territorial limits of 
 the United States ; and the trade with them, in all its 
 forms, is subject exclusively to the regulation of Con- 
 gress. 
 
 606. The Indian territory within the United States 
 composes a part of the Union ; and in the intercourse 
 between the General government and foreign Na- 
 tions, in commercial regulations, and in any attempt 
 at intercourse between foreign Nations and the In- 
 dian inhabitants, they are considered as within the 
 
 O 
 
158 INTERCOURSE AMONGST THE STATES. PART II, 
 
 jurisdictional limits of the United States, and subject 
 to many of those restraints which are imposed by the 
 latter on their own citizens. 
 
 607. These Indians acknowledge themselves in 
 their Treaties to be under the protection of the 
 United States, and admit that the Government of 
 the Union shall have the sole and exclusive right of 
 regulating the trade with them, and managing all 
 their affairs as it shall think proper. 
 
 608. The tribes thus residing within the acknow- 
 ledged boundaries of the Union, are not deemed fo- 
 reign Nations within the meaning of the Constitution, 
 but are considered as domestic dependent Nations, 
 occupying a Territory to which the United States 
 assert a title, which must take effect when the right 
 of occupancy of the Indians ceases ; and in the mean 
 time, they are in a state of pupilage to the General 
 Government. 
 
 609. They are considered by foreign Nations, as 
 well as by the Federal Government, as so complete- 
 ly under the dominion of the United States, that any 
 attempt to form a political connection with them, or 
 to acquire their lands, would be considered as an act 
 of hostility, and an invasion of the Territory of the 
 United States. 
 
 610. They are distinguished in the Constitution by 
 an appropriate name from foreign Nations, as well as 
 from the several States composing the Union; and 
 the objects to which the power of regulating Com- 
 merce may be directed, are divided into distinct 
 classes, according to that distinction. 
 
 611. The principle adopted for determining the 
 respective rights of the Maritime powers of Europe, 
 
CHAP. in. REGULATION OF THE INDIAN TRADE. 159 
 
 upon their discovery of different parts of the Ameri- 
 can Continent was, that discovery gave a title to the 
 Government by whose subjects, or by whose autho- 
 rity, it was made, which might be consummated by 
 possession. 
 
 612. The admission of this principle gave to the 
 Nation making a discovery, the sole right of acquiring 
 the soil, and of making settlements upon it ; and 
 whilst the principle itself shut out the right of com- 
 petition amongst those who agreed to it, it could not 
 annul the previous rights of those who were not par- 
 ties to its adoption. 
 
 613. It regulated the right givep by discovery 
 amongst the European discoverers, but did not af- 
 fect the rights of those already in possession, either 
 as aboriginal occupants, or as occupants by virtue of 
 a discovery before the memory of man ; and in giving 
 on exclusive right to purchase, it did not found that 
 right on a denial of the right of the possessor to sell. 
 
 614. The relation between the Europeans and the 
 Natives, was determined, in every case, by the par- 
 ticular Government which asserted and could main- 
 tain this pre-emptive privilege, in the particular place ; 
 and the United States succeeded to all the claims of 
 the antecedent Governments, both territorial and po- 
 litical ; but no attempt has been made to enlarge them. 
 
 615. So far as those claims existed merely in theo- 
 ry, or were in their nature exclusive only of the 
 claims of other Nations, they still retain their original 
 character, and continue dormant ; but so far as they 
 have been practically exerted, they exist in fact, are 
 understood by both parties, and have frequently been 
 asserted by the one, and admitted by the other. 
 
 616. The general Law of European Sovereigns 
 
160 INTERCOURSE AMONGST THE STATES. PART Jf 
 
 respecting their claims in America, limited the inter- 
 course of the Indians, in a great degree, to the parti- 
 cular potentate whose ultimate right of domain was 
 acknowledged by the others ; and the consequence 
 was, that their supplies were chiefly derived from 
 that Nation, and their trade confined to it. 
 
 617. Goods indispensable to their comfort, were 
 received from the same source, in the shape of pre- 
 sents ; and the strong arm of Government was inter- 
 posed to restrain the disorderly and licentious from 
 intrusions into their country, from encroachments on 
 their lands, and from those acts of violence which 
 were often attended with reciprocal murder. 
 
 618. In this protection the Indians perceived only 
 what was beneficial to themselves ; as it involved 
 practically no claim on their lands, and no dominion 
 over their persons ; but merely bound them to the 
 European Nation before the Revolution, as it has 
 since, to the Federal Government, as dependent allies, 
 claiming the protection of a powerful friend and 
 neighbour, and receiving the advantages of that pro- 
 tection, without its involving a surrender of their Na- 
 tional character. 
 
 619. Congress has from time to time passed Laws 
 to regulate trade and intercourse with the Indians, 
 which treat them as Nations, respect their rights, and 
 manifest a purpose to afford that protection to them 
 for which Treaties stipulate ; which Laws, and espe- 
 cially the Acts now in force, consider the several In- 
 dian Nations as distinct political communities, having 
 territorial boundaries, within which their authority is 
 exclusive. 
 
 620. The Treaties and Laws of the United States 
 contemplate the Indian territory as completely se^a- 
 
CHAP. III. POST OFFICES AND POST ROADS. 161 
 
 rated from that of the States ; and provide that all 
 intercourse with them shall be carried on exclusively 
 by the Government of the Union ; whilst the powers 
 of Congress to regulate Commerce, to declare war, 
 make peace, and conclude Treaties, comprise all that 
 is required for regulating intercourse with the In- 
 dians. 
 
 621. The Power to establish Post Offices and Post 
 Roads, is necessarily connected with the regulation of 
 Commerce, and the promotion of the general wel- 
 fare ; as a regular system of free and speedy inter- 
 communication is not only of importance to the mer- 
 cantile interests, but of great general benefit. 
 
 This power is exclusive, so far as it relates to 
 the conveyance of letters ; but not in regard to Post 
 roads, as it would be unnecessary for Congress to 
 make another road where a sufficient one lor the pur- 
 pose already existed ; whilst, on the other hand, no 
 State has power to deny or obstruct the passage-of 
 the mail over its public roads. 
 
 6*33. The power of Congress, in relation to this 
 subject, was brought into operation soon after the 
 Constitution was adopted ; and various provisions, in 
 regard to Post Offices and the conveyance of letters 
 and other articles by mail, have been enacted at dif- 
 ferent times, founded on the principle of the power's 
 being exclusive as to those objects. 
 
 624. Under this power, in conjunction with the 
 powers to raise money to provide for the general 
 welfare, and to pass all laws necessary and proper 
 for carrying into execution the powers vested in the 
 General Government, funds have from time to time 
 been set apart by Congress for internal improvements 
 in the several States by means of roads and canals; 
 
162 INTERCOURSE AMONGST THE STATES. PART IT* 
 
 625. The Cumberland road was constructed under 
 a covenant with the State of Ohio, that a portion of 
 the proceeds of public lands lying within that State, 
 should be applied to the opening of roads leading to 
 it, with the consent of the States through which the 
 road might pass. 
 
 626. But after the expenditures upon that road 
 had exceeded the proceeds of the lands appropriat- 
 ed for its construction, bills passed by both houses 
 of Congress at different times, appropriating funds for 
 continuing it, as well as subsequent bills for similar 
 objects, were severally objected to by successive 
 Presidents of the United States, and eventually lost 
 upon their return with the objections to Congress. 
 
 ' 627. The Executive Department denied on those 
 occasions, any such Constitutional power in Congress 
 as the respective Bills assumed to exist ; or that such 
 power could be vested in the National Legislature, 
 by the Act of a State consenting to its exercise. 
 
 628. Congress, however, still claim the power to 
 lay out, construct, and improve Post roads and Mili- 
 tary roads, with the assent of the States through 
 which they pass, as well as to construct Canals 
 through the several States, for promoting and secur- 
 ing internal Commerce, and for the more safe and 
 economical transportation of troops and military 
 stores in time of war ; leaving the jurisdictional right 
 over the soil to the respective States. 
 
 629. By an Act passed with the assent of the Ex- 
 ecutive in 1824, the necessary surveys, plans, and 
 estimates, were authorized to be made of such roads 
 and canals, as the President might deem of national 
 importance, or necessary for the transportation of 
 the public mail ; and a large sum of money was ap- 
 
CHAP. III. COINING AND VALUE OF MONEY. 163 
 
 propriated from the Treasury for defraying the ex- 
 pences incurred by the execution of this Law. 
 
 630. But in the year 1830 a Bill passed by both 
 Houses appropriating a sum of money from the Trea- 
 sury as a Subscription to the Stock of a Turnpike 
 road exclusively within a State, was returned with 
 objections by the President, and was finally lost in 
 the House of Representatives, in which it had origi- 
 nated. 
 
 631. The objections of the President to this par- 
 ticular appropriation were founded on the principle 
 that Congress were not authorized to appropriate 
 money to any other objects than such as were in- 
 cluded amongst the enumerated powers vested in 
 the National Government ; and he, moreover, con- 
 sidered that the work proposed to be aided did not 
 fall within any of those powers, as it was of a local 
 and State, and not of a general and national charac- 
 ter. 
 
 632. This distinction seems conformable to the 
 principle already stated, that "the action of the Ge- 
 neral Government may be applied to all the exter- 
 nal concerns of the Nation, and to those internal con- 
 cerns which affect the States generally ; but not to 
 those which are completely within a particular State, 
 which do not affect other States, and with which it 
 is not necessary to interfere for the purpose of exe- 
 cuting any of the general powers of the Govern- 
 ment." 
 
 633. The Power " to coin money, and to regulate 
 the -value thereof, and of foreign coins" is rendered 
 exclusive by a subsequent provision of the Constitu- 
 tion prohibiting the individual States from its exer- 
 cise ; whilst the power " of fixing the Standard of 
 
 *W 
 
164 INTERCOURSE AMONGST THE STATES. PART If, 
 
 weights and measures" seems also, for the sake of 
 uniformity, proper for the exclusive exercise by Con- 
 gress ; but as they have not legislated on this sub- 
 ject, it is presumed that, until they do, each State re- 
 tains the right of adopting and regulating its own 
 standard. 
 
 634. The power of coining money is one of the 
 ordinary prerogatives of Sovereignty, and is almost 
 universally exercised in order to preserve a proper 
 circulation of good coin of a known value ; and to 
 secure it from debasements, it is necessary that it 
 should be exclusively under the control and regula- 
 tion of the Government. 
 
 635. The object of vesting this power in Con- 
 gress, was to produce uniformity of value throughout 
 the Union, and it is obvious that the exclusive pos- 
 session of this power by the General Government f 
 could alone secure a wholesome and uniform Na- 
 tional currency ; and prevent the embarrassments, 
 vexations, and frauds, which the varying standards 
 and regulations of the different States would intro- 
 duce in the course of trade. 
 
 636. The Power of Congress " to provide for the 
 punishment of counterfeiting the public securities and 
 current coin of the United States " necessarily follows 
 the powers to borrow money and regulate the coin j 
 as, without this, the preceding powers would be devoid 
 of any adequate sanction. 
 
 637. This Power seems to be exclusive of that of 
 the States, as it is an appropriate means afforded by 
 the Constitution to carry into effect other delegated 
 powers not antecedently existing in the States ; yet 
 it appears to be taken for granted by the Acts of 
 Congress relative to the offences in question, that 
 
CHAP. HI. PUNISHMENT OF COUNTERFEITING. 165 
 
 cognizance of them may, under certain cireumstan* 
 ces, be concurrently exercised by the State Courts. 
 
 638. The Power " to establish an uniform system of 
 Naturalization? is necessarily exclusive, especially as 
 it is provided in a subsequent part of the Constitution, 
 that " the Citizens of each State shall be entitled to 
 all the privileges and immunities of Citizens in tho 
 several States ;" and accordingly this power has been 
 judicially held to be exclusive, on the ground of its 
 direct repugnancy or incompatibility with the exer- 
 cise of a similar power by the States. 
 
 639. The Constitution contains no definition of the 
 character of a Citizen ; but the term is used in plain 
 reference to the Common Law, which is regarded 
 not only as the means or instrument of exercising the 
 jurisdiction conferred by the Constitution, but in 
 many instances must be resorted to as the interpreter 
 of its meaning. 
 
 640. At the time the Constitution was adopted, 
 the Citizens of each State, collectively, constituted 
 the Citizens of the United States ; and were either 
 Native Citizens, or those born within the United 
 States, or naturalized Citizens, or persons born else- 
 where, but who, upon assuming the allegiance, had 
 become entitled to the privileges, of native Citizens. 
 
 641. All who were resident Citizens at the time of 
 the Declaration of Independence, and deliberately 
 yielded to that measure an express or implied sanc- 
 tion, became parties to it, and are to be considered as 
 natives ; their social tie being coeval with the Nation, 
 itself, 
 
 642. All persons born within the Colonies whilst 
 t to the British Crown, were natural-born Bri^ 
 
166 INTERCOURSE AMONGST THE STATES. PART II, 
 
 tish subjects ; and it necessarily follows, that this cha- 
 racter was changed by the separation of the Colonies 
 from the parent State, and the subsequent acknow- 
 ledgment of their independence.- 
 
 643. The rule, as to the point of time at which 
 Americans born before the separation, ceased to be 
 British subjects, differs in the United States and in. 
 England ; that established by the Courts in England 
 adopts the date of the Treaty of Peace in 1783, 
 whilst the Federal tribunals have fixed upon the date 
 of the Declaration of Independence. 
 
 644. The settled doctrine in the United States is, 
 that a person who left the country before the Decla- 
 ration of Independence, and never returned, thereby 
 became an Alien ; and, as a general rule, the charac- 
 ter in which Americans born before the Revolution 
 are to be considered^ depends on the situation of the 
 party, and the election made by him, at the Decla- 
 ration of Independence, according to our rule, and 
 at the Treaty of Peace, according to the British rule, 
 
 645. Difficulties have occurred in cases where 
 rights have accrued between these dates ; but if the 
 right of election be admitted at all, it must be deter- 
 mined by what took place during the Revolution, and 
 between the Declaration of Independence and the 
 Treaty of Peace. 
 
 646. It is the doctrine of the English Law, that 
 natural-born subjects owe an allegiance which is in- 
 trinsic and perpetual, and cannot be divested by any 
 act of their own ; but it is a question which has been 
 frequently and gravely debated in the Courts, whether 
 this doctrine applies in its full extent to the United 
 States. 
 
 647. The best writers upon public Law, although 
 
CHAP. HI. NATURALIZATION. 167 
 
 they treat the subject somewhat loosely, seem gene- 
 rally to favour the right of the Citizen to emigrate 
 and abandon his native country, unless there be some 
 positive restraint by Law, or he is at the time in pos- 
 session of some public trust, or his country be in dis- 
 tress or at war, and in need of his services. 
 
 648. The principle declared in some of the State 
 Constitutions, that the Citizens have a natural and in- 
 herent right to emigrate, amounts to a renunciation 
 by those States, of the English Common Law, as be- 
 ing repugnant to the natural liberty of mankind ; pro- 
 vided emigration is intended in those cases to be used 
 as synonymous with expatriation. 
 
 619. But the allegiance of Citizens of the United 
 States, is due not only to the local Governments un- 
 der which they reside, but primarily to the General 
 Government, which alone affords them National pro- 
 tection ; and the doctrine of final and absolute expa- 
 triation, although frequently discussed, remains yet to 
 be finally settled in the Courts of the United States. 
 
 650. This doctrine, however, is not applied by the 
 British Courts to Americans born before the Revolu- 
 tion, as the Treaty of Peace is deemed a release from 
 their allegiance, of all British subjects, who remained 
 in this country. 
 
 651. As the British doctrine is, that Americans 
 born before the Revolution, by remaining in the 
 United States after the Treaty of Peace, lost their 
 character as British subjects ; so the American doc- 
 trine is, that by withdrawing from the country, and 
 adhering to the British Government after the Decla- 
 ration of Independence, they lost, or rather never ac- 
 quired, the character of American Citizens. 
 
168 INTERCOURSE AMONGST THE STATES. 4>ARt H. 
 
 652. All persons born out of the jurisdiction of the 
 United States, are termed Aliens ; but there are some 
 exceptions to this rule, derived from the ancient 
 English Law ; as in the case of children of public 
 Ministers born abroad, whose parents owed not even 
 a local allegiance to the foreign power; and all 
 children born abroad of English parents, were con- 
 sidered as natives of England, if the father went and 
 continued abroad in the character of an English sub- 
 ject. 
 
 653. By the existing Law of the United States 
 relative to Naturalization, it is declared, that the chil- 
 dren of persons who were, or had been, Citizens of 
 the United States at the time of passing the Act, 
 should, though born out of the United States, be con- 
 sidered as Citizens ; but that the right should not de- 
 scend to persons whose fathers had never resided 
 within the United States. 
 
 654. Aliens coming to the United States, with the 
 intention of permanently residing therein, have many 
 inducements to become Citizens, as they are incapa- 
 ble, until naturalized, of possessing a stable interest in 
 lands in many of the States, or of holding any civil 
 office, or of voting at elections, or taking any active 
 share in the administration of the General or State 
 Governments. 
 
 655. A convenient and easy mode has been pro- 
 vided by Congress for removing the disabilities of 
 Aliens ; and the terms on which every Alien, being a 
 free white person, can obtain the qualifications and 
 privileges of a natural -born Citizen, are prescribed in 
 the several Acts of Congress relative to the subject. 
 
 656. The rights of Aliens to the privilege of Natu- 
 ralization are, by these Laws, submitted to the deci- 
 
CiTAP. III. BANKRUPTCY. 169 
 
 sion of Courts of Record ; and a person duly na- 
 turalized, becomes entitled to all the privileges and 
 immunities of a natural-born Citizen, except that a 
 residence of seven years is requisite to enable him to 
 hold a seat in Congress, and that he is not eligible to 
 the office of President of the United States, or of 
 Governor in several of the States. 
 
 657. The Power of Congress " to establish uniform 
 Lazos on the subject of Bankruptcies" is intimately 
 connected with the regulation of Commerce ; and 
 there are peculiar reasons why the National Govern- 
 ment should be entrusted with this power, arising 
 from the importance of preserving uniformity and 
 equality of rights amongst the citizens of all the States, 
 and of maintaining commercial credit and intercourse 
 w.ith foreign Nations. 
 
 658. Under Governments which authorize perso- 
 nal arrests and imprisonments for debts, it has been 
 found necessary to provide for the relief of debtors, 
 in cases of inevitable misfortune ; and especially in 
 the case of insolvent merchants, who, from the habits 
 and nature of trade, are under the necessity of giving 
 and receiving credit, and of encountering extraordi- 
 nary hazards. 
 
 659. Bankrupt and Insolvent Laws, besides reliev- 
 ing the debtor, are intended to secure the application 
 of his effects to the payment of his debts ; and the 
 distinction between them is not so clearly marked as 
 to determine with positive precision what belongs 
 exclusively to the one or to the other species of these 
 Laws. 
 
 660. Bankruptcy, in the English Law, has by long 
 and settled usage received an appropriate meaning ; 
 and has been considered applicable only to unfortu- 
 nate traders, who do certain acts which afford evi- 
 
 P 
 
170 INTERCOURSE AMONGST THE STATES. PART II. 
 
 dence of their intention to avoid the payment of their 
 debts ; or of their inability to discharge them. 
 
 661. It has been said that Insolvent Laws are such 
 as merely liberate the person of the debtor, whilst 
 Bankrupt Laws discharge him from his contracts ; 
 but this distinction is not supported by any uniformity 
 of legislation, and it is the more difficult to discrimi- 
 nate between them, because Bankrupt Laws fre- 
 quently contain those regulations which are generally 
 found in Insolvent Laws, and Insolvent Laws some, 
 that are usual in Bankrupt Laws. 
 
 662. Although Bankrupt Laws are generally and 
 properly confined in their operation to the trading 
 classes, who are most exposed to pecuniary vicissi- 
 tudes, yet, as misfortune and poverty may also over- 
 take those who pursue other occupations, the latter 
 are not excluded from the protection of the State Le T 
 gislatures, 
 
 663. Nor ought traders or their creditors to be left 
 without means of relief, in case Congress do not in 
 their discretion think proper to exercise the power 
 vested in them relative to Bankruptcy ; and according- 
 ly this power is held not to exclude the right of the 
 States to legislate on the subject, except when the 
 power has been actually executed by Congress. 
 
 664. The power of Congress to establish uniform 
 Laws on the subject of Bankruptcy, is not granted in 
 such terms, nor are its nature and character such as 
 require that it should be exercised exclusively by 
 Congress ; consequently a State has a right to pass 
 either Bankrupt or Insolvent Laws, provided there be 
 no Act of Congress in force establishing a uniform 
 system of Bankruptcy, with which the State Law 
 
 conflict. 
 
CHAP. IH. PROOF AND EFFECT OF STATE RECORDS. 
 
 171 
 
 665. But the power of the States does not extend 
 to passing Bankrupt or Insolvent Laws which dis- 
 charge the obligation of antecedent contracts ; for, un- 
 der the restriction contained in the Constitution, a 
 State Law can discharge such contracts only as 
 were made subsequently to its enactment, within the 
 State and between its own citizens, and it does not 
 extend to contracts, although made within the State, 
 if made with a citizen of another State ; nor to any 
 contract, by whomsoever made, if made in other 
 States or foreign countries. 
 
 666. The Legislature of the Union possesses the 
 power of enacting Bankrupt Laws, and the State Le- 
 gislatures of enacting Insolvent Laws ; and a State 
 has, moreover, authority to pass a Bankrupt Law 
 when no Act of Congress exists on the subject with 
 which the State Law might conflict. But whether 
 Congress legislate on the subject or not, no Bank- 
 rupt, Insolvent, or other Law passed by a State, is 
 permitted by the Federal Constitution " to impair the 
 obligation of Contracts." 
 
 667. Although Congress has heretofore exercised 
 the power vested in it relative to the subject, yet its 
 former Bankrupt Laws were suffered to expire by their 
 own limitation ; and at present there is no uniform sys- 
 tem of Bankruptcy in operation in the United States. 
 
 668. The power of Congress " to prescribe, 1 *' in its 
 discretion, " by general Laws, the manner in which the 
 public acts, records, and judicial proceedings of each 
 State shall be proved, and the effect they shall have in 
 other States" has been found, as was intended, a con- 
 venient instrument of justice, and particularly bene- 
 ficial on the borders of contiguous States, where 
 persons and effects liable to judicial process, may be 
 suddenly and clandestinely removed to a foreign ju- 
 risdiction. 
 
172 MISCELLANEOUS POWERS. PART it- 
 
 669. The clause vesting this power previously de- 
 clares that " full faith and credit shall be given in each 
 State, to the public acts, records, and judicial pro- 
 ceedings of every other State ;" and the Act passed 
 by Congress in execution of this power, not only 
 prescribes the manner of authentication, but declares 
 that when so authenticated, they " shall 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." 
 
 670. The Common Law gives to the Judgments 
 of the Courts of one State the effect of prima facie 
 evidence, or evidence open to impeachment, expla- 
 nation, or contradiction, in the Courts of every other 
 State ; but the Constitution contemplates, and Con- 
 gress have executed, a further power of giving a con- 
 clusive effect to such judgments as evidence admit- 
 ting neither of impeachment, explanation, or contra- 
 diction, in the Courts of every other State, provided 
 they have that effect in the State in which they am 
 rendered. 
 
 CHAPTER I\ r . 
 
 OF THE POWERS VESTED IN THE FEDERAL GOVERNMENT, 
 RELATIVE TO CERTAIN MISCELLANEOUS OBJECTS OF GE- 
 NERAL UTILITY. 
 
 671. The Powers vested in the Federal Govern- 
 ment, in relation to certain Specified objects of ge- 
 neral utility, comprehend 
 
 I. A Power " to promote the progress of Sci- 
 ence and the useful Arts, by securing, for 
 limited times, to authors and inventors, the 
 exclusive right to their writings and disco- 
 veries." 
 
CHAP. IV. PROMOTION OF SCIENCE. 173 
 
 
 
 672. Before the American Revolution, the right 
 of property of authors and inventors in their inven- 
 tions and discoveries, was made a question in Eng- 
 land ; and it was finally settled by a Judgment of the 
 House of Lords, reversing an almost unanimous de- 
 cision of the Court of King's Bench, that this right 
 had no foundation in the Common Law. 
 
 673. Even those Judges in the Court below, who, 
 reasoning upon different principles, arrived at the op- 
 posite conclusion, seem to have been perplexed with 
 the indefinite nature of such a right, and embarrassed 
 by the consequences of admitting it. 
 
 674. To deprive men of genius of the right to the 
 profits of invention was, on the one hand, discourage 
 ing to the useful arts, and injurious to the progress 
 of learning and science ; whilst, on the other hand, an 
 unlimited right to the exclusive enjoyment of the 
 fruits of genius and discovery, although for a time it 
 might stimulate both, would, in its consequences, 
 levy a perpetual tax on posterity, and impede the 
 progress of invention itself. 
 
 675. Yet, to deny to inventors the fair profits de- 
 rivable from their talents and exertions, seemed to 
 be at variance with the dictates of natural justice and 
 liberal policy, as it was, in effect, to deny to genius its 
 appropriate reward ; and to withhold from the pow- 
 ers of intellect, one of the strongest stimulants to 
 their activity. 
 
 676. The existing Statute, enacted in the reign of 
 Queen Anne, limiting the rights of authors and in- 
 ventors to a term of years, was regarded as a com- 
 promise by which their claims were acknowledged, 
 their rights defined and protected, and their reward 
 secured ; whilst a public interest was effectually cre- 
 ated, and its benefit transmitted to posterity. 
 
174 MISCELLANEOUS POWERS. PART IIV 
 
 677. With this Statute, and this decision before 
 them, and with a full knowledge of the principles and 
 policy on which both were founded, the several 
 States ceded to Congress the power " to promote 
 the progress of Science and the useful Arts, by se- 
 curing, for limited times, to authors and inventors the 
 exclusive right to their writings and discoveries.'' 
 
 678. The English Law had limited the right to a 
 term of years ; the Power ceded by the Federal Con- 
 stitution was to secure it for limited times ; the for- 
 mer restricting the right to a definite term ; the lat- 
 ter adopting the same principle, but leaving the quan- 
 tum of interest to the discretion of Congress. 
 
 679. In execution of this power, several Acts have 
 been passed by Congress, and are now in force, de- 
 fining the times for which the exclusive rights of au- 
 thors and inventors to their respective writings and 
 discoveries, shall be enjoyed, and securing them in 
 sucli enjoyment for different periods in different 
 cases. 
 
 680. The object, therefore, of this provision of the 
 Constitution, and of the Laws enacted under it, was 
 twofold ; first, to secure to inventors and authors a 
 reward for their genius, by granting them an exclu- 
 sive privilege for limited times ; and secondly, to se- 
 cure to the public the benefit of their inventions, by 
 bringing the property in them into the common 
 stock, after the expiration of the exclusive grant. 
 
 681. This double object can only be effected by 
 such a construction of the Constitution as will leave 
 to Congress the exclusive power of legislation on the 
 subject - r although it has been held in some of the 
 State Courts that the power is concurrent and may 
 t>e exercised by the State legislatures, provided their 
 laws do not contravene the Acts of Congress. 
 
CHAP. IV. PROMOTION OP SCIENCE. 
 
 175 
 
 682. Prior to the adoption of the Federal Consti*- 
 ttition, legislative Acts in favour of valuable discove- 
 ries and improvements had been passed in some of 
 the States ; but their efficacy being confined to the 
 respective limits of those States, the privileges they 
 conferred were of little value ; and it was provided 
 in the first Act of the National legislature, in relation 
 to the subject, that the applicant for the benefit of the 
 national protection, should surrender his right under" 
 any State Law, 
 
 683. Hence it seems to have been supposed that* 
 Congress could not effectually secure the exclusive 1 
 rights of authors and inventors, without the exercise 
 of an exclusive power of legislation on the subject ; 
 and the necessity of such a power was an adequate 
 reason for vesting it in the paramount authority of 
 the Union. 
 
 684. The power under consideration falls under 
 that class of cases, in which the exercise of a similar 
 power by the States would be repugnant and con- 
 tradictory to the power vested in Congress ; and in 
 relation to its particular objects, the power of Con- 
 gress seems to be necessarily exclusive, both from 
 the terms, and the nature, of the grant. 
 
 685. The power of Congress being to secure the 
 exclusive rights of authors and inventors for limited 
 times, a concurrent power in a State over the sub- 
 ject, must arise from the unceded portion of its sove- 
 reignty, and must consequently be a power -without 
 limit of time ; but Congress could not secure to the 
 inventor for a limited time, the enjoyment of that 
 which a State might grant to another forever. 
 
 686. The power of Congress seems, moreover, to 
 be exclusive, in this case, from the nature of the grant f 
 
176- MISCELLANEOUS POWERS. PART II. 
 
 because if each of the States have a concurrent right, 
 its exercise by them would defeat the twofold object 
 of the grant ; which was to secure to the public the 
 benefit and transmission of invention, as well as to 
 reward authors and inventors for their productions 
 and discoveries. 
 
 687. If the individual States have a! concurrent 
 power with the United States, it is evident that 
 neither of those objects can be secured by Congress,- 
 for if Congress prescribe fourteen years as the limit 
 of exclusive rights, and render them common at the 
 expiration of that period ; each State might fix a dif- 
 ferent period, or might secure a right of property to 
 authors or inventors without limitation of time ; or 
 might reduce the term of exclusive enjoyment to a 
 minimum, or even declare their writings and disco- 
 veries to be common property. 
 
 688. If a State in the exercise of any of the inde- 
 pendent powers of legislation retained by it, comes 4 
 into collision with this power of Congress, and privi- 
 leges granted by the respective authorities of a State, 
 and of the Union come into actual conflict, and are 
 found repugnant or irreconeileable with each other, 
 the State Law, or the right or privilege claimed under 
 it, must, as in other cases of collision, yield to the su> 
 perior power of Congress.- 
 
 680. As a coasting licence not only ascertains the 1 
 National character and the ownership of the vessel,, 
 but confers a right of Navigation ; and as a right to 1 
 import goods involves the right to sell them ? so a 
 Patent or a Copyright not only ascertains the title of 
 the Patentee as an inventor or an author, but con- 
 fers on him a paramount right of using, and vending 
 to others to use, his discoveries or writings. 
 
 690* There is this distinction, however, between 
 
CHAP. IV. PROMOTION OP SCIENCE. 
 
 the property which an author may have in his wri- 
 tings, and that which an inventor may have in his 
 discoveries, that the former has no beneficial property 
 whatever in his works independent of what may be 
 derived from their sale ; whilst an inventor may, 
 in a very restricted sense, use his invention for pur- 
 poses of profit. 
 
 691. To both authors and inventors, a right of sale 
 is nevertheless indispensable, though more manifestly 
 so in the first case than in the last ; as every other 
 subject of property may be partially enjoyed, although 
 the right of sale be restricted or forbidden ; but the 
 right of property of authors and inventors is so es- 
 sentially connected with the right of sale, that the 
 inhibition of that right annihilates the whole subject. 
 
 692. Accordingly the Acts of Congress passed in 
 virtue of this constitutional power, secure to an au- 
 thor, or his assignee, " the sole right and liberty of 
 printing, reprinting, publishing and vending" his work; 
 and to a Patentee, " the full and exclusive right and 
 liberty of making, constructing, using, and vending to 
 others to be used," his invention or discovery, within 
 the times limited for the enjoyment of their respective- 
 privileges. 
 
 693. A State may prohibit the use of any partietK 
 lar invention as noxious to the health, injurious to the 
 morals, or in any respect prejudicial to the welfare of 
 its citizens ; but the Government of the Union must 
 possess exclusively the power of determining whether 
 an invention for which a Patent is sought, be useful or 
 pernicious, i. e. whether it be one for which a Patent 
 ought to be granted. 
 
 694. As the object of the constitutional power o 
 Congress is the promotion of the useful Arts, an in*- 
 
178 
 
 MISCELLANEOUS POWERS. PART II. 
 
 vention useless or pernicious would not be a proper 
 subject for its exercise ; but should a Patent for such 
 an invention have unadvisedly been issued, the Na- 
 tional authority may repeal the Patent, and interdict 
 the use of the noxious discovery. 
 
 695. If a thing in itself pernicious, be patented, 
 the Patentee could recover no damages for the viola- 
 tion of his right ; as his Patent would confer no right 
 of property : and if a patented invention be useful in 
 itself, but the art or manufacture to which it relates, 
 be injurious in its exercise to the public health, the 
 Patent would afford no protection for the nuisance ; 
 because private interests must in all cases yield to 
 the public good and not because the Federal power 
 is superseded or controlled by the State Laws. 
 
 So if the author of an immoral or libelous 
 book prosecute for the invasion of his Copyright, he 
 could recover no indemnity ; and if prosecuted for 
 his offence against the State Law in issuing such a 
 publication, the authority of the United States would 
 not protect him ; because, in the one case, his Copy- 
 right would invest him with no right of property ; and 
 in the other, would convey no right to use his property 
 to the injury of others. 
 
 697. Restrictions imposed by State Laws, which 
 are general in their operation, and not confined to' 
 Patentees or authors, in no sense derogate from the 
 exclusive power of Congress to promote the progress 
 of Science and the useful Arts. 
 
 698. But a construction of the Constitution, ad- 
 mitting that the States, in the exercise of an absolute 
 discretion, may prohibit the introduction or use of any 
 particular invention or writing, for which a Patent or 
 a Copyright has been regularly obtained and continues* 
 
,HAP. IV. LOCAL JURISDICTION OF COiNGRESS. 179 
 
 in full force, would render the power of Congress 
 nugatory ; and the States would substantially retain 
 the very power they had nominally parted with. 
 
 699. The several States, nevertheless, retain all 
 other means of rewarding genius, promoting Science 
 and the Arts, of encouraging new discoveries, and 
 inviting useful improvements, except this particular 
 power ceded to the Union ; and each State may use 
 them in any way that ingenuity and good policy may 
 dictate, and which does not interfere with the exer- 
 cise of the power vested for those purposes in Con- 
 gress. 
 
 700. The reason of this difference is, that all other 
 modes of rewarding and encouraging genius, promot- 
 ing Science, and inviting improvements in the useful 
 Arts, may, without danger of being defeated by the 
 conflicting Laws of co-ordinate Legislatures, be safe- 
 ly committed to the several States ; whilst from the 
 peculiar nature of the Federal system, the simple 
 mode of securing a right of property to authors and 
 inventors in their writings and discoveries, must, in 
 order to effect that end, be exclusive in the General 
 Government. 
 
 701. The next Power of a miscellaneous character 
 which the Constitution vests in Congress, is 
 
 II. The Power " to exercise exclusive Legisla- 
 tion in all cases whatsoever, over such Dis- 
 trict not exceeding ten miles square, as 
 might, by cession of particular States, and 
 the acceptance of Congress," become the 
 seat of the Government of the United 
 States ; and " to exercise like authority over 
 all places purchased by the consent of the 
 Legislatures of the States in which the 
 same shall be situate, for the erection of 
 
J80 MISCELLANEOUS POWERS. PART It 
 
 forts, magazines, arsenals, dock-yards, and 
 other needful buildings." 
 
 702. Without complete supremacy and control at 
 at the seat of the National Government, the Federal 
 authority might be insulted, and its proceedings in- 
 terrupted with impunity ; whilst a dependence of 
 the members of the General Government on one of 
 the States for protection in the exercise of their du- 
 ties, might subject the National Councils to the im- 
 putation of partiality. 
 
 703. This consideration had the greater weight, 
 as the public archives liable to destruction would 
 accumulate, and the gradual multiplication of public 
 documents, at the stationary residence of the Go- 
 vernment, would create further obstacles to its remo- 
 val, and further abridge its necessary independence, 
 
 704. The necessity of a like authority over the 
 forts, arsenals, dock-yards, and their appendages, es- 
 tablished by the National Government, is not less evi- 
 dent ; as the public money expended on such places, 
 and the public property deposited in them, require 
 that they should be exempt from the authority of the 
 particular State in which they are situate. 
 
 705. Nor would it be proper that places on which 
 the security of the entire Union might depend, should 
 be in any degree dependent on a particular member ; 
 whilst all scruples and objections are obviated by 
 requiring the concurrence of the States concerned, 
 in every such establishment. 
 
 706. The cessions of territory contemplated for 
 the first object were duly made, and Congress were 
 thereby enabled to execute this power, by establish^ 
 ing, under their own jurisdiction, a permanent seat for 
 the National Government. 
 
C5HAP, IV. LOCAL JURISDICTION OF CONGRESS. 181 
 
 707. This Territory was erected into a " District" 
 under the exclusive jurisdiction of Congress, by the 
 name of " the District of Columbia" and " the City 
 of Washington" was built in a central position there- 
 in ; the necessary edifices were erected for the ac- 
 commodation of the Federal Government, and its 
 seat was permanently established there at the com- 
 mencement of the present century. 
 
 708. Municipal Corporations have been created 
 by Congress for managing the local concerns of the 
 Federal City, and of the Cities of Georgetown and 
 Alexandria, which are also both comprised within 
 the limits of the ten miles square ceded by the States 
 of Maryland and Virginia, for the purpose expressed 
 in the Constitution. 
 
 709. Laws have from time to time been passed by 
 Congress for the government of the District of Co- 
 lumbia, and local Courts have been established there- 
 in for the administration of justice. But the Acts of 
 Congress adopt the Laws of Maryland and Virginia 
 as the Law of the several portions of the District 
 ceded by those States respectively, with such altera- 
 tions only as were rendered necessary by the change 
 of jurisdiction ; but the separation and transfer of ju- 
 risdiction did not affect contracts existing between 
 individuals. 
 
 710. Although the inhabitants of the District of 
 Columbia ceased, by its separation from Maryland 
 and Virginia, to be Citizensof those respective States ; 
 yet, as Citizens of the United States, they are entitled 
 to the benefit of all commercial and political Treaties 
 with foreign powers, and to the protection of the 
 Union, at home as well as abroad. 
 
 711. Notwithstanding the power of Congress to 
 
 Q 
 
182 MISCELLANEOUS POWERS. PART II. 
 
 exercise exclusive jurisdiction over the Federal Dis- 
 trict includes the power of taxing its inhabitants, they 
 do not in any manner participate in the election of 
 members of the House of Representatives, or of 
 Electors of President and Vice President. 
 
 712. But this departure from the rule which holds 
 taxation and representation to be inseparable, is not 
 deemed material or important ; as the inhabitants of 
 the District of Columbia voluntarily relinquished the 
 right of representation, and adopted the whole body 
 of Congress as their legitimate Government. 
 
 713. The next power falling within this miscella- 
 neous class, is 
 
 III. The Power of Congress " to declare the 
 punishment of Treason" against the United 
 States. 
 
 714. It is a general principle, that every Govern- 
 ment contains within itself, means and capacity for 
 its own preservation ; had the express enumeration, 
 therefore, of this power been omitted in the Consti- 
 tution, the Federal Government would not have been 
 left dependent on the several States to protect it from 
 treasons and conspiracies. 
 
 715. To have left the power of self-defence to 
 inference, would nevertheless have been unwise and 
 unsafe, as artificial and constructive treasons* have 
 been frequently converted into engines of oppression 
 and tyranny ; it was therefore deemed expedient 
 to insert in the Constitution a definition of the crime, 
 to prescribe the proof requisite for conviction, and 
 to restrain Congress, in punishing it, from extending 
 the consequences of guilt beyond the person of the 
 offender. 
 
 716. Treason against the United States is accor- 
 
CHAP. IV. TREASON AGAINST UNITED STATES. 183 
 
 dingly declared to consist " only in levying war 
 against them, or in adhering to their enemies, giving 
 them aid and comfort ;" that " no person shall be 
 convicted of Treason unless on the testimony of two 
 witnesses to the snme overt act, or on confession in 
 open Court ;" and that " no attainder of Treason shall 
 work corruption of blood or forfeiture, except during 
 the life of the person attainted." 
 
 717. The term "levying war," is of technical sig- 
 nification, and is adopted from the English Statute of 
 Treasons, with the construction which has been 
 given to it in the English* Courts ; and the " war" in- 
 cluded in the term, comprehends internal rebellion as 
 well as hostilities from abroad. 
 
 718. A conspiracy to subvert by force the Go- 
 vernment of the United States, violently to dismem- 
 ber the Union, to coerce the repeal of a general 
 Law, or to revolutionize a Territorial Government 
 by force, if carried into effect by embodying and as- 
 sembling a military force in a military posture, are 
 overt acts of levying war ; and not only those who 
 bear arms, but those who perform the various and 
 essential parts, which must be assigned to different 
 persons for the purpose of prosecuting the war, are 
 guilty of the crime of Treason. 
 
 4 
 
 719. But a mere conspiracy for any such purpose, 
 unaccompanied by any overt act, is not Treason ; 
 and to constitute a " levying of war," there must be 
 an assemblage of persons with intent to effect by 
 force a treasonable purpose ; but the mere enlist- 
 ment of men for such a purpose, is not sufficient. 
 
 720. Nor, on the other hand, is it necessary that 
 an individual should appear in arms, to constitute the 
 guilt of Treason ; for if war be actually levied, i. e. if 
 
184 MISCELLANEOUS POWERS. PART If, 
 
 a body of men be actually assembled for the purpose 
 of effecting by force a treasonable design, all those 
 who perform any part in the conspiracy, however 
 minute, or however remote they may have been from 
 the scene of action, if actually leagued with the 
 others, are considered as traitors. 
 
 721. Similar acts committed against the Laws or 
 Government of a particular State, are punishable ac- 
 cording to the Laws of that State ; but adhering to a 
 foreign nation at war with the United States, and af- 
 fording it aid in the prosecution of hostilities, is Trea- 
 son against the United States, and not against the 
 particular State of which the party is a Citizen. 
 
 722. A confession of guilt made out of Court is 
 excluded as evidence by the terms of the Constitu- 
 tion ; but after the overt act of Treason is proved by- 
 two witnesses, such confession may be given in evi- 
 dence by way of corroboration ; and the testimony 
 of the two witnesses must be to the same overt act, 
 and not, as in England, to two different overt acts of 
 the same species of Treason. 
 
 x* "^ 
 
 723. In affixing the penalty of death to the crime 
 of Treason, Congress have acted on a construction 
 of the Constitution, which assumes a discretion in 
 them to omit forfeiture as a part of the punishment, 
 even during the life of the offender ; as they have de- 
 clared, that " no conviction or judgment shall work 
 corruption of blood, or any forfeiture of estate" 
 
 724. Corruption of b lood is derived from the Com- 
 mon Law of England, in reference to the Feudal sys- 
 tem of tenures, and signifies that an attainted person 
 can neither inherit lands from his ancestors, retain 
 those of which he is in possession, nor transmit them 
 by descent to his heirs ; and that he is also incapable 
 
CHAP. IV. ADMISSION OF NEW STATES. 185 
 
 of transmitting a title derived by descent through 
 him from a remote ancestor. 
 
 725. This doctrine is founded on a legal fiction, 
 and is equally at variance with the liberal spirit of 
 modern times, and the elementary principles of jus- 
 tice ; and in carrying this power into execution, Con- 
 gress has humanely and wisely stopped short of its 
 constitutional authority. 
 
 726. The power of punishing the crime of Trea- 
 son against the United States, is necessarily exclu- 
 sive in the General Government, and a State cannot 
 take cognizance of this offence, whatever jurisdiction 
 it may exercise in relation to Treason committed ex- 
 clusively against itself. But it is a question whether 
 any case of Treason against a State can exist since 
 the adoption of the Federal Constitution, which is not 
 at the same time Treason against the United States, 
 and merged in it. 
 
 727. Another Power of a miscellaneous nature 
 vested in the Federal Government, is 
 
 IV. The Power of " admitting new States 
 into the Union." 
 
 728. As the United States possessed, at the adop- 
 tion of the Constitution, an extensive National Ter- 
 ritory, and might acquire more either by conquest or 
 cession, this power was with propriety vested in the 
 National Government. But it was not granted with- 
 out restriction, as " no new State can be formed or 
 created within the jurisdiction of any other State ; 
 nor any State be formed by the junction of two or 
 more States, without the consent of the Legislatures 
 of the States concerned, as well as of Congress." 
 
 729. Since the adoption of the Constitution, large 
 
186 MISCELLANEOUS POWERS, PART If, 
 
 acquisitions of National Territory have been made by 
 the purchases of Louisiana and Florida, and by ces- 
 sions from the State of Georgia ; and the constitu- 
 tionality of the two former acquisitions, though for- 
 merly questioned, is now considered as settled be- 
 yond all practical doubt. 
 
 730. When the preliminary measures were taken 
 for the admission of the State of Missouri into the 
 Union, an attempt was made to include a prohibi- 
 tion against the introduction of Slavery into that 
 State, as a condition of the admission ; but the con- 
 stitutional authority of Congress to impose such a re- 
 striction, was questioned on the ground of its incon- 
 sistency with the sovereignty of the State to be ad- 
 mitted ; and of the equality of the latter with the 
 other States. 
 
 731. The final result of the proceedings which au- 
 thorized the erection of that State, seems to establish 
 the authority of Congress to impose such a restric- 
 tion, although none was applied in that case ; and 
 an objection of a similar character, which had been 
 taken to the compact between Virginia and Ken- 
 tucky, containing conditions upon which the latter 
 was erected into a separate State, was overruled by 
 the Supreme Court. 
 
 732. The next power to be enumerated in this 
 miscellaneous class, is 
 
 V. The Power of Congress " to dispose of, 
 and make all needful rules and regulations 
 respecting the Territory, and other pro- 
 perty belonging to the United States." 
 
 733. This Power is in itself obviously proper, and 
 was specially requisite to avoid an objection which 
 had been taken under the Confederation, to the coa- 
 
CHAP. IV. TERRITORIAL REGULATIONS. 187 
 
 stitutional authority of Congress over the Territory 
 ceded to the United States during the existence of 
 that compact ; and it is accompanied by a condi- 
 tion not only proper in itself, but probably rendered 
 necessary by the jealousies and controversies which 
 existed with regard to that Territory, and which pro- 
 vides that " nothing in the Constitution shall be so 
 construed as to prejudice any claims of the United 
 States, or of any particular State." 
 
 734. As the General Government possesses the 
 right to acquire Territory, either by Conquest or by 
 Treaty, it would seem to follow as an inevitable con- 
 sequence, that it possesses the power to govern what 
 it may so acquire, especially as the Territory, when 
 acquired and held by the United States, does not 
 thereby become entitled to self-government, as a 
 State or as a Territory, and is not subject to the ju- 
 risdiction of any of the individual States. 
 
 735. The power of Congress over the public Ter- 
 ritory beyond the limits of State jurisdiction, is ex- 
 clusive and universal ; and its legislation is subject 
 to no control, but is absolute and unlimited, unless so 
 far as it may be affected by stipulations in the ces- 
 sions, or by the ordinance of 1787, under which 
 
 parts of it were settled. 
 
 
 
 736. But the power of Congress to regulate the 
 other National property, unless it has, by cession of the 
 States, acquired exclusive jurisdiction therein, is not 
 necessarily exclusive in all cases, notwithstanding the 
 right to the soil may have been conveyed to the 
 United States by the former proprietor. 
 
 737. The " guaranty," by " the United States to 
 every State in the Union, of a republican form of Go- 
 vernment," to " protect each of them against inva- 
 
188 MISCELLANEOUS POWERS. PART II. 
 
 sion ; and on application of the Legislature, or of the 
 Executive, when the Legislature cannot be convened, 
 against domestic violence," may be considered as 
 the 
 
 VI. Miscellaneous power vested in the General 
 Government, as it gives to it a right of in- 
 terference with respect to the objects of the 
 guaranty. 
 
 738. Without this guaranty the interference of the 
 General Government in repelling domestic dangers 
 and commotions, which might threaten the existence 
 of a State Constitution, and involve the destruction 
 of other States, and even of the National Govern- 
 ment itself, could not be demanded from it as a right ; 
 and no succour could be constitutionally afforded 
 by the Union, to the friends and supporters of the 
 State Government. 
 
 739. In a "confederated Government, founded on 
 republican principles, and composed of republican 
 members, the superintending Government ought to 
 possess authority to defend the whole system from 
 innovations affecting those principles ; and the more 
 intimate the Union, the greater interest have its mem- 
 bers in the political institutions of each other, and the 
 greater right to insist that the forms of government 
 under which the general compact was entered into, 
 should be substantially maintained. 
 
 740. But the mere compact without the power to 
 enforce it, would be of little value ; and hence the 
 term " guaranty" indicates that the United States are 
 authorized, and bound, if possible, to prevent every 
 State in the Union from relinquishing a republican 
 form of Government. 
 
 741. The Constitution, however, imposes no other 
 
CHAP. IV. GUARANTIES TO THE STATES. 189 
 
 restriction upon the alteration of the State Constitu- 
 tions, than that they shall not vary from the repub- 
 lican form ; so that, whenever a State chooses to sub- 
 stitute another Republican Constitution in place of 
 that previously existing, it has a right so to do ; and 
 is equally entitled to claim for it the benefit of the 
 Federal guaranty. 
 
 742. Protection against invasion is due from every 
 Government to the members composing it; and the 
 Federal Constitution secures each State not only from 
 foreign hostility, but against the ambitious or vindic- 
 tive enterprize of its more powerful neighbours. 
 
 743. Protection against domestic violence is in- 
 cluded in the stipulation with equal policy and pro- 
 priety, as it affords the means of enforcing the gua- 
 ranty whenever a faction, or a minority in a State, 
 endeavours by force to subvert the republican form 
 of its Government ^ . 
 
 744. The guaranty, moreover, extends to the acts 
 of a majority of a State when directed to any object 
 of unconstitutional violence ; in which case the Ge- 
 neral Government is equally bound to protect the 
 State authority : and besides, there are certain parts 
 of the State Constitutions, which are so interwoven 
 with the Federal compact, that violence cannot be 
 done to the one, without injury to the other. 
 
 745. This right of interference, however, can only 
 be exercised when the violence is directed against the 
 State Constitution alone ; and in that manner acci- 
 dentally and indirectly affects the Government of the 
 Union ; for, when the violence is immediately direct- 
 ed against the Federal authority, the National Go- 
 vernment is invested with power to repress it, inde- 
 pendently of any requisition of the State, 
 
190 MISCELLANEOUS POWERS. PART iir 
 
 746. The last of the miscellaneous powers vested 
 in the National Government, is 
 
 VII. The Power of Congress to propose Amend- 
 ments to the Constitution, and to call Con- 
 " : : ventions for amending it, upon the applica- 
 tion of two thirds .of the States. 
 
 747. As it must have been foreseen that useful 
 alterations of the Constitution would be suggested by 
 experience, and rendered necessary by time and 
 change of circumstances, it was requisite that some 
 mode of amending it should be provided ; and those 
 adopted, guard equally against the facility which 
 would have rendered the Government unstable, and 
 the difficulty which might have perpetuated its faults. 
 
 748. Two modes of amendment are provided in 
 the Constitution itself; one, at the instance of the 
 General Government, through the instrumentality of 
 Congress ; the other at the instance of the States, by 
 means of a General Convention. ; 
 
 749. Congress, whenever two thirds of each House 
 concur in the expediency of an amendment, may 
 propose it for adoption ; and the approval of the Pre- 
 sident is not required to any amendment of the Con- 
 stitution proposed by Congress. 
 
 750. The Legislatures of two thirds of the States, 
 may require a Convention to be called by Congress, 
 for the purpose of proposing amendments ; and in 
 either case, three fourths of the States, either through 
 their Legislatures or by Conventions called by them 
 for the purpose, must concur in every amendment 
 before it becomes a part of the Constitution. 
 
 751. It is, however, provided, that " no amendment 
 shall in any manner affect" the provisions of the 
 
CHAP. IV. AMENDMENT OF CONSTITUTION. 191 
 
 Constitution with respect to the importation of Slaves, 
 and the proportional imposition of capitation and 
 other direct taxes ; and that k ' no State without its 
 consent shall be deprived of its equal suffrage in the 
 Senate." 
 
 752. Twelve amendments have been incorporated 
 into the Constitution since its adoption ; most of 
 which have been explained in considering the subjects 
 to which they respectively relate, and they are prin- 
 cipally declaratory of the inalienable rights of indivi- 
 duals, or of those civil and political privileges which 
 Society provides as the substitutes or auxiliaries of 
 natural rights. 
 
 753. The amendments not already treated of, are 
 also declaratory ; and provide, by way of greater 
 caution, that "the enumeration in the Constitution of 
 certain rights, shall not be construed to deny or dis- 
 parage others retained by the People ;" and that " the 
 powers not delegated to the United States, are re- 
 served to the States respectively, or to the People." 
 
 754. The former of these amendments was intend- 
 ed to prevent any perverse or ingenious misapplica- 
 tion of the maxim, that " an affirmation in particular 
 cases implies a negation in all others ; and that a ne- 
 gation in particular cases implies an affirmation in all 
 others." 
 
 755. The amendment last specified, is merely an 
 affirmation of a necessary rule for the interpretation 
 of the Constitution ; which, being an instrument of 
 limited and enumerated powers, what is not conferred 
 by it, is withheld, and is retained by the State Go- 
 vernments, if vested in them by their Constitutions ; 
 and if not, remains with the People as a portion of 
 their residuary sovereignty. 
 
192 RESTRICTIONS ON THE STATES. PART IT, 
 
 756. This amendment, however, does not confine 
 the National Government to the exercise of express 
 powers ; and implied powers must necessarily have 
 been admitted, unless the Constitution had descended 
 to the regulation of the minutest details of legisla- 
 tion. 
 
 757. It is a general principle, that all bodies politic 
 possess all the powers incident to a corporate capa- 
 city, without an express declaration to that effect ; 
 and one of those defects of the confederation which 
 led to its abolition, was its prohibiting Congress from 
 the exercise of any power " not expressly delegated" 
 
 758. It could never, therefore, have been intended 
 by the amendment in question, to abridge any of the 
 Powers granted under the new Constitution, whether 
 express or implied, direct or incidental ; but its 
 manifest and sole design was, to exclude any inter- 
 pretation by which other powers should be assumed 
 beyond those which had been granted. 
 
 759. All the powers granted by the Constitution 
 to the Government of the Union, whether express or 
 implied, direct or incidental, are left by the amend- 
 ment in their original state ; whilst all powers " not 
 delegated" (not all powers " not expressly delegated,") 
 and not prohibited, are reserved. 
 
 CHAPTER V. 
 
 OF THE CONSTITUTIONAL RESTRICTIONS ON THE POWERS 
 OF THE SEVERAL STATES. 
 
 760. The restrictions contained in the Federal 
 Constitution on the powers of the States, have been 
 distinguished into two sorts : the first, comprehend- 
 
HAP. V. ABSOLUTE RESTRICTIONS. 193 
 
 ing those limitations which are absolute ; the second, 
 such as are qualified. 
 
 761. The restrictions embraced by the former, 
 prohibit any State from entering into any Treaty of 
 Alliance or Confederation, from granting letters of 
 Marque and Reprisal, coining money, emitting bills of 
 credit, or making any thing but gold or silver coin a 
 tender in payment of debts ; from passing any bill of 
 Attainder, ex post facto Law, or Law impairing the 
 obligation of Contracts ; and from granting any title 
 of nobility. 
 
 762. The policy of the prohibition against Treaties, 
 Alliances, and Confederations by the several States, 
 is justified by the advantage of uniformity in all mat- 
 ters relating to foreign intercourse ; and by the ne- 
 cessity of an immediate responsibility to the Nation^ 
 of all those for whom the Nation is responsible to 
 others. 
 
 763. If every State were at liberty to enter into 
 Treaties, Alliances, and Confederacies with foreign. 
 States, or with other members of the Union, the 
 power confided to the National Government, in re- 
 gard to the former, would be rendered nugatory ; 
 whilst the whole Constitution might be subverted by 
 the exercise of such a power amongst the States 
 themselves. 
 
 764. The prohibition to grant Letters of Marque 
 and Reprisal, is supported on the same general grounds 
 of policy ; as otherwise it would be in the power of 
 a single State to involve the whole Union in war, at 
 its pleasure ; and although the issuing of Letters of 
 Marque and Reprisal, is not always designed as a 
 preliminary or provocation to war, yet in its essence 
 it is a measure of hostile retaliation for unredressed 
 
 R 
 
194 RESTRICTIONS ON THE STATES. PART If, 
 
 grievances, real or supposed, and is most generally 
 succeeded by open hostilities. 
 
 765. The prohibition of the States to " coin mo- 
 ney," was necessary to give complete effect to the 
 power of the Union, in relation to the current coin ; 
 and it arose from a consideration of the danger and 
 facility of circulating base and spurious coins, where 
 the coins are various in value and denomination, and 
 issued by several independent and irresponsible au- 
 thorities. 
 
 766. The prohibition to " emit bills of credit," was 
 amply justified by the losses sustained between the 
 war of the Revolution and the adoption of the Con- 
 stitution, from the fatal effects of paper money, and 
 their injurious effects on public and private confidence, 
 on the industry and morals of the people, on the Na- 
 tional reputation, and on the character of Republi- 
 canism itself. 
 
 767. Were each state at liberty to regulate the 
 value of its currency, whether of coin or of paper, 
 there might be as many different currencies as there 
 are States ; and the commercial intercourse between 
 them would be proportionally impeded ; whilst retro- 
 spective alterations of the value of its currency, might 
 be made by any State, in fraud, not only of its own 
 Citizens, but of those of other States, as well as of the 
 subjects of foreign powers ; whereby harmony 
 amongst the States, and confidence and peace with 
 other Nations, would be interrupted, if not destroyed. 
 
 768. This restriction on the power of the States, 
 in connexion with the prohibition to make any thing 
 but gold or silver coin a tender in payment of debts, 
 (which power is withdrawn from the States on the 
 game principle,) has received a Judicial construction 
 
CHAP. V. BILLS OF ATTAINDER. 195 
 
 of the utmost importance, both to the rights of the 
 States and the authority of the General Government. 
 
 769. Although the term " bills of credit," in its 
 enlarged, and perhaps in its literal sense, may com- 
 prehend any instrument by which a State engages 
 to pay money at a future day, thus including a certi- 
 ficate given for money borrowed ; yet the language of 
 the Constitution, and the mischiefs intended to be 
 prevented, have been held equally to limit its inter- 
 pretation to paper redeemable at a future day, in an- 
 ticipation of the public resources, and intended to 
 circulate through the community for its ordinary pur- 
 poses as money. 
 
 770. The Constitution considers the emission of 
 bills of credit, and the enactment of tender Laws, 
 as distinct operations, which may be separately per- 
 formed independently of each other ; and to hold 
 that bills of credit may be emitted, if not made a 
 lawful tender in payment of debts, would be in effect 
 to expunge that distinct and independent prohibition, 
 from the Constitution. 
 
 771. Bills of Attainder, ex pout facto Laws, and 
 Laws impairing the obligation of Contracts, are con- 
 trary to the first principles of the social Contract, and 
 to every principle of sound legislation : the two 
 former are also expressly prohibited to Congress by 
 the Federal Constitution, and to some of the State 
 Legislatures, by declarations of rights prefixed to their 
 Constitutions. 
 
 772. Bills of Attainder are such special Acts of the 
 Legislature as inflict capital punishment upon persons 
 whom they declare to be guilty of high offences, with- 
 out trial or conviction in the ordinary course of judi- 
 cial proceedings. They have generally been confined 
 
196 RESTRICTIONS ON THE STATES. PART II. 
 
 to cases of Treason, and have never been resorted to r 
 except in times of internal commotion and arbitrary 
 misrule. 
 
 773. If the Bill inflict a milder punishment than 
 death, it is called a BUI of Pains and Penalties ; but 
 in the sense of the Constitution, it seems that bills of 
 Attainder include bills of Pains and Penalties, as it 
 has been held that " a bill of Attainder may affect the 
 life of an individual, or may confiscate his property, 
 or both.'' 
 
 774. Ex post facto Laws, are those which render 
 an act punishable in a manner in which it was not 
 punishable when committed ; and this definition em- 
 braces both Laws inflicting personal or pecuniary pe- 
 nalties, for acts before innocent, and Laws passed 
 after the commission of an unlawful act, which en- 
 hance its guilt, or aggravate its punishment. 
 
 775. The term " ex post facto Law," is often sup- 
 posed to comprehend all Laws having a retro-active 
 operation ; but its technical meaning is confined to 
 such as declare criminal, art act done before the Law 
 was passed, and which was not so at that time ; and 
 such as aggravate an offence, and render it more 
 criminal than it was when committed, or inflict a 
 greater punishment than the Law annexed to a crime 
 when it was perpetrated ; or to such as alter the rules 
 of evidence, and admit different, or less testimony to 
 convict the offender, than was required at the com- 
 mission of the offence. 
 
 776. Laws impairing the obligation of Contracts, 
 are generally retrospective in their operation, and are 
 equally inconsistent with sound legislation, and the 
 fundamental principles of the social contract. They 
 are interdicted to the States, but not to the National 
 Legislature., 
 
CHAP. V. EX POST FACTO LAWS. 197 
 
 777. By Contracts, in the sense of the Constitution, 
 are understood : 1st. Every executed agreement, 
 whether between individuals, or between individuals 
 and a State ; and 2dly. Every executory agreement 
 which confers a right of action, or creates a binding 
 obligation, in relation to subjects of a valuable nature, 
 and which may be asserted in a Court of Justice, 
 But the term does not comprehend the political rela- 
 tions between a Government and its Citizens. 
 
 778. The power possessed by a State Legislature, 
 to which every thing is granted that is not expressly 
 reserved, and the temptations to the abuse of such a 
 power, render express restrictions upon its exercise, in 
 regard to Contracts, useful, if not necessary ; but the 
 Legislature of the Union has no power to interfere 
 with Contracts, unless it be expressly granted to them. 
 
 779. By the obligation of Contracts, in the meaning 
 of the Constitution, is understood, not the mere mo- 
 ral, but the legal obligation ; and in this sense, a sys- 
 tem of Bankruptcy impairs the obligation of Contracts 
 when it releases the party from the necessity of 
 performing them. But Congress is expressly invested 
 with this power, w r ith respect to Bankruptcies, as an 
 enumerated, not as an implied power ; and in no 
 other form can they impair the obligation of Con- 
 tracts. 
 
 780. This prohibition, in regard to the States, ex- 
 tensively and deeply affects their legislative authority, 
 as a compact between two States, or a grant from a 
 State to individuals, is as much protected by this re- 
 striction, as a grant from one individual to another - r 
 and the State is as much inhibited from impairing its- 
 own Contracts, or those to which it is a party, as it is 
 from impairing the obligation of a Contract between 
 two individuals. 
 
198 RESTRICTIONS ON THE STATES. PART H. 
 
 781. The words of the prohibition not only com- 
 prehend equally executed and executory Contracts, but 
 extend to them whether they are express Contracts, 
 or such as declare on their face the terms of the 
 agreement at the time of making it ; or whether they 
 are implied Contracts, or those of which the terms 
 are not declared, but are such as reason and justice 
 dictate from the nature of the transaction. 
 
 782. A legislative compact or grant, is a Contract 
 within the meaning of the Constitution ; and when a 
 Law in its nature amounts to a Contract, and absolute 
 rights have vested under it, its repeal can neither di- 
 vest those rights, nor annihilate or impair a title ac- 
 quired under it ; for a grant is a Contract executed ; 
 and in no case, and for no cause, can a party impeach 
 the validity of his own deed. 
 
 783. Legislative grants, then, are irrevocable in 
 their nature, and are not held at the mere pleasure of 
 the Government ; nor can a Legislature repeal Sta- 
 tutes creating private Corporations, or confirming to 
 them property acquired under the faith of previous 
 Laws, and by such repeal, vest the property in others, 
 without the consent or default of the Corporators. 
 
 784. -This provision of the Constitution, however, 
 has never been understood to embrace any other Con- 
 tracts than those which respect property, or some 
 object of value, and confer rights capable of being 
 asserted in a Court of Justice. 
 
 785. Where the legal interest in literary or chari- 
 table Institutions is vested by Charter in Trustees, in 
 order to promote the objects for which they were in- 
 corporated, and donations made to them, they are 
 considered within the protection of the Constitution. 
 
 786. A grant to a private Trustee for the benefit 
 
CHAP. V. LAWS IMPAIRING CONTRACTS. 199 
 
 of another person, or for any special, private, or pub- 
 lic charity, is within the prohibition ; as a grant is not 
 the less a Contract, because the possessor takes 
 nothing under it for his own benefit ; nor does a pri- 
 vate donation, vested in Trustees for objects of a ge- 
 neral nature, thereby become a public trust, which 
 the Government may at its pleasure take from the 
 Trustee. 
 
 787. Governments cannot revoke a grant, even of 
 t' eir own funds, when made to a private person, or 
 to a Corporation, for special purposes ; and after 
 making such grams, they have no remaining authority 
 to enforce the administration of the Trust, than such 
 as is judicial. 
 
 788. All Corporate franchises are deemed legal 
 estates ; and all incorporeal hereditaments, as they are 
 termed in the Law, such as Immunities, Offices, and 
 Franchises, are rights regarded by it as valuable ; and 
 whenever they are the subject of a grant or Contract, 
 are as much within the protection of the Constitution 
 as any others. 
 
 789. The objection to a Law on the ground of its 
 impairing the obligation of Contracts, does not depend 
 on the extent of the change effected ; any deviation 
 from the terms of the Contract, by postponing or ac- 
 celerating the period of performance, imposing condi- 
 tions not expressed in the Contract, or dispensing with 
 the performance of those which it contains, impairs 
 its obligation. 
 
 790. A State Insolvent Law, which discharges a 
 debtor from his Contract to pay a debt by a given 
 time, and releases him without payment, from any 
 future obligation to pay, impairs, because it entirely 
 discharges, the obligation of the Contract, if the same 
 were made anterior to the Law. 
 
200 RESTRICTIONS ON THE STATES. PART If* 
 
 791. But the States may constitutionally pass such 
 Insolvent Laws, operating upon future contracts made 
 within the State, and between Citizens of the State ; 
 whilst, in regard to Contracts made subsequent to the 
 Law, if made without the State,or within it, if between 
 a Citizen of the State and a Citizen of another State, 
 or an Alien, the State does not possess a jurisdiction 
 co-extensive with the Contract, over the parties ; and 
 therefore the Constitution of the United States pro- 
 tects such Contracts from prospective, as well as re- 
 trospective legislation. 
 
 79*2. If, however, a creditor in any such case vo- 
 luntarily makes himself a party to the proceedings 
 under an Insolvent Law of a State, which discharges 
 the Contract, he will be bound by his own act, and 
 deemed to have abandoned his extra-territorial im- 
 munity. 
 
 793. The prohibition in question does not apply to 
 Insolvent Laws, or other Laws impairing the obliga- 
 tion of Contracts, passed before the adoption of the 
 Constitution, and operating upon rights of property 
 vested before that time ; and State Insolvent Laws 
 have no operation whatever on Contracts made w^ith 
 the United States, for such Contracts are in nowise 
 subject to State jurisdiction. 
 
 794. As the prohibition respecting ex post factor 
 Laws applies only to criminal cases, and that now 
 under consideration is confined to Laws impairing 
 the obligation of Contracts ; there remain many Laws 
 of a retrospective character, which, however unjust, 
 oppressive, or impolitic, may yet be constitutionally 
 passed by the State Legislatures. 
 
 795. The last absolute prohibition is, that no State 
 "shall grant any title of nobility ;" the reason of which? 
 
CHAP. V. TITLES OF NOBILITY. 201 
 
 is the same as that for the like prohibition on the Na- 
 tional Government; viz. the inconsistency of such a 
 power with that perfect equality, which is the basis 
 of the National and State institutions ; and it would 
 have been useless to prohibit it to the former, if the 
 latter were left free to exercise it. 
 
 796. The qualified prohibitions upon the powers 
 of the States, are those which restrict them from lay- 
 ing " any imposts, or duties on imports or exports, 
 except what may be absolutely necessary for execut- 
 ing their inspection Laws ;" from laying " any duty on 
 tonnage ; keeping troops or ships of war, in time of 
 peace ; entering into any agreement or compact with 
 another State, or with a foreign power ; or from en- 
 gaging in war, unless actually invaded, or in such im- 
 minent danger as will not admit delay without the 
 consent of Congress" 
 
 797. The prohibition in regard to duties on im- 
 ports and exports, and on tonnage, is founded on the 
 Bame reasons which prove the necessity of submit- 
 ting the regulation of Commerce to the National Go- 
 vernment ; and upon the further consideration that, 
 from the inequality between different States as to 
 commercial advantages, the interests of all would be 
 best promoted, by submitting the whole subject to 
 the control of Congress. 
 
 798. An Act of a State Legislature, requiring all 
 importers of foreign goods, and others selling the 
 same by wholesale, to obtain a license from the State> 
 and to pay a sum of money therefor into the State 
 Treasury, is repugnant to this provision of the Con- 
 stitution. 
 
 799. An impost, or duty on imports, is a tax levied 
 upon articles brought into the country, and especially 
 
202 RESTRICTIONS ON THE STATES. PART II, 
 
 upon such as are brought into it for sale ; and it is 
 most usually levied or secured before the importer is 
 allowed to exercise his right of ownership over 
 them, because evasions of the law can be more cer- 
 tainly prevented by executing it whilst the articles 
 are in its custody. 
 
 800. It would not, however, be less a duty on the 
 articles, if it were levied on them after they were 
 landed ; as the policy and practice of levying and se- 
 curing the duty before, or upon, entering the port, 
 does not limit the power to that period for its exer- 
 cise ; and consequently the prohibition upon the ex- 
 ercise of such a power, is not so limited, unless the 
 meaning of the term so confines it. 
 
 801. Imports are things imported, or the articles 
 themselves which are brought into the country ; 
 and a duty on imports, is not merely a tax on the 
 act of importation, but an impost on the thing im- 
 ported ; and is not confined in its signification to a 
 duty levied whilst the article is entering the country, 
 but extends to a duty levied after the article has ac- 
 tually entered it. 
 
 802. There is no difference in effect between a 
 power to prohibit the sale of an article, and a power 
 to prohibit its introduction into the country ; and the 
 one would be the necessary consequence of the 
 other, as no goods would be imported, if none could 
 be sold ; nor can any object be accomplished by lay- 
 ing a duty upon importation, which may not be 
 effected by laying a duty on the article, in the hands 
 of the importer. 
 
 803. The prohibition on the States to lay a duty 
 on imports, may, indeed, come in conflict with their 
 acknowledged powers to tax persons and property 
 
OIAP. V. QUALIFIED RESTRICTIONS. 203 
 
 within their jurisdiction ; but the right which an im- 
 porter acquires, not only to bring the articles into 
 the country, but to mix them by sale with the com- 
 mon mass of property, does not interfere materially 
 with the necessary power of taxation acknowledged 
 to reside in the States. 
 
 804. When the importer has so dealt with the 
 thing imported, as that it has become incorporated 
 with the mass of property in the country, it has per- 
 haps lost its distinctive character as an import, and 
 become subject to the taxing power of the State ; 
 but whilst it continues the property of the importer 
 and remains in his warehouse, a State tax on it, is a 
 duty on imports within the prohibition. 
 
 805. Although a State may lay a tax on occupa- 
 tions, yet in the instance of an importer of foreign 
 goods, it makes no difference that the tax is imposed 
 on the person of the importer; for a tax on his occu- 
 pation is in effect, a tax on importation, as it must 
 add to the price of the article, and be paid by the con- 
 sumer, or by the importer himself, in the same man- 
 ner as a direct duty on the article. 
 
 806. The general power of taxation is retained by 
 the States without being abridged by the grant of a 
 similar power to the Government of the Union ; and 
 is to be concurrently exercised by both Governments 
 under their respective Constitutions ; but from the 
 paramount authority of the Federal Government, it 
 may withdraw any subject of taxation from the ac- 
 tion of State power. 
 
 807. As the unavoidable consequence of the su- 
 premacy which the Constitution has declared, the 
 States are restrained, without any express prohibi- 
 tion, from any exercise of their taxing power, which 
 
204 RESTRICTIONS ON THE STATES. PART IT* 
 
 in its nature is incompatible with, or repugnant to, 
 the constitutional Laws of the Union. 
 
 808. As the States have no power by taxation, or 
 otherwise, to retard, impede, burthen, or in any man- 
 ner to control, the operation of constitutional Laws 
 enacted by Congress to carry into execution the 
 powers vested in the General Government, they can- 
 not tax the Stock of the Bank of the United States, 
 or the certificates issued by the Government for mo- 
 ney borrowed on the credit of the United States ; 
 for the one is an instrument, and the others incidents 
 of a power, essential to the fiscal operations of the 
 Union. 
 
 809. The other qualified prohibitions have their 
 origin in the same general policy which absolutely 
 forbids any State from entering into any Treaty, Al- 
 liance, or Confederation ; and from granting Letters 
 of Marque and Reprisal ; and they are supported by 
 the same reasoning which establishes the propriety of 
 confiding every thing relating to the power of decla- 
 ring War, to the exclusive direction and control of 
 the National Government. 
 
 810. Treaties of alliance, for purposes of Peace or 
 War, of external political dependence, or general 
 commercial privileges ; Treaties of Confederation for 
 mutual government, political co-operation, or the ex- 
 ercise of political sovereignty, or for conferring in- 
 ternal political jurisdiction, are absolutely prohibited 
 to the States. 
 
 811. But compacts and agreements which apply 
 to the mere private rights of sovereignty, such as 
 questions of boundary between a State and a foreign 
 province, or another State ; interests in land situate 
 within their respective boundaries, and other inter- 
 
CHAP. VI. AUXILIARY POWERS. 205 
 
 nal regulations for the mutual accommodation of 
 States bordering on each other, may be entered into 
 by the respective States, with the consent of Con- 
 gress. 
 
 812. A total interdiction of such agreements or 
 Contracts, might have been attended with permanent 
 inconvenience or public injury to the States ; and 
 the consent of Congress to their being entered into, 
 is required to guard against every infringement of 
 the National rights, which might be involved in them, 
 
 813. As the maintenance of an Army and Navy 
 by a State in time of Peace might produce jealousies 
 and alarm in neighbouring States, and in foreign Na- 
 tions possessing provinces bordering on its territory, 
 the States are prohibited therefrom, unless with the 
 consent of the National Government. But as a State 
 may be so situated in time of war, as to render a mi- 
 litary force necessary to resist an invasion, of which 
 the danger may be too imminent to admit of delay 
 in organizing it, the States have a right to raise troops, 
 and fit out fleets for its own safety in time of war, 
 without obtaining the consent of Congress. 
 
 CHAPTER VI. 
 
 FOR GIVING EFFICACY TO THE POWERS VESTED IN THE, 
 GENERAL GOVERNMENT. 
 
 814. The last class of Powers enumerated in the 
 Constitution, consists of the several provisions, by 
 which efficacy is given to the rest ; and the 
 
 I. Of these is, the " Power to make all Laws 
 necessary and proper for carrying into ex- 
 ecution the foregoing Powers." 
 S 
 
206 AUXILIARY POWERS. PART TL 
 
 815. This power would have resulted by neces- 
 sary implication, from the act of establishing a Na- 
 tional Government and vesting it with certain powers ; 
 as without the necessary and proper means of exe- 
 cuting those Powers, the ends proposed by them 
 could never be attained. 
 
 816. The plain import of the clause is, that Con- 
 gress shall have all the incidental and instrumental 
 powers necessary and proper to carry into execution 
 their express powers ; and it seems to have been in- 
 serted in the Constitution from abundant caution, as 
 it neither enlarges nor restricts any power specifically 
 granted, nor grants any new power ; but is merely 
 a declaration to remove all uncertainty as to whether 
 the means of carrying the powers previously granted 
 into execution:, were included in the grant. 
 
 817. Whenever a question arises concerning the 
 constitutionality of a particular power of Congress, 
 the first inquiry is, whether the power be expressed 
 in the Constitution ; if it, be, all doubt as to its exist- 
 ence, must be at once removed ; but if it be not con- 
 tained in terms, in the Constitution, the inquiry then 
 is, whether it be properly an incident to an express 
 power, and necessary to its execution. 
 
 818. The question then arises as to the true inter- 
 pretation of the terms " necessary and proper," i. e. 
 whether the word " necessary," is used in its closest 
 and most intense meaning, so as to exclude all means 
 except such as are absolutely and indispensably ne- 
 cessary, and without which the grant would be nuga- 
 tory ; or whether these terms allow to Congress a 
 choice of the most convenient and appropriate means, 
 amongst those which are calculated to effect the end. 
 
 819. The latter construction has been adopted by 
 
CHAP. VI. INCIDENTAL AND IMPLIED POWERS. 207 
 
 all the departments of the National Government, in 
 reference to the Bank of the United States ; which 
 was accordingly considered to be constitutionally 
 created under this power, as a known and usual in- 
 strument by which several of the specifically enume- 
 rated Powers of Congress are exercised. 
 
 820. Every Power vested in a Government, is in 
 its nature sovereign, and gives a right to employ all 
 the means fairly applicable to attaining the end of the 
 Power, and not specially excepted from the grant of 
 sovereignty, nor contrary to the essential ends of poli- 
 tical society. 
 
 821. Although the Government of the United 
 States is one of limited and specified Powers, yet it 
 is sovereign with respect to its proper objects and 
 declared purposes and trusts ; and as it is incident to 
 sovereign Power to erect Corporations, it is compe- 
 tent for the Government of the United States to cre- 
 ate one in relation to the objects entrusted to its ma- 
 nagement. 
 
 822. The Power of creating a Corporation, though 
 incident to sovereignty, is not a substantive and inde- 
 pendent power, but merely an instrument or means 
 by which other objects are accomplished ; as a Cor- 
 poration is never created or used for its own sake, 
 but always for the purpose of effecting some end be- 
 yond its mere existence. 
 
 823. The implied Powers of Congress are as com- 
 pletely delegated as those which are specifically enu- 
 merated, and the power of erecting a Corporation 
 may as well be implied as any other instrument or 
 means of carrying into execution any of the express 
 powers ; as the exercise of such a power has a natural 
 relation to the constitutional ends of the Government, 
 in reference to its currency and fiscal operations. 
 
208 AUXILIARY POWERS. PART II, 
 
 824. The word " necessary" admits of degrees of 
 comparison, and is often used in various senses ; and 
 in giving it a construction, the subject, the context, 
 and the intention, are all to be regarded. A thing 
 may be necessary, very necessary, or absolutely and 
 indispensably necessary ; or the word may mean no 
 more than needful, requisite, or conducive to ; in which 
 sense it is held to have been used in this clause of the 
 Constitution. 
 
 825. To have declared that the best means to carry 
 into effect any specified power, should not be used, 
 but those only without which the power would be 
 nugatory, would have deprived Congress of the capa- 
 city to avail itself of experience, or to exercise its 
 reason, and accommodate its legislation to circum- 
 stances. 
 
 826. If the end be legitimate, and within the scope 
 of the Constitution, all means which are appropriate 
 and plainly adapted to the end, are lawful ; and the 
 Judicial department cannot inquire into the degree 
 of their necessity, without infringing upon the juris- 
 diction of the Legislature. 
 
 827. The next provision for giving effect to the 
 Powers of the General Government, is, 
 
 II. The declaration that the " Constitution, and 
 the Laws of the United States which shall 
 be made in pursuance thereof, and all Trea- 
 ties made, or which shall be made, under 
 the authority of the United States, shall be 
 the Supreme Law of the land ; and the 
 Judges in every State shall be bound there- 
 by, any thing in the Constitution or Laws 
 of any State to the contrary notwithstand- 
 ing." 
 
CHAP. VI. SUPREME LAW. 209 
 
 828. The propriety of this clause arises from the 
 nature of the Constitution, in establishing a National 
 Government with certain limited powers ; as such a 
 Government could not exist or operate effectually on 
 individuals, unless it were supreme in the exercise of 
 those powers. 
 
 829. In all cases where the powers remaining in 
 the States, are so exercised as to come in conflict 
 with those vested in the National Government, it is a 
 vital principle of perpetual operation, that the power 
 which is not supreme must yield to that which is. 
 
 830. In a complex system, like that created by 
 the relation between the Federal and State Govern- 
 ments, measures adopted respectively by the Union 
 and by the States, to execute the acknowledged pow- 
 ers of each, must often be of the same description, 
 and sometimes interfere in their operation. 
 
 831. The States may enact Laws, the validity of 
 which may depend on their not interfering with, or 
 being contrary to, an Act of Congress passed in pur- 
 suance of its constitutional powers ; and in all such 
 cases the inquiry is, whether the State 'Law has, in 
 its application, come into collision with the Act of 
 Congress. 
 
 832. If an actual collision be found to have taken 
 place between a State Law and an Act of Congress, 
 it is immaterial whether the former were passed by 
 the State Legislature, in virtue of a concurrent power 
 with Congress, or in virtue of a distinct and inde- 
 pendent poWer, relating to a different subject ; as in 
 either case, the State Law, and the rights and privi- 
 leges claimed under it, must yield to rights and privi- 
 leges derived from the Act of Congress. 
 
 833. Although the Government of the Union, in 
 
210 AUXILIARY POWERS. PART IS, 
 
 the exercise of its express powers, may use mean* 
 which may also be employed by a State in the exer- 
 cise of its acknowledged powers ; yet this implies no 
 claim, on the part of the United States, of a direct 
 power, identical with the authority exercised by the 
 State. 
 
 834. So also, if a State, in passing Laws on sub- 
 jects acknowledged to be within its control, adopts a 
 measure of the same character with one which Con- 
 gress may adopt in the execution of any of its enume- 
 rated powers, the State in that case, does not derive 
 its authority from the residuum which it retains of the 
 particular power granted to Congress ; but from some 
 other power which remains in the State, and which 
 may be executed by the same means which are used 
 for the execution of the distinct power vested in the 
 Union. 
 
 835. The same measures, or measures scarcely 
 distinguishable from each other, may flow from dis- 
 tinct powers in the General and State Governments - T 
 but this does not establish the identity of the powers: 
 and although the means used in their execution by 
 each Government respectively, may someti'mes ap- 
 proach so nearly as to be confounded with each other, 
 yet under other circumstances, they may appear 
 sufficiently distinct to establish the individuality of the 
 powers to which they are subservient* 
 
 836. Questions respecting the extent of the powers 
 actually granted, and their identity with those retain- 
 ed by the States, are perpetually arising in a judicial 
 form ; and in discussing them, the conflicting autho- 
 rities of the General and State Governments must be 
 brought into view, and the supremacy settled by that 
 power in the Government which was created for the 
 purpose of expounding the Constitution, as well as the 
 Laws. 
 
CHAP. VI. SUPREME LAW. 211 
 
 837. From this declaration of the supremacy of 
 the Constitution, Laws, and Treaties of the United 
 States, arises the duty of Courts of Justice to declare 
 void any part of any State Constitution, or Law, 
 which is repugnant to THE SUPREME LAW OF THE LAND. 
 
 838. In virtue of this provision, the Constitution 
 and Laws of several of the States have, in a variety 
 of cases, been declared void by the Judicial Power, 
 ontheground of their repugnancy to,orincompatibility 
 with, the Constitution, Laws, or Treaties of the United 
 States. 
 
 839. In all cases of actual collision between the 
 authority of a State, and the constitutional power of 
 the United States, the State is bound by the construc- 
 tion of the Federal Government relative to its own 
 powers ; and no State has authority, either by an Act 
 of ordinary legislation, or by a fundamental Law, to 
 declare void a Law of the United States, or suspend 
 its operation within the territorial jurisdiction of the 
 State. 
 
 840. .The State Courts may, in the ordinary course 
 of administering justice, pronounce a Law of the 
 
 , United States, or an authority exercised under the 
 National Government, to be void, as repugnant to 
 the Federal Constitution ; but this power is exercised 
 subject to the appeal which lies in all such cases to 
 the supreme National tribunal, whose decision alone 
 is final and conclusive. 
 
 841. The early legislation of Congress, and the 
 course of Judicial decisions since the Judiciary Act of 
 1789, concur in the recognition of this Supreme Law, 
 and of a final interpreter of the Constitution, created 
 by the Constitution itself, to the exclusion of the au- 
 thority and jurisdiction of the several States. 
 
212 AUXILIARY POWERS. PART II. 
 
 842. As the Government of the Union exists over 
 all the States, and operates upon individuals, it must, 
 to the extent of its limited powers, possess the au- 
 thority of final decision on all questions of conflicting 
 jurisdiction, by necessary implication, independently of 
 the express grant ; as it is a power which on general 
 principles, is inherent in all Governments. 
 
 843. As the Government of the Union has a Le- 
 gislative and an Executive department of its own, and 
 a Judiciary department with jurisdiction co-extensive 
 with the Legislative Power ; each of these depart- 
 ments must, from the nature of the powers vested in 
 it, be supreme within the limits of those powers ; and 
 must necessarily judge, independently of State con- 
 trol, of the extent of its own powers, as often as it is 
 called on to exercise them, or it cannot act at all. 
 
 844. Amongst the provisions*for giving efficacy to 
 the Legislative Powers of the Union, may be includ- 
 ed, 
 
 III. Those specially vested in the Executive and 
 Judicial departments, and particularly the 
 provision extending the jurisdiction of the 
 National Judiciary to all cases arising under 
 the Constitution of the United States. 
 
 845. This last provision in effect . creates, in the 
 supreme Judicial authority of the Union, a common 
 arbiter in all cases of collision between the power 
 and authority of the Union, and of the several States, 
 wherevever the controversy assumes a judicial form. 
 
 846. Such collisions have occurred in times of no 
 extraordinary commotion, and have hitherto been 
 adjusted by the operation of this power; but it was 
 intended to afford to the Constitution, the perpetual 
 means of self-preservation, and to secure the execu- 
 
CHAP. VI. OATH TO SUPPORT CONSTITUTION. 213 
 
 tion of the Laws of the Union, against other perils 
 than those of common occurrence. 
 
 847. For this purpose a distinct and independent 
 Judicial department was erected for the Union, and 
 power was conferred on it to construe the National 
 Constitution and Laws in the last resort, in every case 
 in which questions of construction might arise, and 
 to preserve the Constitution, and the Laws and Trea- 
 ties of the United States, from violation, so far as judi- 
 cial decisions might avail for that purpose. 
 
 848. In addition to this provision, powers neces- 
 sary and proper to carry into effect the Judgments 
 and Decrees of the Federal Courts, are conferred on 
 the Chief Executive Magistrate, either directly by 
 the Constitution itself, or indirectly, by vesting in the 
 Legislative department, authority to confer it, which 
 power has been duly executed by Congress. 
 
 849. Another provision for giving efficacy to the 
 powers of the National Government, is found in 
 
 IV. The article requiring " the Senators and 
 Representatives in Congress, and the mem- 
 bers of the several State Legislatures, and 
 all Executive and Judicial officers, both of 
 the United States and of the several States, 
 to be bound by oath or affirmation to sup- 
 port the Constitution of the United States," 
 
 850. As the election of the President, Vice Presi- 
 dent, and Senators depends in all cases, and that of 
 the House of Representatives depended in the first 
 instance, and still, in fact, depends, on the Legislatures 
 of the several States, it was necessary, in order to 
 insure the stability of the General Government, to 
 provide a sanction similar to that relied on for the 
 continuance of the State Governments ; and to obtain 
 
214 AUXILIARY POWERS. PART II. 
 
 by an appeal to the consciences of individuals, an 
 equal security in both cases. 
 
 851. No State Power can discharge any individual 
 from the obligation of this oath ; and no member of 
 a State Legislature can refuse to proceed at the ap- 
 pointed time, to elect Senators in Congress, or to 
 provide for the election of Electors of President and 
 Vice President, or of Representatives in Congress, 
 without a violation of his duty, and of the oath to en- 
 force its performance. 
 
 852. It is not, therefore, a matter of discretion 
 with the States, whether they will continue the Na- 
 tional Government, or break it up, by refusing to ap- 
 point Senators, or preventing the choice of Electors 
 or Representatives ; and although it were true that 
 the Legislative powers of the Union would be sus- 
 pended, if the States, or a majority of them, were to 
 neglect to choose Senators ; yet if any number of 
 States less than a majority, should omit to elect them, 
 Congress would not on that account, be the less capa- 
 ble of performing all its functions. 
 
 853. The last provision contained in the Constitu- 
 tion for giving effect to its powers, is that by which 
 operation was given to the whole system, by declar- 
 ing* 
 
 V. That " the ratifications of the Conventions 
 of nine States should be sufficient for the 
 establishment of the Constitution between 
 the States ratifying the same." 
 
 854. The express authority of the People them- 
 selves was required to give validity to a Constitution 
 which was to operate upon them as individuals ; but 
 to have required the unanimous ratification of the 
 several States, would have subjected the essential 
 
CHAP. VI. ADOFT10N OF CONSTITUTION. 215 
 
 interests of the whole to the caprice or corruption of 
 the smallest minority. 
 
 855. A question, however, of a very delicate na- 
 ture arose with respect to this article, when the Con- 
 stitution was proposed to the People for adoption, in 
 consequence of the doubt entertained by some, whe- 
 ther the Confederation, which stood in the solemn 
 form of a Compact between the States, could be su- 
 perseded without the unanimous consent of the par- 
 ties to that instrument. 
 
 856. It was not pretended that an individual State 
 could withdraw from that compact, considered as 
 a league or treaty, at its mere pleasure or discretion, 
 nor be absolved from its perpetual obligation, except 
 on the ground of the extreme necessity of self-pre- 
 servation, or of a breach or violation of the compact 
 by some other of the parties ; of which breach or vio- 
 lation the parties themselves claimed to be judges 
 only from the nature of the Confederation as a Treaty 
 between independent Sovereignties. 
 
 857. The Convention which framed the Constitu- 
 tion was elected by the State Legislatures, and the 
 instrument which came from their hands was a mere 
 proposal without any pretensions to actual obligation ; 
 as such, it was reported to the former Congress, to be 
 by them " submitted to a Convention of delegates to 
 be chosen in each State by the people thereof, under 
 the recommendation of its Legislature, for their assent 
 and ratification." 
 
 858. This course of proceeding was adopted, and 
 the proposed form of Government was accordingly 
 submitted to the People, who acted upon it in the 
 only mode in which they could safely and effectually 
 act on such an occasion, by assembling for the pur- 
 pose, in their respective Conventions. 
 
216 AUXILIARY POWERS. PART II. 
 
 859. They assembled in their respective States, 
 not merely for greater convenience, but from the 
 necessity and propriety of the case, as there existed 
 no authority under the Confederation for calling a 
 general Convention of the People of the United 
 States ; and if such authority had existed, it would 
 not have been a proper mode of assembling the Peo- 
 ple on an occasion in which they were in effect, to 
 pass on virtual amendments of their State Constitu- 
 tions. 
 
 860. Although the People of each State exercised 
 a separate and independent voice, in the ratification 
 of the Federal Constitution ; it was nevertheless 
 adopted by the People themselves, and not by the 
 State Governments ; and it derives its binding force 
 solely from the act of the People in their State 
 Conventions. 
 
 861. The Instrument submitted to them, purports 
 on its face to proceed from the People of the United 
 States ; as such, it was adopted : and if the People of 
 the several States had never before acquired a com- 
 mon character, they expressly assumed it, on that oc- 
 casion. 
 
 862. The assent of the State Governments is im- 
 plied, if not expressed, in their calling the Conven- 
 tions and submitting the Constitution to the consi- 
 deration of the People ; but the People of each State 
 were at perfect liberty to accept or reject it, and 
 their act was final : the Constitution required not 
 the affirmance of the State Governments, and could 
 not be negatived by them ; but when adopted by the 
 People, it became of complete obligation, and bound 
 the States. 
 
 863. The same respective Sovereignties, which had 
 separately established the State Governments, united 
 
CHAP. VI. OF INTERPRETING CONSTITUTION. 217 
 
 with each other in forming a paramount Sovereignty, 
 and establishing a Supreme Government ; for which 
 purpose each yielded a portion of its individual Sove- 
 reignty, and modified its State Constitution, by ren 
 dering it subordinate to the Federal Power. 
 
 864. As the powers delegated to the State Go- 
 vernments by their Constitutions, were delegated by 
 the People themselves, and not by a distinct and inde- 
 pendent Sovereignty created by their act, those Go- 
 vernments were only competent to form a league 
 like the Confederation ; and when it was proposed to 
 change that league into an effective Government, 
 operating directly on the People as individuals, it be- 
 came necessary to derive its powers directly from 
 the People themselves. 
 
 865. As the Government of the Union is then 
 emphatically and truly a Government of the People ; 
 as in form and substance it emanates from them ; as 
 its powers are granted by them, and are to be exer- 
 cised on them directly and individually, for their 
 common benefit ; it cannot be abolished, nor its pow- 
 ers abrogated, except by their consent. 
 
 866. As the Constitution of the United States 
 forms a union between the People of the several 
 States intended to be perpetual, and establishes a 
 National Government owing protection to individu- 
 als, and entitled to their obedience, no State can dis- 
 solve the relations subsisting between that Govern- 
 ment, and the individuals subjected to its authority ; 
 unless the respective States retain power under the 
 Federal Constitution to settle for themselves its con- 
 struction in all doubtful cases. 
 
 867. But as no individual can judge for himself, 
 and decide in his own case upon the nature and ex- 
 
 T 
 
218 AUXILIARY POWERS. PART II, 
 
 tent of his obligations as a Citizen of the Union, so 
 the State within whose jurisdiction he resides, cannot 
 judge for him ; neither can it finally judge for itself 
 of any alleged violation of the Constitution, and ex- 
 ecute its decisions by its own power ; as there is a 
 Power created by the Constitution, both by impli- 
 cation from the nature of the Government which it 
 establishes, and by express grant, which controls the 
 decisions of every State, and prevents its construc- 
 tion of the Federal Constitution from being conclu- 
 sive. 
 
 868. A State, therefore, having no power to in- 
 terpret the Constitution finally for itself, cannot se- 
 cede from the Union without adopting a proceeding 
 essentially revolutionary in its character ; and every 
 attempt by a State to abrogate or annul a Law of the 
 United States, is not only a usurpation of the powers 
 of the General Government, but an aggression upon 
 the equal rights of the other individual States. 
 
 869. From this examination of the fundamental 
 principles, organization, and powers of the Govern- 
 ment of the United States, it results : 
 
 1. That the Federal Constitution was erected 
 
 on the basis of those inalienable rights which 
 the People of the several States derive, in 
 common with all mankind, from their Crea- 
 tor ; and of those principles and institutions 
 which they had inherited from their ances- 
 tors, as subjects of the British Crown ; mo- 
 dified by their situation and circumstances 
 as Colonists, and by their successful vindi- 
 cation of their natural rights, in the assertion 
 of their independence. 
 
 2. That it was formed on the Republican prin- 
 
 ciple of representation ; in due regard to 
 which, the powers of Government were 
 
CHAP. VI. CONCLUSION. 
 
 separately delegated, and properly distri- 
 buted to the Legislative, Executive, and 
 Judicial departments, as each being equally 
 the representative of the People, and cho- 
 sen directly or indirectly by that portion of 
 them, who from age, sex, or other circum- 
 stances, are competent to be entrusted with 
 the exercise of that Power. 
 
 3. That the Federal Constitution was adopted 
 
 by the People themselves, and not by the 
 assent or ratification of the State Govern- 
 ments ; and establishes a Government pro- 
 per, operating upon every individual resid- 
 ing under its protection. 
 
 4. That this Government extends over the 
 
 Union, as one National community or body 
 politic ; composed, not only of the people 
 of the States, but to a certain degree of the 
 States themselves, for the purpose of in- 
 vesting the States, as well as the People, 
 with one National character. 
 
 5. That as the Union, thus formed, constitutes 
 
 the Nation, the People of the several States 
 have, for all the purposes of the Constitu- 
 tion, become one People, owing local alle- 
 giance to the States in which they reside 
 paramount allegiance to the National Go- 
 vernment. 
 
 , 6. That all the Powers requisite to secure the 
 objects of National Union, are vested in the 
 General Government ; whilst those only 
 which are not essential to that object, are 
 reserved to the States, or to the People. 
 7. That the National Government, though limit- 
 ed in its powers to National objects, is su- 
 preme in the exercise of those powers 
 whether express or implied, exclusive or 
 concurrent, enumerated or auxiliary ; and 
 
220 CONCLUSION. PAR? it, 
 
 that whenever any of those powers come 
 into collision with the concurrent, or dis- 
 tinct and independent Powers of the States, 
 the State Power, which is subordinate, 
 must yield to the National Power, which is 
 supreme. 
 
 8. That the Constitution and Laws of the United 
 
 States, and Treaties made under the autho- 
 rity of the National Government, are the 
 Supreme Law of the land ; and that both 
 from the nature of the case, and the provi- 
 sions of the Constitution, the National Le- 
 gislature must judge of, and finally interpret 
 the Supreme Law, as often as it exercises 
 acts of legislation ; that the Chief Executive 
 Magistrate in like manner possesses the 
 power of judging of the nature and extent 
 of his political authority, as often as he is 
 called on to exercise it ; and that in all cases 
 assuming the character of a suit in Law or 
 Equity, the Supreme Judicial tribunal of 
 the Union, is the final interpreter of the 
 Constitution. 
 
 9. That no State authority has power to dissolve 
 
 the relations existing between the Govern- 
 ment of the United States, and the People 
 of the several States ; and consequently, 
 that no State has a right to secede from the 
 Union, except under such circumstances as 
 would justify a Revolution in the Govern- 
 ment ; and that an attempt by any State to 
 abrogate or annul an act of the National 
 Legislature, is a direct usurpation of the 
 powers of the General Government, an in- 
 fringement on the rights of all the other 
 States, and a plain violation of the para- 
 mount obligation of its members, to support 
 and obey the Constitution of the United 
 States. 
 
CHAP. VI. CONCLUSION. 221 
 
 870. Unless such were the principles and charac- 
 ter of the Federal Constitution, it would not have de- 
 livered the People of the United States from the 
 evils they experienced under the Confederation ; nor 
 have accomplished, as it has hitherto, most eflfectually 
 and happily, the great ends for which it was ordain- 
 ed, by " FORMING A MORE PERFECT UNION, ESTABLISH- 
 ING JUSTICE, INSURING DOMESTIC TRANQUILLITY, PRO- 
 VIDING FOR THE COMMON DEFENCE AND GENERAL WEL- 
 FARE, AND SECURING THE BLESSINGS OF LIBERTY TO 
 THEM, AND THEIR POSTERITY." 
 
APPENDIX. 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 The Constitution framed for the United States of America^ by 
 a Convention of deputies from the States of New Hampshire, 
 Massachusetts, Connecticut, Neva York, New Jersey, Penn- 
 sylvania, Delaware, Maryland, Virginia, North Carolina, 
 South Carolina, and Georgia, at a Session begun May 25, and 
 ended September 17, 1787. 
 
 WE, the people of the United States, in order to form a more 
 perfect union, establish justice, ensure domestic tranquillity, 
 provide for the common defence," promote the general welfare, 
 and secure the blessings of liberty to ourselves and our posteri- 
 ty, do ordain and establish this Constitution for the United States 
 of America. 
 
 ARTICLE I. 
 
 SECT10IT I. 
 
 All legislative powers herein granted shall be vested in a con- 
 gress of the United States, which shall consist of a senate and 
 house of representatives. 
 
 SECTION ii. 
 
 I. The house of representatives shall consist of members 
 chosen every second year, by the people of the several states : 
 and the electors in each state shall have the qualifications requi- 
 site for electors of the most numerous branch of the state legis- 
 lature. 
 
 II. No person shall be a representative, who shall not have 
 attained to the age of twenty-five years, and been seven years a 
 citizen of the United States ; and who shall not, when elected, 
 be an inhabitant of that state in which he shall be chosen. 
 
 III. Representatives and direct taxes, shall be apportioned 
 among the several states, which may be included within this 
 union, according to their respective numbers, which shall be 
 determined by adding to the whole number of free persons, in- 
 cluding those bound to service for a term of years, and exclud- 
 ding Indians not taxed, three-fifths of all other persons. The 
 actual enumeration shall be made within three years after the 
 
224 APPENDIX. 
 
 first meeting 1 of the congress of the United States ; and within 
 every subsequent term of ten years, in such manner as they 
 shall by law direct. The number of representatives shall not 
 exceed one for every thirty thousand : but each state shall 
 have at least one representative : and, until such enumeration 
 shall be made, the state of New Hampshire shall be entitled to 
 choose three ; Massachusetts eight ; Rhode Island and Provi- 
 dence pfantations one ; Connecticut five ; New York six ; New 
 Jersey four ; Pennsylvania eight ; Delaware one : Maryland 
 six; Virginia ten ; North Carolina five ; South Carolina five ; 
 and Georgia three. 
 
 IV. When vacancies happen in the representation from any 
 state, the executive authority thereof shah 1 issue writs of elec- 
 tion to fill such vacancies. 
 
 V. The house of representatives shall choose their speaker 
 and other officers ; and shall have the sole power of impeach- 
 ment. 
 
 SECTION 111. 
 
 I. The senate of the United States- shall be composed of two 
 senators from each state, chosen by the legislature thereof, for 
 six years ; and each senator shall have one vote. 
 
 II. Immediately after they shall be assembled, in consequence 
 of the first election, they shall be divided, as equally as may be, 
 into three classes. The peats of the senators of the first class 
 shall 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 : so that one third 
 may be chosen every second year. And if vacancies happen, 
 by resignation or otherwise, during the recess of the legislature 
 of any state, the executive thereof may make temporary ap- 
 pointments until the next meeting of the legislature, which shall 
 then fill such vacancies. 
 
 III. No person shall be a senator, who shall not have attained 
 to the age of thirty years, and been nine years a citizen of the 
 United States ; and who shall not, when elected, be an inhabit- 
 ant of that state for which he shall be chosen. 
 
 IV. The vice-president of the United States shall be pre- 
 sident of the senate, but shall have no vote unless they be equal- 
 ly divided. 
 
 V. The senate shall choose their other officers, and also a 
 president pro tempore in the absence of the vice-president, or 
 when he shall exercise the office of president of the United 
 States. 
 
 VI. The senate shall have the sole power to try all impeach- 
 ments. When sitting for that purpose, they shall be on oath or 
 affirmation. When the president of the United Stales is triedy 
 
CONSTITUTION OF UNITED STATES. 225 
 
 the chief Justice shall preside : and no person shall be convict- 
 ed, without the concurrence of two thirds of the members pre- 
 sent. 
 
 VII. Judgment, in cases of impeachment, shall not extend 
 further than to removal from office, and disqualification to hold 
 and enjoy any office of honour, trust, or profit, under the Uni- 
 ted States. But the party convicted shall, nevertheless, be 
 liable and subject to indictment, trial, judgment, and punish- 
 ment according to law. 
 
 SECTION IV. 
 
 I. The times, places, and manner of holding elections for 
 senators and representative*, shall be prescribed in each state by 
 the legislature thereof : but the congress may, at any time, by 
 law, make or alter such regulations, except as to the places of 
 choosing senators. 
 
 II. The congress shall assemble at least once in every year ; 
 and such meeting shall be on the first Monday in December, 
 unless they shall by law appoint a different day. 
 
 SECTION r. 
 
 I. Each house shall be the judge of the elections, returns 
 and qualifications of its own members ; and a majority of each 
 shall constitute a quorum to do business ; but a smaller number 
 may adjourn from day to day, and may be authorized to compel 
 the attendance of absent members, in such manner, and under 
 such penalties as each house may provide. 
 
 II. Each house may determine the rules of its proceedings ; 
 punish its members for disorderly behaviour ; and with the con- 
 currence of two thirds, expel a member. 
 
 III. Each house shall keep a journal of its proceedings, 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 members of either house, on any question, shall, at tho 
 desire of one-fifth of those present, be entered on the journal. 
 
 IV. Neither house, during the session of congress, shall, 
 without the consent of the other, adjourn for more than three 
 days, nor to any other place than that iu which the two houses 
 shall be sitting. 
 
 SECTION vi. 
 
 I. The senators and representatives shall receive a compen- 
 sation for their services, to be ascertained by law, and paid out 
 of the treasury of the United States. They shall, in all cases, 
 except treason, felony, and breach of the peace, be privileged 
 from arrest, during their attendance at the session of their re- 
 spective houses, and in going to, and returning from the same. : 
 
226 
 
 APPENDIX. 
 
 for any speech or debate in either house, they shall not be ques- 
 tioned in any other place. 
 
 II. No senator or representative shall, during- the time for 
 which he was elected, be appointed to any civil office, under the 
 authority of the United States, which shall have been created, 
 or the emoluments of which shall have been increased, during 
 such time ; and no person holding any office under the United 
 States shall be a member of either house, during his continu- 
 ance in office. 
 
 SICTIOIf VII. 
 
 I. All bills, for raising revenue, shall originate in the house 
 of representatives : but the senate shall propose or concur with 
 amendments, as on other bills. 
 
 II. Every bill, which shall have passed the house of represen- 
 tatives and the senate, shall, before it become a law, be present- 
 ed to the president of the United States. If he approve it, he 
 snail sign it : but if not, he shall return it, with his objections, 
 to that house in which it shall have originated, who shall enter 
 the objections at large on their journal, and proceed to re-con- 
 sider it. If, after such re-consideration, two-thirds of that 
 bouse shall agree to pass the bill, it shall be sent, together with 
 the objections, to the other house, by which it shall likewise be 
 re-considered : and, if approved by two-thirds of that house, it 
 shall become a law. But, in all such cases, the votes of both 
 houses shall be determined by yeas and nays ; and the names of 
 the persons voting for and against the bill shall be entered on 
 the journal of each house respectively. If any bill shall not 
 be returned by the president within ten days (Sundays except- 
 ed) after it shall have beea presented to him, the same shall be 
 a law, in like manner as if he had signed it, unless the congress, 
 by their adjournment, prevent its return ; in which case it shall 
 not be a law. 
 
 III. Every order, resolution or vote, to which the concur- 
 rence of the senate and house of representatives may be neces- 
 sary (except on a question of adjournment) shall be presented 
 to the president of the United States ; and, before the same 
 shall take effect, be approved by him ; or, being disapproved by 
 him, shall here-passed by two-thirds of both houses, according 
 to the rules and limitations prescribed in the case of a bill. 
 
 SECTION vin. 
 
 The congress shall have power 
 
 I. 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 ex- 
 cises, shall be uniform throughout the United States. 
 
CONSTITUTION OF UNITED STATES. 227 
 
 II. To borrow money on the credit of the United States. 
 
 III. To regulate commerce with foreign nations, and among 
 the several states, and with the Indian tribes. 
 
 IV. To establish a uniform rule of naturalization ; and uni- . 
 form laws on the subject of bankruptcies, throughout the United 
 States. 
 
 V. To coin money ; to regulate the value thereof, and of fo- 
 reign coin ; and fix the standard of weights and measures. 
 
 VI. To provide for the punishment of counterfeiting the secu- 
 rities and current coin of the United States. 
 
 VII. To establish post offices, and post roads. 
 
 VIII. To promote the progress of science and useful arts, by 
 securing for limited times, to authors and inventors, the exclu- 
 sive right to their respective writings and discoveries. 
 
 IX. To constitute tribunals inferior to the supreme court. 
 
 X. To define and punish piracies, and felonies committed on 
 the high seas, and offences against the law of nations. 
 
 XI. To declare war ; grant letters of marque and reprisal ; 
 and make rules concerning captures on land and water. 
 
 XII. To raise and support armies. But no appropriation of 
 money for that use shall be for a longer term than two years. 
 
 XIII. To provide and maintain a navy. 
 
 XIV. To make rules for the government and regulation of 
 the land and naval forces. 
 
 XV. To provide for calling forth the militia to execute the 
 laws of the Union, suppress insurrections, and repel invasions. 
 
 XVI. To provide for organizing, arming, and disciplining 
 the militia, and for governing such part of them as may be em- 
 ployed in the service of the United States ; reserving to the 
 states respectively the appointment of the officers, and the au- 
 thority of training the militia according to the discipline pre- 
 scribed by congress. 
 
 X VJ I. To exercise exclusive legislation, in all cases whatso- 
 ever, 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 to exercise like authority over all places purchased 
 by the consent of the legislature of the state in which the same 
 shall be, for the erection of forts, magazines, arsenals, dock- 
 yards, and other needful buildings ; and 
 
 XVIII. To make all laws which shall be necessary and pro- 
 per for carrying into execution the foregoing powers, and all 
 other powers vested by this constitution in the government of 
 the United States, or any department or office thereof. 
 
 SECTION IX. 
 
 I. The migration or importation of such persons as any of 
 
228 APPENDIX. 
 
 the slates now existing- shall think proper to admit, shall not be 
 prohibited by the congress, prior to the year one thousand eight 
 hundred and eight ; but a tax may be imposed on such impor- 
 tation, not exceeding ten dollars for each person. 
 
 II. The privilege of the writ of habeas corpus shall not be 
 suspended, unless when, in cases of rebellion or invasion, the 
 public safety may require it. 
 
 III. No bill of attainder or ex post facto law shall be passed. 
 
 IV. No capitation or other direct tax shall be laid, unless in 
 proportion to the census or enumeration herein before directed 
 to be taken. 
 
 V. No tax or duties shall be laid on articles exported from 
 any state. No preference shall be given, by any regulation of 
 commerce or revenue, to the ports of one state, over those of 
 another : nor shall vessels bound to or from one state, be oblig- 
 ed to enter, clear, or pay duties in another. 
 
 VI. No money shall be drawn from the treasury, but in con- 
 sequence of appropriations made by law ; and a regular state- 
 ment and account of the receipts and expenditures of all pub- 
 lic money shall be published from time to time. 
 
 VJI. No title of nobility shall be granted by the United 
 States : and no person, holding any office of profit or trust un- 
 der them, shall, without the consent of congress, accept of any 
 present, emolument, office, or title, of any kind whatever, from 
 any king, prince, or foreign state. 
 
 SECTION x. 
 
 I. No state shall enter into any treaty, alliance, or confedera- 
 tion ; grant letters of marque and reprisal ; coin money ; emit 
 bills of credit ; make any thing but gold and silver coin a ten- 
 der in payment of debts ; pass any bill of attainder, ex post 
 facto law, or law impairing the obligation of contracts, or grant 
 any title of nobility. 
 
 II. No state shall, without the consent of congress, lay any 
 imposts or duties on imports or exports, except what may be ab- 
 solutely necessary for executing its inspection laws ; and the 
 net produce of all duties and imposts laid by any state on im- 
 ports or exports, shall be for the use of the treasury of the 
 United States ; and all such laws, shall be subject to the revision 
 and control of congress. No state shall, without the consent 
 of congress, lay any duty on 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. 
 
<CONS 1 ttTtfTION OF UNITED STATES. 229 
 
 ARTICLE II. 
 
 SECTION 1. 
 
 I. The executive power shall be vested in a president of the 
 United States of America. He shall hold his office during the 
 term of four years, and, together with the vice-president, chosen 
 for the same term, be elected as follows. 
 
 II. Each state shall appoint, in such manner as the legislature 
 thereof may direct, a number of electors, equal to the whole 
 number of senators and representatives, to which the state may 
 be entitled in the congress. But no senator or representative, 
 or person holding any office of trust or profit under the United 
 States, shall be appointed an elector. 
 
 III. The electors shall meet in their respective states, and 
 vote by ballot for two persons, one of whom at least, shall not 
 be an inhabitant of the same state with themselves. And they 
 shall make a list of all the persons voted for, and of the number 
 of votes for each ; which list they shall sign and certify, and 
 transmit, sealed, to the seat, of the government of the United 
 States, directed to the president of the senate. The president of 
 the senate shall in the presence of the senate and house of re- 
 presentatives, open all the certificates, and the votes shall then 
 be counted. The person having the greatest number of votes 
 shall be the president, if such number be a majority of the 
 whole number of electors appointed ; and if there be more than 
 one who have such majority, and have an equal number of 
 votes, then the house of representatives shall immediately 
 choose by ballot one of them for president ; and if no person 
 have a majority, then, from the five highest on the list the said 
 house shall in like manner choose the president. But in choos- 
 ing the president, the votes shall be taken by states, the repre- 
 sentation 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 neces- 
 sary to a choice. In every case, after the choice of the pre- 
 sident, the person having the greatest number of votes of the 
 electors, shall be the vice-president. But if there should re- 
 main two or more who have equal votes, the senate shall choose 
 from them, by ballot, the vice-president. 
 
 IV. The congress may determine the time of choosing elec- 
 tors, and the day on which they shall give their votes ; which 
 day shall be the same throughout the United States. 
 
 V. No person, except a natural born citizen, or a citizen of 
 the United States at the time of the adoption of this constitu- 
 tion, shall be eligible to the office of president. Neither shall 
 any person be eligible to that office who shall not have attained 
 
230 APPENDIX. 
 
 to the age of thirty-five years, and been fourteen years a resi- 
 dent within the United States. 
 
 VI. In case of the removal of the president from office, or of 
 bis death, resignation, or inability to discharge the powers and 
 duties of the said office, the same shall devolve on the vice-presi- 
 dent ; and the congress may, by law, provide for the case of re- 
 moval, death, or inability both of the president and vice-presi- 
 dent, declaring what officer shall then act as president : and 
 such officer shall act accordingly, until the disability be remov- 
 ed, or a president shall be elected. 
 
 VII. The president shall, at stated times, receive for his ser- 
 vices, a compensation which shall neither be increased nor di- 
 minished during the period for which he shall have been elected : 
 and he shall not receive, within that period, any other emolu- 
 ment from the United States, or any of them. 
 
 VIII. Before he enter on the execution of his office, he shall 
 take the following oath or affirmation : 
 
 " I do solemnly swear (or affirm) that I will faithfully exe- 
 cute the office of president of the United States ; and will, to 
 the best of my ability, preserve, protect, and defend the con- 
 stitution of the United States." 
 
 SECTION 11. 
 
 I. The president shall be commander in chief of (he 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 officers 
 in each of the executive departments, upon any subject relating 
 to the duties of their respective offices, and he shall have power 
 to grant reprieves and pardons, for offences against the United 
 States, except in cases of impeachment. 
 
 II. He shall have power, by and with the advice and consent 
 of the senate, to make treaties, provided two thirds of the sena- 
 tors present concur : and he shall nominate, and by and with 
 the advice and consent of the senate, shall appoint ambassadors, 
 other public ministers, and consuls, judges of the supreme court, 
 and all other officers of the United States, whose appointments 
 are not herein otherwise provided for, and which shall be esr 
 tablished by law. But the congress may, by law, vest the ap- 
 pointment of such inferior officers as they think proper in the 
 president alone, in the courts of law, or in the heads of depart- 
 ments. 
 
 III. The president shall have power to fill up all vacancies 
 that may happen during the recess of the senate, by granting 
 pommissions which shall expire at the end of their next session. 
 
CONSTITUTION OF UNITED STATES. 231 
 
 SECTION HI. 
 
 He shall from time to time give to the congress information 
 of the state of the union ; and recommend to their considera- 
 tion such measures as he shall juJge necessary and expedient. 
 He may, on extraordinary occasions, convene both houses or 
 either of them ; and, in case of disagreement between them, 
 with respect to the time of adjournment, he may adjourn them 
 to such time as he shall think proper. He shall receive am- 
 bassadors and other public ministers. He shall take care that 
 the laws be faithfully executed ; and shall commission all (.he 
 officers of the United States. 
 
 SECTION IV. 
 
 The president, vice-president, and all civil officers of the 
 United States, shall be removed from office on impeachment 
 for, and conviction of treason, bribery, or other high crimes 
 and misdemeanors. 
 
 ARTICLE III. 
 
 SECTION I. 
 
 The judicial power of the United States shall be vested in 
 one supreme court, and in such inferior courts as the congress 
 may, from time to time ordain and establish. The judges both 
 of the supreme and inferior courts, shall hold their office during 
 good behaviour ; and shall, at stated times, receive for their 
 services a compensation, which shall not be diminished during 
 their continuance in office. 
 
 SBCTION II. 
 
 I. The judicial power shall extend to all cases in law and 
 equity, arising under this constitution, the laws of the United 
 States, and treaties made, or which shall be made, under their 
 authority ; to all cases affecting ambassadors, other public min- 
 isters, and consuls ; to all cases of admiralty and maritime juris- 
 diction ; to controversies to which the United States shall be a 
 party, to controversies between two or more states, between a 
 state and citizens of another state, between citizens of different 
 states, between citizens of the same state claiming lands under 
 grants of different states, and between a state, or the citizens 
 thereof and foreign states, citizens, or subjects. 
 
 II. In all cases, affecting ambassadors, other public ministers 
 and consuls, and those in which a state shall be a party, the su- 
 preme court shall have x>riginal jurisdiction. In all the other 
 cases before mentioned, the supreme court shall have appellate 
 jurisdiction, both as to law and fact, with such exceptions, and 
 under such regulations, as the congress shall make. 
 
APPENDIX* 
 
 III. The trial of all crimes, except in cases of impeachment,, 
 shall be by jury, and such trial shall be held in the state where 
 the said crimes shall have been committed ; but when not com- 
 mitted within any state, the trial shall be at such place or places 
 as the congress may by law have directed. 
 
 SECTION lit. 
 
 I. Treason against the United States shall consist only in 
 levying- war against them, or in adhering to their enemies, giv- 
 ing them aid and comfort. No person shall be convicted of 
 treason unless on the testimony of two witnesses to the same 
 overt act, or on confession in open court. 
 
 II. The congress shall have power to declare the punishment 
 of treason ; but no attainder of treason shall work corruption 
 of blood, or forfeiture, except during the life of the person at- 
 tainted. 
 
 ARTICLE IV. 
 
 SECTION I. 
 
 Full faith and credit shall be given, in each state, to the pub- 
 lic acts, records, and judicial proceedings of every other state. 
 And the congress may, by penal laws, prescribe the manner in 
 which such acts, records, and proceedings shall be proved, and 
 the effect thereof. 
 
 SECTION It. 
 
 I, The citizens of each state shall be entitled to all the pri- 
 TJleges and immunities of citizens in the several states. 
 ~*)il. A person ^charged in any state with treason, felony, or 
 other crimes, w&^shall flee from justice and be found in another 
 state, shall, oryjj?ffnaud of the executive authority of the state 
 from which hj^j|ed, be delivered up, to be removed to the state 
 having jurisdiction of the crime. 
 
 III. No person, held to service or labour in one state under 
 the laws thereof, escaping into another, shall in consequence of 
 any law or regulation therein, be discharged from such service 
 or labour ; but shall be delivered up on claim of the party to 
 whom such service or labour may be due. 
 
 SECTION III. 
 
 I. New states may be admitted by the congress into this 
 union ; but no new state shall be formed or erected within the 
 jurisdiction of any other state, nor any state be formed by the 
 junction of two or more states without the consent of the 
 legislatures of the state concerned as well as of the congress. 
 
 II. The congress shall have power to dispose of> and make 
 
CONSTITUTION OF UPttTED STATES. 233 
 
 all needful rules and regulations respecting 1 the territory or 
 other property belonging 1 to the United States : ard nothing in 
 this constitution shall be so construed as to prejudice any claims 
 of the United States, or qf any particular state. 
 
 SECTION IV. 
 
 The United States shall guarantee to every state in this 
 union, a republican form of government ; and shall protect 
 each of them against invasion, and on application of the legis- 
 lature, or of the executive (when the legislature cannot be con- 
 vened) against domestic violence. 
 
 ARTICLE V. 
 
 The congress, whenever two-thirds of both houses shall deem 
 it n< cessary, shall propose amendments to this constitution, or 
 on *he application of the legislatures of two- thirds of the seve- 
 ral states, shall call a convention for proposing amendments ; 
 which, in either case, shall be valid to all intents and purposes, 
 as part of this constitution, when ratified by the legislatures] of 
 three-fourths of the several states, or by conventions in three- 
 fourths thereof, as the one or the other mode of ratification may 
 be proposed by the congress : Provided, that no amendment 
 which may be made prior to the year one thousand eight hun- 
 dred and eight, shall in any manner affect the first and fourth 
 clauses in the ninth section of the first article : and that no 
 state, without its consent, shall be deprived of its equal suffrage 
 in the senate. 
 
 ARTICLE VI. 
 
 I. All debts contracted, and engagements entered into, be- 
 fore the adoption of this constitution, shall be as valid against 
 the United States, under this constitution, as under the con- 
 federation. 
 
 II. This constitution, and the laws of the United States which 
 shall be made in pursuance thereof, and all treaties made, or 
 which shall be made, under the authority of the United States, 
 shall be the supreme law of the land, and the judges in every 
 state shall be bound thereby, any thing in the constitution or 
 laws of any state to the contrary notwithstanding. 
 
 III. The senators and representatives before mentioned, and 
 the members of the several state legislatures, and all execu- 
 tive and judicial officers, both of the United States and of the 
 several states, shall be bound, by oath or affirmation, to support 
 this constitution ; but no religious test shall ever be required as 
 
234 APPENDIX* 
 
 a qualification to any office or public trust under the United 
 States. 
 
 ARTICLE VII. 
 
 The ratification of the convention of nine states shall be 
 sufficient for the establishment of this constitution between 
 the states so ratifying the same. 
 
 Done in the convention by the unanimous consent of the 
 states present, the seventeenth day of September, in the 
 year of our Lord one thousand seven hundred and eighty- 
 seven, and of the Independence of the United States of 
 America the twelfth. In witness whereof we have sub- 
 scribed our names. 
 
 GEORGE WASHINGTON, President, 
 
 and delegate from Virginia. 
 (Attest) WILLIAM JACKSON, Secretary. 
 
 AMENDMENTS. 
 
 The following Articles in addition to, and amendment of, (he- 
 constitution of the United States, having been ratified by the 
 legislatures of nine states, are equally obligatory with the 
 constitution itself. 
 
 I. CONGRESS shall make no law respecting an establishment 
 of religion, or prohibiting the free exercise thereof, or abridg- 
 ing the freedom of speech, or of the press ; or the right of the 
 people peaceably to assemble, and to petition the government 
 for a redress of grievances. 
 
 II. A well regulated militia being necessary to the security 
 of a free state, the right of the people to keep and bear arms 
 shall not be infringed. 
 
 III. No soldier shall, in time of peace, be quartered in any. 
 house, without the consent of the owner ; nor in time of war, 
 but in a manner to be prescribed by law. 
 
 IV. The right of the people to be secure in their persons, 
 houses, papers, and effects, against unreasonable searches and 
 seizures, shall not be violated , and no warrants shall issue, but 
 upon probable cause, supported by oath or affirmation, and par- 
 ticularly describing the place to be searched, and the persons 
 or things to be seized. 
 
CONSTITUTION OF UNITED STATES. 235 
 
 V. No person shall be held to answer for a capital or other- 
 wise 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 pub- 
 lic danger : nor shall any person be subject, for the same of- 
 fence, to be twice put in jeopardy of life or limb ; nor shall be 
 compelled in any criminal case, to be witness against himself; 
 
 ^jror be deprived of life, liberty, or property, without due process 
 of law ; nor shall private property be taken for public use, 
 without just compensation. 
 
 VI. In all criminal prosecutions, the accused shall enjoy the 
 right to a speedy and public trial, by an impartial jury, of the 
 state and district wherein the crime shall have been committed ; 
 which district shall have been previously ascertained by law ; 
 and to be informed of the nature and cause of the accusation ; 
 
 ^e be confronted with the witnesses against him ; to have com- 
 pulsory process for obtaining witnesses in his favour; and to 
 have the assistance of counsel for his defence. 
 
 VII. In suits at common law, where the value in controversy 
 shall exceed twenty dollars, the right of trial by jury shall bo 
 preserved : and no fact tried by jury shall be otherwise re-ex- 
 amined in any court of the United States, than according to 
 the rules of the common law. 
 
 VIII. Excessive bail shall not be required ; nor excessive 
 fines imposed ; nor cruel and unusual punishment inflicted. 
 
 IX. The enumeration, in the constitution, of certain rights 
 shall not be construed to deny or disparage others retained by 
 the people. 
 
 X. The powers not delegated to the United States by the 
 constitution, nor prohibited by it to the states, are reserved to 
 the states respectively, or to the people. 
 
 XI. The judicial power of the United States shall not be con- 
 strued to extend to any suit in law or equity, commenced or 
 prosecuted against one of the United States by citizens of an- 
 other state, or by citizens or subjects of any foreign state. 
 
 XII. The electors shall meet in their respective states, and 
 vote by ballot for president and vice-president, one of whom, at 
 least, shall not be an inhabitant of the same state with them- 
 selves ; they shall name in their ballots the person voted for as 
 president, and in distinct ballots the person voted for as vice- 
 president ; and they shall make distinct lists of all persons voted 
 for as president, and of all persons voted for as vice-president, 
 and of the number of votes for each, which lists they shall sign 
 and certify, and transmit sealed to the government of the Uni- 
 ted States, directed to the president of the senate ; the presi- 
 dent of the senate shall, in the presence of the senate and house 
 of representatives, open all the certificates, and the votes shaU 
 
236 APPENDIX. 
 
 then be counted : the person having the greatest nu Tiber of 
 votes for president shall be the 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 representatives shall choose im- 
 mediately, by ballot, the president. But in choosing the presi- 
 dent the votes shall be taken by states, the representation from 
 each state having one vote ; a quorum for this purpose shall 
 consist of a member or members from two-thirds of the staler, 
 and a majority of all the states shall be necessary to a choice. 
 An$ if the house of representatives shall not choose a president 
 whenever the right of choice shall devolve upon them, before 
 the fourth day of March next following, then the vice-president 
 shall act as president, as in the case of the death or other con- 
 stitutional disability of the president. 
 
 The person having the greatest number of votes as vice-pre- 
 sident, shall be 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 shall choose the vice-president : a quorum for the pur- 
 pose shall consist of two-thirds of the whole number of sena- 
 tors, and a majority of the whole number shall be necessary to 
 a choice. 
 
 But no person constitutionally ineligible to the office of pre- 
 sident, shall be eligible to that of vice-president of the United 
 States. 
 
INDEX. 
 
 Page 
 
 ADMIRALTY JURISDICTION. 
 See DISTRICT COURTS, JUDI- 
 CIAL POWER, &C. 
 
 ADMISSION OF STATES. 
 Power of admitting new States 185 
 Construction given to it. 186 
 
 ALIENS. 
 
 Who so termed 168 
 
 Inducements for them to become 
 
 citizens ib. 
 
 Mode prescribed ib. 
 
 Rights acquired thereby ib. 
 
 See NATURALIZATION. 
 
 ALLKQIANCR. 
 Nature of that due by Citizens 
 
 of the United States. 167 
 
 AMBASSADORS. 
 
 By whom appointed 66 
 
 In what Courts they may sue 
 
 and be sued 96, 97 
 
 Powerof sending and receiving 135 
 Infringements on their rights, 
 
 how punishable 152 
 
 AMENDMENT OF CONSECUTION. 
 
 Necessity of such power 190 
 
 Mode of exercising it ib. 
 
 Restrictions upon it ib. 
 
 Amendments adopted 191 
 
 Their nature and design ib. 
 
 Effect and construction of one. 192 
 
 APPEALS. 
 
 See JUDICIAL POWER, SUPREME 
 COURT, &c. 
 
 APPOINTMENTS. 
 
 Power of, where vested 66 
 
 Vacancies, how supplied 67 
 
 "What vacancies intended 68 
 
 Page 
 ARBITER. 
 
 See JUDICIAL POWER, SUPREME 
 COURT, Ac. 
 
 ARMY AND NAVY. ' . 
 Commander-in-Chief of 64 
 
 Power of raising and equipping 119 
 Necessity and extent of power 120 
 Restrictions on the States relat- 
 
 ing to them 121 
 
 - upon Congress. 122 
 
 ARSENALS AND FORTS. 
 See LOCAL JURISDICTION. 
 
 ARTS, (TSEFUL.) 
 See SCIENCE. 
 
 ATTAINDER. 
 See BILLS OF ATTAINDER. 
 
 AUTHORS AND INVENTORS. 
 
 See SCIENCE. 
 
 AUXILIARY POWERS. 
 Power to make Laws " necessa- 
 
 ry and proper," to execute 
 
 other powers. 
 
 Foundation and meaning of it 206 
 Judicial construction of it ib. 
 
 Implied powers, how delegated 207 
 See POWERS OF GOVERNMENT. 
 
 BANK. 
 
 See CORPORATIONS. 
 
 BANKRUPTCY. 
 Power to establish uniform sys- 
 
 tem 169 
 
 Why vested in National Go- 
 
 vernment ib. 
 
 Object of Bankrupt Laws 
 How distinguished 
 
 from Insol- 
 
 vent Laws 
 
 ib 
 
238 
 
 INDEX. 
 
 Page 
 
 Banki-uptcy, defined 169 
 
 To what persons confined 170 
 
 Nature of power relative to it ib. 
 Power retahifd by States ib. 
 
 Slate Laws cannot discharge 
 from Contracts, except in 
 certain cases 171 
 
 Why no uniform system now in 
 
 force. ib. 
 
 BILLS OF ATTAINDER. 
 
 Prohibited to States 193 
 
 Definitions of 195 
 
 To what cases confined. ib. 
 
 BILLS OF CREDIT. 
 
 Their issue prohibited to Stales 193 
 Reasons therefor 194 
 
 Judicial construction of the 
 Power of Congress in rela- 
 tion to them. 195 
 
 BORROWING MONEY. 
 
 Power of, where vested 126 
 
 How conferred 134 
 
 Extent and construction. ib. 
 
 CAPTURES. 
 
 Rules concerning 118 
 
 Power of Congress to make them i b. 
 Nature and extent of the power ib. 
 Judicial construction of it. ib. 
 
 CIRCUIT COURTS. 
 
 Organization and Sessions ITS 
 
 Legislative regulations of their 
 
 proceedings 106 
 
 Original and exclusive jurisdic- 
 tion ib. 
 
 In regard to crimes and offences ib. 
 
 Original and concurrent Juris- 
 diction ib. 
 
 In Civil suits ib. 
 
 Jurisdiction as to copyrights 
 
 and patents ib. 
 
 In cases where U. S. are par- 
 ties 107 
 
 Appellate jurisdiction ib. 
 
 In what.sense " Inferior Courts" ib. 
 
 Proceedings, how to be inter- 
 preted ib. 
 
 CITIZENS. 
 Who are Citizens of U. S. 
 
 165 
 
 Page 
 
 Who, native Citizens 165 
 
 Persons, born within the U. S. 
 
 who are not Citizens 166 
 
 Persons born abroad, who are 167 
 See ALIENS, ALLEGIANCE, NA- 
 TURALIZATION, &c. 
 
 COASTING LICENCE. 
 See COMMERCE. 
 
 COIN AND COINING. 
 See MOKEY, POWERS of GOVERN- 
 MENT, &c. 
 
 COMMERCE. 
 
 Power of regulating it with fo- 
 reign nations 141 
 
 Where and how vested ib. 
 
 Its nature and necessity ib. 
 
 To what it extends ib. 142 
 
 With what exception ib. 
 
 Judicial construction of it ib. 
 
 How far it comprehends navi- 
 gation within a State 143 
 
 To what vessels it extends 144 
 
 How far it authorizes sale of im- 
 ported articles ib. 
 
 States, how far restricted from 
 
 preventing such sale 145 
 
 Extends incidentally to other 
 
 and what objects ib. 
 
 Applied to protection of domes- 
 tic industry ib. 
 
 To prohibition of Slave Trade 146 
 
 Power of regulating Commerce 
 
 among the States 154 
 
 Its general objects and extent ib. 
 
 How far restricted ib. 
 
 What Commerce reserved to 
 
 States 155 
 
 When power of Congress may 
 
 be exercised within a State ib. 
 
 Judicial construction of this 
 power 
 
 Applied to Incidental objects ib. 
 
 Restrictions on States 157 
 
 Power of regulating Indian 
 
 Trade ib. 
 
 How vested and interpreted ib. 
 
 Extent of its operation ib. 
 
 Trade and intercourse with In- 
 dians by individuals, how 
 restrained, ih. 
 
 See INDIAN TRIBES. 
 
INDEX. 
 
 239 
 
 Page 
 
 COMMON ARBITER. 
 See JUDICIAL POWER, SUPREME 
 COURT, &c. 
 
 COMMON LAW. 
 
 How far established in the Co- 
 lonies 30 
 
 Benefit of, claimed by Congress ib. 
 
 Protects absolute rights ib. 
 
 Regulated relative rights of Co- 
 lonists ib. 
 
 Punished offences against pub- 
 lic justice 31 
 
 How far adopted by States 32 
 
 Basis of their Laws ib. 
 
 State Constitutions made in re- 
 ference to its validity ib. 
 
 Its existence pre-supposed by 
 
 Constitution of U. S. ib. 
 
 Referred to for explanation of 
 
 its powers and provisions ib. 
 
 How far Common Law in force 
 under the Constitution of 
 U. S. ib. 
 
 CONGRESS. 
 
 How constituted 37 
 Disabilities of members -1- 
 Their privileges and powers ib. 
 Elections, returns, and quali- 
 fications ib. 
 In what manner these powers 
 
 are exercised 43 
 Quorum of each House ib. 
 Adjournments and Journals ib. 
 Freedom of debate ib. 
 Punishment of contempts ib. 
 Duty and power in such cases 44 
 How far punishment may ex- 
 tend ib. 
 How such offences otherwise 
 
 punishable ib. 
 To what subjects power of le- 
 gislation extends ib. 
 Rules of proceedings 46 
 Forms of Legislation 47, 48 
 Appointment of Committees 47 
 Standing Committees ib. 
 Select Committees ib. 
 Committees of the whole 48 
 Time and manner of assem- 
 bling 51 
 Time and manner of adjourning 52 
 Period of dissolution. ib. 
 See LEGISLATIVE POWEB, 
 
 HOUSE OF REPRESENTA 
 TIVES, SKNATK, &c. 
 
 Page 
 
 CONSTITUTION. 
 
 Definition of one 25 
 
 Origin of them ib. 
 
 Where they may exist 26 
 
 When derived from act of the 
 
 Government. ib. 
 
 When from written compact ib. 
 
 Different modes of framing one ib. 
 
 Which most practicable ib. 
 
 Which preferable 27 
 
 How obtained ib. 
 
 Theory of a Republican Consti- 
 tution ib. 
 
 Advantages of a written one ib. 
 
 Evils of a traditionary one 28 
 
 Reasons for preferring one writ- 
 ten ib. 
 
 CONSTITUTION OK UNITED STATES. 
 
 On what foundation erected 33 
 
 On what principles formed ib. 
 
 From what materials ib. 
 
 In what manner adopted ib. 
 
 For what objects designed ib. 
 Effect of its adoption on the 
 
 States ib. 
 Effect of its adoption on the 
 
 forner Confederation 33 
 Principle of representation, how 
 
 applied in it 34 
 Powers of Government, how 
 
 delegated by it ib. 
 
 How to be examined ib. 
 
 CONSTITUTIONAL LAW defined 25 
 
 CONSTITUTIONS (STATE). 
 
 Foundations, how laid 
 
 Source of their authority 29 
 
 On what principle founded ib 
 
 Powers of Government, how 
 vested and distributed by 
 them ib. 
 
 Former civil and municipal In- 
 stitutions, how far retained 30 
 
 Natural and moral rights se- 
 cured ib. 
 
 Ste STATE GOVERNMENT!, 
 STATES, &c. 
 
 CONSULS AND VICK CONSULS. 
 By whom appointed 66 
 
 la what Courts they may sue 
 
240 
 
 INDEX. 
 
 Page 
 and be sued or prosecuted 
 
 97, 109 
 See JUDICIAL POWER. 
 
 CONTRACTS. 
 See LAWS IMPAIRING CONTRACTS. 
 
 COPYRIGHT. 
 Ste SCIENCE. 
 
 CORPORATIONS. 
 
 Granfs of, irrevocable 198 
 
 Are Contracts wilhin the mean- 
 ing and protection of the 
 Constitution 199 
 
 Creation of, incident to Sove- 
 reignty 207 
 
 Nature and extent of power ib. 
 
 See AUXILIARY POWERS, LAWS 
 IMPAIRING CONTRACTS, &c. 
 
 COUNTERFEITING. 
 
 Power of punishing 164 
 
 To what objects il extends ib. 
 
 Nature and'rieressify of Power ib. 
 See POWERS OF GOVERNMENT. 
 
 COURTS. 
 
 See IMPEACHMENTS, , 
 JUDICIAL POWER, 
 CIRCUIT COURTS, 
 DISTRICT COURTS, 
 STATE COURTS, and 
 MAGISTRATES, and 
 SUPREME COURT. 
 
 DEBTS. 
 See TENDER LAWS. 
 
 DECLARATION OF INDEPENDENCE 
 See INDEPENDENCE. 
 
 DISTRICT COURTS. 
 
 How organized 108 
 
 Stated and Special terms ib. 
 
 Exclusive Jurisdiction ib. 
 
 Original Jurisdiction ib. 
 
 Admiralty Jurisdiction ib. 
 Concurrent Jurisdiction with 
 
 Circuit Courts 109 
 Jurisdiction exclusive in certain 
 
 cases of State Courts ib. 
 
 With respect to Patents ib. 
 
 Power of Judge at Chambers ib. 
 See JUDICIAL POWER. 
 
 Page 
 
 181 
 ib. 
 
 ib. 
 182 
 
 DISTRICT OF COLUMBIA. 
 Seat of Government 
 Courts organized therein 
 Privileges of its inhabitants 
 Their disabilities. 
 See LOCAL JURISDICTION. 
 
 DOCK-YARDS. 
 See LOCAL JURISDICTION. 
 
 DOMESTIC INDUSTRY. 
 
 Encouraged by protecting du- 
 ties 131 
 
 Upon what construction ib. 
 
 By whom question of Constitu- 
 tionality must be decided 132 
 
 Commercial restrictions applied 
 
 to the purpose 145 
 
 To what extent, and upon what 
 
 ground of construction ib. 
 
 How point must be dec ided. 146 
 
 See COMMERCE, POWERS OF 
 GOVERNMENT, and TAX- 
 ATION and TAXES. 
 
 DUTIES. 
 
 See IMPOSTS AND DUTIES, 
 TAXATION AND TAXES, 
 &c. 
 
 ELECTORS (OF PRESIDENT AND 
 
 VICE PRESIDENT). 
 
 How chosen 56 
 
 Number in each State ib. 
 
 Requisite qualifications ib. 
 
 At what time to be chosen 57 
 
 Time for their assembling ib. 
 Mode of their proceeding to 
 
 election ib. 
 
 Duties subsequent to Election. 58 
 See PRESIDENT OF U. S. 
 
 EXECUTIVE POWER. 
 
 General functions 26 
 
 Objects of this Department 52 
 
 Extent of discretionary power ib. 
 Obligation to obey and enforce 
 
 Laws 53 
 
 Requisite qualities ib. 
 
 Power apportioned to it 54 
 
 Advantage of its unity ib. 
 Evils of its division or plurali- 
 
 ty 55 
 How vested by Constitution of 
 
 U. S. ib. 
 
INDEX. 
 
 Page 
 
 Subordinate branches 70 
 
 How far auxiliary to, or com- 
 prehensive of, Judicial 
 Power 73 
 
 See PRESIDENT OF U. S. 
 
 EXPATRIATION. 
 
 Right of, denied by English 
 
 Law lw 
 
 How regarded by writers on 
 . public Law ib. 
 
 How far admitted by State Con- 
 stitutions 167 
 
 How far settled in Courts of 
 
 U. S. ib. 
 
 See NATURALIZATION, &c. 
 
 Ex POST FACTO LAWS. 
 Prohibited to States 
 Definition and meaning 196 
 
 FELONIES (ON THE SEA). 
 Power to define and punish 147 
 To what they amount in effect 151 
 To what extent declared Pira- 
 cy, and punished as such ib. 
 Power, how far exclusive 4b. 
 
 See PIRACY. 
 
 FLEKTS. 
 See ARMY AND NAVY. 
 
 FORTS. 
 See LOCAL JURISDICTION. 
 
 GOVERNMENT. 
 
 Different forms of 
 
 Powers of, how divided 
 
 How far distinct 
 
 Separate Departments 
 
 Provincial Governments 
 
 How organized 
 
 See CONSTITUTION OF U. S. 
 CONSTITUTIONS (STATE), 
 POWERS OF GOVERNMENT, 
 STATE GOVERNMENTS. 
 
 GUARANTIES. 
 Nature, terms, and effect of the 
 
 Guaranties to the States 187 
 Their necessity and extent 188 
 Republican form of Government ib. 
 Protection from invasion 189 
 
 from dome sti c v iolence i b. 
 
 When to be enforced ib. 
 
 HABEAS CORPUS. 
 Benefit of writ secured 
 By whom to be allowed. 
 
 241 
 
 Page 
 
 31,32 
 105 
 
 HOUSE OF REPRESENTATIVES. 
 
 How constituted 
 
 On what principle of represen- 
 tation 
 
 Members, how chosen 
 
 For what Term 
 
 Qualifications of electors 
 
 members 
 
 How apportioned amongst the 
 States 
 
 Number of representatives 
 
 Ratio of representation 
 
 Exclusive Powers of House of 
 Representatives 
 
 Money bills 
 
 Choice of officers 
 
 When to choose President of 
 U.S. 
 
 Mode of conducting election 
 
 See CONGRESS, LEGISLATIVE 
 POWER, <fcc. 
 
 IMPLIED POWERS. 
 See AUXILIARY POWERS, POW- 
 ERS OF GOVERNMENT, dtc. 
 
 ib. 
 ib. 
 ib. 
 ib. 
 39 
 
 ib. 
 ib. 
 ib. 
 
 45 
 ib. 
 47 
 
 59 
 ib. 
 
 IMPEACHMENTS. 
 Nature of power, and where 
 
 vested 45 
 
 Court of Impeachments 89 
 
 Impeachments, whence derived ib. 
 
 By whom presented 90 
 
 Senate, why selected as Court ib. 
 
 Objects of the Jurisdiction 91 
 
 Causes of Impeachment ib. 
 
 Persons liable thereto ib. 
 Construction of Constitution in 
 
 relation to them 92 
 
 Articles of Impeachment ib. 
 
 Quorum of the Court ib. 
 
 President of the Court 93 
 
 When Chief Justice presides ib. 
 
 Power of presiding officer ib. 
 
 Rules of evidence ib. 
 
 Forms of proceeding ib. 
 
 Nature and effect of sentence 94 
 
 Power of pardon restricted ib, 
 See JUDICIAL POWER, SENATE, 
 
 &c. 
 
 X 
 
242 
 
 INDEX. 
 
 Page 
 
 IMPOSTS AND DUTIES. 
 How far prohibited to Slates, 
 
 reason and necessity of it 201 
 Judicial construction ib. 
 
 See POWERS OF GOVERNMENT, 
 TAXATION, AND TAXES. 
 
 INDEPENDENCE. 
 Effect of its Declaration 
 As to persons born previously 166 
 As to Citizenship ib. 
 
 As to British subjects 167 
 
 INDIAN TRIBES, 
 
 Intercourse with, regulated 157 
 
 "What relations acknowledged ib. 
 
 Those residing within limits ol 
 
 U. S. how considered 158 
 
 How distinguished from " fo- 
 reign Nations." ib. 
 
 Relations with European dis- 
 coverers, how determined 159 
 
 How far same principle adopted 
 
 by U. S. ib. 
 
 Practical results ib. 
 
 How considered in Treaties . 
 and Laws 160 
 
 Their territory, how regarded ib. 
 
 See COMMERCE, JUDICIAL Pow- 
 
 KR, &C. 
 
 INTERNAL [MPROVEMENTS. 
 
 Right of appropriating money 
 
 for, claimed under what 
 
 power 
 
 How far admitted 
 See COMMRRCE, POST OFFICES 
 
 AND POST ROADS, &c. 
 
 161 
 163 
 
 INTERPRETATION OF CONSTITU- 
 TION. 
 
 Right of interpreting Constitu- 
 tion, where vested 85 
 
 Final interpreter provided 211 
 
 See JUDICIAL POWER, 
 SUPREME COURT, 
 SUPREME LAW. 
 
 JUDICIAL POWER. 
 General functions and objects 26 
 Nature of the Power 73 
 Effect of its omission ib. 
 How far auxiliary to Executive ib. 
 HOW far it partakes of Legisla- 
 tive Power ib. 
 
 Objects of this department 74 
 Co-extensive with Legislative 
 
 Power ib. 
 How recognized in Constitution ib. 
 How vested ib. 
 In what manner constituted 75 
 Appointment of Judges ib. 
 Tenure of their offices ib. 
 Advantages of such tenure 76 
 Provision for their support 
 Necessity of their independence 77 
 Responsible for misconduct ib. 
 Objects of Jurisdiction ib. 
 Necessity and advantages of it 79 
 As to cases arising under Con- 
 stitution ib. 
 As to cases arising under the 
 
 Laws of the U. S. 80 
 As to Treaties 81 
 As to interpreting Constitution ib. 
 Power over Laws 82 
 in construing Constitu- 
 tion ib. 
 Objects of separating Judicial 
 
 from other departments 84 
 Power over Constitutions and 
 
 Laws of the Slates ib. 
 Power of final interpretation 85 
 Whence derived ib. 
 Power of construing State Con- 
 stitutions, restricted ib. 
 Reasons for vesting Jurisdiction 
 
 in cases enumerated ib. 
 
 Distribution of Jurisdiction 89 
 
 Court of Impeachments ib. 
 Apportionment of Jurisdiction 
 
 amongst ordinary Courts 94 
 Supreme Court 95 
 Nature of Criminal and Admi- 
 ralty Jurisdiction 101 
 Appellate Jurisdiction ib. 
 In what cases extended to deci- 
 sions of State Courls 
 
 102, 103, 104 
 Power of U. S. Courts to issue 
 
 process, &c. ib. 
 Of Judges to relieve by Habeas 
 
 Corpus ib. 
 
 Circuit Courts 105 
 
 Judicial Districts ib. 
 
 District Courts 108 
 
 Territorial Courts 109 
 
 Functions of Judges 112 
 
 Residence required ib. 
 
 State Courts and Magistrates it). 
 
INDEX. 
 
 243 
 
 Page 
 
 Effect of Sentences where U. 
 S. and Slate Courts have 
 concurrent Jurisdiction 114 
 See COURTS, POWERS OF GO- 
 VERNMENT, &c. 
 
 JURISDICTION. 
 
 See COURTS, LOCAL JURISDIC- 
 TION, JUDICIAL POWER, 
 &c. 
 
 LAW. 
 
 See COMMON LAW, SUPREME 
 LAW, &c. 
 
 LAW OF NATIONS. 
 
 Power to punish offences against 146 
 
 How far exclusive 151 
 
 Part of Common Law of States ib. 
 
 Offences against, what 152 
 
 How punishable ib. 
 
 Policy of the Law 153 
 See JUDICIAL POWER. 
 
 LAWS IMPAIRING CONTRACTS. 
 
 Prohibited to the States 193 
 
 Policy of the restriction 196 
 
 To what Contracts it extends 197 
 
 Obligation of Contracts ib. 
 
 Judicial construction of 198 
 See POWERS o GOVERNMENT. 
 
 LEGISLATIVE POWER. 
 General functions 26 
 
 How organized in Colonies 29 
 
 in the States ib. 
 
 How vested by Const, of U. S. 34 
 Constituent parts 36 
 
 Objects of its division ib. 
 
 Evils of a single Legislative 
 
 Body 37 
 
 Examples of in States ib. 
 
 Further reason for division in 
 
 Government of the U. S. ib. 
 Upon what principle effected 38 
 Objects to which the Legisla- 
 tive Power of the U. S. ex- 
 tends ib. 
 See CONGRESS, HOUSE OF RE- 
 PRESENTATIVES, SENATE, &,c. 
 
 LETTERS OF MARQUH. 
 Bee MARO.UB AND REPRISAL. 
 
 LOANS. 
 See BORROWING MONET. 
 
 Page 
 
 LOCAL JURISDICTION. 
 Power of exclusive Legislation 179 
 To what places it extends ib. 
 
 Necessity of such power 180 
 
 In what mode executed 181 
 
 See DISTRICT OF COLUMBIA, &c. 
 
 MANUFACTURES. 
 See DOMESTIC INDUSTRY, 
 
 MARQUE AND REPRISAL. 
 
 Signification of 117 
 
 By what authority granted ib. 
 
 Effect of the grant ib. 
 
 In what cases granted ib. 
 
 Nature and necessity of Power 1 1 8 
 
 Prohibited to States 193 
 
 Upon what grounds ib. 
 
 MILITIA. 
 Power of regulating and calling 
 
 forth 122 
 
 Objects of the Power ib. 
 
 Extent, &, cases for its exercise 123 
 Effect of its exercise on Militia ib. 
 Mode of their organization, &c. ib. 
 By whom " called forth" ib. 
 
 Who to judge of exigencies ib. 
 Obligation of the States 124 
 
 Duty of State Officers 120 
 
 When concurrent power of 
 
 States over Militia ceases ib. 
 When Militia become National ib. 
 
 MINISTERS (PUBLIC.) 
 See AMBASSADORS. 
 
 MONEY. 
 
 Power of coining 163 
 
 Regulating value of coins ib. 
 
 How rendered exclusive ib. 
 
 Its necessity and advantage 164 
 Objects of rendering Power ex- 
 clusive ib. 
 Why prohibited to the States 194 
 See BORROWING MONEY, COINS 
 AND COINING, &c. 
 
 NATURALIZATION. 
 Power to establish uniform sys- 
 
 165 
 
244 
 
 INDEX. 
 
 Page 
 
 Necessarily exclusive 165 
 
 Who may "be naturalized 168 
 
 IV! ode of proceeding ib. 
 
 Effect of Naturalization 169^ 
 
 See ALIENS, CITIZENS, &c. 
 
 NATURAL RIGHTS. 
 
 In what they consist 30 
 
 Privileges subordinate thereto 31 
 
 How secured in Colonies ib. 
 
 in the States ib. 
 
 Additional securities 32 
 How recognized and secured 
 
 by Const, of U. S. ib. 
 
 NAVIGATION. 
 See COMMERCE. 
 
 NAVY. 
 See ARMY AND NAVY. . 
 
 NAVY DEPARTMENT. 
 How organized 72 
 
 Duties of Secretary ib. 
 
 Vacancies, how filled 73 
 
 See PRESIDENT OF U. S. 
 
 NOBILITY. 
 See TITLES OF NOBILITY. 
 
 OATH TO SUPPORT CON-" 
 
 8TITUTION. 
 
 By whom to be taken 213 
 
 Intention and effect ib. 
 
 States cannot discharge from 214 
 See POWERS OF GOVERNMENT, 
 
 STATES,. &c. 
 
 OBLIGATION OF CONTRACTS. 
 See LAWS IMPAIRING CONTRACTS. 
 
 PASSPORTS. 
 
 See LAW OF NATIONS, POWERS 
 OF GOVERNMENT, &c. 
 
 PATENTS. 
 See SCIENCE. 
 
 PIRACY. 
 
 Power to define and punish 147 
 
 Exclusive in its nature ib. 
 
 Definition of Pi racy ib. 
 
 Mode of defining it ib. 
 Who are deemed Pirates by 
 
 Law of Nations 14& 
 
 Jurisdiction exercised over 
 
 them 
 
 How punished 
 Where they may be tried 
 Acts declared Piracy by Con- 
 
 gress 
 Jurisdiction in such cases 
 
 Pag* 
 
 ib, 
 ib. 
 149 
 
 ib. 
 ib. 
 
 Particular acts declared Piracy 150 
 How punished ib. 
 
 POST OFFICES AND POST ROADS. 
 Power to establish them 161 
 
 How far exclusive ib. 
 
 What Power claimed as incident ib. 
 How far admitted 163 
 
 See INTERNAL IMPROVEMENTS. 
 
 POWERS OF GOVERNMENT. 
 How distinguished 
 How to be organized 
 Consequences of uniting them ib. 
 How distributed in the Colonies 29 
 How organized in the States ib. 
 How vested by Constitution of 
 
 U.S. 
 
 Extent of their separation 35 
 
 Object of their partial Union ib. 
 End thus effected in Govern- 
 
 ment of U.S. ib. 
 
 Legislative Power 
 Executive Power 
 
 Judicial Power 73 
 
 Nature of Powers vested in Go- 
 
 vernment of U. S. 114 
 
 Reduced to different classes ib. 
 Powers relative to security from 
 
 foreign danger 
 Relative to war 
 
 - Taxation 
 
 - Borrowing money 134 
 . - Foreign Intercourse ib. 
 
 - Treaties 15$ 
 
 - Ambassadors, &c. ib. 
 
 - Foreign Commerce 141 
 
 - Slave Trade 145 
 
 - Piracy 147 
 
 - Felonies at Sea ib. 
 -- Offences against 
 
 Law of Nat ions 152 
 
 -- Intercourse between 
 
 the States 153 
 
 -- Commerce amongst 
 
 the States 
 --- with the Indians- 15? 
 
INDEX. 
 
 245 
 
 Relative (o post offices and post 
 
 roads 161 
 
 coining money, &c. 165 
 
 weightsand measures 163 
 
 punishment of coun- 
 terfeiting- 164 
 
 Naturalization 1H5 
 
 Bankruptcy 169 
 
 State Records 171 
 
 Miscellaneous objects 172 
 
 Science and useful 
 
 Arts ib. 
 
 Local Jurisdiction 179 
 
 punishment of Trea- 
 son 182 
 
 admission of new 
 
 Statea 185 
 
 Territory and Pro- 
 perty 186 
 
 Guaranties to the 
 
 States 187 
 amendment of Con- 
 stitution 190 
 Implied and reserved Powers 192 
 Restrictions on the States ib. 
 
 absolute against 193 
 
 Treaties, &c. ib. 
 
 Letters of marque and 
 
 reprisal ib. 
 
 coining money 194 
 
 Bills of credit ib. 
 
 Tender Laws ib. 
 
 Bills of attainder 195 
 
 '~ Ex post facto Laws 196 
 
 1 Laws impairing Con- 
 tracts . ib. 
 
 Titles of Nobility 200 
 
 Qualified restrictions '201 
 
 upon duties oti imports, &c. ib. 
 
 relative to troops and ships 
 
 of war 204 
 compact and agree- 
 ments 204, 205 
 
 engaging in war ib. 
 
 Auxiliary Powers ib. 
 
 Laws " necessary and 
 proper" for executing 
 Powers ib. 
 
 Declaration of Supreme 
 
 Law 208 
 Right of final interpreta- 
 tion 211,212 
 
 oath to support Constitu- 
 tion of U. S. 
 
 213 
 
 Page 
 its ratification by the People 216 
 
 PRESIDENT OF UNITED STATES. 
 
 Qualifications for Election 55 
 Mode of election ib. 58 
 When to be declared elected 
 
 by Electors 59 
 How appointed when no choice 
 
 by Electors ib. 
 Evidence of his refusal to ac- 
 cept, or of his resignation 61 
 How vacancies in office sup- 
 plied ib. 62 
 For what term elected ib. 
 Provision for his support ib. 
 Powers and dulii-a 63 
 Negative upon Laws, &c. il>. 
 Commander-in-Chief 64 
 Reprieves and pardons ib. 
 Power as to Trealirs 65 
 Nominates to* what offices 66,67 
 Power of filling vacancies 68 
 
 as to removal from office ib. 
 
 as to convening and ad- 
 journing Congress C9 
 Duty with respect to Ambassa- 
 dors, &.c. ib. 
 From what officers he may. re- 
 quire opinions ib. 
 General duties ib. 
 Incidental Pbwert 70 
 Discretionary Powers ib. 
 Oath of office ib. 
 Liability to Impeachment 71 
 Assistants in his Department ib. 
 See EXECUTIVE POWER. 
 
 PRESIDENT PRO. TEM. OF SENATE. 
 When and how chosen 47 
 
 When to act as President of 
 
 U. S. 61, 62 
 
 See SENATE,VICE PRESIDENT, 
 
 fee. 
 
 RATIFICATION or CONSTITUTION. 
 
 Provision for ratify ing Constitu- 
 tion 214 
 
 Its nature and effects ib. 
 
 Mode of ratification adopted 215 
 
 How ratified by People 216 
 
 Assent of States, how implied ib. 
 
 Consequences of such ratifica- 
 tion 217 
 
 See SECESSION. 
 
246 
 
 Page 
 REPRESENTATION. 
 
 On what principle founded in 
 
 Government 26. 
 
 How to be applied 27 
 
 In reference to Powers of Go- 
 vernment ib. 
 
 As to parties delegating them ib. 
 
 Practical exception ib. 
 
 How far principle prevailed in 
 
 Colonial Governments 2 
 
 How extended in State Consti- 
 tutions ib. 
 
 How applied in Constitution of 
 
 U. S. 34 
 
 REPRESENTATIVBS. 
 See HOUSE OF REPRESENTA- 
 TIVES. 
 
 RESTRICTIONS ON STATES. 
 See POWERS OF GOVERNMENT, 
 STATES, &c. 
 
 REVENUE. 
 See TAXATION, &c. 
 
 RIGHTS. 
 See NATURAL RIGHTS. 
 
 SAFB CONDUCTS. 
 See LAW OF NATIONS, POW- 
 ERS or GOVERNMENT, &c. 
 
 SENATE. 
 
 How constituted 40 
 
 On what principle of represen- 
 tation jb. 
 
 Number of Senators ib. 
 
 In what manner they vote ib. 
 
 By whom chosen ib. 
 
 Manner of their election ib. 
 
 For what term elected 42 
 
 Qualifications of Senators ib. 
 
 Powers exclusive of House of 
 
 Representatives 45 
 
 When to choose President pro 
 
 tern. 47 
 
 "When and how, other officers ib. 
 
 Mode of conducting Executive 
 
 business ib. 
 
 Quasi Committees 49 
 
 -When to choose Vice President 
 
 of U. S. 59 
 
 Why consent of Senate requir- 
 ed, to Treaties 65 
 
 Fag* 
 Why associated with President 
 
 in appointing Power 67 
 
 See CONGRESS, LEGISLATIVE 
 
 POWER, &c. 
 
 SCIENCE. 
 
 Power to promote its progress 172" 
 Foundation, origin, and policy 173 
 Mode in which executed 174 
 
 Objects of the power ib. 
 
 By what construction effected ib. 
 Former State Laws 175 
 
 Nature and extent of power 
 
 vested in Congress ib. 
 
 Distinction between property of 
 Authors, and that of In- 
 ventors 
 
 Privileges secured to both 177 
 
 Extent and limitation of State 
 
 power in regard to them ib,. 
 See POWERS OF GOVERN- 
 MENT. 
 
 SECESSION*. 
 Whether States may secede 
 
 from the Union 21 8- 
 
 Consequences of Secession ib. 
 
 Ste POWERS OF GOVERNMENT, 
 
 STATES, &c. 
 
 SLAVE TRADE. 
 
 Power of prohibiting 145 
 
 Fully executed by Congress ib. 
 See POWERS OF GOVERNMENT. 
 
 SPEAKER OF HOUSE OF RE- 
 PRESENTATIVES. 
 
 How chosen 47: 
 
 When to act as President of 
 
 U. S. . 61: 
 
 See HOUSE OF REPRESENTA- 
 TIVES. 
 
 STATE COURTS AND MAGIS- 
 TRATES. 
 See JUDICIAL POWER. 
 
 STATE DEPARTMENT. 
 How organized 
 
 Duties of Secretary 61,71 
 
 Vacancies, how filled 73> 
 
 See PRESIDENT OF UNITED 
 STATES. 
 
 STATE GOVERNMENTS. 
 Powers reserved to thera life 
 
INDEX. 
 
 247 
 
 Subordinate to Union 
 Restricted as to war 
 Power over Militia 
 Restricted as to imposts, &c. 
 ---- Commerce 
 Concurrent power of legislation 
 
 in certain cases with Con- 
 
 gress 
 
 Restrictions as to preventing 
 rted articles 
 
 Page 
 
 H7 
 126 
 131 
 141 
 
 143 
 144 
 
 sale of import 
 Restrictions as to protecting du 
 
 ties 146 
 
 Jurisdiction of offences against 
 
 Law of Nations 151 
 
 Regulation of internal Com- 
 
 merce 155 
 
 Effect of their collision with 
 
 powers of Union 157 
 
 Power in cases of Bankruptcy 
 
 and Insolvency 170 
 
 -- to promote Science, <fcc. 179 
 -- of punishing Treason 1 84 
 Guaranty of Republican Go- 
 
 vernment 187 
 
 Power as to amendment of Con- 
 
 stitution of U. S. 190 
 
 Restrictions on their powers 192 
 Cannot discharge individuals 
 
 from their allegiance to the 
 
 United States 214 
 
 Assent of State Governments to 
 
 Constitution of U. S. 216 
 
 States cannot annul or abrogate 
 
 the Federal Powers * 217 
 See CONSTITUTIONS (STATE), 
 PowERsor GOVERNMENT, 
 STATES, &c. 
 
 STATE RECORDS. 
 Power of Congress in relation 
 
 to them 171 
 
 Their effect in other States 172 
 Effect of Judgments of State 
 Courts as evidence in other 
 States. ib. 
 
 STATES. 
 
 Powers reserved to them 114 
 
 Their jurisdiction, hove far su- 
 
 perseded in Maritime cases 151 
 Preservation of harmony 
 
 amongst 153 
 
 Commerce amongst them regu- 
 
 lated 154 
 
 Internal concerns, how far ef- 
 
 Page 
 
 fected by Constitution of 
 U. S. 15 
 
 Internal Commerce of 
 
 Citizens of the several States l6S 
 
 Proof and effect of their Re- 
 cords 172 
 
 Their powers, how affected by 
 collision with those of 
 Congress 1*6 
 
 Treason against a State 184 
 
 Admission of new Slates 
 
 Guaranties to the Stales 
 
 Reserved rights 191 
 
 Restrictions on their power 192 
 
 Bound by whose construction of 
 
 the Constitution of U. S. 211 
 
 No discretion as to organizing 
 Government of the United 
 States 214 
 
 Cannot secede from Union 2I& 
 
 See CONSTITUTIONS (STATE), 
 POWERSOF GOVERNMENT, 
 STATE GOVERNMENTS. 
 
 SUPREME COURT. 
 J Edges recognized in Constitu- 
 tion, &c. ffr 
 Tenure of their offices 7ft 
 Court created by Constitution 95 
 
 organized by Law ib. 
 
 Number of Judges 9ft 
 
 Number to form quorum ib. 
 
 Terms of the Cou rt i b. 
 
 Jurisdiction, Original ib. 
 
 Appellate ib. 
 
 Exclusive 96, 97, 101 
 
 In cases against Ambassadors, 
 
 <kc. 97 
 
 where a State is a party ib. 
 
 In suits by a State ib. 
 
 Concurrent Jurisdiction ib. 
 
 In suits by Ambassadors ib. 
 
 Where a State is a party ib. 
 
 Whether original Jurisdiction 
 
 is in all cases exclusive ib. 
 Jurisdiction as to Indians ib. 
 
 Mode of exercising appellate 
 
 Jurisdiction ib 
 
 Writs of Error and Appeals 98 
 In what cases allowed 98, 99 
 
 From Judgments of whatCourts 98 
 Restrictions on the right 9^ 
 
 Proceedings in case of reversal ib* 
 Regulations respecting writs of 
 Error and Appeals 100) 
 
248 
 
 INDEX. 
 
 Page 
 Judicial construction in regard 
 
 to them 100 
 
 Exceptions from Appellate Ju- 
 risdiction 102 
 Appeals from State Courts ib. 103 
 Superintending Power over In- 
 ferior Courts 104 
 See JUDICIAL POWER. 
 
 SUPREME LAW. 
 
 Declared by Constitution 115 
 
 Effect of conflict between Fede- 
 ral and Stale Powers 209 
 Duty of Courts in sucb cases 211 
 States bound by interpretation 
 of Constitution by Supreme 
 Court of the U. S. ib. 
 
 TAXATION AND TAXES. 
 
 Power of levying Taxes 126 
 
 Its objects and purposes ib. 
 
 Its necessity and extent 127 
 
 "Where vested, and in what terms ib. 
 
 How qualified in its exercise ib. 
 
 Subjects of Taxation 128 
 
 In what sense term " Taxes" 
 
 used ib. 
 
 Different kinds of Taxes ib. 
 
 Importance of distinguishing 
 
 them 129 
 
 Judicial construction of Power ib. 
 
 Restrictions on States respect- 
 ing it 201 
 
 Judicial construction thereof ib. 
 
 See LEGISLATIVE POWER, 
 POWERSOF GOVERNMENT, 
 &c. 
 
 TENDER LAWS. 
 
 How far prohibited to States 193 
 "What allowed as legal tender 
 
 in payment of debts 194 
 
 See POWERS OF GOVERNMENT. 
 
 TERRITORIAL COURTS. 
 Where established 109 
 Tenure of Judges in Michigan 110 
 Courts there, how organized ib. 
 How constituted in Arkansas ib. 
 How, in Missouri ib. 
 Tenure of Judges, and Juris- 
 diction of Courts in both ib. 
 Judicial Power in Florida 111 
 Courts, how organized ib. 
 Teaure of Judges ib. 
 
 Pge 
 
 Jurisdiction vested in the seve- 
 ral Courts 111 
 Special Jurisdiction of certain 
 
 Terrilorial Courts ib. 
 
 TERRITORIAL REGULATIONS. 
 Power of disposing of, and re- 
 gulating Tenitory and 
 other property of the Uuion 1 J 
 Condition annexed to it 187 
 
 Construction of power ib, 
 
 See POWERS OF GOVERNMENT. 
 
 TITLES OF NOBILITY. 
 Power of granting, prohibited to 
 
 Congress 193 
 and to the States 20d 
 
 TREASON. 
 
 Power to declare its punish- 
 ment 18-2 
 
 Treason against U. S. defined ib. 
 
 Evidence requisite to convict 183 
 
 Judicial constructions ib. 
 
 Treason against a State 184 
 
 Effect of a confession ib. 
 
 Punishment of treason against 
 
 U. S. ib. 
 
 TREASURY DEPARTMENT. 
 
 How organized 72 
 
 Duties of Secretary ib. 
 
 Vacancies, how filled 73 
 
 TREATIES. 
 
 Nature of Power to make 135 
 
 To what extent declared Su- 
 preme Law ib. 
 How and where the power is 
 
 vested ib. 
 
 How Treaties are to be con- 
 strued 136" 
 How defined by Law of Nations ib. 
 How regarded by Courts of 
 
 U. S. 137 
 
 Their effect and operation ib. 
 
 Power of Congress over mem 1 37 
 Obligation of Treaties 13 
 
 Extent of the Power ib. 
 
 Interpretation of Treaties 139 
 
 Consequences of their violation 140 
 Effect of partial violations ib 
 
 How such effect prevented ib; 
 
 Power of annulling Treaties ib. 
 Effect of its exercise ife. 
 
INDEX. 
 
 249 
 
 Page 
 States restricted in regard to 
 
 them 193 
 
 See POWERS OF GOVERNMENT, 
 
 PRESIDENT OF U. S. 
 
 SENATE, &c. 
 
 VICE PRESIDENT OF IT. S. 
 
 How chosen, and qualifications 58 
 
 How appointed in case of no 
 
 choice by Electors 59 
 
 His duties as President of Se- 
 nate 60 
 
 When to act as President of 
 U. S. 61 
 
 Evidence of bis refusal to ac- 
 cept ib. 
 
 How long he continues to act as 
 
 President of U.S. 62 
 
 For what term elected ib. 
 
 His powers in cases of Impeach- 
 ment 93 
 
 Page 
 WAR. 
 Whence right of declaring it 
 
 derived 116 
 
 Causes of War ib. 
 
 Forms of declaring it 117 
 
 Power of declaring it, where 
 
 vested ib. 
 
 In what mode declared ib. 
 
 Effect of Declaration 118 
 
 "Levying War" what 183 
 
 WAR DEPARTMENT. 
 
 How organized 72 
 
 Duties of Secretary ib. 
 
 Vacancies, how filled 73 
 
 WEIGHTS AND MEASURES. 
 Power to fix standards 163 
 
 How far exclusive 164 
 
 WRITS OF ERROR. 
 See SUPREME COURT. 
 
 THE END. 
 

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