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THE LIBRARY
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BOOK STORE
BATON ROUGE
CONSTITUTIONAL LAW
COiNSTITUTIONAL LAW
AN INTRODUCTORY TREATISE DESIGNED
FOR USE IN SCHOOLS WHERE THE PRINCI-
PLES OF THE CONSTITUTION ARE STUDIED
BY
H. J. FENTON, M. A., LL. B.
Instructor, U. S. N. A.
REVISED EDITION
JULY, 1914
1914
THE UNITED STATES NAVAL INSTITUTE
Annapolis, Md.
COPYIIIGHT, 1914, BY
E. J. KING
Secretary and Treasurer of the
U. S. NAVAL INSTITUTE
T
T^t Both C^&ftimovt (pttgtf
BALTIMORE, MD., U. S. A.
INTRODUCTION
Scope. — This book is introductory in scope. It is a study
of the text of the Constitution and the principles of law per-
taining to it, designed mainly for those students who are
just beginning their inquiry into the subject of law and gov-
ernment. By it it is hoped that the student may obtain such
knowledge of the instrument of government under which this
country has lived for more than a century as is almost requi-
site for a liberal education and for good citizenship; and
that those who have the time and the inclination to pursue
the subject further may be inspired to do so.
Sources. — Except perhaps in the use of cases and in certain
minor details this book pretends to no originality. It is the
business of the law writer, like the historian, to record rather
than to make. It is partly from classroom notes, the product
of ten years in the teacher's chair; partly from the writings of
such excellent publicists as Story, Black, Cooley, McLain,
Pomeroy, Wilson, Baldwin and Burgess; and partly from a
wide reading among the cases decided by the Supreme Court
that this book is compiled.
Cases. — Since American Constitutional Law is largely a
child of the Supreme Court the writer has made frequent use
of cases for illustrative purposes, and has besides referred to
many others in footnotes. Furthermore, an abstract of the
leading and most interesting Supreme Court cases is printed
in Chapter IX, which, it is hoped, will be found interesting
and useful, both to instructor and to student. These cases may
be used as best suits the instructor — either as review prob-
lems to be interpreted by the student's application of prin-
ciples previously learned, or as illustrative material by the
LAW
6 Introduction
teacher in his classroom discussions. They have been used by
the writer in both ways, and have been found almost invalu-
able as a means of fixing the principles of the Constitution
in the student's mind, and of securing an interest in the study
not so easily obtained in any other way.
Acknowledgment. — The writer feels peculiarly indebted to
the other members of the English Department of the United
)States Naval Academy for their friendly interest in the pub-
lication of this book, and especially for their many excellent
suggestions and keen criticisms of the manuscript. Without
such friendly cooperation the task of bringing the volume to
completion would have been very much greater.
H. J. F.
United States Naval Academy,
novembeb 1, 1913.
Chapter I.
Chapter II.
Chapter III.
Chapter IV.
Chapter V.
Chapter VI.
Chapter VII.
Chapter VIII.
Chapter IX.
Appendix A.
Appendix B.
CONTEXTS
PAGE
Chronology of the Constitution 9
Definitions and Historical Sketch 13
The Congress, Composition, Development of,
etc.. Art. 1, Sees. 1-7 27
The Powers of Congress, Art. 1, Sec. 8 83
Limitations on Congress and the States, Art. 1,
Sees. 9-10 139
The Executive, Powers of, etc.. Art. 2 167
The Judiciary, Art. 3 203
Miscellaneous, Art. 4 227
Methods of Amending, Art. 5 240
Validity of Debts; Fundamental Law, etc..
Art. 6 243
Ratification, Art. 7 246
Amendments 251
Leading Cases 293
The Articles of Confederation 313
The Constitution (Original Print) 321
Index 341
CHROXOLOGY OF THE COXSTITUTIOX
1774 The First Continental Congress convened.
1776 The Declaration of Independence.
1781 The Articles of Confederation, proposed by the Congress
in 1778, were adopted.
1786 The Annapolis Convention.
1787 The Philadelphia Convention framed the Constitution.
1789 The Constitution, ratified by the requisite number of States,
became the organ of government.
1791 Amendments 1-10, proposed by Congress in 1789, were
adopted.
1798 The 11th Amendment, proposed in 1794, was adopted.
1804 The 12th Amendment, proposed in 1803, was adopted.
1865 The 13th Amendment, proposed in 1865, was adopted.
1868 The 14th Amendment, proposed in 1866, was adopted.
1870 The 15th Amendment, proposed in 1869, was adopted.
1913 The 16th Amendment, proposed in 1909, was adopted.
1913 The 17th Amendment, proposed in 1912, was adopted.
CHAPTER I
A CHAPTER OF DEFIXITIOXS
AND
HISTORICAL SKETCH
A CHAPTER OF DEFTXITIONS
Law: International, Municipal, and Constitutional
Law. — Law may be broadly defined as "a rule of action,
imposed by a superior, which an inferior is bound to obey." *
The law of gravitation, the law of heredity, the law of supply
and demand — these, as well as regulations made by man, come
under this wide definition. Our present study, however, is
of law in a narrower and more technical sense; and as such it
may be defined as " a rule of civil conduct, prescribed by a
competent civil authority, commanding certain things as
necessary to, and forbidding certain other things as incon-
sistent with, the peace of society." '
International and Municipal Law. — In a technical sense
law is of two kinds. International and Municipal. Inter-
national law comprises those rules of conduct which are agreed
to by civilized nations for regulating their common inter-
course. Strictly speaking, these are not laws, although loosely
termed such, for the rules of conduct agreed to by nations are
not prescribed by any superior authority, and there is no
power, except War, to compel obedience to them. Inter-
national laws might well be termed international agreements.
Municipal law, on the other hand, includes those rules of civil
conduct prescribed by the supreme power in a State, or depart-
ment thereof, and regulating the intercourse of the State with
its subjects, and of the subjects with one another. Under
this head come statutes, ordinances, regulations, and all that
machinery necessary to maintain the peace and order of a
civilized community.
* Robinson's Elementary Law.
14 Constitutional Law
Written and Unwritten Laws. — It matters not whether the
rules for the regulation of a civilized State are written or un-
written; if they exist under a directing, superior authority,
and govern the intercourse of State and subjects, or of sub-
jects with one another, they are laws. An unwritten law
derives its force from long established custom, and may serve
its purpose in society quite as well as one that is written or
printed, and that men may read ^ ; but since the day of un-
written law is largely past, we may better confine our attention
to written law, or that law prescribed directly, in so many
words, by the supreme power in the State, or of some depart-
ment thereof. Such law is usually in the form of
Statutes and Ordinances. — An ordinance is a rule of con-
duct prescribed by some minor department within a State,
such as a town or a city, for the preservation of good order
therein. A statute is an enactment made by the supreme law
making body of a State (in the United States, the Congress;
in the several States, the respective legislatures).
Statutes at Large. — These are the Federal statutes, ])rinted
in full in large volumes, as distinguished from abridgments
and revisions. The acts of each Congress are compiled sepa-
rately; volume 35, for example, containing all the acts of
the GOth Congress, 1907-1909. In the case of variance between
an act of Congress, as printed in the statutes, and the original,
as enrolled and deposited with the Secretary of State, the latter
must prevail.'
Revised Statutes. — These are all the Federal laws that were
general and permanent in their nature and in force December
1, 1873. They were printed in one large volume in 1875 under
the direction of the Secretary of State (see Stat, at Large,
18, 113). Congress has since authorized the publication of
* For fuller discussion of this see page 267.
• 38 Pacific Reporter, 973.
Chapter of Definitions 15
several supplements to this volume, covering the period from
1873 to 1907. The Statutes at Large, then, are all the laws
devised by Congress since the first session, and they fill many
volumes; the Eevised Statutes are those Federal laws that
have not been repealed from time to time by Congress, or
rendered inoperative by later legislation, and are contained in
a single volume with a few supplements.
Constitutions Defined and Classified. — A constitution is a
fundamental body of law serving as the basis of the govern-
ment of a State. It is the backbone of a State, the guide and
tost for all political action within the State. Constitutions
may be unwritten or written. An unwritten constitution is
one of gradual accumulation; one that has grown up by slow
evolution, and not contained in any single document, or re-
duced wholly, if at all, to writing. This is the oldest form of
constitutions, as unwritten laws were the earliest forms of
laws. Such was the Roman Constitution, and such is still
the foundation of the government of Great Britain. The
latter country indeed may be said to have the only unwritten
constitution in existence to-day. It is the result of a slow
accumulation of principles. Its larger provisions, such as
the iMagna Charta, the Petition of Eights, the Habeas Corpus
Act and the Bill of Rights have been adopted at various times
and in various ways. Besides these are many principles de-
rived from court decisions, and customs enforced only by
general acquiescence. Only Parliament can alter the Consti-
tution, and no act by that body can be held invalid as uncon-
stitutional. Tlie foundation of the British government is
largely in the conservatism of the British people. A written
constitution, on the other hand, is a written instrument, or
document, which is complete in itself. It is usually adopted
at one time and hy one act, although modified perhaps by
later amendments. It is drawn up for the distinct purpose of
serving as the basis of government in the State that creates it.
16 Constitutional Law
The Constitution of the United States is' such a written in-
strument, and so are the constitutions of the respective States
of the Union. These instruments of government are funda-
mental in this respect, namely, that whatever Congress enacts
must conform to the provision^' of the Constitution, and what-
ever the States' legislatures enact must conform to the States'
constitutions and also to the Constitution of the United States.
Constitutional Law. — This is not susceptible of a ready and
accurate definition, for it is not wholly law in the technical
sense. Briefly, it may be said to be that branch of juris-
prudence which treats of constitutions'. But the constitution
of a nation is inseparably linked with the nation's history, and
students of law have come to recognize the fact that constitu-
tional law is in a peculiar sense a branch of history, and is to
be studied in a historic spirit. Constitutional law therefore is
not so much a body of customs, maxims, or enactments, as
it is a science, an historical study. Eegarded in this light the
constitutional law of the United States may be said to include
the following : 1st, the Constitution itself ; 2d, the history of
its establishment; 3d, the construction put upon its various
clauses by the courts, as their meaning has been brought into
question by properly instituted cases; 4th, and lastly, the
validity of legislative enactments as tested by their conformity
to the Constitution. It is well, however, that the student,
before undertaking the study of the Constitution and the in-
terpretation of its clauses, should have a clear understanding
of the reasons for the adoption of this instrument as the basis
of government. This understanding it is hoped he will get by
the following brief historical sketch.
IIISTOEICAL SKETCH
The Articles of Confederation. — With the Declaration of
Independence, 1776, the American colonies severed themselves
from British control. To be sure, that severance was not at
Historical Sketch 17
all certain to be lasting, for the war had just begun ; but the
people were so united in their opposition to the mother country
and so determined to be free that they immediately set about
to establish some definite form of government. At this time,
the student should remember, there was no such thing as a
united American people, but only a thin line of half-formed
States stretched along the Atlantic seaboard, exceedingly
jealous of one another, but held together for the time being
by a common danger and interest. A body of delegates from
the several colonies, which had first convened in 1774, was by
common consent conducting the war. This was the Conti-
nental Congress. It was a provisional body merely, made
necessary by stress of the times. It was bound by no organ
of government; its acts were sanctioned by no nation. If the
self-freed colonies therefore were to become anything more
than a number of weak and petty principalities, more or less
sure to be brought again beneath the British yoke, they must
before long hit upon some plan of amalgamation. Accord-
ingly, within two years after the Declaration of Independence,
or in 1778, the members of the Continental Congress had
drawn up an organ of government known as the Articles of
Confederation, which was designed to be the authority for all
acts of the Congress, and a means of guidance for the new
nation.
This famous document represents the first attempt by the
American people to frame a general constitution. When com-
pleted by the Congress it was submitted to the thirteen
colonies — or new-born States — for their approval. Maryland,
the last State to ratify the Articles, gave her consent in 1781.
Then the instrument became binding. By ratification the
States gave tlieir free consent to become members of a con-
federation having a central government. The adoption of the
Articles did not, however, much change the nature of what had
been the government before ; it merely gave the people a sort
2
18 Constitutional Law
of rudder with which to steer their ship of state. The same
Congress of delegates from the several States continued to
govern the Confederation, as well as the Articles allowed it to
do, and it continued to meet in yearly sessions until 1789,
when the Articles of Confederation were superseded by the
Constitution of the United States. The name " Continental,"
however, clung to the Congress after the adoption of the
Articles; hence the Congress that adjourned in 1789 is some-
times termed the 14th Continental Congress. The " Federal "
Congress originated with the Constitution.
Why the Articles of Confederation Failed. — Before the
Eevolution the colonists had been ruled by a far away govern-
ment, which they had learned to distrust and fear. When the
war was well advanced, and they found that they were about
to substitute for the distant government one nearer home,
they began to distrust that too. In truth, the people were
naturally apprehensive of any government except that in their
immediate localities. The great question of States' rights,
which was to cause so much trouble for the nation later on,
was even then before them. As a wliole they had no very
distinct notion of the value of national unity except for de-
fensive purposes. Therefore it is not strange to find that,
before they agreed to the Articles of Confederation, which
established a central government, they made sure that the
government was to have little power. Consequently, the
Articles worked badly from the beginning, for they were
glaringly inadequate to the needs of such a country as the
United States. Briefly, they created a confederation, not a
union ; they provided no head to the organization ; and though
they gave Congress full power to recommend and to declare,
they gave it little power to do. Perhaps the most vital weak-
ness of the Continental Congress was its inability to tax,
for without that power no government can prosper. The only
means of raising money which Congress had under the Articles
Historical Sketch 19
of Confederation were: to make requisitions on the States —
with no power to collect them; to borrow from foreign na-
tions; and to issue paper currency. Of these, the first was
very uncertain, the other two tended to financial ruin. The
result of these weaknesses was that the Congress began rapidly
to lose power at home and respect abroad; while the States,
relieved of their common enemy, began to irritate each other
and to make trouble for the central government. Each State
maintained its own troops, regulated its internal and foreign
commerce as it pleased, often to the detriment of neighboring
States, and paid or withheld its quota of the general tax at
will. Since voting in the Congress was by States, a large
State that sent many delegates had no more authority than a
small State that sent but few ; and a comparatively small num-
ber of members could negative any measure. Furthermore,
since each State paid its own delegates to the Congress, some
found it convenient occasionally to send none at all.
The Annapolis Convention. — These conditions could not
long endure. In the year 1786, therefore, at the instance of
Virginia, delegates from several States met in Annapolis, Md.,
for the purpose of discussing interstate trade, and of recom-
mending a uniform system of commercial regulations. Of the
States invited only five sent delegates — New York, Xew
Jersey, Pennsylvania, Delaware and Virginia. Although the
convention met in the capital city of Maryland, that State was
not represented. The assembly offers the rather singular
instance of a body which, although convened to discuss jin
important public matter, deliberated instead a public ques-
tion very different, but quite as important. Because the mem-
bers were few, they did not enter upon the proper business of
the Convention at all, but drew up a resolution instead, devised
by Alexander Hamilton, expressing their unanimous convic-
tion that the constitution of the existing government was not
adequate to the needs of the nation. This resolution with its
20 Constitutional Law
pertinent suggestion led to the assembling of that remarkable
convention in Philadelphia the next year which framed the
Federal Constitution.
Effect of the Kesolution. — The resolution was at once sub-
mitted to the legislatures of the several States and to the Con-
gress. The latter body could do nothing but recommend, but
it did that with reasonable quickness. In February, 1787, it
passed a resolution calling the attention of the States to the
failure of the Articles of Confederation, and suggesting that a
convention of delegates from all the States should assemble in
the month of May following to revise them. In response to
this suggestion, delegates from every State except Ehode
Island met in the city of Philadelphia on the 14th of May,
1787, and by the 25th of that month were hard at work re-
modelling the ship of state.
A Convention of Famous Men. — It was a remarkable body
of men that composed the Constitutional Convention. Its
presiding officer was George Washington, one of the great men
of all time, of whom an English historian has said : " No
nobler figure ever stood in the forefront of a nation's life." *
There was Franklin, scientist, author, inventor, statesman;
to whose prudence, calmness, and sagacity Americans owe an
everlasting debt. There was Hamilton, one of the greatest
constructive statesmen that ever lived. There, too, were
Madison, and Sherman, and Ellsworth, and Pinckney, and
Morris, all men of affairs, well versed in history, in letters,
and in the ways of men. The Convention furthermore was
mainly composed of young men. Their average age was 43 ;
ranging from Franklin, 81, to J. Francis Mercer, 28. Ells-
worth was 42 ; Madison was 36 ; Gouverneur Morris was 35 ;
Edmund Randolph was 34 ; and Hamilton but 30. Thus age,
with its experience and ripened judgment, and youth, with its
energy and abounding hope, united to produce what no less
* J. R. Green.
Historical Sketch 21
a man than Gladstone has said was " the greatest political
instrument ever struck off on a single occasion by the minds
of men."
The Work of the Convention. — The avowed purpose of the
Convention was to revise the Articles of Confederation. To
revise had been the instruction given by most of the States to
their delegates. But before the assembly had been long at
work better statesmanship prevailed. Two schemes of gov-
ernment were laid before the Convention : one by Mr. Patter-
son of New Jersey, providing for the revision of the Articles;
the other by Mr. Randolph of Virginia, calling for an entirely
new constitution. After due deliberation the Convention
wisely decided that it was easier and better to construct a new
instrument than to patch up the old, and they proceeded to
do so. Not without misgivings on the part of many members
Mr. Randolph's plan was adopted; the insufficient Articles
of Confederation were forever abandoned, and a new Con-
fctitution was begun. In framing a new Constitution, how-
ever, little that was new in principle entered into the work.
The men of the Convention did not dare to experiment. They
did not believe, as did the French at a later period, that work-
ing political principles could be made off-hand. Instead of
creating they made wise selection from materials right at
hand. The British Government had been, and was still, suc-
cessful, and it was a representative government. The States
all had constitutions that seemed to work well. It was from
these working models that the Convention took most of the
principles now embodied in the Federal Constitution. The
Articles of Confederation had provided for no Executive ; the
Convention created a President modelled on the English
Crown in some respects, on the State governors in certain
others. The Continental Congress wab a single body having
both legislative and executive functions ; the Convention pro-
vided for a Congress which should consist of two houses and
22 Constitutional Law
have legislative powers mainly — in many ways resembling the
British Parliament and the legislatures then in operation in
the States. Under the Articles there was no system of national
courts; the Convention provided for a national judiciary, in
many respects like the British. In short, the broad, basic
principles woven into the Constitution were principles that
had already stood the test of time within the political ex-
perience of the men in the Convention. It has been said that
those parts of the Constitution which were copied from the
English system of government, or from the systems operating
in the States, have worn the best, while those that were
original have been less satisfactory.
The document was' finished and signed by the men of the
Convention on the 17th of September, 1787. It was im-
mediately submitted to the people of the States for their
approval. Within two years it had received the necessary
ratification, and in the spring of 1789 it went into operation,
superseding forever the Articles of Confederation.
The Constitution is Unique. — As a successful organ of gov-
ernment the Constitution is unique. In the excellence of its
scheme, in its adaptation to a diversified people, in its brevity,
simplicity, and precision of language, it ranks above every
other written constitution. History can show few examples of
governmental documents at once so momentous and so short.
The English Constitution — so far as England can be said to
have a Constitution — consists of hundreds of volumes of
statutes and reported cases; the Federal Constitution can be
read through in less than half an hour. It was made short for
a purpose. It was intended to be a people's Constitution,
easily to be read and understood. Furthermore, its makers
realized that the more they specified, the more they should
have to specify. The document was therefore made rather
general in its principles ; much was left to be filled in by later
legislation, much to be worked out by interpretation. A
Historical Sketch 23
century and more has now passed since the Constitution was
written, during which time it has been subjected to a severe
experience. Hardly a line in it but has been made the subject
of judicial examination. It has withstood the shock of the
greatest civil war in history. Amendments have been added
to it; some of its minor principles have through time and
changing circumstances become dead letters; but its general
features stand unaltered — an enduring monument to men
who " builded better than they knew."
CHAPTER II
THE PREAMBLE
THE TWO HOUSES OF CONGRESS
Article 1, Sections 1-7
THE PREAMBLE
We, the people of the United States, in order to form a
more perfect union, establish justice, insure domestic tran-
quillity, provide for the common defense, promote the
general welfare, and secure the blessings of liberty to our-
selves and our posterity, do ordain and establish this
Constitution for the United States of America.
The Opening Clause. — The opening clause of the Constitu-
tion has been called a preamble b}^ some, the enacting clause
by others. Whatever name is given to it, its meaning and pur-
pose are obvious. It contains in simple language, without
ostentation or forced humility, six broad reasons for the adop-
tion of the Constitution. It is well for the student to ponder
these reasons briefly before undertaking the study of the law
itself; he may then pursue his study with a more sympathetic,
if not clearer, understanding. Accordingly, a short discussion
of them is given herewith.
" We, the People . . . ." — A comparison of this clause with
the preamble to the Articles of Confederation shows this great
difl'erence : that document was made by the States, the Con-
stitution was made by the people. This clause, therefore, is
not only a statement of reasons, but a declaration to all the
world that the United States comprised one people, no longer
a loose confederation of separate States. The nation began to
exist on July 4, 1776, but not until 1789, when the people
adopted their Constitution, did it assume a corporate form.
** A More Perfect Union." — The Articles of Confederation
created the United States of America; the Constitution per-
fected the Union. Under the Articles the Union was, as we
have seen, imperfect. The phraseology of its title was some-
28 Constitutional Law
what contradictory — " Articles of Confederation and Per-
petual Union," for the terms " confederation " and " perpetual
union " do not have precisely the same meaning. As Mr. John
Fiske states in his admirable text-book on civil government,
a confederation is what the Germans call a Staatenhund, or a
Band-of -States; a union is a Bundesstaat, or a Banded-State.
The Articles of Confederation made the former colonies little
more than a loosely banded group of States. They remained
still what the Declaration of Independence had made them,
separate and independent little commonwealths, independent
of Great Britain and of each other. Mutual jealousy and
distrust now served to keep them apart, where formerly the
fear of a common enemy had linked them together. It was
to correct the evils incident to this state of affairs, to make
of the thirteen commonwealths a Banded-State, that the Fed-
eral Constitution was adopted. Even then, it took some people
many years to grasp the meaning of the word Union, to realize
that the United States made one country, one nation, and not
a group of more or less independent States. Under the Con-
stitution the States still have a great deal of independence ; but
they acknowledge now a superior central government, they
have the same interest in the present and a common hope in
the future, as they never did have under the Articles of Confed-
eration.
" Establish Justice." — Under the Articles of Confederation
there was no Supreme Court, no system of Federal tribunals.
The States had their judicial systems, it is true, under which
controversies within the States were settled well enough ; but
the Articles provided no ready means for the settlement of
cases of national importance. The method provided by the
Articles for the adjustment of disputes between States, namely,
that Congress should act as arbiter in such cases, was at best
cumbersome and difficult of operation.* The Constitution, on
* Art. of Confederation, IX.
The Preamble 29
the other hand, established justice among the States by pro-
viding for a separate judicial department, and for the creation
and maintenance of a system of national courts.
" Insure Domestic Tranquillity." — Where no strong central
authority exists in a republic, internal peace cannot be assured.
For some time after the Revolutionary War money was
scarce, taxes were high, and the people were distrustful. In
consequence, disturbances took place here and there in the
States, some of which threatened very serious results; and in
no case was the Congress of much assistance in settling the
trouble. This was notably so in the case of Shays's Eebellion,
an outbreak in Massachusetts in 1786 that nearly involved
the entire country, or a large part of it, in a general revolu-
tion. Although the Congress made motions and resolutions
respecting the affair, it did almost nothing to quiet the dis-
turbance. The outside help that Massachusetts received came
rather from neighboring States on their own initiative, or at
the request of Massachusetts herself. To-day a domestic
trouble assuming serious proportions would call for immedi-
ate legislation by Congress — legislation that could be enforced
— or quick action by the President, or both.
** The Common Defense." — To provide for the common de-
fense was probably the main reason for forming the Confed-
eration. Yet the Articles of Confederation gave the Congress
little or no power to insure tranquillity within or defense
against enemies without. Each State attempted to provide
for its ovni defense, and in time of need it was more likely
to call upon neighboring States for help than upon the Con-
gress. Had New Hampshire, for example, been invaded by
troops from Canada during this early period, it is quite possible
that ilassachusetts would have sent her assistance, and very
probable that Georgia would not, being too far away from
the scene to feel vitally interested. The Congress, in such a
30 Constitutional Law
case, might have declared war on Canada and have called on
the States to furnish money and troops to repel invasion. But
some States might have refused to furnish money or troops,
and the Congress would have been unable to enforce its de-
mands on them, for the Articles gave it no such power. In
providing for the common defense, therefore, the Constitution
is very strong where the Articles of Confederation were lam-
entably weak. To-day, Congress may not only declare war
and require money and troops from the States, but it can
enforce its requisitions by taxation and draft.
" The General Welfare." — The phrase, " to promote the
general welfare," states a broad purpose. Every act of Con-
gress which benefits the public may be said to promote the
general welfare. But this phrase is not to be interpreted as
giving to Congress any actual authority. It merely states one
of the broad reasons for forming the Union, and for having
such a guiding instrument as the Constitution. Congress,
however, has promoted the general welfare through powers
distinctly given to it by other clauses in the Constitution, or
implied by them. It has passed acts to conserve forests and
waterways ; it has created the national banking system, enacted
inspection laws, and made tariff regulations — all of which
may be said to advance the interests of the general public. A
careful perusal of the Articles of Confederation, however, dis-
closes no intention on the part of its makers of allowing the
Congress any such scope in its legislation. It is doubtful if
the Continental Congress ever could have done much to pro-
mote the general welfare of the country.
"The Blessing's of Liberty." — This, like the foregoing, is
a general phrase. Paradoxical as it may seem, the States by
giving up liberty have gained liberty. Under the Articles
of Confederation the States retained their sovereignty and
independence. As a result they were weak individually,
and the Confederacy lacked that unity which is necessary to
The Two Houses of Coxgress 31
make a strong nation. Under the Constitution the idea of
complete State sovereignty is untenable, for much of the
freedom of the separate States is merged in that of the gen-
eral government. But who will now say that this loss of
individual independence does not make the independence of
the Union greater and more lasting?
THE TAYO HOUSES OF COXGRESS
Article 1
Section 1, Clause 1. — All legislative powers herein
granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Rep-
resentatives.
Character of the National Legislature. — The framers of
the Constitution, in making the national legislature to con-
sist of two separate branches, followed as their model the
British Parliament, which consists of a House of Lords and
a House of Commons. They were also doubtlessly influenced
by examples at home of successful governments whose legis-
latures were thus dual in character. On the other hand, the
Continental Congress was not divided, but consisted of a
single body ; France has at various times had a single legisla-
tive body; Sweden once had four, corresponding to the four
classes of people in that country ; but experience has shown
that the dual legislature is the most conducive to good govern-
ment. This is because one branch of such a legislature acts
as a check on the doings of the other. Before a bill in Con-
gress can become a law it is first reviewed by two separate and
distinct assemblies, one of which is composed, at least in the-
ory, of older and more experienced men thaii the other. Hasty
legislation is thus less possible, for what may be passed in the
heat of passion by one house must be subjected to the probal)lv
cooler judgment of the other. Such a system of checking is
32 Constitutional Law
not possible in a single bodied legislature; and a deliberative
assembly made up of three or four houses is obviously too
cumbersome for harmonious work.
Of the two Houses which compose the Congress of the
United States the Senate is the smaller and more conserva-
tive. It is constituted mainly of older men, who are elected
for longer terms and who are so divided into classes that a
large proportion of them, as will be explained later, will al-
ways have had the experience of two or more years in office.
It is thus the permanent branch of the legislature. The
House of Eepresentatives, although much larger, is not a per-
manent body, for it goes out of being every two years, and its
members go out of office at the same time. Many of the latter,
of course, are re-elected to serve in the succeeding House,
but many others are supplanted by new and inexperienced
men. In this way the House of Representatives is ever chang-
ing its personnel, and its members, coming as they do from
comparatively small districts scattered about the country, are
supposed to reflect pretty thoroughly the will of a democratic
people. On the other hand, they are quite as likely to reflect
the passions, prejudices and errors of those whom they rep-
resent.
Section 2, Clause 1. — The House of Representatives shall
be composed of members chosen eTery second year by the
people of the several States; and the electors in each State
shall have the qualifications requisite for electors of the
most numerous branch of the State legislature.
Representatives' Term of Office. — We have said that the
House of Eepresentatives, as a legal assembly, goes out of
existence every two years. This is by virtue of the present
clause, which compels the election of Eepresentatives every
second year. Members of the British House of Commons
serve for seven years. In America it is not the rule to
The Two PIouses of Congress 33
keep citizens long in political offices, but rather to have
short terms and frequent elections. Whether this is a good
rule in respect to the House of Representatives is open to
question, but it seems to have some advantages. Two years
is long enough for a Representative to acquire a practical
knowledge of legislative work, and not sufficiently long to
allow him to lose his sense of responsibility to his constituents.
This, at least, seems to have been the reason in the Conven-
tion for limiting the term to so short a period. In some of
the States the same rule is followed ; in others it is not. For
example, in Marjdand the delegates to the legislature are
chosen every two years; but as the legislature of the State
meets normally but once in that period the delegates are se-
lected anew for every session.
Qualifications of Electors. — The House is the popular
branch of the national legislature, for by the Constitution the
right to select its members rests solely with the people. The
word electors in this clause means voters. Not all the people
in the States are voters, however ; hence not all the people help
to elect their Representatives in Congress, but only those
qualified under State laws to vote for members of the larger
body of their own legislatures. It has been decided that Con-
gress, although it may regulate such matters as time, place, and
manner of conducting elections,' may not prescribe any more
specific qualifications for voters in national elections than this
clause contains.* Since the matter of suffrage is thus left
almost entirely to the discretion of the States, there has arisen
a noticeable lack of uniformity in the qualifications of those
persons who elect the Federal Representatives, and indirectly
the President. Some States require a property qualification
of their voters*; others require a certain amount of educa-
' Const. 1, 4, 1. (See R. S., 23-25.)
* Ex parte Yarbrough, 110 U. S., 651.
'Mass., Del., Penn., R. I., Ga.
3
34 Constitutional Law
tion '; some permit women to vote "; and some even allow the
ballot to unnaturalized forei<?ners after a short residence in
the State/ The only positive restriction which the Constitu-
tion lays on the States in respect to suffrage is to be found in
the 15th Amendment. It follows from what has just been
said, and from the custom of choosing Eepresentatives from
separate districts, that, although the Constitution requires
the members of the House to be elected by the people, they are
in fact chosen by a comparatively small proportion of the
whole; and that those who actually may assist in the election
of a Representative are but a fraction even of the voters in
the State.
Section 2, Clause 2. — No person shall be a Representa-
tive 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.
Qualifications of Representatives. — The Constitution de-
fines in a negative way the qualifications of national Repre-
sentatives. Any person not debarred by age, citizenship, or
habitancy may aspire to the office. The Constitution does not
require a Representative to be a voter, a property holder, a
male citizen, or even an American-born citizen, but merely to
be a resident of a State, twenty-five years of age, and a citizen
of the United States for seven years. To debar naturalized
citizens from membership in the House would deprive the
country of the services of many able men, and since the es-
tablishment of the Constitution many such citizens have been
elected to that assembly. But before a foreigner can legally
become a Representative he must have had at least twelve
' Mass., Conn., Del., Miss., Wy.
• Col., Cal., Ida., "Wash., Wy., Utah, Kan., Ariz., Ore.
' Ala., Ark., Ind., Kan., Mo., Neb., Ore., Tex.
The Two Houses of Congress 35
years' residence within the United States — five years before
he can be naturalized, and seven years of citizenship. It has
been decided that neither Conp:ress nor the States can change
these qualifications. TJeprcscntatives cannot, for example, be
required to be freeholders, or to profess any religion, or to be
college bred, or to be residents of the districts from which they
shall be chosen.
Residence. — A Representative must, at the time of his elec-
tion, be a domiciled resident of the State in which he is
chosen. He need not reside in the district that elects him,
although people as a rule prefer to choose one who is domiciled
among them. It is thought that only a person who is familiar
with a district from personal residence there can properly
represent it in Congress. It is perhaps from the custom of
electing Eeprcsentatives from particular districts' that the
people have come to regard members of the House as purely
local Representatives, and the latter often spend quite as much
time and effort in looking after petty affairs for their districts
as they do in considering broader national matters. By a
political fiction one who resides temporarily at a foreign court
as representative of the United States, or who is traveling or
sojourning abroad, does not thereby lose his status as resident
in his State, or his national citizenship. He may on his re-
turn become a Representative, if duly elected.
Since the Constitution docs not require a Representative to
reside in any particular district, it follows that removal from
the district after election does not affect his political status.
Whether removal from the State after election would compel
a Representative to vacate his office is still an unsettled ques-
tion. Although it is a rule of the common law that, if a
person holding a representative office remove from his dis-
trict (State), he thereby vacates the office, it would seem that,
although a Representative-elect who should do this ought with
good reason to resign his ofhee, he cannot be compelled to do
36 Constitutional Law
so, for the present clause in the Constitution relates only to
time before or at election, not to time after.
Age. — Before a man can be a member of the British House
of Commons he must be at least twenty-one years of age. This
is the rule of membership in legislative assemblies generally
throughout the United States, but to be a member of the
national House of Representatives one must be at least twenty-
five. Few men have had a very extensive political experience
by the time they are twenty-five; hence the age limit for
the important position of Eepresentative does not seem too
high. As a matter of fact few men enter Congress before they
are thirty.
Note. — The British Constitution does not permit a foreigner,
although naturalized, to be a member of either House of Parlia-
ment.
Section 2, Clause 3. — Representatives and direct taxes
shall be apportioned among the several States which may
be included within this Union, according to their respec-
tive numbers, which shall be determined by adding to the
whole number of free persons, including those bound to
service for a term of years, and excluding Indians not
taxed, three-fifths of all other persons. The actual enumer-
ation shall be made within three years after the first meet-
ing 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 Providence Plantations, one; Connecti-
cut, five; New York, six; New Jersey, four; Pennsyl-
vania, eight; Delaware, one; Maryland, six; Virginia,
ten; North Carolina, five; South Carolina, five; and
Georgia, three
Equal Apportionment. — It is a principle of republican gov-
ernment that the people shall bear the burdens of the govern-
The Two Houses of Congress 3~
ment equally, if possible, and share equally in the blessings.
People like to elect Ecpresentatives, or like to be such them-
selves; they do not like to pay taxes. With a delicate sense oi*
justice therefore the Constitution declares that Representa-
tives and direct taxes shall be apportioned among the people.
By " their respective numbers " is obviously meant the popu-
lation of the several States.
"Three-Fifths of All Other Persons."— The so-called
" Three-Fifths Rule " is now but a historical curiosity, for the
present clause in the Constitution has, since July 21, 18G8,
been superseded by the 14th Amendment, which omits the
phrase " three-fifths' of all other persons." It begins thus :
" Representatives and direct taxes shall be apportioned among
the several States according to their respective numbers, count-
ing the ivhole number of persons in each State, excluding
Indians not taxed." But when the Constitution was adopted
the people of many States were slave holders, who naturally
desired to have their slaves' count in the census, for a State's
representation in Congress increased with its population.
Other States objected to this, on the ground that slaves were
in reality property and not citizens. The agreement finally
to count three-fifths of the slaves in determining the census
of a State was one of the many compromises reached by the
Convention, in which the slave-holding States got a little the
better of the argument.
"Indians Not Taxed." — Indians once were numerous; to-
day they form but an inconsiderable part of the population. As
tribes they have never had any political status, their relation to
the government being that of ward to guardian, and for this
reason they have never been subject to taxation or reckoned as
part of the population. They can not sue or be sued in the
Federal courts. There is nothing, however, to prevent in-
dividual Indians from adopting the ways of civilization and
acquiring a political status; that is, becoming citizens with all
38 Constitutional Law
the rights and privileges thereunto pertaining, and many have
done so/ An Indian who has become a citizen is of course
subject to taxation, and he may acquire the right to vote.
Apportionment of Representatives. — Tlie present method
of apportioning Representatives among the respective States
has been used since 1850. It is as follows: Congress first
decides upon the number of Representatives desired. This
number is then divided into the entire population of the
country, and the quotient is taken as the basis of representa-
tion. The population of each State is then divided by this
number as a common divisor to get the number of Repre-
sentatives allowed to it. If the sum of the quotients thus ob-
tained does not equal the number of Representatives which
Congress has deemed requisite — and it rarely does — an
additional member is allotted to each of the States having the
largest remainders, until the required number is reached.
The Constitution required the census to be taken within
three years after the first meeting of the Congress of the
United States. It was in fact made in 1790. Since then it
has been made at the beginning of every decade, and with
every new enumeration of the people Congress has made a new
apportionment of Representatives. The thirteenth census was
taken in 1910. The Congress that was in session at the com-
pletion of the task, the 62 d, fixed the number of Representa-
tives for the decade beginning with March 3, 1913, at 433,
the basis of representation being 311,877. This number
was apportioned among the States as follows: Alabama 10,
Arkansas 7, California 11, Colorado 4, Connecticut 5, Dela-
ware 1, Florida 4, Georgia 12, Idaho 2, Illinois 27, Indiana 13,
Iowa 11, Kansas 8, Kentucky 11, Louisiana 8, Maine 4, Mary-
land 6, Massachusetts IG, Michigan 13, Minnesota 10, Missis-
sippi 8, Missouri 16, Montana 2, Nebraska 6, Nevada 1, New
" See 24 Stat, at Large, 390; 30 Stat, at Large, 513, 518; 31 Stat,
at Large, 1447.
The Two Houses of Congress :\9
Hampshire 2, New Jersey 12, New York 43, North Carolina
10, North Dai<ota 3, Ohio 22, Oklahoma 8, Oregon 3, Pennsyl-
vania 3G, Khode Island 3, South Carolina 7, South Dakota 3,
Tennessee 10, Texas 18, Utali 2, \'erniont 2, Virginia 10,
Washington 5, West Virginia G, Wiscousin 11, Wyoming 1.
The same act provided that Arizona and New Mexico,
which then were Territories, should, if admitted as States
within the decade, be allowed one Representative each in Con-
gress. This has since taken place.
The Constitution established the number of "Representatives
for the first Congress by stating how many each State should
be entitled to choose until the first census could be taken. It
is interesting to compare the representation allotted then to
the original thirteen States respectively, and the number
apportioned to the same States for the decade beginning with
1913, after one hundred and twenty-three years of growth.
For comparison the two apportionments are printed herewith :
1790 iyi3
New Hampshire 3 2
Massachusetts 8 16
Rhode Island 1 3
Connecticut 5 5
New York 6 43
New Jersey 4 12
Pennsylvania 8 36
Delaware 1 1
Maryland 6 6
Virginia 10 10
North Carolina 5 10
South Carolina 5 7
Georgia 3 12
From this list it is obvious that, while certain States, par-
ticularly New York and Pennsylvania, have tremendously in-
creased their representation in the House, other States have
not increased at all, and one. New Hampshire, has even lost
40 Constitutional Law
a member. Population in that State has not kept pace with
the increase in the basis of representation.
How Territories are Represented. — Although States are
allowed rei)resentation in the House according to their popu-
lation, Territories are allowed but a single delegate, regardless
of population. This official occupies a peculiar position in
Congress. He is entitled to membership on certain com-
mittees, particularly such as are concerned with Territorial
business, and he has the privilege of the floor, that is, he may
address the House, but he has no vote. At present (1913)
Alaska and Hawaii have each such a delegate in Congress.
Porto Rico sends a resident commissioner to the United States,
who represents the island in its transactions with the Federal
government, but who has no connection with Congress.
Hepresentative at Large. — ^TJntil June 25, 1842, States'
elected their Representatives to Congress by general ticket;
that is, all the electors in a State had the right to vote for all
the State's Congressional candidates at a general election. In
that year Congress enacted that Representatives should be
chosen by districts of contiguous territory within the re-
spective States corresponding in number with the Represen-
tatives. The rule thus established has been followed ever
since. The work of dividing the States into districts falls
upon the States' legislatures, and the only restriction placed
on them is that the districts shall contain approximately the
same population. Under this' system a State sending ten
Representatives to Congress should be divided into ten dis-
tricts, each of which is entitled to choose one Representative.
I^ow it may happen that this State, by virtue of a new appor-
tionment of Representatives, suddenly finds itself entitled to
send eleven members to the House instead of ten, and the
legislature may fail to redistrict the State in time for the next
general election. What then? How is the additional Rep-
resentative to be chosen? He is elected by the whole State
The Two Houses of Coxgress 41
regardless of districts, and is called Eepresentative at Large.
Of course a State entitled to but one Representative of neces-
sity elects him at large.
In the 62d Congress there were Ecpresentatives at Large
from the following States : Colorado, Connecticut, Delaware,
i\Iontana, Nevada, Xorth Dakota (2), South Dakota (2),
rtah.
Section 2, Clause 4. — When vacancies happen in tlie
representation from any State, the executive authority
thereof shall issue writs of election to fill such vacancies.
Vacancies in Office. — Vacancies may happen in the repre-
sentation from any State by death, removal, resignation, or
the acceptance of incompatible offices. As the people elect
the regular Representatives, it is but natural that they should
have a voice in the matter of filling vacancies in office when
they occur. Consequently, in such a case, the Governor of the
State has no power of appointment, although a different rule
may obtain in respect to vacancies in the Senate. His duty is
to call a special election in the district concerned, or in the
whole State in the case of a Representative at Large, by issuing
a writ of election. This is a formal notice to the people of the
existence of the vacancy, commanding them to meet together
on a certain day for the purpose of choosing some one for the
vacant office. It is customary for the House, when a vacancy
occurs, to notify the Executive of the State concerned ; but it
is sufficient notice if he receives the resignation of the member.
Whoever is elected to fill the vacancy serves for the rest of
the term.
Section 2, Clause 5. — The House of Representatives shall
choose their Speaker and other officers, and shall have the
sole power of impeachment.
42 COXSTITDTIONAL La"VT
The Speaker. — The Speaker is chosen by ballot at the be-
ginning of every term of Congress from the list of Eepre-
sentatives, and is the only Eepresentative to hold special office.
His general duties are : to preside over the deliberations of the
House; to appoint all special ° committees; to vote in case of
a tie, although he may do so on other occasions ; and to sign all
bills and joint resolutions. Next to the President the Speaker
holds the most important and powerful office under the gov-
ernment, for his position allows him to wield considerable
influence on legislation. The title of Speaker originated in
the time when the legislature was addressed in person occa-
sionally by the chief executive of a nation, and the presiding
officer of the assembly was expected to reply. This custom
long ago fell into disuse, but the name remains.
Other Officers of the House. — The other officers of the House
are the clerk, the doorkeeper, the sergeant-at-arms, and the
postmaster. These are not Congressmen. The office of clerk
is of considerable importance, and involves much labor. The
clerk calls the rolls, reads the minutes' and the almost countless
bills presented to the House, and presides at the opening of
each subsequent Congress. An ex-member of Congress is
sometimes appointed clerk. The duties of the other officers
are obvious'.
Impeachment. — Impeachment in legislative bodies corre-
sponds in general to indictment in criminal procedure. Tech-
nically, it is a written accusation made by the House of Rep-
resentatives of the United States (or of a State) to the Senate
of the United States (or of a State) against a civil officer,"
charging him with misdemeanor in office. The accusation is
directed to the Senate, because that body is the court before
• Until 1911 the Speaker appointed all regular standing com-
mittees. In that year, at the beginning of the 62d Congress, the
House adopted a rule requiring all such committees to be elected
by the members of the body. (House Rules, Sec. 661.)
'" Military and naval officers are tried by courts martial.
The Two Houses of Congress 43
which the officer must be tried. Briefly, the method of im-
])cfiching a man is as follows: The Speaker first appoints a
special committee to investigate the conduct of the officer.
If the rei)ort of the committee is in favor of impcacliment the
House draws up the necessary articles embodying the specific
iliarges on which the accused is to be tried, and a special com-
mittee is then appointed to prosecute the case before the
Senate. (For further treatment see pages 52-53, 184,
198-200.)
Section 3, Clause 1. — 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.
The ITth Amendment, adopted in 1913, rendered this sec-
tion of the Constitution void. For the sake of historical in-
terest, however, it may be worth while, in passing, to discuss
briefly the old method of electing Senators.
Equality of Representation. — Previous to the adoption of
tlie ITth Amendment the House might be said to represent the
people in Congress ; the Senate, to represent the States. SucJi
at least was the thought in the Convention. Prior to the
adoption of the new Constitution practical equality had existed
among the States, for in the old Continental Congress each
had but one vote on any question, no matter how many dele-
gates it furnished. Xaturally the smaller States wished the
same rule to hold under the Constitution; naturally the larger
ones did not. Tiic Convention finally compromised by pro-
viding that the States should be represented in the House
according to their respective numbers, but equally in the
Senate. Accordingly, each State was allowed to send two
Senators to the national Congress, and each Senator had a
Yote. Thus in both Houses voting was now done by indi-
viduals, no longer bv States.
How Senators were Elected. — The student should remember
44 Constitutional Law
this important difference between the mode of electing Sena-
tors previous to the 17th Amendment, and that of electing
Representatives : the former were chosen by States' legisla-
tures; the latter, by the people. The first method is called
indirect; the second, direct. Now the Constitution nowhere
specifies in what manner the legislatures of the States should
choose Senators for the United States Congress, and for many
years there was little uniformity in the methods used. In
18GG, however. Congress, by virtue of the power conferred
upon it in Article 1, Section 4, Clause 1, of the Constitu-
tion, prescribed the following mode." Each House of any
State legislature that should be chosen next preceding the
expiration of the time for which a Senator from that State
was elected should, on the second Tuesday after its first
meeting and organization, name one candidate for United
States Senator. The members of each House, in this case,
were to vote openly, viva voce, and the number necessary for
choice was a majority of those present. The name of the
candidate thus chosen by each House was required to be
entered on the journal, and if either House failed to select a
candidate, that was likewise entered. At noon on the follow-
ing day the two Houses were required to meet in joint
assembly, and if it appeared from the journals that the same
man had been selected for Senator by each House, that person
was duly declared elected. If, however, the two Houses had
not chosen the same person, or if one or both failed to present
a candidate, then they were required to vote in joint assembly
at least once a day, until they should succeed in selecting a
Senator. In this case a majority of each House was required
to be present, and of these a majority was sufficient to elect.
The voting was, as before, viva voce. The Governor had noth-
ing whatever to do with these elections.
This was the procedure when a vacancy was about to occur
"Revised Statutes, 15.
The Two Houses of Congress 45
through the expiration of a Senator's term of office. The same
steps were taken, of course, if a legislature, on convening,
found a vacancy already existing; and if a vacancy occurred
while the legislature was in session, they proceeded to elect
on the second Tuesday after they had received due notice of it.
The System Abused. — The method just explained was theo-
retically a rather neat way of getting men into the United
States Senate. Legislatures represent the people of the whole
State; hence a legislature's choice for the Senate would be
peculiarly representative of the State. But in practice the
scheme came to be altogether unsatisfactory, for it was awk-
ward, cumbersome, and open to abuse. Legislatures were
sometimes in disagreement (deadlock) over elections for
weeks. Meanwhile, important business of the State was de-
layed, and the vacancy at ^Yashington still continued.
Furthermore, bribery and coercion were not unheard of in this
connection; and too often a Senator-elect, instead of being
representative of the whole State, was in reality representative
of a powerful faction in a State legislature. For these and
other reasons the question of electing Senators by popular
ballot had long been agitated ; but it was not until the spring
of 1913 that the necessary amendment providing for such a
radical change in the organic law became a fact.
Senatorial Primaries. — As illustrative of the general grow-
ing demand for the popular election of United States Senators
many States had, previous to the adoption of the 17th Amend-
ment, passed primary election laws allowing the people to
participate in a measure in the selection of United States
Senators by naming candidates at the general State elections.
These elections were called Senatorial primaries. The final
selection of the Senator in these cases was reduced to a mere
form, for the law usually made it incumbent on the legislature
to choose the person for whom the people had sho^-n their
preference at the polls. This, however, only scotch'd the
snake; the 17th Amendment killed it.
46 Constitutional Law
AMENDMENT 17.
The Senate of the United States shall bo composed of
two Senators from each State, elected by the people
thereof, for six years; and each Senator shall have one
vote. The electors in each State shall have the qualifica-
tions requisite for electors of the most numerous branch
of the State legislature.
When vacancies happen in the representation of any
State in the Senate, the executive authority of such State
shall issue writs of election to fill such vacancies: Pro-
vided, That the legislature of any State may empower the
executive thereof to make temporary appointments until
the people fill the vacancies by election as the legislature
may direct.
This amendment shall not be so construed as to affect
the election or term of office of any Senator chosen before
it becomes valid as part of the Constitution.
This amendment was proposed in the House of Representa-
tives in the form of a joint resolution in 1911. It was sub-
mitted to the legislatures of the States in 1913. Early in
1913, having received the ratification of the necessary three-
fourths, it became therewith an integral part of the Constitu-
tion.
Effect on the Constitution. — The 17th Amendment at once
made void the first clause of Section 3, Article 1 ; and so much
of the second clause, as relates to vacancies. According to
this amendment United States Senators must now be elected
by the people, in the manner provided by the Constitution for
the election of Eepresentatives ; and when vacancies occur,
they also must be filled by popular election, except that a State
legislature may authorize its chief executive to make tempo-
rary appointments to fill the vacancies until the legislature
provides for a special election. In any event the original
office and the vacancies in it must now be filled through elec-
tions by the people, and not by State legislatures as heretofore.
At this writing (1913) it is a little too soon after the enact-
The Two Houses of Congress 47
mrnt of the I'tli Aniondmcnt for an oxtondod discussion. Wo
cannot forecast tiie years and say what will be the result of
Buch a radical chanfro in the basic law, but there is reason in
believing that it will redound to the general good. If ever
there was a valid reason for employing different methods in
electing members to the two Houses of Congress, it has no
great force to-day; and certainly it would seem that, in a
republican country, both parts of a bicameral legislature
should be as nearly as possible representative of the people.
Section 3, Clause 2. — Immediately after they shall be as-
sembled in consequence of the first election, they shall be
divided as equally as may be into three classes. The seats
of the Senators of the first class shall be vacated at the
expiration of 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 legis-
lature of any State, the executive thereof may make tem-
porary appointments until the next meeting of the legis-
lature, which shall then fill such vacancies.
Classes of Senators. — Dividing the Senators into classes
was an expedient devised to make the Senate a perpetual body.
It is not to be inferred from this clause, however, that some
Senators serve only two years, some four, and the rest six.
The short terms' occurred when the Senate assembled in con-
sequence of the first election, i. r., in 1780, and on the admis-
sion of new States to the Union. To illustrate: After the
first Congress was set in operation, and the Senators had been
divided into the three classes, the seats of the first class became
vacant by law in 1791, two years after the assembling of Con-
gress; the seats of the second class became vacant in 1703;
the seats of the third class, in 1705. Now, since the senatorial
term is six years, the seats of tlie first class again became
vacant in 1707 ; the seats of the second class, in 1700 ; and the
seats of the third class, in 1801. On the admission of new
48 Constitutional Law
States, however, it has been necessary to assign the first two
Senators from such States to different classes, in order that
their seats should not be vacant at the same time ; and these
Senators have enjoyed their offices for two, four, or six years,
according to the classes to which they happened to be assigned.
To illustrate again : The Senators from Ohio took their seats
in 1803, and were assigned to the first and third classes
respectively. Consequently, the one assigned to the first class
served the full period of six years, for the terms of that class
expired in 1809, 1815, etc., but the one assigned to the third
class served only four years, for the terms of that class expired
in 1807, 1813, etc. Thereafter, however, all the Senators from
that State were entitled to the full six-year term.
Vacancies in the Senate. — These may occur from resigna-
tion, death, removal from office, or the acceptance of incom-
patible offices. In the last case, the act of accepting the in-
compatible office creates the vacancy without further action
by the Senator. An instance of this would be the acceptance
by the Senator of the office of United States District Judge.
The election of a Senator to the governorship of a State would
not create a vacancy at once, for State and Federal officers
are not strictly incompatible.
Since the matter of filling vacancies in the Senate has
already been discussed under the 17th Amendment it is un-
necessary to discuss it further here. The student should
notice in particular that the Governor of a State no longer has
the power to make temporary appointments unless the State
legislature gives him authority so to do.
Certificate of Election. — ^Wlien a person is duly elected to
the United States Senate it is the duty of the executive of his
State to confirm the election by giving him a formal certifi-
cate, countersigned by the secretary of State, and stamped
by the State's seal. This he presents to the president of the
Senate as evidence of his lawful election. It is only prima
The Two Houses of Congress 49
fade evidence, however, since the Senate may go hohind the
certificate and demand more evidence of the fact. This is more
fully discussed under Section 5, Clause 1, of this Article.
(See page 59.)
I'
Section 3, Clause 3. — 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 inhabitant of that State for
which he shall be chosen.
Qualifications of Senators. — The qualifications of Senators
differ from those of Eeprescntatives only in degree, the higher
requirements for admission to the Senate giving that body a
slightly more exalted character. It is seemly that these re-
quirements should be higher, for the Senate now and then
engages in more serious business." What in general has been
said in previous pages concerning the qualifications of Rep-
resentatives applies equally to Senators. Citizens of foreign
I)irth are not eligible to the United States Senate until nine
years after their naturalization — a limitation that is reason-
ably certain to prevent any foreign government from exercis-
ing an influence over the conduct of affairs within the United
States.
Scope of Congressmen. — Although Eeprescntatives and
Senators represent the States in Congress primarily, in a
larger sense they are all national ofHcers, whose work should
not be limited, individually, to legislation affecting local sec-
tions. They serve their own States best in Congress who
labor for the good of the commonwealth. State legislatures,
however, have sometimes instructed their United States
Senators to work for special objects, and the people of certain
districts too often expect their Representatives to get more or
less Federal patronage for them; but Congressmen are not
"The Senate tries impeachments, confirms Presidential ap-
pointments, and assists in making treaties.
4
50 Constitutional Law
bound to follow cither the instructions of the one or the wishes
of the other. Those who do not take this wide view of their
duty are presumably guided by somewhat restricted, personal
interests.
Removal from the State. — There is nothing in the Constitu-
tion to prevent a Senator from removing his residence after
election from the State in which he was chosen. It is merely
necessary that he be an inhabitant of the State at the time of
his election.
Section 3, Clause 4. — The Vice President of the United
States shall be the President of the Senate, but shall have
no vote, unless they be equally divided.
The Vice President. — The Vice President is a sort of Presi-
dent in expectancy. If the office of President becomes vacant
through the death, resignation, or removal of its occupant the
Vice President at once becomes President. Although the Vice
President is not a Senator, the makers of the Constitution
provided that he should be President of the Senate, and for
two very good reasons: 1st, to give him something to do,
since there are no duties attached to the office of Vice Presi-
dent; and 2d, to avoid the unpleasant possibility of any one
State's obtaining more than its due share of influence by the
selection of one of its representatives for the presidency of
the Senate. The Vice President himself has no choice in the
matter. By virtue of the Constitution he must preside over
the deliberations of the Senate whether he wishes to do so or
not, and even though he may be naturally unfitted for the task.
The United States Senate is not the only example of a
deliberative body whose presiding officer is in no other sense a
member of it. This is the case in the English House of Lords,
and in the legislatures of some of the States. In the latter the
Lieutenant-Governor presides over the State Senate. In Mary-
land, however, which has no Lieutenant-Governor, the pre-
The Two Houses of Congress 51
siding officer of the Senate is chosen by ballot from the mem-
bers of that body.
Duties as President of the Senate. — Unlike the Speaker of
the House the President of the Senate wields no great power.
He is virtually a figurehead. The Senate makes its o\^ti rules,
elects its committees by ballot, and there is but little for the
presiding officer to do but to maintain order, declare votes, and
perform other more or less perfunctory duties. Even ques-
tions of order decided by him may be appealed to the Senate.
Purthermore, the Constitution distinctly limits his right to
vote, allowing it only in case of a tie. The chance to exercise
this right does not happen very often, but when it does the
Vice President becomes at once a person of considerable im-
portance, for he has the power single handed to make or to
mar legislation of vast importance. With this lone exception
the office of Vice President carries no great influence, and for
this reason has not been much sought after by men in public
life.
Section 3, Clause 5. — The Senate shall choose their other
officers, and also a President pro tempore, in the absence of
the Vice President, or when he shall exercise the office of
President of the United States.
Other Officers. — The other officers here referred to are a
secretary, a sergcant-at-arms, a chaplain, a postmaster, and
two doorkeepers. These officers arc not Senators. On the
other hand the president pro tempore is a Senator. He is not,
however, appointed permanently except on the death of the
Vice President, or on the latter's promotion to the Presidency.
It is customary for the Vice President to vacate the presid-
ing officer's chair in the Senate a few days before the close of
each session, in order that the Senate may choose a president
pro tempore, who will thus be in office in case the Vice Presi-
dent should in the recess' of Congress become President, or
52 Constitutional Law
become mentally or physically unable to discharge his duties.
But the president fro tempore receives no additional salary,
except when he succeeds the Vice President in office per-
manently; then he gets the latter's salary. Unlike the Vice
President, the president pro tempore of the Senate is not
restricted in his power to vote.
Section 3, Clause 6. — The Senate shall have the sole
power to try all impeachments. When sitting for that pur-
pose, they shall be on oath or affirmation. "When the Presi-
dent of the United States is tried, the Chief Justice shall
preside: and no person shall be convicted without the
concurrence of two-thirds of the members present.
Impeachment. — It is well that the right of impeachment
exists, for it is a bulwark against possible oppression on the
part of those in high places. Furthermore, it is eminently
proper that legislatures, or other bodies than courts of law,
should conduct impeachment proceedings, for the offenses
reached thereby are mainly, though not always," of a political
or judicial nature — abuses of trust, neglect of duty, un-
warranted assumption or high-handed exercise of power — and
are not always within the jurisdiction of municipal courts.
The procedure in impeachment cases is not so intricate or so
technical as in action before courts of law, and there is less
opportunity therefore for offenders to escape conviction on
mere quibbles. Undoubtedly the framers of the Constitution
got their notions of impeachment from England, where from
time immemorial the House of Commons has exercised the
right to impeach offenders, the House of Lords the right to
try them. Under the Constitution the participation of the two
Houses of Congress is similar: the House of Representatives
is the prosecuting body, the Senate is the court before which
" Constitution, 2, 4. See p. 198.
The Two Houses of Congress 53
the case is tried. It would not be seemly for either assembly
to be both accuser and court.
The Senate as a Court. — While engaged in impeachment
cases the Senate assumes the character of a judicial tribunal.
But it is a peculiar tribunal. It is at once both judge and
jury, deciding questions of fact as well as questions of law;
and as a court it is almost unwieldy in size. The ordinary
trial jury in courts of law consists of twelve men, who must
be unanimous in order to convict; whereas the Senate con-
vened as a court may consist of nearly a hundred men, and
conviction may be had by a two-thirds vote of the members
present. This may mean the full Senate, or only a majority,
the number necessary under the law to do business. Thus the
number necessary to convict is always variable. How different
is this from the rule in courts of law, where exactness and
certainty are prerequisite. In this respect the procedure in
impeachment trials is open to criticism; yet the custom of
allowing conviction on a fractional vote is in itself wise, for
it is very probable that a unanimous verdict could never be
obtained in such a large body of men, a hody, furthermore,
that is often divided on purely party or sectional lines.
Procedure in the Senate. — When the House has presented
the articles of impeachment— that is, the charge or indict-
ment—to the Senate, it becomes the latter's duty to summon
the accused party to appear before it on a designated day.
When the accused appears he is given a copy of the charges,
and is allowed a certain time in which to make his answer.
If he denies the allegations, the prosecuting committee from
the House replies in writing, and states its readiness to prove
the charges preferred. The accused is then furnished counsel,
and the trial proceeds according to the ordinary rules of
law and parliamentary practice. Should the accused foil to
appear in answer to the summons, the Senate may go on with
the trial in his absence. This is called an ex parte proceeding."
" The case of Judge Pickering, 1S04.
54 Constitutional Law
Ordinarily the Vice President presides over impeachment
trials, but should the President happen to be the accused
party, the Chief Justice of the Supreme Court presides. To
have the Vice President officiate in such a case is not deemed
good policy in view of the fact that he has an interest in the
chair of the Chief Executive.
Impeachment in the States. — The constitutions of most, if
not all, of the States provide for the impeachment of State
officers. The right to impeach is, however, generally regarded
as inherent in a republican state, hence it is probable that any
State legislature would have the power to bring impeachment
proceedings whether the constitution expressly provided for
them or not. In most States the Chief Justice of the State
Supreme Court presides if the Governor is impeached. For
many years the States of South Carolina and New York re-
quired a mixed tribunal of legislative and judicial officers in
impeachments. Impeachment trials in the States have been
comparatively rare.
Section 3, Clause 7. — Judgment in cases of impeachment
shall not extend further than to removal from office, and
disqualification to hold and enjoy any office of honor, trust
or profit under the United States: but the party convicted
shall nevertheless be liable and subject to indictment,
trial, judgment, and punishment, according to law.
Punishment. — In Great Britain, after conviction in a case
of impeachment, the House of Lords may inflict as much
punishment as a court of law. This is because the Parliament
was originally the highest court of judicature in the realm,
and the power of the Lords to decree extreme punishment in
cases over which it has jurisdiction has never been taken away.
The Constitution of the United States, however, limits the
penalty which the Senate may impose to " removal from office,
and disqualification to hold and enjoy any office of honor,
trust, or profit under the United States." By a later clause,
The Two Houses of Congress 55
Article 2, Section 4, removal from office is, on conviction in
certain cases, made imperative. Briefly then, one who is
impeached and found guilty of the charge must be removed
from office; in addition, he may be disqualified to hold that, or
any other office under the national government, at the dis-
cretion of the Senate.
Courts May Also Punish. — Thus the power of the Senate to
punish in cases of impeachment is limited." But in addition
the impeached person is liable to trial and punishment by any
court of law having jurisdiction of the person and the offense.
This of course is an exception to the principle that conviction
or acquittal by one established tribunal renders a second trial
for the same oU'euse impossible." But the f ramers of the Con-
stitution made the exception arbitrarily in order that no man
should lightly escape a deserved punishment if guilty of an
offense against the State. It is the purpose of impeachment
to purify the office; it is the function of the law to punish.
As yet, however, in the history of the United States, no im-
peached person has suffered further trial and punishment
according to law for the same offense.
Office Under the United States. — Disqualification to hold
and enjoy any office of honor, trust, or profit under the United
States has no bearing on the occupation of State offices. They
are not offices under the United States. It would not be un-
constitutional, therefore, for a person whom Congress had
impeached and found guilty to accept afterwards the governor-
ship of a State, or any other purely State office. In this respect
the States and the United States, it may be seen, are separate
entities, working independently of each other.
" Nevertheless, the power of the Senate is absolute as far as It
goes, for not even the President can pardon one whom the Senate
has convicted. Art. 2, Sec. 2, Clause 1, pp. 181, 184.
" Constitution, Amendment 5.
56 Constitutional Law
Section 4, Clause 1. — The times, places, and manner of
holding elections for Senators and Representatives shall
be prescribed In each State by the legislature thereof; but
the Congress may, at any time, by law, make or alter such
regulations, except as to the places of choosing Senators.
The Control of Elections. — At the time of the Constitu-
tional Convention many people argued that to allow Congress
in any way to control the elections of Congressmen would be
placing an arbitrary power in the hands of the national legis-
lature that might work infinite harm to some States, or to all.
On the other hand it was clear that every good government
should possess the means for its own preservation, and to grant
to the State legislatures the exclusive power to regulate elec-
tions might result in leaving Congress to their mercy. The
Convention finally agreed on the sensible compromise stated
in the clause above.
Acts of Congress Regulating Elections. — Until 1842 the
States appointed Representatives and Senators in what man-
ner, time, and place they saw fit ; and there was in consequence
very little uniformity in the matter. In 1842, however, Con-
gress enacted a law compelling the elections of Eepresentatives
to be held in districts of contiguous territory." This was a
regulation as to jjlace. In 1871 Congress provided that all
votes for Eepresentatives should be on written, or printed,
ballots, any law of any State to the contrary notwithstanding."'
Thus was the manner of such elections determined. In 1872,
furthermore. Congress regulated the time of choosing Eepre-
sentatives by making it the same throughout the Union : viz.,
on the Tuesday after the first Monday in November of every
alternate year." As to the selection of Senators, Congress
passed an act in 18GG to regulate the procedure/" the manner
" Stat, at Large, 5, 491.
"R. S., 27.
»R. S., 25.
^R. S., 15.
The Two Houses of Congress 57
of which has already been explained. The 17th Amendment
has, however, rendered that law inoperative.
In such ways as these Congress has at various times regu-
lated the time, manner, and place of holding elections for
Representatives, and the manner of electing Senators. The
purpose of these regulations has been to make uniform the
methods of choosing men for Congress, and they have been
beneficial rather than harmful. Power to prescribe in what
places the elections of Senators should be held was distinctly
prohibited to Congress by the Constitution, for it was plainly
improper for Congress to have the power to fix the meeting
places of State legislatures, and consequently to determine the
situation of State capitals.
Section 4, Clause 2. — The Congress shall assemble at
least once in every year, and such meeting shall be on the
first Monday in December, unless they shall by law appoint
a different day.
Meetings of Congress. — Terms of Congress and sessions of
Congress are ditferent things. A term of Congress consists
of two years, the length of time for which Representatives are
elected to serve. A session, on the other hand, is any assem-
bling of Congress for legislative purposes, whether for long
or short periods, whether at regular or irregular intervals. A
term of Congress begins regularly on the 4th of !March of every
alternate year. During every term there must be by law at
least two sessions, one each year; and there may be more.
Normally, the first regular session of a Congress begins on the
first ]\ronday in December of the year in which the term begins,
and it lasts until some time during the following spring or
summer. It is of indefinite length, for it may continue
legally until the time set for the second session to begin. The
second session begins legally on the first "Monday in December
of the following year and closes by law on the 4th of March
next ensuing."
»' Until 1853 it was on the 3d of March.
58 Constitutional Law
Congresses Named Numerically. — Congresses are named in
the order of their terms, beginning with the 1st in 1789, Thus
the Congress which began on March 4, 1913, was the 83d.
Special Sessions. — It is obvious from what has just been
said that the two sessions of Congress convened in every term
are of unequal length. The first is always the longer, its
length being determined by the amount of business on hand.
The second session, however, must close on the 4th of March
next ensuing, unless adjourned beforehand on motion, or by
Executive order. But the President may call extra, or special,
sessions of Congress, or of either House separately, whenever
in his judgment the exigencies of the country demand it; and
he may adjourn the two Houses should they disagree as to the
time of adjournment.^ The President has never yet ad-
journed Congress, but he has called many extra sessions. For
example. President Taft called an extra session of Congress
on the 4th of March, 1909, to revise the tariff; his successor,
President Wilson, did likewise in the spring of 1913. An
extraordinary session of Congress is not limited to the business
for which it is convened ; it may consider any business properly
within its scope.
" A Different Day." — Under the authority of this' clause
Congress might appoint some other day for its yearly assem-
bling than the first Monday in December, and for some time
after the adoption of the Constitution it exercised its pre-
rogative in this respect. But the custom of meeting on the
first Monday in December has now become so fixed that it is'
unlikely that Congress will ever appoint a different day.
Section 5, Clause 1. — Each House shall be the judge of
the elections, returns, and qualifications of its own mem-
bers, 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.
'^^ Constitution, 2, 3.
The Two Houses of Congress 59
Contested Elections. — ^The word " returns " here means the
election reports niadc by tlic proper oiricials after an election.
The correctness of these returns, the lefjality of the election,
and the qualifications of the person concerned are all matters
to be determined finally by each House of Congress if the
status of a member is in doubt. Ordinarily, the certificate of
election which the Representative- or the Senator-elect brings
with him is sufficient to establish his right to a seat. But
the certificate is only prima facie evidence of the fact, and
each House may demand other and additional evidence. All
doubtful cases, accordingly, are referred to a standing com-
mittee on elections, whose report, if accepted, is final; and
neither States nor courts have power to re-open the question.
This power to determine the fitness of members, and the
legality of their elections, is generally inherent in legislative
bodies.
Quorums. — A quorum is the number of members of a delib-
erative body necessary to be present in order that the body
may transact legal business. Usually assemblies determine
their own quorums; sometimes they are established by law.
Sometimes a quorum is a variable number, as in Congress,
where a majority in each House is sufficient ; and this may be
said to be the usual custom among assemblies. Sometimes,
however, it is a fixed number, as in the British Parliament,
where in the House of Commons of 670 members'* forty-five
make a quorum, in the House of Lords of 631 members " only
three are necessary. In a few of the States, likewise, a quorum
is a fixed number.
The rule requiring a majority for a quorum makes it im-
possible for a crafty minority to pass a bill by stealth or sur-
prise, or to obstruct legislation seriously, as might be the case
if a definite number below or above a majority were necessary
for a quorum.
'"* Statesman's Year Book, 1910.
60 Constitutional Law
Compelling Attendance. — Under this clause in the Consti-
tution a smaller number than a majority may meet and
adjourn from day to day, thus preventing the legal dissolution
of Congress, and may compel the attendance of absent mem-
bers under such penalties as either House may deem proper.
By a rule of the House of Eepresentatives fifteen members,
including the Speaker, may compel attendance. Under the
Articles of Confederation no such rule existed, and the Con-
gress was often idle for want of a sufficient number to do
business.
When it becomes' necessary to compel the attendance of
absent members of either House the sergeant-at-arms is
usually empowered to arrest truant members wherever he can
find them, and bring them before the House to which they
belong for final action by that body.'^ This, however, is a pro-
cedure not often invoked.
Counting a Quorum. — Until the 51st Congress only those
members of either House who voted on questions were con-
sidered to be constitutionally present. That is, members
might be in actual attendance, and might even speak on
matters before the assembly, but unless they voted on measures
they could not be counted to make the necessary majority.
In this way legislation was often impeded for want of a
quorum. During the 51st Congress, however. Speaker Reed
established the rule of numbering all the members of the
House who were present in person whether they voted or not.
Later, this right to count a quorum was questioned rigorously,
but the rule was upheld by the Supreme Court,^'' and the
practice is now settled.
Filibustering. — This was the term applied to the act of a
member in refusing to vote, thus making himself constitu-
tionally absent, and delaying legislation. The word, however,
" House Rule.
"'United States v. Ballin, 144 U. S., 1.
The Two Houses or Congress 61
has to-day a wider application, meaning any tactics whatsoever
indulged in by members of either House to impede the passage
of an act. Thus the continual calling for a yea and nay vote
on trivial matters, and the making of unduly long speeches
are favorite filibustering tactics.
Section 5, Clause 2. — Each House may determine the
rules of its proceedings, punish its members for disorderly-
behavior, and, with the concurrence of two-thirds, expel
a member.
House Rules. — To allow Congress to frame its own rules of
procedure, or parliamentary rules, as they are called, is a
matter of common sense. Without this power it might be im-
possible for the national legislature to do business with
decency, deliberation, and order. It is customary, at the
opening of the first session of each Congress, for the House of
Eepresentatives to adopt the rules in force during the pre-
ceding term, but later to adopt such changes or additions as
the standing committee on rules may recommend. Until the
60th Congress the Speaker of the House was regularly chair-
man of this committee on rules, a position that enabled him
to dominate the procedure of the House to a very large extent.
During that Congress a rule was adopted eliminating the
Speaker from the important position. The Senate, being
more in the nature of a continuing body, has a set of standing
rules.
The Power to Punish. — The right to punish, even to the
extent of expelling members, seems to belong naturally to
legislative bodies. Without it, rules are of little effect, and
chaos is likely to reign. The phrase " disorderly behavior "
is rather broad. It is generally understood to mean any con-
duct inconsistent with the trust and duty of a Congressman,
whether during a regular session of Congress or not. Con-
duct to be punishable need not amount to a statutory offense.
This power has been sparingly used, and the punishments that
62 Constitutional Law
have been imposed have usually been of a minor nature, such as
reprimands, censures, loss of privileges, and small fines. On
the concurrence of two-thirds, however, either House may
expel a member/* But since expulsion creates a vacancy, it is'
not impossible for the rejected member to be returned to Con-
gress by his State to fill the vacancy thus created.
Contempts. — Contempt is wilful disregard of a public
authority, or disobedience to it. That either House of Con-
gress may punish its members for contempt is not denied, but
much has been written for and against its power to punish
other people. Ordinarily, no such right exists; but when
either body, or a part thereof, is acting in an authorized
judicial capacity, such as sitting in impeachment, or con-
ducting examinations of disorderly behavior, it may lawfully
punish even non-members who persist in being unruly, or who
refuse to obey a summons or other order of the assembly."
Punishment for contempt is limited to imprisonment, and the
duress ceases with the adjournment of Congress. In the
British Parliament each House has unlimited power to punish
for contempt; in which respect Parliament is strong where
Congress is weak.
Unlawful Duress. — Should any person be confined illegally
by an order of either House, he can obtain no redress except
by a suit against the sergcant-at-arms for executing an illegal
process. Congressional members are not liable in such a case,
by virtue of Article 1, Section 6, Clause 1, to wit, "for any
speech or debate in either House, they shall not be questioned
in any other place." "
^ Members of Congress, not being subject to impeachment, can-
not be expelled by this method (see p. 198, Note 27).
"Kilbourn v. Thompson, 104 U. S., 168 (overruling Dunn v.
Anderson, 6 Wheaton, 204).
Titf: Two ITorsKs of Coxgress 63
Section 5, Claiise 3. — Each House sliall 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 the desire of one-fifth of
those present, be entered on the journal.
The Journals of Congress. — The journals of the two Houses
of Congress contain the permanent records of the legi.^ilative
proceedings, and are of considerable historic interest and
value. Although compelled by law to publish these records
now and then, either IIou.se may at discretion omit from pub-
lication all matter that seems to require secrecy. The meetings
of Congress are usually open to the public, but there is no law
to prevent either assembly from holding its meetings behind
closed doors, and each does so occasionally. The Senate some-
times goes into " executive session," that is secret session, to
consider treaties or confidential communications from tlie
President, such as nominations to office ; and tlie House now
and then closes its doors to visitors while deliberating matters
of especial importance. The records of these secret meetings
are kept in a separate journal.
Methods of Voting. — Voting in Congress is commonly viva
voce, that is, by acclamation. But in any case, if the presid-
ing officer is in doubt as to the result, he may call for a rising
vote. Should any member question the correctness of the
chairman's count he may call for a division of the nou.«;e, and
then tellers are appointed to count the vote. On questions of
great importance, and in all cases at the desire of one-fifth of
the members present, the roll is called, when each member
answers yea or nay, as the ca-^e may be, and all the votes are
entered on the journal. Although tliis method has tlie ad-
vantage of putting a vote on record and enabling the people to
know just how their representatives stand on certiiin ques-
tions, it is often used by a factious minority to delay proceed-
ings and thus to hamper loLrislation. A member, for example.
64 Constitutional Law
moves to adjourn ; another calls for a yea and nay vote on the
motion. Accordingly, if one-fifth of the members present are
found to desire a yea and nay vote, the roll is called and all
the votes are entered on the journal — a proceeding that con-
sumes much time. Furthermore, it often happens that the
member making the motion votes against it, showing that he
did not make it in good faith. Such a motion is called dilatory.
The presiding officer has it in his power to refuse to recognize
a member who in his opinion is about to indulge in dilatory
tactics.
Section 5, Clause 4. — Neither House, during the session
of Congress, shall, without the consent of the other, ad-
journ for more than three days, nor to any other place
than that in which the two Houses shall be sitting.
Adjournment. — The provision in this clause was deemed
necessary on account of the division of Congress into two
bodies. The obvious purpose of it is to prevent either House
from retarding the work of legislation by adjourning in-
definitely, or to some place remote from the other House.
Section 6, Clause 1. — The Senators and Representatives
shall receive a compensation for their services, to be ascer-
tained by law, and paid out of the Treasury of the United
States. They shall in all cases, except treason, felony,
and breach of the peace, be privileged from arrest during
their attendance at the session of their respective Houses,
and in going to and returning from the same; and for
any speech or debate in either House, they shall not be
questioned in any other place.
Compensation. — It has always been the policy of the United
States, and of the several States, to pay legislators a fair
compensation. Under the Articles of Confederation the States'
paid their own delegates in Congress. The result of this
arrangement was that some delegates were paid more than
others, and certain States at times failed, for financial reasons,
The Two Houses of Congress fio
to send any delegates at all. It was a wise policy for the mem-
bers of the Constitutional Convention to decide that all
national legislators should receive pay for their services, and
out of the public treasury. On the one hand, this enables the
government to get the services of many men of high minds but
of limited means; on the other, it equalizes the salaries and
enables Congress to be independent of the States. The pro-
vision that the compensation shall be " ascertained by law "
places the matter entirely in Congress, away from the possible
prejudice and pride of any section of the country, and makes
it possible to change the compensation to meet the fluctua-
tions in the value of money, and the ever-varying prosperity
of the nation. True, it allows the question of salary increase
to be settled wholly by those who are to be benefited thereby;
yet this very fact has, perhaps, served to keep the compensa-
tion within reasonable limits. The salaries paid to Congress-
men have ranged from $fi.00 per day while the latter were in
actual attendance upon their duties, to $7500,00 per year. At
present (1913) they receive $7500.00. The Speaker of the
House and the President of the Senate receive $12,000.00 each.
Note. — In Parliament, members of the House of Lords
have always served without pay. Members of the House
of Commons previous to 1677 were paid small sums by
their constituencies; since then until 1911 they also
served without pay. Since 1911, however, they have re-
ceived 400 pounds annually. Members of the French legis-
lature receive moderate salaries.
Other Compensation. — Besides salary, a Congressman re-
ceives a certain allowance for clerk hire, and is allowed mileage
at twenty cents a mile both in going and returning home by the
shortest route each session. He is also provided with sta-
tionery and various other necessaries incidental to legislative
duties, and he has the privilege of franking mail on official
business.
66 Constitutional Law
Special Privileges. — Freedom from arrest, and absolute
freedom of speech in the halls of Congress, are by this clause
insured to members in order that their work shall be reason-
ably free from interruption, and that they shall be able to act
and to speak with independence. The privilege of freedom
from arrest has belonged to most legislative bodies since time
immemorial ; but it has been a limited freedom. So it is with
Congress. For such indictable offenses as treason, felony
(murder, burglary, arson, etc.), and for breach of the peace
(drunkenness, rioting, etc.), a legislator may suffer arrest and
trial like any other citizen ; but from the service of all process
he is free. Thus he cannot be compelled to serve on a jury,
or to appear in court as a witness. This rather slight im-
munity, as well as the larger freedom of speech, is extended to
all delegates from Territories as well as to Representatives and
Senators ; and it has been held that one who goes to Congress
duly commissioned is thus privileged, even though it after-
wards appear that he was not entitled to his seat.''
Immunity from arrest begins, according to one writer," at
the moment of election, and before the member has been
sworn in. This freedom is, however, a personal privilege, not
extending to the member's family, or to his property.^* If a
Congressman is arrested the arrest is void, and the member
may be freed on motion to the court, or by a writ of habeas
corpus, or by a warrant from the House to which he belongs
when executed by the proper authority. Since the arrest is
illegal, the act is a trespass for which the parties making it
may be proceeded against in a court of law. It is useless in
such a case to plead ignorance of identity, for everybody is
supposed to know who are the members of either House of
Congress."
=« Dunstan v. Halstead, 4 Penn. L. J., 237.
" Jefferson's Manual, par. 3.
'"Story's Constitution, 862.
" Jefferson's Manual, 4.
\/ The Two TTouses or Congress 67
Freedom of Speech. — It is commonly said that in America
everybody has freedom of speech. But even in this country
one may not lef]^ally say things in public to the injury of some-
body else, for liberty is not license. The expression, " freedom
of speech," however, has a wider application in respect to
Congressmen than to other citizens. For whatever they may
say in the course of official business in either House they can-
not be questioned in any other place. In the halls of Congress
liberty of utterance is absolute. The presiding officer may
caution a member for ill-choscn language, or refuse a member
recognition who persists in slanderous speech, but the latter
cannot be sued for slander in a court of law. As was said in a
leading case," " defamatory words uttered in debate, or in
the course of official business, cannot be made the ground of
judicial action." The privilege does not extend to the volun-
tary publication of matter by the member,'* but only to utter-
ances made in the course of duty on the floor of either House,
or in committee rooms, or to publications authorized by the
legislature. In other words, whatever one may do or say as a
legislator he may do or say with absolute independence, but as
a private citizen he must act and speak with a more strict
regard for tlie rights and feelings of other citizens.
Section 6. Clause 2. — No Senator or Representative shall,
during the time tor which he was elected, be appointed to
any civil office under the authority of the United States
which shall have been created, or the emoluments whereof
shall have been increased, during such time; and no per-
son holding any office under the United States shall be a
member of either House during his continuance in office.
Incompatible Offices. — The first part of this clause has refer-
ence to menil)crs of Congress only ; the last part to holders of
other United States offices. The aim of the first is to prevent
members of Congress from resigning in order to occupy lucra-
" Coffin r. Coffin, 4 Mass., 1.
" Story's Constitution, 866.
68 Constitutional Law
tive offices which they themselves have lielpcd to create, or the
emoluments of which they have helped to increase; the pur-
pose of the last is to prevent members from holding offices
under the United States incompatible with their duties as
Congressmen. But there is nothing to prevent an ex-member
of Congress from accepting such an office, for at the expira-
tion of his term in Congress he is but a private citizen, who
may aspire to any office under the government; and there is
nothing to prevent a Congressman from accepting and holding
a purely State office,'^ or from holding another office under
the United States after his election and before he has taken
his seat. In other words, if a member of Congress accepts any
civil office under the government he forfeits his seat in Con-
gress thereby ; if, however, he is holding another office at the
time of his election, he may continue in the office until he
takes his seat in Congress, when he must resign. Although the
Constitution is silent in this connection respecting State
offices, it would seem not to be good policy for a Senator or a
Eepresentative to occupy a State office long, for he could
hardly do so without seriously impairing his efficiency in one
office or the other, or in both.
A member of Congress cannot at the same time be a
judge of a Federal court, or a member of the President's
Cabinet, for these are offices under the United States. In this
respect the rule in Great Britain is very different, for there
the ministry is usually composed of members of Parliament,
and members may hold other offices under the government
likewise. It is a striking peculiarity of the United States
Constitution that it keeps the three great departments of
government, executive, legislative, and judicial, in the main
distmct and separate.
" Case of Senator David B. Hill, who continued to hold the
office of Governor of New York until Dec. 31, 1891, though his term
as Senator began March 4, 1891.
The Two Houses of Congress 69
A Case in Point. — An interesting case illustrative of this
clause is that of the lion. P. C. Knox, Secretary of State
under President Taft. Mr, Knox was Senator from Pennsyl-
vania in the 60th Con<Tress, when that body raised the salaries
of the President from $r)(),000 to $75,000 ; of the Cabinet mem-
bers from $8000 to $12,000; and of Congressmen from $5000
to $7500. Before his term had expired he resigned from the
Senate to accept the position of Secretary of State, the highest
Cabinet office. Before Mr. Knox was sworn in to the latter
office, however, the attention of Congress was drawn to the fact
that he was about to occupy an office the emoluments of which
he, as Senator, had helped to increase. Considerable dis-
cussion followed, but the difficulty was finally settled, and Mr.
Knox's appointment made constitutional, by reducing the
salary of the Secretary of State, during the time that Mr.
Knox would have served as Senator, to the former basis.
Section 7, Clause 1. — All bills for raising revenue shall
originate in the House of Representatives; but the Senate
may propose or concur with amendments, as on other bills.
Raising Revenue. — Since taxation is the most common
method by which a government obtains revenue, the phrase
" raising revenue " has always been interpreted to mean
" levying taxes." In Great Britain the power to raise revenue
is in the House of Commons — and the Lords may not even
amend — and in the several States of the Union, as well as in
Congress, it is in the representative branch of the legislature.
Thus in both England and the United States taxes are regu-
lated, at least in theory, by the whole people.
Accordingly, any bill, the purpose of which is to create or
to increase taxation, or to decrease or abolish it, must origi-
nate in the House of Representatives; although the Senate
may propose amendments, as it may to any other bill. But
all bills that incidentally may produce revenue do not come
70 Constitutional Law
Avithin the limitation of this chiupc. Bills to regulate the post-
office, for example, to establish mints, to further the sale of
public lands, and numerous others, all have originated in the
Senate. Although they produced revenue, they were not
designed to tax. Tariff bills, on the other hand, have always
come from the House, for one of their clear purposes is to
raise money by taxation.
Section 7, Clause 2. — Every bill which shall have passed
the House of Representatives and the Senate, shall, before
it become a law, be presented to the President of the
United States; if he approve he shall sign it, but if not
he shall return it with his objections to that House in
which it shall have originated, who shall enter the objec-
tions at large in their journal, and proceed to reconsider
it. If, after such reconsideration, two-thirds of that
House shall agree to pass the bill, it shall be sent, together
with the objections, to the other House, by which it shall
likewise be reconsidered, and if approved by two-thirds of
that House, it shall become a law. But in all such cases the
votes of both Houses shall be determined by yeas and
nays, and the names of the persons voting for and against
the bill shall be entered on the journal of each House
respectively. If any bill shall not be returned by the
President within ten days (Sundays excepted) after it
shall have been presented to him, the same shall be a law,
in like manner as if he had signed it, unless the Congress,
by their adjournment, prevent its return, in which case
it shall not be a law.
Majorities. — ^Ye have already seen that for either House of
Congress to transact business a quorum must be present ; and
that a quorum is a majority. It follows therefore that the
majority vote of the quorum is sufficient, ordinarily, to pass
a bill ; that the majority vote of the whole House is not re-
quired. But to pass a bill over the President's veto demands'
a special majority, two-thirds. Tt has Ion? been decided that
even this means two-thirds of a quorum." This, however,
« 9 Law Rep., 196.
The Two Houses of Congress 71
Conjircss seems to have dceidofl in aceordanre with tlic general
custom among legislative bodies, rather than in accordance
with the letter of the Constitution.
The Veto Power. — The act of the President in signing or
vetoing bills is his only participation in legislative business.
He may do nothing else concerning the making of laws, except
to offer suggestion and advice. When a bill has passed both
Houses of Congress and is presented to him, he must either
sign it, or veto it by sending it back unsigned to the House in
which it originated, and with his reasons therefor; or he may
simply retain it in his possession and give it no further notice.
If he signs the bill, it becomes a law by that act; if he vetoes
the bill, it may still become a law by passing both Houses
again with the required two-thirds majority ; if he simply
retains the bill in possession for ten days without signing it,
by that very fact it may become a law, unless Congress should
forestall his signature by a hasty adjournment. The Presi-
dent's power to veto is unlimited. He may exercise it for any
reason, whether founded in wisdom or in ignorance. He can-
not, however, veto one or tn-o items in a bill and approve the
rest ; he must approve it or veto it in entirety.
This makes possible what is known among legislators as
a " rider." This is a bill, to which the President is known or
suspected to be unfriendly, which is made a part of a more
important measure that he is known to be friendly to, or which
is so essential to the needs of the country that he is not likely
to veto it. Thus a bill to increase the salaries of certain officers,
if attached to the general appropriation bill, is not likely to
be vetoed, for the President cannot veto one without vetoing
the other, and the bill for appropriations is too important a
measure to be killed, or even seriously delayed.
The veto power is a check on unwise, hasty legislation. It
is a great power for one man to have; but it is a necessary
power, and in the hands of a good man it is a beneficent power.
73 Constitutional Law
Congress is not infallible or omniscient. It sometimes enacts
unnecessary, unwise, and even unconstitutional legislation.
It is well that such legislation be checked somewhere if
possible ; and where could such a check be better lodged than
in the Chief Executive, who as the head of a great nation,
somewhat removed from sectional prejudice and party clamor,
cannot but feel a great sense of responsibility to the people,
and a desire to have his administration clean, progressive and
successful? The executive veto, however, has been spar-
ingly used, and the bills that Congress has passed over the
President's head have been comparatively few.
It may be noted here that while the Executive Department
is a check on the Legislative Department, the Judicial Depart-
ment is a check on both : for whatever Congress enacts, and the
President approves, the Supreme Court may declare uncon-
stitutional and void.
The Pocket Veto. — All bills received by the President with-
in ten days of the probable adjournment of Congress run the
risk of failure by action of law. If the Executive fails to sign
them before Congress adjourns, then by force of the last
sentence of Clause 2 of this Article, they cannot become laws.
This way of killing bills is sometimes called the pocket veto.
In effect, it is vetoing bills without having to assign any
reasons, and with no possibility of their being repassed by a
subsequent two-thirds vote of that Congress.
The Initiative and the Referendum. — Congress' and the
State legislatures are the normal law making bodies in the
United States. This is in accordance with the theory of popu-
lar government, in which all legislative power is vested in the
people's representatives. There is a growing demand, how-
ever, for the people to be more immediately concerned with
legislation, especially with State and municipal legislation.
Accordingly, some States have authorized the voters' them-
selves to propose laws by petition. For example; In Ne-
The Two Houses of Congress 73
braska fifteen per cent of the voters in municipalities may
propose ordinances by petition, and twenty per cent may coni-
})el the mayor and council to submit the ordinances to a
popular vote. This power of the people to propose legislation
is commonly known as the initiative. Under the Constitution
the initiative is impossible in respect to Federal laws.
The referendum is the corollary to the initiative. It is the
submission of a proposed law to the people for their ratification
or rejection. Under this system of legislation statutes and
ordinances, however proposed, are of no force until sanctioned
by the voters. The referendum has been in use more or less
since the Revolution, especially among municipalities. In the
Federal scheme of government it is of course unknown.
The initiative and the referendum usually go together;
States that have adopted one have commonly adopted the
other. Like the recall and primary elections, they show that
the people of the United States are coming to have a much
greater share in the business of governing than was ever in-
tended by the framers of the Constitution.
Section 7, Clause 3. — Every order, resolution, or vote, to
which the concurrence of the Senate and House of Repre-
sentatives may be necessary (except on a question of ad-
journment) shall be presented to the President of the
United States, and before the same shall take effect shall
be approved by him, or, being disapproved by him, shall be
re-passed by two-thirds of the Senate and House of Repre-
sentatives, according to the rules and limitations pre-
scribed in the case of a bill.
Purpose of Clause 3. — The purpose of this clause is to pre-
vent Congress from enacting laws under the name of resolu-
tions, etc., without conforming to the restrictions in the
previous clause respecting bills. Whatever Congress may
enact, whether bill, resolution, order, or vote, must, if intended
to have the force of law, be signed by the President, or be
passed over his veto by the required majority.
74 Constitutional Law
Resolutions, Concurrent and Joint. — "Ropohitions, as well
as bills, are formal expressions of the will of Congress. If the
purpose of a resolution is to bind the country to some course of
action, that is, to have the force of law, it is called joint, and
as such must be treated like a bill ; if not, it is called con-
current. A concurrent resolution does not require the signa-
ture of the President. It is commonly nothing but the formal
determination of Congress respecting a matter of minor im-
portance, such as requesting the return of a bill from the Chief
Executive, or directing the suspension of a rule for the rest
of the session. The joint resolution, however, does require the
signature of the President to be valid, or must be repassed by
a two-thirds vote of each House. This form of resolution came
into being in 1871, in the House of Eepresentatives, to dis-
tinguish between temporary and permanent enactments, a
distinction that has since been lost sight of. The only appar-
ent difference now between a bill and a joint resolution is in
the opening phraseology, and, rather broadly, in the purposes
for which they are used. Ordinary legislation takes the form
of a bill; inferior, incidental, or unusual legislation may be
expressed in a joint resolution. The distinction is rather
refined, and the present tendency is against the use of the
latter. Some of the purposes for which it has been used are the
following: to direct the printing of documents; to make
sundry appropriations; to admit new States; and to propose
amendments to the Constitution.'"
Bills, Public and Private. — Bills (commonly called acts)
are either public or private. Public acts concern the common-
wealth, or some locality in it, rather than individuals, and
courts take judicial notice of them ; private acts relate rather
to individuals, and are not noticed judicially by the courts."
^ A resolution proposing an amendment to the Constitution does
not require the President's signature. See Art. 5.
" That is, courts will not accept them as facts without proof.
The Two TTouses of Congress 75
A bill to establish a light hou.se, or to build a battleship, or to
levy a tax, is public; a bill to relieve a citizen by a pension, or
by removing political disabilities, is private. In number, the
{)rivate bills introduced into Congress each year far outnumber
the public bills. Both, however, as well as joint resolutions,
nmst go through the same process before becoming laws.
Bills and Resolutions, Forms of. — ^The following excerpts
from the enactments of the Gist Congress illustrate the forms
of public and private bills, and of concurrent and joint reso-
lutions:
Public Act.
Chapter 152. — An Act for establishing a light and fog signal
station on the San Pedro breakwater, California.^^
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
Secretary of Commerce and Labor be, and he is hereby, authorized
to establish a light and fog signal station on the San Pedro break-
water, California, at a cost not to exceed thirty-six thousand
dollars.
Approved, February 24, 1911.
Private Act.
Chapter 315.— An Act for the relief of Helen S. Hogan."*
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled. That the Secre-
tory of the Treasury be, and he is hereby, authorized and directed
to pay, out of any money in tlie treasury not otherwise appro-
priated, to Helen S. Hogan, of Woodford County, Kentucky, the
sum of three thousand dollars, etc.
Approved, March 4, 1911.
CONCUBBENT RESOLUTION.
Resolved by the House of Representatives (the Senate concur-
ring), That the President of the United States be. and is hereby,
*• Statutes at Large, Vol. 36, 929.
'» Statutes at Large, Vol. 36, 2123.
76 Constitutional Law
requested to return to the House the bill (H. R. 25081), "For the
relief of Helen S. Hogan." «•
Passed, February 21, 1911.
Joint Resolution.
Making appropriations for the payment of certain expenses
Incident to the first session of the Sixty-first Congress."
Resolved hy the Senate and House of Representatives of the
United States of America in Congress assembled, That the follow-
ing sums are hereby appropriated, out of money in the Treasury
not otherwise appropriated, for purposes as follows: (naming
them).
Approved, April 23, 1909.
Bills, Introduction of; First Reading. — Any member may-
introduce into Congress as many bills as he likes, and these
bills may be drawn up by the member, or by any outsider, who
may hand them to a member to be introduced. A public bill,
when entered, is laid on the Speaker's table, and the Speaker
refers it to the proper committee for further consideration ; a
private bill is delivered to the clerk informally, endorsed by
the member with the name of the committee to which it shall
go. In each case the clerk reads the title of the bill to the
House. This is the first reading.
The Committees. — Before tracing the passage of a bill
through Congress it is well to understand first the work of the
committees. These are small groups of Congressmen, whose
duties mainly are to give preliminary consideration to bills as
they are introduced, and to report to Congress only those
which they deem worthy of possible passage. In the House of
Eepresentatives are some half hundred or more regular com-
mittees, such as the Committee on Eules, the Committee on
Elections, the Committee on Ways and Means, and all are
chosen by the House at the beginning of each new Congress.
" Statutes at Large, Vol. 36, 2136.
" Statutes at Large, Vol. 36, 182.
The Two Houses or Congress 77
The Speaker may, however, appoint select, or conference,
committees as the need arises for them, and the House may
resolve itself into what is known as a " Committee of the
Whole." The latter is usually done to allow greater freedom
in debate : the Speaker leaves the chair, appointing a member
to take his' place temporarily, the ordinary rules for parlia-
mentary discussion are suspended, and the entire assembly,
like a large committee, proceeds to discuss the matter at hand
unhampered by any arbitrary restrictions. In the Senate are
nearly as many committees as in the House, although each is
necessarily composed of fewer members. These are chosen by
the Senate.
Advantages and Disadvantages. — The chief advantage of
the committee system is that it facilitates legislation by killing
off worthless bills at an early stage in their existence, thus
preventing waste of time by the House or the Senate. The
bills introduced into Congress at every session run into the
thousands, and obviously it would be quite impossible for
either branch of Congress, as a whole, to give adequate con-
sideration to so many. Furthermore, the system makes pos-
sible some co-operation between the executive and the legisla-
tive departments, for although cabinet members, for instance,
may not appear in behalf of measures on the floor of either
House of Congress, they may do so before committees. On
the other hand the system is not wholly ideal, for it cramps
debate, makes corruption easier, reduces responsibility, and
lessens the unity of Congress as a constructive body. It has,
however, been too long in use to admit of any radical change,
and, after all, the advantages in it are so positive that it is
regarded as good as any system that could be devised.
Work of Committees. — The committee to which a bill has
been referred determines whether it shall come before either
House for further consideration. Its determination in the
matter is final, and its judgment cannot be questioned. If the
78 Constitutional Law
committee votes to drop the bill, it is killed at once, for it can-
not be considered by the legislature unless re-introduced at a
subsequent session. If the committee reports it adversely to
the House, the latter commonly drops it at an early stage. If,
however, the committee reports the bill favorably, it has a good
chance of becoming a law, for unless it has strong opponents
among the members of Congress outside the committee, the
legislature will accept the recommendation of the committee
and pass the bill. It is safe to say, however, that about nine-
tenths of the bills are dropped by the committees.
Consideration by the House ; Second and Third Readings. —
A bill reported favorably to the House is read a second time,
this time in full, and then placed on the calendar for later
consideration. When in its proper time the bill comes before
the legislature for discussion, it is said to reach its third read-
ing, this time again by title, unless some member demands a
full reading. Debate on the bill is opened by the Speaker's
asking, " Shall the bill pass ? " Debate may be closed at any
time thereafter on the call of any member for " the previous
question." Vote is then taken. If the bill is passed by the
House, it is engrossed, that is written out in full in large hand
(en gros), signed by the Speaker and the clerk, and then sent
to the Senate.
Consideration by the Senate.— In the Senate a bill goes
through about the same process as in the House. It is first
referred to the appropriate committee, after which it comes
before the Senate to be voted on. If the Senate rejects the bill,
it is lost as certainly as though it had failed of passage in the
House. If the Senate passes the bill, it is returned to the
House where it is at once enrolled on parchment. After this
it is inspected by the Committee on Enrolled Bills, signed by
the Speaker of the House and the President of the Senate,
then transmitted to the President of the United States.
Amendments. — Bills, except those for raising revenue (see
Article 1, Section 7, Clause 1) may originate in either House
The Two Houses of Congress 79
of Congress, and either House may ofTer amendments to the
other's bills. When this is done both the original bill and its
amendments must be returned to the body in which it origi-
nated for consideration of the amendments. If the House of
Representatives, for example, accepts an amendment proposed
by the Senate, the bill as amended passes at once. But if the
House does not accept the amendment, it sends notice of the
fact to the Senate, leaving it to that body to recede from its
position, or to insist and ask for a conference.
Conferences. — Most disagreements between the House and
the Senate over bills, or amendments to them, are settled in
conference by special committees composed of members from
each of the committees in the House and the Senate that con-
sidered the bills in the first place. The fate of the measures
then depends almost entirely on the report of the conference
committee. The latter may vote to accept or to reject a bill,
or amendment, or it may substitute an entirely new one. In
any case the report must be acted on by the body in which the
bill originated. T^sually, the judgment of the conference is
accepted, and the bill assumes the form suggested by the com-
mittee.
CHAPTER III
THE POWERS OF CONGRESS
Article 1, Sectiox 8
THE rOWKRS OF CONGRESS
Article 1
The Congress shall have power —
Section 8, Clause 1. — To lay and collect taxes, duties,
imposts, and excises, to pay the debts and provide for the
common defense and general welfare of the United States;
but all duties, imposts, and excises shall be uniform
throughout the United States;
In General. — Without power to lay and collect taxes the
United States government could not long endure. The main
weakness in the Articles of Confederation was in the fact that
they gave the government no means of raising money,' It is
well that, respecting this power, the Constitution speaks in no
uncertain terms.
Limitations on the Taxing Power. — It has heen aptly said
that the power to tax involves the power to destroy.' In order
that Congress may not go to unreasonable extremes in its
exercise of this great power it is limited in various ways. 1st,
Congress is limited in respect to the purpose for which it may
tax : to wit, " to pay the debts, and provide for the common
defense and general welfare." These purposes are broad
enough to cover all the possible needs of the government; per-
haps too broad, for much litigation has arisen over the " gen-
eral welfare" plirase.' 2d. Congress is limited in respect to
the manner in which it may lay tlie taxes herein mentioned.
'Art. of Confederation, Art. VIII.
* Marshall, C. J., in McCulloch v. Maryland, 4 Wheat, 316.
° It is obvious that the purpose must be public rather than
private.
8-i Constitutional Law
That is, all taxes levied under the authority of this clause must
be uniform.* If an import tax, for example, is laid on hides,
the tax must be the same for the same class of hides at every
port of entry in the United States. 3d. Congress may be said
to be limited in its taxing power by the very plan of repre-
sentative government. Members of the House of Eepresenta-
tives, in which body all Federal taxation must originate, are
chosen for short terms. A legislature, therefore, that imposes
an oppressive tax, can soon be superseded by one more sensible
of its limitations. Congress is not likely to impose taxes,
either directly or indirectly, that do not meet the approval
of a majority of the people. 4th, and lastly, Congress is
limited by a necessary respect for the rights of the separate
States. Both the United States and the individual States
are supreme in the sphere of their lawful activities, and
neither may interfere with the other by taxation. Thus it has
been held that Congress may not tax a State municipal cor-
poration, or its resources," or the salary of a State officer,' or
the process of State courts,^ or a railroad owned by a State.'
On the other hand, a State cannot tax the salary of a Federal
officer,' or a national bank,'" or land of the United States
within the borders of the State." The two cases of (a) U. S. v.
E. R. Co., 17 Wall., 322, and (b) McCulloch v. Md., 4 Wheat.,
316 are in point.
(a) In 1854 Baltimore City loaned the B. & 0. R. E. Co.
several million dollars secured by 5^ bonds. The Federal
* Compare with Art. 1, Sec. 2, CI. 3 of Constitution.
» U. S. V. Railroad Co., 17 Wall., 322.
' Collector v. Day, 11 Wall., 113.
^ Warren v. Paul, 22 Ind., 276.
'Georgian. Atkins, 1 Abb. (U. S. Cir. Ct), 22.
° Dobbins v. Commissioners, 16 Peters, 435.
'" M'Culloch V. Maryland, 4 Wheat., 316.
" Van Brocklin v. Tennessee, 117 U. S., 151.
The Powers of Congress 85
government broufjlit suit against the railroad company to
compel the payment of the internal revenue tax on these bonds.
The Supreme Court held that the tax was unconstitutional
and void as a tax on the revenues of the municipal corporation
of Baltimore. Such a corporation is a part of the sovereign
power of the State, and neither it nor its revenues are subject
to Federal taxation.
(b) The Bank of the United States, incorporated by act of
Congress, and doing business in Philadelphia, established a
branch bank in Baltimore, Md. A statute in Maryland re-
quired all banks in that State, not chartered by the State
legislature, to pay an annual tax for the privilege. McCulloch,
agent for the United States Bank in Baltimore, refused to pay
the tax, and when sued by the State, set up as defense that the
Maryland statute was unconstitutional in so far as it applied
to the Bank of the United States. The court held: that (1) a
State may not tax a superior power; (2) the Bank of the
United States was a fiscal arm of the government, hence not
to be taxed ; (3) although a State may not tax the right of the
bank to exist, it may tax personal property, building, etc., of
the corporation, like any other private property in the State.
Duties, Imposts, and Excises; Indirect Taxes. — It is prob-
able that Congress would have full authority to levy duties,
imposts, and excises without specific mention of them in the
Constitution. In the first place, the word taxes includes any
financial charge imposed on the people for support of the
government; and in the second place, the power to levy taxes;
is inherent in any government. The enumeration of specific
taxes here, however, avoids possible confusion and trouble.
Duties are taxes on both exports and imports, but since another
clause of the Constitution absolutely prohibits charges on ex-
ports, the term has become generally synonymous with im-
posts, which are taxes levied only on imports. Excises are
taxes on the manufacture, sale or production of commodities
86 Constitutional Law
within the country, and on the privilege of pursuing certain
occupations. Thus taxes on the manufacture or sale of alcohol
and cigars, and license fees for the privilege of selling those
articles are excises.
These taxes are usually termed indirect, because the burden
of them is borne by the ultimate consumer, or by the indi-
vidual patrons, as the case may be. That is, the importing
merchant who pays a duty on his goods adds enough to the
selling price to cover that charge, and the tax therefore is
really paid by those who purchase the goods. Likewise, one
who pays a license fee for the privilege of conducting a busi-
ness or profession may recoup on his patrons by charging a
trifle more for his wares or for his services.
Direct Taxes. — We have seen that the taxes mentioned in
the present clause of the Constitution must be levied uni-
formly. Clause 3, Section 2 of the 1st Article, however, says
that direct taxes must be laid in proportion to the population.
What then are direct taxes? In theory they are taxes paid
absolutely by the person to whom they are assessed. The
Constitution and the Supreme Court, however, have limited
this rather broad definition. The Constitution, Article 1,
Section 9, intimates that a poll, or capitation, tax is a direct
tax, and the Supreme Court has decided that taxes on land and
on all incomes from real or personal property are direct.*'^ The
Constitution does not say what things may or may not be
taxed; but when Congress levies a tax on men, lands or in-
comes, such a tax is in its nature direct and must be laid pro-
portionally. When such a tax is to be levied the procedure
is as follows : Congress first decides the amount of money
to be raised, then requires of each State its respective quota
according to its population. The tax is then levied on the
people, if it is a poll tax, or on the land or the houses, etc.,
according to the terms of the enactment providing for the tax.
" Pollock V. Trust Company, 158 U. S., 601.
The Powers of Congress 87
In the history of the United States direct taxes have been
levied but five times: viz., in 1798, 1813, 1815, 1816 and 1861.
They are decidedly unpopular, difficult of accurate apportion-
ment, and often unfair. They are unpopular, because they are
in the nature of an assessment; hard to apportion with
accuracy on account of the varying, shifting population of the
States; and they are often unfair, since a State with a large
population pays a greater tax than a State whose population
is less, although the aggregate wealth of the former may not
be any greater or so much. The Federal government usually
provides for current expenses by indirect taxes, i. e., customs,
excises, etc. Until the Civil War the greater portion of the
national revenue was derived from customs, but since then the
sums derived from excises and from customs have been about
equal. The individual States, on the contrary, meet their
expenses by direct taxation. State officials determine the
amount of money needed annually, and the counties, or dis-
tricts, then are required to raise their respective shares. Thus,
when one pays a tax for State or municipal purposes he pays
a specific sum, proportionate to the value of the real or per-
sonal property he owns.
Income Taxes ; Attitude of Supreme Court. — It is interesting
here to note briefly the difi'ercnt attitudes of the Supreme
Court towards taxes on incomes. In 1794 the court declared
that direct taxes could be levied only on lands and on persons
(capitation taxes), and for about a hundred years that limita-
tion was observed." In 1880 the court ruled explicitly that
a tax on the income from real or personal property was not a
direct tax." The status of income taxes was argued again,
however, in 1894, and the court held, overruling the fornuT
decision, that such taxes were direct taxes within the mean-
ing of the Constitution, and should be laid according to popu-
"Hylton V. U. S., 3 Dallas. 171.
" Springer v. U. S., 102 U. S., 586.
88 Constitutional Law
lation." Although this ruling was rendered by a divided court,
two judges having filed strong dissenting opinions, and al-
though it was not in accordance with political economy and
the views of many publicists, it settled the legal status of
income taxes in the United States. Since then direct taxes
have been held to include taxes on incomes as well as capita-
tion taxes and taxes on real or personal property. (For a
further discussion of this subject see Amendment IG, p. 286.)
Section 8, Clause 2. — To borrow money on the credit of
the United States;
Borrowing Money. — ^The United States is a corporation, a
large public corporation, and as such it has the power to
borrow money. Ordinarily, the government meets its ex-
penses by taxation; but on extraordinary ©ccasions, such as
the outbreak of war, or the undertaking of a great public
work like the Panama Canal, it becomes expedient to borrow
money. It might be possible to meet such unusual burdens by
taxation, but it seems the better policy to borrow money instead.
To raise quickly a great sum of money by taxation creates an
intolerable burden for the people ; to borrow it does not, for it
is offered freely by those who wish to lend ; and the repayment
of such money may be distributed over a long term of years,
making the burden of it thus fall little by little on those future
generations that may justly be asked to share the expense of the
war, or that most enjoy the advantages of the public work.
United States Bonds. — When the government wishes to
borrow money it issues for sale what are known as United
States bonds. These are certificates, or notes, in which the
government promises to pay the holder at a stipulated time
the sum named therein with interest at a stated per cent.
These notes are not money, nor are they designed to circulate
as such, although they may be assigned, or passed from hand
to hand, like any valuable commercial paper. They are cer-
" Pollock V. Farmers' L. & T. Co., 158 U. S., 429.
The Powers of Congress 89
tifioates of indebtedness merely. The purchaser of govern-
ment bonds becomes in fact a creditor of the United States,
for he virtually lends to the government the sum named in the
certificates. When United States bonds are issued they find
a ready sale, for, although they do not pay a high rate of
interest, they are regarded as absolutely safe. In fact so
great is the demand for such notes that they usually sell
above their face value. Bonds issued in 1911, for the Panama
Canal, bearing interest at only 3 per cent sold as high as 108^.
Government bonds usually find their way into the hands of the
people through the large banking houses, such as those on Wall
Street, New York, that usually purchase the issue at once in
large blocks.
" On the Credit of the United States." — When one buys the
bonds of a private corporation he runs the risk of losing some
of his money, for the assets of the corporation, should it fail,
may or may not be enough to reimburse the bond holders.
Theoretically, one who buys the bonds of the corporation
known as the United States runs a risk of losing all of his in-
vestment. Should the United States become bankrupt there
would be no definable assets for distribution among the bond
holders, for the bonds are issued on credit only, nor is there
any court in which suit for distribution could be brought. But
so long as the financial standing of the United States remains
high, that risk is reduced to a minimum. In fact, bankruptcy
of the United States would be possible only as the result of a
disastrous war, or on account of some tremendous shrinkage
of values, or frightful cataclysm of nature.
Section 8, Clause 3. — To regulate commerce with foreign
nations, and among the several States, and with the Indian
tribes;
The Need of Federal Regulation. — After the Pevolution
and before the adoption of the Constitution the individual
States regulated commerce about as they pleased, with little
regard to the welfare of the whole conmionwealth. They
90 Constitutional Law
levied duties on imports and exports, both from and to other
countries and from and to each other. Thus' communities
that were favorably situated were able to exact a revenue from
communities less favorably placed. The inevitable confusion
and ill feeling resulting from this state of affairs finally
reached such a pass that a convention of delegates from the
several States was called in 1786 at Annapolis, Md., to con-
sider the problem of interstate trade. For lack of a quorum
the commissioners attending this convention, as told in a
previous chapter, entered into no discussion of interstate com-
merce, but rather made certain recommendations regarding
the need of a stronger general government. But the Constitu-
tional Convention, which met the following year in pursuance
of those recommendations, forever settled the vexed question
of trade by placing commerce with foreign nations, among the
several States, and with the Indian tribes wholly in the hands
of Congress.
Extent of Federal Regulation. — The simple prepositional
phrase, " To regulate commerce," gave to Congress an im-
mense power, but a great amount of litigation has been neces-
sary to demonstrate the full extent of that power. Briefly the
phrase has been settled to mean : The power to control com-
mercial intercourse between nations, and parts of nations, in
all its branches by prescribing rules for carrying it on. Com-
merce therefore is more than traffic; it is intercourse. It in-
cludes navigation; it embraces ships and railroads as instru-
ments of trade, as well as the men who manage them ; it
comprehends both passengers and cargoes, and even telegraphic
lines and messages. In the case of the Pensacola Tel. Co. v.
Western Tel. Co., 93 IT. S., 1 (1877), the court said that the
power of Congress to regulate commerce could not be confined
to the instrumentalities in use at the time of the adoption of
the Constitution, but kept pace with inventions and with the
growth of the country. Hence the power of Congress extends
The Powers of Congress 91
to all the means whereby commerce between States and with
other nations is facilitated ; it is exercised on the ocean as well
as upon tlie land, and on all navigable waters within the United
States not wholly included within the boundaries of a State.
Intrastate and Interstate Commerce. — Few things illustrate
the parity of powers held by the United States and the several
States better than the decisions relating to commerce. Every
State may control the commerce carried on wholly within its
borders ; but the commerce that enters a State from without, or
that passes out from within, is under the exclusive control of
Congress. A State may regulate the traffic on a railroad that
lies wholly within the State, and control the trade on a navi-
gable river or lake similarly situated, provided that the water
is not directly connected with the ocean or other highway of
the world's commerce." A State may likewise exercise the
right of eminent domain over the shores of a navigable stream,
if in so doing it does not hinder interstate trade or affect
reciprocal rights in the Federal government." On the other
hand, a State law granting the exclusive privilege of running
steam vessels for traffic on such a river as the Hudson is un-
constitutional and void. This, was decided as early as 1824,
in the famous case of Gibbons v. Ogden, 9 Wheaton, 1, the facts
of which were as follows:
" The State of New York granted to E. E. Livingston and
E. Fulton the exclusive right to navigate all or any of the
waters within the jurisdiction of that State. Later, this ex-
elusive right was assigned by Livingston and Fulton to one
Ogden, who brought suit against Gil)bons for running a
passenger steamboat about New York and on the lower Hud-
son. Gibbons set up as a defense that his boat was duly en-
rolled and licensed under acts of Congress to engage in the
coasting trade."
"Veazie v. Moore, 14 Howard, 568.
" Oilman v. Philadelphia, 3 Wall., 726.
93 Constitutional Law
The court held, that the power of the United States to regu-
late commerce did not stop at the external boundaries of a
State ; and that, although a State might enact reasonable regu-
lations for the navigation of waters within its jurisdiction, a
statute which purported to give to any person or corporation
the exclusive privilege of navigating that portion of its waters
which served for the passage of commerce between the States
was so unreasonable a statute, and so palpably a regulation
of interstate trade, that it was' unconstitutional. Reasoning
in a similar way the Supreme Court later declared that a State
law which required importers to pay a license fee of fifty
dollars before selling imported goods was void ; " and that a
license tax imposed by a State on commercial agents coming
into the State from without to solicit orders was illegal, even
though a like tax was imposed on agents of corporations
dwelling within the State/^
Police Power of a State. — Although the power of Congress!
to regulate commerce among the States is, in general, ex-
clusive, it is limited indirectly in the following way. It has
long been decided that the States, in the exercise of protective
care over their inhabitants, may make and enforce local regu-
lations, even though in so doing they remotely affect interstate
commerce.'" This power of the States to protect the lives,
health, and property of their citizens, and to preserve good
order and public morals, is known as the police power. Such
a power is naturally incident to sovereignty in any form, and
it cannot be said ever to have been surrendered by the States
to the United States. Accordingly, a State may require
engineers on all railroads running within, into, or through the
State to pass an examination on eyesight ; '' it may regulate
" Brown v. Maryland, 12 Wheat., 419.
" Robbins v. Shelby County Taxing Dist., 120 U. S., 489.
"^ Pervear v. Commonwealth, 5 Wall., 475.
=° Smith V. Alabama, 124 U. S., 465.
The Powers of Congress 93
the sale of intoxicating liquors, including liquor imported ; "
it may impose reasonable wharfage rates along navigable
waters, build bridges over streams, provided that they do not
in so doing stop all commerce, and may enforce rules for
pilotage; " it may even tax the property of those corporations
within the State engaged in interstate commerce;" it may
pass sanitary, quarantine, and inspection laws, and may take
reasonable precautions to keep out of the State convicts,
paupers, and all persons and animals afflicted with contagious
diseases. But no State may, under cover of the police power,
enact legislation that substantially burdens or restricts foreign
or interstate trade." It is not always easy to say, in respect
to a State law which in some slight degree offers a bar to inter-
state commerce, whether or not it is to be justified under the
police power. In a general way its legality may be said to
depend on its reasonableness and the actual necessity for its
existence, ratlier than on any absolute rule, (See also p. 280.)
The Embargo Act. — Congress has' stretched the great power
to regulate commerce so far as to prohibit commerce altogether.
This was the effect of the Embargo Act of 1807, which pro-
vided that all ships then in port, cleared or not cleared, should
stay there, and that no vessel bound to a foreign port should
be furnished clearance papers except under the immediate
direction of the President. The purpose of the act was to
prevent traffic with other nations, and it largely succeeded.
It succeeded so well that exports in 1808 declined four-fifths,
and foreign trade was at a standstill. So severe was its effect
on the people that it nearly drove New England into a revo-
lution. The act was repealed in 1809. It is doubtful if any
" The License Cases, 5 Howard, 504.
" Gibbons v. Ogden, 9 Wheat., 1. People v. S. & R. R. R. Co., 15
Wend. (N. Y.), 113.
"Transp. Co. v. Wheeling, 99 U. S., 273.
"R. R. Co., V. Husen, 95 U. S., 465.
94 Constitutional Law
other Congress will ever attempt to go to the extent of the
Congress of 1807 in the exercise of the power to regulate
commerce.
Act of 1887. — Since 1807 the most important legislation
passed by Congress for the regulation of commerce is the
Interstate Commerce Act of 1887. This act was made neces-
sary by the growing tendency of certain great railroad lines
to control to an unreasonable extent the internal traffic of the
countr}' by consolidating their interests, thus putting them-
selves in a position to raise freight and passenger rates and to
secure other unfair advantages. Among other things the act
provided: (1) That passenger and freight rates should be
reasonable ; ( 2 ) that there should be no unfair discrimination
between persons, corporations or places; (3) that the charge
for a short haul should not be greater than for a long haul
under similar conditions; (4) that there should be no pooling
agreements; and (5) that there should be created a com-
mission to supervise the administration of the law. The com-
mission created under the law is at present composed of seven
members, appointed by the President and the Senate for seven
years, and each is paid a salary of $10,000 per year. The
powers of the commission now extend beyond railroad and
steamship companies to include the supervision of express and
sleeping car companies, and petroleum pipe lines. The com-
mission is organized like a court of law and holrls sittings at
various places in the United States. Although it is not a part
of the judicial system it determines cases like a court: it can
summon witnesses and empower United States marshals to
execute injunctions and other positive mandates'. It has not
like a court the power to execute all its fmdings, but its
decisions may form the grounds for action by United States
courts, and they are received with great respect.
Since the passage of the Interstate Commerce Act Congress
has enacted several statutes forbidding combinations and
The Powers of Congress 95
conspiracies in restraint of interstate trade. Under these acts
any pooling or joining of interests, the result of which is to
create a monopoly or trust, is illegal; and this is so even
though the original purpose of such pooling was not to stifle
free competition. The law looks at the prol)able result of such
combining, rather than at the intent of the participants. The
United States v. Freight Association, 1G6 U. S., 290 (1897),
is a case in point. Eighteen railroads running through the
middle west formed an association for the purpose of main-
taining freight rates in the region between the ]\rississippi
Eiver and the Pacific Ocean. The managers maintained that
it was not their purpose to increase rates, or to stifle competi-
tion. The United States sued to have the association dis-
solved. The Supreme Court, in granting the petition, said
that the logical result of such an agreement between roads was
to create a trust, and that since the parties were engaged in
interstate trade it was illeiial as a regulation of commerce.
" With the Indian Tribes." — That Congress should control
the trade with the Indian tribes is but just. If the regulation
of that traffic were left to the several States, or to corporations,
or to individuals, the way to sure abuse would be open. As
long therefore as tribal relations exist, or until the race dis-
appears, Indians will continue as wards of the government,
and their political relations will be defined by statutes and
treaties.'" In their domestic government they are left to their
own rules and traditions, but all commerce, whether between
white persons and Indians, or between different Indian tribes
or the individual members thereof, and whether upon reserva-
tions within the Territories or the States, is wholly to be
carried on under rules prescribed by Congress." Xeither
States nor individuals can jnirchase land from Indian tribes
^ Cherokee Nation v. Georgia, 5 Peters. 1, 16.
='U. S. V. Holliday, 3 Wall., 41S. U. S. v. Bridleman, 7 Fed.
Rep., 894.
96 Constitutional Law
without the consent of Congress. The land set apart for
Indian reservations is Federal property by right of conquest
or of purchase, and even the Indians have but a right of
occupancy there, which Congress may deprive them of at will.
It follows therefore that offenses committed on Indian terri-
tory are offenses against the United States, and not against
any State.
What has just been said respecting trade with Indians
presupposes the existence of tribal relations. If such relations
cease, as where individual Indians voluntarily give up the
tribal life and adopt the ways of civilization, the dependence
on Congress may end, and commerce with them may be carried
on as with other persons.
Section 8, Clause 4. — To establish a uniform rule of
naturalization, and uniform laws on the subject of bank-
ruptcies throughout the United States;
Mode of Naturalization. — Naturalization is the legal proc-
ess of making an alien a citizen. The requirements for such
citizenship and the mode of naturalizing are as follows : Be-
fore becoming a citizen of the United States an alien must
reside within the continental limits of the country at least
five years, and one year in the State where he makes applica-
tion; he must show to the satisfaction of the court in which
he makes application that he is of good moral character,
attached to the principles of republican government, and has
at the time a bona fide residence within the State ; at least two
years before he can legally ask for citizenship, he must register
his intention of becoming a citizen ; and lastly, at the time of
final application he must declare on oath that he will support
the Constitution, renounce his allegiance to any foreign State,
and give up what claims he may have to any hereditary title,
or order of nobility. In other words, an alien wishing to be-
come a citizen must first register his intention. Two years
The Powers oe Congress 97
later, if his residence here amounts to five years, he may be-
come a citizen by going before the proper court " and renounc-
ing allegiance to the fatherland and swearing allegiance to the
United States — provided he measures up to the few rather
general requirements of domicil, character, etc.
Exceptions. — Not every foreign-born person has to go
through this process before becoming a citizen, (a) The
minor children of aliens, though born out of the United States,
if dwelling within the United States when their parents are
naturalized, become citizens by the naturalization of their
parents, (b) Any woman who might lawfully be naturalized
is deemed a citizen if married to a citizen of the United States,
(c) Minor children that such a woman may have become
citizens by the same act. (d) An alien soldier, 21 years of
age or older, regularly discharged from the army of the
United States, may be admitted to citizenship without pre-
vious intention, and after one year's residence, (e) An alien,
21 years of age or older, who has served five consecutive years
in the United States navy, or one enlistment in the marine
corps (four years), and has been honorably discharged, may
be admitted to citizenship without previous declaration of in-
tention, (f) An alien, who comes to the United States while
a minor and continues to reside here until 21 years of age, may,
if his residence amounts to five years, become a citizen without
previous declaration of intention.
Who are Citizens? — The very pertinent questions arise in
this connection, Wliat is citizenship? and. Who are citizens of
the United States? Citizenship may be defined as the state of
being a citizen; an American citizen may be said to be any
person owing allegiance to tlie government of the United
States and entitled to its protection. Tlie 1 Ith Amendment
to the Constitution defines the term by declaring that "all
persons born or naturalized in the United States, and subject
» See p. 100.
7
98 Constitutional Law
to the jurisdiction thereof, are citizens of the United States
and of the States wherein they reside." Thus citizenship de-
pends on neither age, sex, nor suffrage. A baby is as lawfully
a citizen as a mature man ; so is a woman. IVIillions of citizens
do not vote, and cannot vote; on the other hand some voters
are not even citizens." Indians while maintaining tribal
relations are not citizens, or have but a limited citizenship.
Chinese are not citizens of the United States, unless born of
resident parents, and under the present laws they cannot be-
come so by naturalization.'" The children of foreigners who
are touring America, or of diplomatic agents, though born in
the United States, are not citizens of the United States, for
they are not subject to the jurisdiction thereof." Similarly,
children born of American parents on the ocean, or in foreign
countries, are citizens of the United States, for they take the
status of their parents.
Expatriation. — England once proclaimed the doctrine,
" Once an Englishman, always an Englishman " ; and per-
sistent adherence to that doctrine brought on the War of 1812.
In other words England denied to her citizens the right of
expatriation, that is, the right to throw off allegiance to the
mother country and become citizens of some other country.
The United States, however, has always recognized the right,
and in 1868 Congress expressly declared it. Thus just as a
foreigner may renounce allegiance to some other government
and solicit citizenship in the United States, so a citizen of the
United States may give up his allegiance and become a bona
fide member of some alien commonwealth. Such a person
could regain citizenship in his own country only through
naturalization.
^ See footnote 7, p. 34.
'"22 Stat, at Large, 26, 61.
«' United States v. Wong Kim Ark, 169 U. S., 649, 693.
The Powers of Congress 99
Immig^ration and Exclusion Laws. — In 1907 Congress en-
acted that every master, agent, owner or consignee of a vessel
bringing alien immigrants into the United States should pay
a tax of four dollars for every alien thus brought in. The
money thus collected is to be paid into the treasury of the
United States to become a special " immigrant fund," which
the Secretary of Commerce and Labor may cause to be used
to defray the expense of regulating the immigration of aliens
into the United States.
Under this law the following classes of persons are excluded
from admittance to the United States; all idiots, imbeciles and
shoplifters; all paupers, or people likely to become a public
charge; all seriously diseased persons; and all such generally
undesirable persons as convicted criminals, polygamists, an-
archists, prostitutes, and contract laborers,
Chinese. — In respect to citizenship within the United States
the Chinese are in a class by themselves. No State or Federal
court can now admit a Chinese to citizenship.** A certificate
of naturalization issued by a State court to a Chinese is void
on its face." But children born of Chinese parents already
residing in this country, who are not members of diplomatic
corps, are citizens by virtue of the 14th Amendment." But
an immigrant Chinese is not entitled to citizenship, for he is
not a white person in the meaning of the naturalization laws."
The Exclusion Acts of 1882-1884 are not applicable to Chinese
born here. They are citizens, and no citizen can be excluded
from the United States except for crime.'' (See also p. 275.)
Naturalization of Communities. — The Constitution has pro-
vided for the naturalization of individuals. What is done,
•^ 22 Statutes at Large. 26, 61.
"In re Gee Hop, 71 Fed. Rep., 274 (1895).
"In re Gee Hop, 71 Fed. Rep., 274 (1895). In re Look Tin Sin,
21 Fed. Rep., 905. U. S. v. Wong Kim Ark, 169 U. S., 649.
"In re Ah Yup, 5 Sawyer, 155 (1894).
« In re Look Tin Sin, 21 Fed. Rep. 905.
100 Constitutional Law
however, when on the addition of new territory to the United
States entire communities are ready for citizenship? Do the
ordinary methods obtain? By no means. It would be ob-
viously ridiculous for the United States courts to pass on the
qualifications of the millions of applicants that such addition
of territory might produce. Congress has therefore assumed
the power to admit to citizenship by a single act all the in-
habitants of such new territory. Accordingly, when Texas was
admitted to the Union all its inhabitants were made citizens
by a special resolution of Congress. It is not to be supposed,
however, that the acquisition of new territory means, ipso
facto, new citizens. It is a matter that rests entirely with
Congress to decide,
" A Uniform Rule." — Congress, under the authority of this
clause in the Constitution, has provided a uniform rule for the
naturalization of aliens by prescribing the manner in which
it shall be done, and what courts shall have power to do it.
The mode of naturalization has already been explained; the
courts having naturalization powers are the U, S. District
Courts, the District and Supreme Courts of Territories, and
any State court of record having common law Jurisdiction.^
The fact that State courts may confer citizenship on foreigners
does not mean that the power to naturalize is in the States
themselves. These courts get their authority entirely from
Congress ; they can act only in accordance with uniform regu-
lations prescribed in the Federal statutes.
The power of Congress over naturalization is exclusive. If
it were not, if each State could invest aliens with citizenship
at will, there might be as many modes of naturalization as
there are States. This was the case under the Articles of Con-
federation, and it resulted in great confusion. Although
States may define the rights of aliens and of naturalized
citizens within their borders, they have no authority to make
''R. S., 2165.
The Powers of Congress 101
citizens of the United States. The fact that Congress has the
sole power over naturalization is in harmony with Article 4,
Section 2, Clause 1, of the Constitution, which declares that
" The citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States." It is hard
to see how the " privileges and immunities of citizens in the
several States " could be the same unless the method of mak-
ing citizens were the same in all the States.
An Apparent Exception. — ^The query is sometimes raised:
Can a naturalized citizen of the United States, on revisiting
the land of liis nativity, be made to serve his apprenticeship in
the army, if he has not already done so, where such apprentice-
ship is regularly demanded? Yes, he may. This of course
creates an anomalous situation, for the United States guaran-
tees the same protection to naturalized citizens that is due to
natural born citizens. The logic of the matter, however, seems
to be as follows : In certain foreign countries military service
is regarded as an obligation which attaches to every male child
upon his birth, and is not discharged by his naturalization
elsewhere. Xaturalization, it is argued, in no way affects
duties or obligations owed to the State of the nativity at the
time when the naturalization is effected, and therefore it does
not discharge an individual from his obligation to military
service. The question has been raised and passed on a number
of times."" With several countries of Europe this' matter is
covered by special treaty, in which case, of course, the treaty
holds. Thus in the general treaty with Belgium there is an
express provision upon this point.
Bankruptcy and Insolvency. — The object of insolvency and
bankrupt laws is twofold : lirst, to free a person from perpetual
bondage to creditors and thus give him another chance to
succeed; second, to secure an equitable division of the prop-
■"See on this point: Wharton's International Law Digest, 385,
Sec. ISl; Davis' International Law, 3d Ed., p. 144.
102 Constitutional Law
erty of the debtor among the various creditors. Generally
speaking, an insolvent person is one whose debts exceed his
assets; a bankrupt is one who has voluntarily or involuntarily
gone into bankruptcy : that is, who has been adjudged a bank-
rupt by a court of competent jurisdiction. The condition of in-
solvency usually precedes bankruptcy, but not every insolvent
person becomes a bankrupt.
The control of bankruptcy is placed by the Constitution
wholly in Congress. In order that the credit of the country
be stable, and that the method of obtaining freedom from
indebtedness be the same in all the States, it is necessary that
Congress should have such complete control. Under the
Articles of Confederation the States regulated bankruptcy as
they saw fit; and until Congress passed a uniform rule they
continued to do so, even after the Constitution was adopted;
and their laws were upheld.^" But when Congress passed a
national bankruptcy law, such law superseded State statutes
on the subject, where the latter were antagonistic. The last
national bankruptcy law was passed in 1898 by the 55th Con-
gress. The main provisions of the law are as follows :
A. That the United States District Courts in the States
and Territories, and the Supreme Court of the District of
Columbia, shall have jurisdiction over cases in bankruptcy.
B. That acts leading to bankruptcy shall be: 1, any at-
tempt to delay, hinder or defraud creditors by purposely con-
veying, concealing, or removing property; 2, any attempt to
prefer, while insolvent, one creditor over another; 3, per-
mitting one creditor to obtain a preference over another; 4,
making a general assignment of property for the benefit of
creditors; 5, admitting in writing a state of insolvency and a
willingness to be adjudged a bankrupt.
C. That the District Court may appoint referees, or trustees,
in l)ankruptcy, who shall inventory the property, make proper
«°Sturgis V. Crowningshield, 4 Wheat, 122 (1819).
TiiR Powers of Coxgress 103
reports of the same to the court, and shall cquitahly distrihute
the proceeds of the estate, or the earnings of the corporation,
among the creditors.
D. That any insolvent person, except a corporation, may
become a voluntary bankmpt; aiid that any private banker,
any incorporated company, or corporation, owing debts to the
amount of $1000.00 or more, and any private person, except
wage earner or farmer, may become an involuntary bankrupt.
This means that any insolvent person, except a corporation,
may petition to be declared a bankrupt ; and that any corpora-
tion, private banker, or private person, except wage earner or
farmer, may be forced into bankruptcy on the petition of
creditors.
Results of Bankruptcy Proceedings. — "When a person has
been discharged from bankruptcy by a court of competent
jurisdiction he is legally freed from all claims of creditors,
even though his property may have been sufficient to pay only
a small part of his debts. He is at liberty to engage in business
again and is under no legal obligation to pay debts previously
contracted.
When a corporation goes into bankruptcy the referees, or
trustees, take charge of the business and run it for the benefit
of the creditors. Sometimes their eiforts result in paying off
all the indebtedness and setting the corporation again on a
sound basis, and sometimes they are obliged to sell out the
business assets entirely. In this case the corporation as such
goes out of existence.
State laws. — The law of 1R0R on bankruptcy did not neces-
sarily make void all State laws on insolvency and bankruptcy.
Where the latter are not repu<rnant to the Constitution or to
the law of 1898, or do not attempt to operate outside of State
limits, or affect any contract created before the law was con-
ceived, they are valid.
104 Constitutional Law
Section 8, Clause 5. — To coin money, regulate the value
thereof and of foreign coin, and fix the standard of
weights and measures;
Money. — Section 10 (p. 150) suggests that only gold and
silver, coined by the government and made legal tender in pay-
ment of debts, is money. In common parlance, however, any
recognized medium of exchange is money. Thus in some of
the Colonies before the Eevolution hides and Indian wampum
were used for purposes of exchange. To-day paper bills,
stamped and issued by the government, as well as copper and
nickel pieces, are so used. All these may reasonably be termed
money, for they are such in a practical way, although they are
neither gold nor silver, and their legal tender capacity is
limited. The term "lawful money," however, has a limited
signification. It includes gold coins, silver dollars, United
States notes, and treasury notes.
Money Must Have Value. — ]\Iediums of exchange, under
whatever names they may go, must have a certain market value
in themselves, or be based on that which has. Thus all coins
in the United States are made of metal whose value in the
markets of the world either equals or approaches their face
value. This is true of all gold pieces. If we melt a gold
dollar, we get a dollar's worth of pure gold, plus a little alloy,
or hardening compound. If we melt silver, copper, or nickel
coins, we get pure metal, whose value only approaches the
face value of the coins. Their ability to circulate as mediums
of exchange therefore must depend on something more than
their intrinsic worth. This something more is the credit,
or financial standing, of the government that issues them — a
rather indefinite something, it is true, but none the less a thing
to be reckoned with. For this reason alone, much of the paper
money of the United States circulates at its face value. The
worth of the material it is made of is slight, but backed as it
is by the government's promise to redeem in that which haa
The Powers of Congress 103
value, it passes readily from hand to hand, and forms a large
and convenient part of the nation's currency. So also of the
minor coins, whose intrinsic value is less than their face value.
Such parts of the nation's currency depend for their stahility
and value on the real or supposed ability of the government to
maintain its credit before the world. Governments and per-
sons are alike in this respect. The notes of a business man are
valuable only so far as he is able, or supposed to be able, to pay
them. So that part of a nation's currency that is based on
credit is acceptable only so far as the financial standing of the
nation is above suspicion.
legal Tender. — This term is synonymous with " lawful
money" mentioned above. It means that which the law
authorizes a debtor to offer and compels a creditor to accept
in payment of a debt. It is a creature of the law entirely. In
the United States gold coins are and always have been legal
tender for all sums. From 1792 till 1853 silver coins were
likewise legal tender for all sums. Since 1853, however, sub-
sidiary silver coins have been legal tender for limited
amounts only,*" and from 1853 till 1878 the silver dollar was
not full legal tender. Since the last date, however, the silver
dollar has been legal tender for all debts. Xickel and copper
coins are now Iggal tender for sums not exceeding twenty-five
cents. As to paper money, banknotes, and silver and gold
certificates have never been legal tender. On the other hand,
treasury notes' and United States notes have been made legal
tender by the authority of Congress.
Regulate Value. — This means to determine the value of coins
in terms of some other. In order to have a currency consisting
of more than one thing we must first have a standard, to Avhich
We may adjust all other weights and values. Congress cannot
'"From 1853 to 1879 they were legal tender for $5.00; since
1879, for $10.00. They are redeemable, however, when presented in
sums of $20.00 or more.
106 Constitutional Law
prescribe the value of the material out of which money is
made ; Congress can only ascertain its value by consulting the
quotations in the markets, and then fix the size and the weight
of the coins accordingly. If one metal is adopted as the
standard, we have a mono-metallic currency; if two metals
are selected, we have a bi-metallic currency. Congress, in its
first coinage act (1792), adopted the bi-metallic standard by
authorizing the minting of gold and silver coins, and their
circulation on an equality at the ratio of 15 to 1. This meant
that Congress, having ascertained gold to be worth fifteen
times as much as silver, put into the silver coins fifteen times
as much pure silver as it put pure gold into the gold coins, and
authorized their circulation on a parity. That is, gold dollars
and silver dollars were given the same purchasing power.
But it is hard to maintain a bi-metallic currency. The market
value of one of the two metals is always going up or down,
and the government is frequently obliged to change the
relative weights of the two coins' in order to keep their values
equal. So Congress found. By 1834 the relative values of
gold and silver had so changed that Congress was under the
necessity of changing the ratio from 15 to 1, to 18 to 1. Again
Congress found that it could not control the market values
of the two metals, and in 1853 it discarded the double stand-
ard by making gold legal tender for all sums, and making all
other coins subsidiary to gold, reducing their weights enough
to insure their remaining subsidiary. This, at least in theory,
was the most sensible course. But in 1878 Congress again set
up the double standard, by declaring that the silver dollar
should be full legal tender again, and that it was the policy of
the government to maintain the gold and the silver dollar on
a parity. It was only a nominal double standard, however,
that Congress set up, for the market value of the silver in the
silver dollar was not equal to one hundred cents, and since tlien
it has fallen so much lower, that the coin is practically sub-
The Powers of Congress 107
sidiary. In 1908, for example, the pure metal in a silver
dollar was worth only about forty-live cents.
One can readily see that in a time of extremity, when tlie
government might be unable to meet its obligations, the ex-
change value of the silver dollar, and indeed of all currency
whose intrinsic value is less than its face value, might become
no more than what its basic metal would bring in the open
market.
It is not worth while to discuss here the different coins now
in use in the United States; their differences are obvious. It
may be of interest, however, to point out the distinctive
features' of the paper coinage, for those are not so generally
known.
Paper CuiTency. — For ease in handling, and to lessen the
certain waste of the valuable metal in coins through erosion,
and for other minor reasons, the United States government
has found it practicable to issue paper currency. Such cur-
rency is based either on actual coin or bullion stored in the
treasury, or on the credit of the government. If for every bill
issued its equivalent in coin or bullion is deposited in the
government's vaults, there is little danger of a depreciation ;
but when bills are issued entirely on the credit of the govern-
ment they are based on that which is indefinite and unstable.
If the nation is rich, and its credit high, its paper currency
is acceptable at face value; but if the nation becomes poor, and
its credit low, such bills at once depreciate. The paper cur-
rency of the United States consists of the following:
(A) Gold and Silver Certificates. — These bills have the
words " Silver Certificate," or " Gold Certificate," as the case
may be, stamped on one side ; and on the other, the inscription,
" This certifies that there has been deposited in the treasury'
of tlie United States one silver dollar," or whatever the metal
or the amount may be. These are not legal tender, but being
represented by actual coin in the treasury, tlicy are a very
stable kind of paper currenty.
108 Constitutional Law
(B) United States Notes. — These are commonly called
" greenbacks " or " legal tenders." They are issued in various
denominations. They bear on the face the inscription,
"United States Note," and " The United States will pay the
bearer .... dollars." On the reverse side is printed, " This
note is a legal tender at its face value for all debts public and
private except duties on imports and interest on the public
debt." This inscription is important. The student will
notice that these bills are not based on coin or valuable metal
of any kind. They are the government's promissory notes, and
their value depends solely on the presumed ability of the gov-
ernment to pay its debts. But governments cannot always
pay their debts, and in times of financial stress their notes;
tend to depreciate rapidly. This was exactly what happened
at the time of the Civil War. So loth were the people to
accept the government's notes, which were mere promises to
pay, that they became nearly useless for exchange. In 1862,
therefore. Congress, in order to make these notes receivable
for debts, that is, for past obligations, added the legal tender
feature to them. This, though objectionable, insured their
circulation, and since then they have caused little disquiet,
but have been as serviceable as any other kind of paper money.
It was questionable finance to do this, for it arbitrarily forced
the people to accept as money a medium of exchange that was
not valuable in itself and was based on that which is naturally
very uncertain. It did more : it made United States notes in
a measure more useful than gold or silver certificates, for the
latter have never been made legal tender. In spite of this,
however, and the fact that the Supreme Court has upheld the
legal tender acts of Congress," it is hard to see how in a time
of monetary stress even this legal tender clause can keep these
notes from depreciation. The wondrous process of alchemy
"The Legal Tender Cases, 12 Wall., 457; 110 U. S., 421.
The Powers of Congress 109
has not yet been discovered ; not even the Congress of the
United States can make something out of nothing.
(C) Treasury Notes. — These are not now in general circula-
tion. Tlicy were issued under the Sherman Act of 1890 in
payment of silver bullion, but have since been largely retired
and cancelled. The Sherman Act required the government
to purchase four and one-half million ounces of silver bullion
per month, to coin two million ounces per month until July 1,
1891, and to store in the treasur}' the bullion then left un-
coined. The notes issued for the payment of this raw silver
bore on the face the promise " to pay the bearer on demand
.... dollars in coin." The purpose of this issue of bills, and
the coinage of so much silver was to maintain gold and silver
on a parity. The result was, however, that these notes began
to be presented in great quantities' at the treasury, and gold
demanded in payment to such an extent that the fund of
$100,000,000 in gold, reserved to insure the stability of green-
backs, was seriously diminished. A period of financial unrest
followed. Financiers then saw that, so long as the government
was bound to buy silver with treasury notes and then redeem
these notes with gold, it would result in a severe strain on its
resources. A special session of Congress was called therefore
in 1893, which repealed the purchasing clause of the Sherman
Act. Later acts of Congress have required the Secretary of
the Treasury to coin the silver purchased under the Sherman
Act into standard silver dollars, and with these dollars to re-
deem outstanding treasury notes as fast as presented. As
these notes have been taken in and cancelled silver certificates
have been issued in their places.
Both treasury notes and United States notes have always been
reckoned as part of the national debt. They are analogous to
government bonds; but unlike them they are designed to pass
current as money; they bear no date of redemption; and they pay
no interest.
110 CONSTITUTIOXAL Law
(D) Banknotes. — These bills are issued by national banks,
or banks chartered by the government. They are stamped
with the name of the bank issuing them, their denomination,
etc., to wit : " The First National Bank of New York will pay
the bearer on demand .... dollars." Banknotes are just as
good as notes of the United States, perhaps better, for they
are all secured by bonds deposited in the treasury of the
United States, and they are not evidence of indebtedness.
State banks, or banks chartered by State legislatures, for
many years issued paper currency, in the face of the constitu-
tional prohibition, " No State shall emit bills of credit."
Congress never expressly prohibited the issuance of such bills,
but in 1865 it passed an act, amended in 1866, levying a tax
of 10 per cent on the circulation of all State banks. This
virtually drove State banknotes out of existence.
Retrospect. — It can readily be seen from the foregoing
sketch of the monetary history of the United States that Con-
gress has not found it easy to exercise the power of coining
money, nor has it been at all times wholly successful. Yet in
the main it has kept the nation sound financially; and there
has been harmony in the matter of exchange among the people
of the respective States, where, had the States the right to
exercise this great power, must have been chaos.
Foreign Coin. — Congress has exercised the power to regu-
late the value of foreign coin by declaring at what rate it shall
be received for duties on imports and in payment for public
lands. This rate has always been based on the value of the
pure metal in the coin. Congress has never presumed to
declare the rate for contracts between private citizens. That
is done in the open markets of the world, and is purely a
matter of supply and demand.
Weights and Measures. — Beyond authorizing the troy
pound for use in the national mint, and legalizing the metric
system in the United States, Congress has done little or noth-
ing to " fix the standard of weights and measures."
The Powers of Congress 111
Section 8, Clause 6. — To provide for tho punishment of
counterfeiting the securities and current coin of the
United States;
Counterfeiting. — Counterfeiting is the making of false coin
in the likeness of the genuine. The coin need not be actually
used as money ; it is sufficient if the spurious article be capable
of such use. It must, however, be base, and its resemblance to
the genuine be so close as to be likely to deceive a person using
ordinary precaution. As used in the present clause, however,
the term counterfeiting has been construed more broadly to
include, besides the making of false coin and securities, the
intentional uttering or passing the same ; or the possession of
them or of the instruments for making them with the intent to
defraud; or the act of bringing them into the country for the
same purpose." Although mere possession of dies or of false
coin does not constitute the offense of counterfeiting, it is a
suspicious circumstance; the essence of the crime lies in the
intent to deceive. Federal statutes declare what the punish-
ment for counterfeiting the coin or securities of the United
States shall be.
Securities. — Under the term securities are included all cer-
tificates of indebtedness, such as stocks, bonds etc.; all forms
of paper money, including banknotes; all revenue and postage
stamps; all customhouse certificates, postal money orders,
stamped envelopes, etc.; and all notes and bonds of foreign
governments. The imitation of these things for the purpose
of fraud is counterfeiting just as truly as the imitation of
money, and is punishable under the laws of Congress.
Power Not Exclusive.— The power to coin money, as we
have already noted, is exclusive in the Federal government.
Hence it follows that if the power to punish counterfeiting
were not expressly given to Congress, it would necessarily be
implied by the power to coin money; otherwise the latter
"United States v. Marigold, 9 Howard, 560.
112 Constitutional Law
power would soon become a nullity. Whether the authority
to punish counterfeiting is exclusive in Congress has been a
mooted question." The better opinion seems to be that in such
a ease, where the exercise by the States of any power granted
to Congress can work no harm, but is rather productive of
good, it is wise to construe the clause conferring it reasonably
and broadly. To make an act punishable under both State
and Federal laws will tend to decrease crime rather than to
increase it. It has been held, therefore, that States may pass
laws forbidding the counterfeiting and the circulation of
United States currency within their borders, and may punish
offenses against such laws, as being against the peace and good
order of the State." Furthermore, the punishment of such
acts by a State does not preclude a second punishment by the
United States : for an act may at once be an offense against
both.*'
Ordinarily the law presumes an accused person to be innocent
until proved to be guilty. The contrary, strange as it may seem,
may be the case when one is accused of counterfeiting. It is a
reasonable presumption that, when a person attempts to pass
counterfeit money, or has it in possession, it is with full knowledge
of the fact, and the burden of proof in such a case is on the ac-
cused to show that the possession or the illegal act of passing
was innocent.
Sectioii 8, Clause 7. — To establish post-offices and post-
roads;
In 1788 that remarkable early commentary on the Consti-
tution, the Federalist, approaches this topic in a half apolo-
getic manner. It remarks in brief that "the power of es-
tablishing post-roads must, in every view, be a harmless power,
and may perhaps by judicious management become productive
^ See Story's Constitution, §1123.
*^Fox V. Ohio, 5 Howard, 410. Martin v. State, 18 Tex. App., 224.
Houston V. Moore, 5 Wheaton, 1; Cooley's Prin. Const. Law, p. 94.
« Idem.
The Powers of Congress 113
of great public convcniency." " Could the author here quoted
have foreseen that the Postoffice Department was to become
one of the most useful and beneficent under the government,
he would not have written in that cautious manner. As a
matter of fact no department of the United States illustrates
so well that the government is for the people, for no other
department administers so well to the comforts, interests, and
necessities of persons in every walk of life, and at so small an
individual expense. The Postal Department was not created
to make money, but to administer; and as a result it is often
run at a loss. From a small and almost unimportant branch
it has grown to immense size, and tremendous importance.
It gives work to hundreds of thousands of persons; it receives
and disburses tons of mail matter of every description, silently,
swiftly, and with certainty ; and it reaches out beneficent hands
along thousands of miles of railways, highways and waterways,
to every accessible corner of a vast country.
Post-Offices and Post-Roads. — The whole authority for put-
ting into operation a system at once so intricate and so vast is
vested in Congress by the simple and rather general sentence,
" Congress shall have power to establish post-offices and post-
roads." The power to establish has been interpreted to in-
clude the power to regulate, and Congress has therefore right-
fully assumed the power to create, manage, and control this
great business of transporting and delivering the mails, and to
do many things that assist in making such transporting and
delivery quick, efficient and safe. For many years the point
was under discussion whether the phrase " to establish "
meant to create, or to point out; and much effort was wasted
to prove tliat, wliile Congress could designate what should be
used as a post-oflk-e, and what road already existing should
be a mail-road, it could construct neither one nor the other.
It is the settled opinion now, however, that Congress can both
«' The Federalist, No. 42.
8
114 Constitutional Law
designate and construct, and Congress has always acted under
that interpretation — many times in the building of post-
offices; and a few times in the making of post-roads." Both
State and private enterprise, however, have been so sufficient
in road building that Congress has been under very little
necessity to enter on such work. The terms post-offices and
post-roads have both received judicial interpretation, and are
to be taken in a broad sense. Any place where mail is officially
received, opened, or delivered, whether house, office room,
tent, booth, boat, wagon, or box, is a post-office"; and any
route over which mail is carried is a post-road, whether it be
railroad, highway, canal, navigable stream, or footpath.
Under the authority to regulate the postal system Congress
may do anything that reasonable public policy may demand.
Thus certain persons have for cause been deprived of the use
of the mails; and obscene, injurious or libellous matter is
excluded." So Congress may cause to be punished those who
introduce forbidden matter into the mails, and may assume
the power likewise to define and punish as misdemeanors all
acts that are a hindrance to the postal service.
Organization of the Postal Service; Expenses. — The mail
system of the United States is under the direction of a Post-
master-General, who has a seat in the President's cabinet, and
four Assistant Postmasters-General, all of whom are appointed
by the President and the Senate. The first Postmaster-
General was Benjamin Franklin, who organized the first sys-
tem of mail distribution in America. The present Post-office
Department is divided into four bureaus, each of which is
supervised by one of the Assistant Postmasters-General. The
work of these bureaus and the duties of the four Assistant
Postmasters-General are clearly defined in the Federal
*' Stat, at Large, Vol. 2, 42, 730.
" United States v. Marselis, 2 Blatch. Cir. Ct, 108.
*• Ex parte Jackson, 96 U. S., 727.
The Powers of Congress 115
statutes. Each of the bureaus is, furthermore, divirlefl into
divisions to facilitate the work, and the labor in them is carried
on by corps of well-trained clerks. The number of employees
in the postal service, including postmasters and their assist-
ants, runs into the thousands; the yearly disbursement for
salaries amounts to millions of dollars. A few figures will
perhaps give a more definite idea of the present vast extent of
the postal business, and of the cost which it involves. In 1800
the number of post-offices in the United States was but 903 ; in
1910 it was 59,580. In 1910 the expenditures of the Depart-
ment amounted to $229,977,224, exceeding the revenues by
about five million dollars; the compensation paid to post-
masters was $27,521,013; the cost of transporting the mails
was $84,882,281. In the same year the pieces' of postal matter
which passed through the mails reached the prodigious num-
ber of 14,850,102,559.
Section 8, Clause 8. — To promote the progress of science
and useful arts, by securing for limited times, to authors
and inventors, the exclusive right to their respective
writings and discoveries;
In General. — Just how much science and useful arts are
promoted by this clause is wholly conjectural. It is both
reasonable and just, however, that Congress sliould enact laws'
to protect authors and inventors in the enjoyment of the fruits
of their brainwork ; and it is the act of a beneficent and far-
seeing government to hold out large recompense for original
work of all kinds. The wisdom of placing copyrights and
patents under the power of Congress is apparent. In America
one has no common law right to enjoy alone the products of
his' genius; when once made public they are, in the absence of
statutory provisions, available to all. Furthermore, a copy-
right or a patent protected by State law only would be but
limited in its usefulness. The Constitution docs not forbid
116 Constitutional Law
the States to enact patent or copyright laws, but the Supreme
Court has decided that, although States under their police
power may regulate the use of patented articles,"" they may
not grant patents or copyrights, or regulate such rights or the
sale of them in any way.°' The power to do these things is in
Congress alone. It has always been understood, furthermore,
that patent and copyright laws are solely for the benefit of
authors and inventors," and are not to be extended by Con-
gress to the introducers of new works and inventions. The
patent and copyright laws of America are modeled on those
of England.
Copyrights. — A copyright is an exclusive privilege to pub-
lish a literary or artistic production. Although commonly
applied to books the term is not so limited in fact, for musical
compositions, photographs, paintings, engravings, and even
statues may be copyrighted. The copyright of a musical
composition carries with it the exclusive right to perform it
in public, or to cause it to be performed. A copyright is a
property right, which may be assigned.
The term of a copyright is twenty-eight years, from the time
of recording the title thereof, with the privilege of renewal for
twenty-eight more. The method of obtaining it is governed
entirely by published statutes.'' On the death of the original
holder the right passes to his widow or children, even the right
of renewal. Thus the grant of a copyright, and the same is
true of a patent, creates a monopoly. But it is a limited
monopoly. The general public also has rights to be observed,
and at the expiration of a period reasonably long enough for
the original grantee to reward himself for his labor or inge-
'^ Patterson v. Kentucky, 97 U. S., 501. State v. Tel. Co., 36
Ohio St., 296.
" Crawson v. Smith, 37 Mich., 309. Hollida v. Hunt, 70 111., 109.
"Livlnf^fiton v. Van Ingen, 9 Johns. fN. Y.), 507.
"Rev. Stat. 4956-7-8 (Amend. 26, Stat, at Large, 1107).
The Powers of Congress 117
nuity, the monopoly ceases, and the privilege formerly en-
joyed by one, or by a few, is open to all.
For many years foreign governments did not allow Ameri-
can authors the privilege of copyright, and until 1891 aliens
and non-residents were likewise debarred in the United States.
By the Act of March 3, 1891, however, Congress substantially
granted the privilege of American copyright to all foreigners
whose own governments gave similar rights to citizens of the
United States. Thus by the exchange of national courtesies
it is possible to have one's copyright extended over more than
one country.
Patents. — A patent is the exclusive right, secured by law to
an inventor, to enjoy the fruits of his invention or discovery
for a limited period. The life of a patent is seventeen years,
but the right may be renewed' for seven more, provided the
holder can show that he has not received adequate compensa-
tion meantime. Like a copyright, a patent is a property right,
which is assignable at law, and on the death of the holder the
right descends to the heirs at law. A patent granted by Con-
gress is confined to the limits of the United States; whether
a person shall obtain a foreign patent on his invention depends
entirely on the disposition of the foreign government. There
are no reciprocal treaties covering patents, as in the case of
copyrights. Under the laws of the United States an article
to be patentable must have the following qualifications:
1. It must be new. That is, it must be original in concep-
tion, not a mere equivalent of something else, or a mere change
in form, or a carrying forward of the same idea.
2. It must be useful. Inventions that are wholly useless,
or merely trifling, or pernicious, are not patentable. This is
a rather indeterminate quality, for the degree of usefulness
is not always important; but, as said by !Mr. Justice Bradley
(107 U. S., 200), it is not the object of the patent laws " to
grant a monopoly for every trifling device, every shadow of
an idea."
118 CONSTITUT ONAL LaW
3. It must be prior in time, i'hat is, in case more than one
person should apply for a patent on the same thing, the first
to reduce the invention to a practical working condition is
entitled to the patent, rather than the one who may have first
conceived the idea.
4. It must not be abandoned. If it can be shown that the
applicant has been unreasonably negligent, or has carelessly
abandoned his invention to the use of the public, he may be
denied the patent.^' It is an old maxim of the law that " Neg-
ligence always has misfortune for a companion."
The method of obtaining a patent is governed by the public
statutes." The grant of a patent, however, gives the grantee
absolute rights, and not even the United States government
may use a patented invention without the consent of the
patentee, or without making adequate compensation.^ In
such cases the government officers are themselves liable to
personal suit.
Trade-Marks. — These cannot be patented or copyrighted,
for they are neither inventions nor writings within the mean-
ing of the Constitution." Distinguishing marks on goods
destined for interstate or export trade may, however, be reg-
istered at the Patent Office, and all unwarranted use, or wilful
imitation of such registered mark is illegal.'** A registered
trade-mark endures for thirty years, and may be renewed for
thirty more. Congress has no authority over marks on goods
in purely domestic or Intra-state trade, but in many States
they are protected by State laws.
Section 8, Clause 9. — To constitute trib'inals inferior
to the Supreme Court;
" Gayler v. Wilder, 10 How., 477. Dable Shovel Co. v. Flint, 137
U. S., 41.
"R. S., 4883-4936.
«> Belknap v. Schild, ICl U. S., 10.
"The Trade-mark cases, 100 U. S., 82.
5" 33 Stat, at Larpe, 728.
The Powers of Congress 119
Inferior Courts. — The Constitution estahlished but one
court for the United States — the Supreme Court. The y)resent
clause, however, gave Congress full })owcr to establish other
inferior courts, unlimited in number, jurisdiction, or comple-
ment; and Congress early proceeded to put that power into
execution by establishing the District and Circuit Courts, and
the Circuit Courts of Appeals. The power thus granted, how-
ever, is not exclusive: States may create judicial systems, as
well as the United States, l)ut with limited jurisdictions. In
consequence, the system of legal administration within the
United States has become rather complicated. Besides the
great Federal system there are as many State systems as there
are States, and hardly any two States are alike in their ad-
ministrations of the law, A fuller discussion of the Federal
courts, as well as some remarks on State systems, will be
found in the pages devoted to Article 3.
Section 8, Clause 10. — To define and punish piracies and
felonies committed on the high seas, and offenses against
the law of nations;
In General. — It is the manifest purpose of this clause to
provide for the punishment of serious offenses committed in
that part of the world that is under the jurisdiction of no
nation. The authority for such power is derived from two
sources : first, from the principle that international law allows
any nation to pursue and punisli wherever found those wild
sea rovers that are inimical to civilized peoples and subject to
no nation ; secondly, from the principle that a nation's vessels
are floating bits of the nation's territory. Offenses committed
on vessels sailing under the American flag are, therefore,
plainly within the scope of congressional legislation.
Piracy. — At common law, piracy was robber}', aniivc
furandi. on the high seas; and high seas, the ocean beyond
low water mark. The present clause, however, plainly give?
120 Constitutional Law
to Congress the power to enlarge this definition of piracy ; and
Congress has so done. At common law, the slave trade was
not deemed piracy, yet in 1820 Congress declared it to be
punishable as such. Congress has also enlarged the definition
of high seas to include the Great Lakes, and the Supreme
Court has held likewise." It follows, therefore, that any
offense, committed on the high seas or on the Great Lakes,
may be punished in the courts of the United States as piracy,
if Congress has declared the act to be piracy; but that be-
fore Congress can declare an offense to be punishable, it must
first define the offense. It is not necessary, however, that such
acts be defined as piracy as are held to be piracy by the common
law, or by the law of nations.
Felonies. — Under the common law of England felonies were
those offenses for which a person might suffer loss of life or of
property, or of both, according to the degree of his guilt. In
American law the term felony is not clearly defined. It is used
loosely to distinguish offenses of a serious nature from those
of a less serious nature, or misdemeanors. But this' distinc-
tion is slowly disappearing. State statutes usually define
felonies as those crimes for which the punishment is death or
incarceration in the State prison .*" The Federal statutes have
never defined the term, but under the authority of this clause
Congress may declare any offense committed on the high seas
a felony and cause it to be punished as such. Thus mutiny
committed on a ship under American colors while on the ocean
is punishable under the laws enacted by Congress'. But
robbery on a ship belonging to subjects of a foreign state, and
by one not a citizen of the United States, would not be punish-
able in the courts of the United States, for the latter would
have no jurisdiction over either persons or property on such a
» 26 Stat, at Large, 424; U. S. v. Rodgers, 150 U. S., 249.
** e. g., Mass. and N. Y.
The Powers of Congress 121
vessel." Tlie principle to be grasped here is that all acts done
on the high seas, or on navigable bays, lakes, harbors, and
rivers, fall naturally under the purview of Congress, for all
interstate and foreign commerce and all foreign relations are
governed by Congress, rather than by the States, and under
the power herein granted Congress may place crimes com-
mitted on such waters in any category it pleases, and cause
them to be punished accordingly.
Offenses Against the Laws of Nations. — These are the acts,
whether committed on the high seas or on the land, which
tend to interrupt the peaceful relations between the United
States and foreign nations. International law is a rather
loose code of principles, unwritten except in commentaries,
tending to promote harmony among civilized nations. It is
for the best interests of the United States that these principles
be observed, and that Congress should have the power to
punish offenses against these principles, and to define and
make punishable other offenses not included in the inter-
national code. Thus the so-called neutrality laws forbid
citizens of a neutral nation to equip vessels of war or bodies
of troops to aid a belligerent nation ; and Congress has passed
acts to forbid fdibustering, and has made it a serious offense
to organize or to set on foot armed expeditions against
friendly nations.
Section 8. Clanse 11. — To declare war, grant letters of
marque and reprisal, and make rules concerning captures
on land and water;
War; Declaration of, etc. — The evident purpose of this
clause is to prevent the United States from engaging in war
with other nations without the consent of the people, through
their Eepresentatives in Congress assembled. In England the
" U. S. V. Palmer, 3 Wheaton, 610.
122 Constitutional Law
power to declare war is in the Crown, but that power is limited
by the fact that Parliament alone may make appropriations.
In the United States the war power is somewhat limited, for,
although Congress may declare war and appropriate money to
carry it on, no Congress can make appropriations for that
purpose for a longer term than two years.^
A state of war may exist, however, without any declaration
by Congress, either through insurrection, or by the hostile acts
of foreign nations. When such a state of war exists, the people
and the courts of the country are bound to take notice of the
fact""; and the President is authorized to take steps to sup-
press the insurrection or to repel the invasion.*^
Congress has declared war twice: in 1812 against Great
Britain ; in 1898 against Spain. The war against Mexico, in
1846, was recognized as already existing by the hostile acts
of that country. The conflict between the North and the
South, although it assumed the magnitude of war, was in
reality nothing but an insurrection. The insurrectionists
were recognized by some foreign nations as belligerents, but
never as an independent people. The conflict began while
Congress was not in session, and the duty of coping with it at
first fell entirely on the President. He could not declare war,
but under the authority to put down insurrections he pro-
ceeded to order out the militia and to issue calls for volun-
teers. Later, when Congress assembled, it recognized the acts
of the Executive, and empowered him to take further steps
to put down the rebellion. In this connection an interesting
constitutional question arose : Did the acts of the President
in attempting to put down the rebellion before Congress had
assembled and declared war to exist amount to war in fact?
If so, then the capture of certain vessels attempting to run the
•"Constitution, 1, 8, 12.
"' The Prize Cases, 2 Black, 635.
" Statute passed in 1795.
The Powers of Congress 123
blockade established by the President was legal; otherwise
it was not. The Supreme Court decided in the affirmative:
on the <<round that, in order to constitute war, it is not neces-
sary for both parties to be sovereign nations; but war may
exist where one belligerent claims sovereign rights against
the other.**
War Powers of Congress. — In the event of war Congress
may wield all those extreme powers that are regarded as lawful
by the civilized world. Thus Congress may acquire territory
by conquest*" it may try offenses by military commissions
where civil law has been displaced by warlike operations "^ ; and
it may set up provisional courts in conquered territory." It
follows therefore that warlike acts by private parties, un-
authorized by the government, are illegal. Hence irregular
bands of marauders are likely to be treated if captured as law-
less banditti; and those who prey on the enemy's commerce
without lawful authority are rightfully classed as pirates.
Furthermore, war between two nations makes private inter-
course between the inhabitants thereof unlawful. The in-
habitants of one are the enemies of the other ( Opinions of the
Attorney General, Vol. 11, p. 301), and all contracts between
hostile parties are absolutely void.*"
!N'o State, of course, can declare war or make captures.
Such power is exclusive in Congress. For subduing internal
disorders, however, a State may use force to any extent within
her means, even to marshaling State troops in the field, as
though a real war were in progress.
Letters of Marque and Reprisal. — A letter of marque is a
commission given by a civilized government to a private ship
"The Prize Cases, 2 Black, 635.
"" Adi. Ins. Co. I'. Canter. 1 Peters, 511, 541.
" Ex parte Milligan. 4 Wallace, 2.
"« The Grapeshot. 9 Wallace, 129.
** Kent's Commentaries, 67; Griswold v. Waddington. 15 Johns.
(N. Y.), 57.
124 Constitutional Law
authorizing it to attack ships of the enemy. A ship bearing
such a commission is commonly termed a privateer, and its
operations are generally carried on against the enemy's com-
merce. Privateering has usually accompanied organized war-
fare ; but letters of marque have been given to individuals when
no war existed, allowing them to make reprisal, that is, to take
private redress against foreign subjects for private injuries
received. But this is rarely done now. During the Eevolu-
tionary War and the War of 1813 many American privateers
sailed the seas, doing extensive damage to England's com-
merce. During the Civil War the Southern Confederacy
issued such commissions, but the Northern Government did
not. Although Congress authorized letters of marque. Presi-
dent Lincoln did not issue any. In the war with Spain in
1898 the United States did not grant commissions for private
warfare. At the treaty of Paris, in 1856, certain European
powers agreed to abolish privateering. The United States
did not accede to that agreement; but so strong is modern
public sentiment against private warfare that it is doubtful
if Congress ever again legalizes the practice.
Rules Concerning Captures. — It rests with Congress to de-
termine what shall be done with men, or ship§, or cargoes, or
property of every sort captured in time of war. Until Con-
gress has acted, no private citizen can enforce rights of
forfeiture, even with judicial assistance.'"
Section 8, Clause 12. — To raise and support armies, but
no appropriation of money to that use shall be for a
longer term than two years;
Section 8, Clause 13. — To provide and maintain a navy;
Section 8, Clause 14. — To make rules for the govern-
ment of the land and naval forces;
The Army and the Navy. — Clauses 12, 13, and 14, since they
are inseparably connected in thought, may well be considered
''" Brown v. United States, 8 Cranch, 110.
The Powers of Congress 125
together. Without these clauses Congress would no doubt
have power to raise troops and equip ships to carry on war,
for otherwise the power to declare war would be useless. But
from the power to declare war one could hardly deduce the
authority to maintain troops and ships of war in times of
peace. Hence it is fair to assume that these clauses are meant
to provide for the regular navy and the standing army.
Under the Articles of Confederation Congress was given no
authority to raise armies in times of peace ; nor could any such
authority be deduced from its rather nominal power to declare
war. Standing armies and navies were too suggestive of
militarism and monarchism to bo provided for by a nation
that had just rid itself of both evils. Accordingly, whatever
troops were maintained were organized, drilled and equipped
by the various States; there was no national military organiza-
tion. The system was, as Judge Story points out, " equally at
war with economy, efficiency and safety.^' "
Under the Constitution the power of Congress to raise and
maintain an army or a navy is unlimited, except in respect to
the length of time for making appropriations to the use of the
army ; and such limitation applies only to the army. Congress
may make either force so large as to become burdensome, or
it may abolish both altogether. Thus far, however, the good
sense of the people's Representatives, the comparative isolation
of the United States, and its consequent freedom from Euro-
pean discords have kept Congress from one extreme, while
potent, obvious reasons have kept it from the other. It has
been the policy of the United States since 1799 to maintain
a regular army of moderate size, but in respect to the navy its
policy has undergone much fluctuation.
The Navy Since the Revolution. — From the close of the
Revolutionary War until 1794 the United States had no navy
— at least, none worth tlie name. In that year trouble with
Algiers impelled Congress to pass a law which provided for
" Story's Constitution, Sec. 1179.
126 Constitutional Law
the construction of six frigates. This was the beginning of
the American Navy. Naval matters were tlicn managed by
the War Department, and they continued to be so managed
until 1798, when Congress created the office of Secretary of
the Navy. Naval success in the war with France, 1799-1801,
and greater success in the War of 1812, gave great impetus
to the navy, and from the end of the latter struggle until
1861 Congress could muster a fair armament on the sea. The
necessities of the Civil War caused a vast increase in both
ships and personnel, but when the war ended Congress entered
on a policy of retrenchment: the navy was allowed to decay,
and in a few years the naval list contained hardly one re-
spectable fighting ship. In 1881 Congress awoke to the fact
that the navy was at its lowest ebb since the Eevolution, and
set to work to remedy conditions. In 1883 Congress provided
for the construction of several vessels of modem design and
armament; and since then it has added steadily to the naval
strength of the country, until in 1911 the United States Navy
took second place among the navies of the world. Such in
brief has been the history of the American Navy since the
Eevolution.
Military Powers of Congress. — Under the power to rais'e
and support armies Congress may resort to any means which
exigency demands. When other means fail the draft act may
undoubtedly be resorted to as a means of securing men for
the service. Congress may appropriate money for military
equipments; for the pay, transportation, rations, and clothing
of troops; for the purchase or manufacture of arms and
ammunition ; for the support of hospital, engineer, and in-
struction corps ; for the construction of forts, arsenals, bar-
racks, and defenses of all kinds; for the establishment and
maintenance of hospitals, and of schools for military instruc-
tion. In short, everything necessary or incidental to the
preparation, equipment, and maintenance of a national mili-
The Powers of Congress 127
tary force of any size, or to the buildinn^, fitting out and sup-
port of a national navy, is in the hands of Congress exclusively.
Not even the President may attempt to maintain a navy, or to
keep on foot a standing army, when in the opinion of the
Federal legislature it is not necessary.
Appropriations. — Congress is not limited by the Constitu-
tion in ai)i)ropriatiug money for the navy, but it cannot pro-
vide for the army for a longer term than two years. As a
matter of custom Congress makes yearly appropriations for
each. In 1911 Congress appropriated for the army $95,440,-
567.55; for the navy $131,410,568.30. These sums do not
include money expended on forts and fortifications, and on
the ]\Iilitary Academy.
Military Rules. — Under the power conferred by Clause 14,
Congress luus from time to time formulated rules governing
the conduct of men in the military and naval service of the
United States, until the Army and the Naval Regulations
fill rather capacious volumes. Some of these rules are appli-
cable to men in military circles only; others express definitely
rules that commonly govern civil conduct.
The power to make rules carries with it the power to enforce
them, and to punish infractions thereof. Congress may there-
fore establish military courts for the trial of military offenders.
Hence, one who joins the army or the navy, either voluntarily
or by draft, puts himself out of the pale of civil authority.
Thereafter he is governed by military law, and he may be
punished by a military court, commonly called court-martial,
whose judgments are just as binding as the judgments of other
courts. All military courts, however, are strictly criminal in
their nature, and cannot decide property rights or political
questions. The jurisdiction of such courts, although ex-
clusive over matters properly before them, may be enquired
into by civil courts, and if jurisdiction is found wanting the
civil courts may discharge a person improperly held."
"In re Grimlcy. 137 U. S., 147.
128 Constitutional Law
Martial Law. — IMilitary law must not be confounded with
martial law. The former is a body of positive rules ; the latter
is in reality the suspension of all civil law. Martial law is a
sort of war measure, which can legally be called into action
only in times of great exigency, or as a means of waging war.
When a district is under martial law every person in it becomes
subject to military rules, and to the mandates of military
courts. This so subverts the usual order of things, and makes
possible such great and serious abuses, that it is justified only
when civil law is powerless to act, and the situation demands
military control. The weight of opinion seems to be that the
power to declare martial law rests in the President, as com-
mander-in-chief of the military and naval forces of the United
States. He may, however, delegate it to commanding officers'.
Section 8, Clause 15. — To provide for calling forth the
militia to execute the lavi^s of the Union, suppress insur-
rections, and repel invasions;
Sectien 8, Clause 16. — To provide for organizing, arming,
and disciplining the militia, and for governing such part
of them as may be employed in the service of the United
States, reserving to the States respectively the appoint-
ment of the officers, and the authority of training the
militia according to the discipline prescribed by Congress;
The Militia are the citizen soldiers of the country, who are
liable to be called into service in cases of emergency. Theo-
retically every male citizen between the ages of 18 and 45 is
a militiaman; but in common parlance the word militia in-
cludes only those organized and uniformed bodies of citizen
soldiers maintained by the respective States, as distinguished
from the regular army of the United States. The control of
the militia illustrates in a measure the concurrent powers of
the nation and the States. In times of peace the militia are
under State authority, except when participating in ma-
neuvers with the regular army. They are drilled and officered
The Powers of Congress 120
by State officials, and may be subjected to special defensive
duty within the State at the command of the Governor. As
part of the State constabulary members of the militia may
be tried and punished for offenses by State courts-martial."
If the United States does not provide for any special system
of tactics for the militia, each State may adopt a system for
itself.
On the other hand, Congress may provide a special mode of
training for militiamen, which must be adopted by the States;
and in times of invasion or rebellion the President may call
them into the service of the country at large. When this
is done they form a part of the regular army, and as such
may be subject to the orders of regular military officers, and
may be tried for offenses by courts-martial.
Legislation Concerning the Militia. — Congress took early
action in respect to the militia. In 1792 (Eev. Stat., 1625-
1629) Congress provided for the organization of the militia of
the several States; and in 1795 (Eev. Stat., 1642), it author-
ized the President to call out the militia for the general pur-
poses of executing the laws of the nation, suppressing in-
surrections, and repelling invasions. It has been judicially
decided that when the President acts under this authority his
judgment cannot be questioned." The power to act is ex-
clusive in him, and he alone is responsible. To warrant the
President's action in these cases, it is not necessary that in-
vaders be actually present in the country, or that an insurrec-
tion be actually in progress; he may act whenever in his
judgment either danger threatens. But since the laws of the
Union have effect only within the boundaries of the country,
and since invasion and rebellion can take place only within
such boundaries, it follows that not even the Chief Executive
can send the militia for service out of the country. The
"Houston V. Moore, 5 "Wheaton, 1.
"Martin v. Mott, 12 Wheaton, 19.
9
130 Constitutional Law
service of the members of the militia when called out is
limited by law (32 Stat, at Large, 776) to nine months. Con-
gress may, however, under the power to raise armies, resort to
the draft act, and thus enroll into the regular army even
members of the organized militia, as well as plain civilians.
When this is done, the restrictions noted above do not apply.
The same is true of course when members of the militia enlist
voluntarily in the army.
National Service of the Militia. — Li the history of the
United States the organized militia have been ordered out by
the President three times : in 1794, to put down the Whiskey
Eebellion, an insurrection in some of the western counties of
Pennsylvania; in 1812, to repel invasion; and, lastly, in 1861,
to put down the rebellion in the Southern States. In the first
instance, the President acted by virtue of the Act of 1792 ; in
the other two cases, by the same act as amended in 1795.
This act has never been repealed. In the war with Mexico,
1846, and again in the war with Spain, 1898, it was expedient
to send troops out of the country, and militia regiments were
therefore not called out. All who participated in those wars
were either regular troops or volunteers.
Organizing, Arming, etc. — By the authority of Clause 16,
Congress early provided for a national militia. If Congress
had not acted the States would have been at liberty to do so.
By act of Congress, 1792, every able-bodied male citizen, with
certain exceptions, is made available for military duty, or a
member of the militia of the respective States and Territories.
This was amended in 1903 (32 Stat, at Large, 775) to include
all aliens who have declared their intention of becoming
citizens. Congress provided, furthermore, by the same act,
that the militia should consist of two bodies: 1st, the or-
ganized militia, known as the national guard of the respective
States and Territories; 2d, the reserve, or unorganized,
militia, consisting of all other male citizens who may be liable
The Powers of Congress 131
to military duty. The national guard, althougli organized by
act of Congress, armed and equipped by the national govern-
ment, and drilled in tactics prescribed by the same authority,
is composed of State organizations. These are commanded
by State officers and are amenable to State authority. But
when called into active service by the President they become
national troops in fact, and are then entitled to the same pay
and allowances, and the same general treatment accorded to
members of the regular army. The members are entitled to
pensions if disabled while in the performance of duty (32 Stat,
at Large, 779). They are subject to court-martial; but the
trial court in the case of militiamen must be composed of
militia officers (idem, 776).
Section 8. Clause 17. — To exercise exclusive legislation
in all cases whatsoever, over such district (not exceeding
ten miles square) as may, by cession of particular
States and the acceptance of Congress, become the seat
of the 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.
The District of Columbia. — The original District of Co-
lumbia was a tract of land ton miles square ceded to the
United States by the States of Maryland and Virginia in 1788
and 1789. Later, in 1846, that part lying south of the
Potomac River was retroceded to Virginia. The present dis-
trict therefore contains rather less than the original, about
70 square miles in all, and lies wholly within the original
boundaries of IVfaryland. The government of the District is
peculiar, in t-hat the people have no voice in electing their
legislators. Congress acts as the District's local legislature.
Its daily government is administered by a board of three com-
missioners : two appointed by the President and the Senate
132 Constitutional Laav
for three years ; and the third, an officer of the Engineer Corps
of the army, detailed by the President alone. These com-
missioners appoint all minor officials, and submit each year
a detailed estimate of the District's expenses to the Secretary
of the Treasury. When this estimate has been approved by
Congress, one-half of the amount called for is paid out of
the national treasury, the rest is assessed on the taxable
property in the District. This method of government is not
in accordance with American ideas, for it is a denial of the
right of self-government; but like the control over Territories,
it must be regarded as an exception arising out of necessity.
Without the power of exclusive control over the seat of gov-
ernment Congress could not be assured of its freedom. Dur-
ing a very short period, from 1871 to 1874, the District had a
local self-government, resembling that of a Territory.'" But
the right of Congress thus to delegate the general legislative
authority conferred on it by the Constitution is very doubtful.
Lands Purchased for Forts, etc. — The power of the United
States to exercise authority over all places purchased by the
consent of the State legislatures for certain needful purposes
is exclusive." It follows therefore that the inhabitants of such
places cease, by operation of law, to be citizens of the State
from which the land was purchased, and can exercise no civil
or political rights under the State. Federal laws there are
supreme. Not even crimes committed there are punishable
under State laws, but always under Federal statutes."
The right to acquire property is, however, naturally incident
to sovereignty and cannot be made to depend on the good will
of State legislatures.'* The United States as a sovereign power
can therefore acquire land for needful purposes with or with-
" 16 Stat, at Large, 419; 18 Stat, at Large, 116,
"United States v. Cornell, 2 Mason (U. S. Cir. Ct.), 60.
" Kelly V. United States, 27 Fed. Rep., 616.
'• Prin. Const. Law, Cooley, 104, Note 4.
The Powers of Coxgress 133
out legislative consent. It may take without such consent
through the process of condemnation known as eminent do-
Tiiain (see p. 262) ; or it may claim title on the ground of
original proprietorship. But over places thus acquired Con-
gress may not exercise exclusive control : State authority is not
ousted, provided the exercise of it is not inconsistent with the
public purposes for which the land was acquired." Further-
more, a State may cede land to the United States, and in so
doing make any reasonable restrictions or conditions. If, for
example, a State reserves the right to serve legal papers within
such ceded territory, or to tax private property therein, the
acceptance of the grant by the United States will imply con-
sent to such reservations.*"
Section 8, Clause 18. — To make all laws which shall be
necessary and proper for carrying into execution the fore-
going powers, and all other powers vested by this Con-
stitution in the Government of the United States, or in
any department or officer thereof.
Implied Powers. — This clause merely declares what would
be otherwise necessarily implied. The common maxim that
the end justifies the means applies with force to the Constitu-
tion, for wherever that instrument gives to Congress a general
power to act, the particular powers necessary for the perform-
ance of the act are included by implication. \Yhy then was
this clause inserted in the Constitution? Presumably it was
to remove uncertainty, and to avoid any doubt which inge-
nuity, jealousy or specious reasoning might raise on the
subject.
The framers of the Constitution might have done several
"People V. Godfrey, 17 Johns. (N. Y.), 225. Ft. Leavenworth v.
Lowe, 114 U. S., 525.
Tt. Leavenworth R. R. Co. v. Lowe, 114 U. S., 525; 16 Opinions
of Attorney-General, 592.
134 Constitutional Law
other things. They might have made the Constitution an
instrument of express powers only, prohibiting Congress from
doing everything not expressly mentioned — in which case the
Constitution could be so strictly construed as to disarm it of
all real authority. They might have attempted an enumera-
tion of all the powers that Congress would be likely to find
use for — a quite impossible task. Lastly, they might have
omitted Clause 18 altogether— in which event, if we would
have the Constitution anything but a splendid nullity, all the
auxiliary powers, as aforesaid, would have followed by neces-
sary implication. Eather, they chose first to enumerate cer-
tain general powers of Congress, and to conclude with the
broad and sweeping statement expressed in the present clause;
the obvious import of which is that Congress shall have all the
incidental and instrumental powers, necessary and proper to
carry into effect all those powers specifically mentioned.
" Necessary and Proper." — These rather general terms have
been judicially determined to mean appropriate and fitting,
rather than absolutely needful and requisite, for the purport
of the clause is to enlarge, not to diminish, the powers of the
government." Whenever a question comes up respecting the
constitutionality of a power exercised by Congress, a power not
expressly granted, the query arises. Is it properly incident
to an express power, and reasonably necessary to its execution?
In other words, is it consistent with the spirit of the Constitu-
tion? If so, and not among those acts which are expressly
forbidden (Article 1, Section 9), it is constitutional; if it is
not, then Congress has no authority to act.
A vast number of legislative acts illustrate this doctrine of
incidental powers. The enumerated powers of Congress are
but few; yet upon what thousands of things has not that
body legislated, for which the Constitution gives no express
authority ? Under the power to regulate commerce Congress
"McCulloch V. Maryland, 4 Wheat., 413.
The Powers of Congress 135
provided for the exclusion of Chinese lahorers," and in 1807
])ractieally destroyed xVniorican commerce by the unwise Em-
bargo Act. Although the Constitution nowhere expressly gives
Congress the right to exclude anybody from the country, or to
annihilate commerce, these acts were justified as reasonable
and appropriate means of regulating commerce. The Con-
stitution does not grant to Congress the right to acquire
territory out of the limits of the United States; yet Congress
has so done (Louisiana, Alaska, etc), and the acquisitions
have been justified on the ground that to grow and expand
is properly incident to sovereignty, and reasonably necessary
to the common defense and general welfare. The Constitution
gives no direct authority for the establishment of national
banks, or to make paper money legal tender ; but Congress has
done both as reasonable means of carrying on the fiscal opera-
tions of the government, for which authority is given. It
might be possible to fill volumes with illustrations of acts
done under the implied authority of the Constitution, but
these conspicuous examples are sufficient. One, however, who
wishes a fuller discussion of this doctrine of implied powers,
will find it in the great case of McCulloch v. Md., 4 Wheaton's
Eeports, 413. This case settled forever the question of power
by implication, and presents the most exhaustive treatment of
it on record. The opinion in that famous case was written by
Chief Justice John Marshall in 1819. It was owing to the
broad and liberal interpretations of that remarkable jurist
that the Constitution early came to be regarded as an elastic
instrument, rather than the rigid, unyielding document that
a strict constructionist might have made of it.
"The Chinese Exclusion Cases, 130 U. S., 581; 149 U. S., 698.
CHAPTER IV
LIMITATIONS ON COXGRESS AND THE STATES
Article 1, Sections 9-10
LIMITATIONS ON CONGEESS
Article 1
Section 9, Clause 1. — The migration or importation of
such persons as any of the States 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 or duty may be imposed on such importation,
not exceeding ten dollars for each person.
We have enumerated and discussed to some extent the
powers of Congress. We have seen that the Constitution has
expressly granted to Congress some rather general powers,
and that the grant of those powers necessarily implies the
right to exercise other powers. It is plain therefore that Con-
gress may legitimately exercise any power expressly granted
to it, or any power necessarily implied by such grant — except
in respect to those things which the Constitution expressly
prohibits to Congress. What tliese express limitations are
forms the subject of the present chapter.
The Slave Trade. — Section 9, Clause 1, when written, had
direct reference to the slave trade. Among the members of
the Constitutional Convention there was a disposition to end
the trade at once; but opposition among the Southern dele-
gates was strong, and the States of South Carolina and
Georgia even made the limitation in the present clause a con-
dition precedent to their joining the Union. Section 9, Clause
1, therefore, is in the nature of a compromise. The limitation
here is purely congressional, obviously leaving to the States
for a short period the right to prohibit the trade or not as they
chose. It is a noteworthy fact that Massachusetts had already
prohibited slavery, and before the limitation on Congress had
140 Constitutional Law
expired several more had done likewise. Twenty years after
the adoption of the Constitution Congress exercised its power
to abolish the traffic in slaves, by passing a prohibitory act,
March 2, 1807, to take effect on January 1, 1808. With the
passage of that act the restrictive part of the clause under dis-
cussion became once and for all a dead letter in the Constitu-
tion. Except for this restriction, Congress, at any time after
the adoption of the Constitution, might have abolished the
slave trade as a reasonable regulation of commerce. It is
curious to note, in passing, that, although there are several
allusions to slavery in the Constitution, neither the word slave
nor slave trade is mentioned in the original instrument.* The
words slavery and slave do occur in the 13th and 14th Amend-
ments respectively.
The words migration and importation, as used in this clause,
have slightly different applications. The first applies to
voluntary comers, the latter to involuntary comers. It was
held in the case of Gibbons v. Ogden, 9 Wheaton, 206, that the
power to regulate commerce applied equally to vessels engaged
in transporting men who pass voluntarily from place to place,
and those engaged in transporting men who pass involuntarily.
Neither migration nor importation could be prohibited prior
to 1808. The right to levy a tax of ten dollars on the importa-
tion of persons has never been exercised.*
Section 9, Clause 2. — 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.
The Writ of Habeas Corpus. — The writ of habeas corpus is
a written order issued by a court directing that a person in
'Constitution, 4, 2, 3; 1, 2, 3.
* The masters of immigrant ships are required to pay a tax of
$4.00 per head for every immigrant brought into the United States.
34 Stat, at Large, 898; see p. 99.
Limitations on Congress 141
confinement be brought before it that the legality of the con-
finement may be determined. The name comes from the
phraseology of the ancient form of the writ, the words habeas
corpus meaning " you may have the body." The writ is never
issued except on petition, eitlier by the person in confinement,
or by some one acting for him. The petition, which should be
in writing and verified by affidavit, presents the facts in the
case, to wit: In whose custody the prisoner is detained and
by what authority, if any ; and ends with a prayer for an im-
mediate hearing. The paper is served by the court's executive
officer: in the State courts, by the sheriff; in the United States
courts, by the marshal. The person to whom the writ is
directed must without delay produce the body of the prisoner
before the court and shew cause why the prisoner is held in
restraint; or if unable to produce the body, show cause for that
also. It is a sufficient return of the writ to show that the
prisoner is detained by superior authority. In order that the
writ may be always efficacious, no judge having jurisdiction
may legally refuse to listen to the petition. If on the appear-
ance of the body, and a recital of the evidence, the judge finds
that the person is held without sufficient cause, he must order
immediate release. In this connection it is well to bear in
mind two things: first, that the writ of habeas corpus is a
writ of right, but it is not a writ of course : for, although any-
one in confinement may demand it, the judge is not bound to
grant it except for cause shown; second, that the writ does
not bring about a final determination of one's guilt or inno-
cence, but merely compels an immediate hearing on the ques-
tion of the legality of one's confinement. Before the writ
came into general use in England men were thrown into prison
on trumped up charges, there left to languish for months, and
even years, having no power to compel an immediate hearing
of their cases. This is hardly possible now.
The word confinement herein used includes not only cases
142 Constitutional Law
of actual imprisonment, but the exercise of any illegal
authority by one person over another. Thus the writ may be
employed by a parent to obtain possession of a child, or by a
guardian for the possession of his ward. It is also used to
secure the freedom of a sane person unjustly held in an asylum
under color of insanity.
This great bulwark against oppression and tyranny is one of
the oldest writs known. Its origin is lost in the mists of
antiquity. Its beneficent principles are to be found in the
Pandects of Justinian, and traces of the modern writ are in
the Year Book of Edward III. The individual right to sue out
the writ is recognized by the courts of every State in the
Union, and most, if not all, the State constitutions secure the
right by provisions similar to that in the Federal Constitu-
tion. Exigencies may arise, however, when the suspension of
all habeas corpus privilege may be expedient; but such action
is so conducive to oppression that it cannot be taken except
when the safety of the general public demands rigorous
measures.
The Power to Suspend. — In England, Parliament alone may
suspend the privilege of the writ of habeas corpus. In the
United States, similarly, the power to suspend rests in Con-
gress.' A limited power to suspend, it is held, may be exer-
cised by others than Congress : first, by State legislatures, when
the power is not wholly forbidden by the State constitutions;
second, by military chiefs in decilaring martial law, for that
is a practical bar to all civil process. This is not of course an
actual suspending of the writ, as contemplated by the Con-
stitution, but in effect it amounts to the same thing. A
prisoner of war, therefore, or a person held under the law
martial, or whose offense is properly cognizable before a court-
martial, is not subject to the writ of habeas corpus* No State
* Ex parte Merryman, 9 Am. Law. Register, 524.
* Johnson v. Sayre, 158 U. S., 109.
Limitations on Congress 143
legislature has as yet suspended the privilege of the writ,
except that of Massachusetts, which at the time of Shays's
Rebellion, 1786, suspended it for eight months. Congress, by
act of March 3, 1863 (12 Stat, at Large, 755), authorized
President Lincoln to suspend the privilege of the writ in any
part of the United States, whenever in his judgment it was
necessary. The previous act of the President, April 27, 1861,
in suspending the writ on his own authority was probably
unconstitutional."
Federal v. State Authority. — Practically any judge of any
court of record, whether State or Federal, may issue the writ
of habeas corpus. As a general principle, each of these powers.
State and Federal, is supreme within its respective sphere of
action, and neither may interfere with the enactments of the
other, or intrude within its jurisdiction; but where there
occurs a conflict of authority the national government is
supreme, until the matter can be settled by the Federal courts.'
It follows therefore that a person held in custody by the
authority of the United States cannot be released by habeas
corpiis proceedings on the part of any State court. Neither
may a United States judge release a person held under State
authority — unless perhaps to secure his presence as a witness
in a Federal trial.
Section 9, Clanse 3.— No bill of attainder or ex post
facto law shall be passed.
Bills of Attainder. — A bill of attainder is a legislative act
imposing punishment without judicial trial. When the pun-
ishment imposed is less than death the act is called a bill of
pains and penalties. Neither has any place in modem civili-
zation. The English constitution does not prohibit bills of
"3 Pol. Sc. Quart., 454; 5 Am. Law., 169.
'Ableman v. Booth, 21 How., 506. Tarble's Case, 13 Wall., 397.
144: Constitutional Law
attainder, and Parliament has in its long history passed many
Buch acts; but it is doubtful if it ever passes another. In the
United States, immediately after the Eevolution, so strong
"vras the feeling against English sympathizers, that many State
legislatures passed acts in the nature of pains and penalties,
depriving certain royalists of their property holdings, and
thereby aroused much bitter feeling. The Constitution wisely
prohibits both Congress and the States from passing bills of
attainder, or anything in the likeness of them. Accordingly,
the test oath law, passed by Congress at the close of the Civil
War, which required all attorneys practicing before the United
States courts to swear that they had never taken up arms
against the government of the United States, was declared
unconstitutional, for it was in effect a bill that imposed pun-
ishment on certain persons, without giving them opportunity
for defense.^ On similar grounds, that part of the constitution
of Missouri, which required an expurgatory oath of all priests,
teachers, and others, was held to be void.* These decisions,
it is fair to say, were given by the Supreme Court at a time of
high sectional feeling, and the minority Judges rendered a
strong dissenting opinion in each case. No sane person doubts,
however, that such legislative enactments, although not
literally bills of attainder, are so much like them in general
effect, that the country is better off without than with them.
Ex Post Facto Laws. — These, like bills of attainder, are a
part of the machinery of tyrants, and so contrary to the spirit
of American institutions? that they could not be tolerated in
the United States, even if not expressly forbidden. The term
ex post facto means literally " after the deed." An ex post
facto law therefore is a law which makes an act criminal which
was not so when committed; or which increases the punish-
'Ex parte Garland, 4 Wallace, 333.
■ Cummings v. State, 4 Wallace, 277.
Limitations on Congress 145
ment after the deed ; or which so modifies the rules of evidence
after the deed as to render conviction easier.' The term is of
limited application, for it applies only to criminal, not to civil,
proceedings. Such a law is retroactive, or retrospective;
but all retroactive laws, although they may be against public
policy and unjust, are not ex post facto, but only such laws
as relate to crime. Neither Congress nor the States are for-
bidden to enact retroactive legislation, but both are forbidden
to pass laws that are ex post facto.
In exception to the foregoing it should be said that retro-
active laws that impose no hardship cannot be considered ex
post facto. Thus legislation that mitigates the punishment
after the deed is not to be condemned on this ground"; nor
acts that effect merely technical changes in the procedure in
criminal cases, not affecting the substantial rights of the
accused " ; or that allow a previous conviction to work a greater
punishment of the crime in question " ; or that allow accused
persons to be extradited for acts done before a certain law or
treaty is established."
Section 9, Clause 4. — No capitation or other direct tax
shall be laid, unless in proportion to the census or enumer-
ation hereinbefore directed to be taken.
Capitation Taxes. — A capitation tax is a poll tax : that is, a
tax levied on the person. The necessary implication of this
clause is that there are other direct taxes besides poll taxes,
but what they are is left for the government to determine. It
is interesting to note, however, that the only direct tax men-
tioned in the Constitution, the capitation tax, Congress has
» Thompson v. Utah, 170 U. S., 343.
'" Ratzky v. People, 29 N. Y., 124.
" Duncan v. Mo., 152 U. S., 377; Gibson v. Miss., 162 U. S., 565.
"Rand v. Commonwealth, 9 Grattan (Va.), 738.
>* In re Giacomo, 12 Blatch., 391.
10
146 CONSTITUTIONxi.L LaW
never yet levied, although certain States have at various times
done so.
The reason for thus restricting the levy of direct taxes is
largely historical. It was not to render taxation of this kind
impossible, or even more than ordinarily difficult, but to main-
tain some sort of equilibrium between representation in Con-
gress and direct taxation — a matter already discussed in con-
nection with Clause 3, Section 2, Article 1, of the Constitution.
But slavery has long since disappeared from the United States,
and there now seems to be no sufficient reason for perpetuating
this requirement in the levy of direct taxes. To levy taxes ac-
cording to the census in the several States has been found to
be both inconvenient and difficult, but as a change in this
respect would require a constitutional amendment, it is not
likely to be soon brought about. It may be said, however, that
of all taxes, direct taxes are the least popular. Hence, the
difficulties attending the levy are not without a beneficent
aspect : in a measure they are a guaranty that direct taxes will
be levied only in times of great necessity.
Section 9, Clause 5. — No tax or duty shall be laid on
articles exported from any State.
Export Taxes. — This clause has immediate reference to Con-
gress; a later clause imposes a like restriction on the States
(Article 1, Section 10, Clause 2). To exempt articles of ex-
port from taxation does in a measure foster home production
and the export trade, but whether it was wise to incorporate
such exemption in the Constitution and make it eternal and
absolute is certainly open to question. It is worthy of note
that in the Constitutional Convention such influential men as
Washington and Madison strongly advocated the power to tax
exports as well as imports:.
In connection with this clause one must distinguish between
an export tax levied as such, and from which revenue is de-
LniiTATioNS ON Congress 147
rived, and a tax in the form of an excise on articles of domestic
growth or manufacture, which may be designed for the export
trade. Where articles intended for export are required to
bear a stamp, for which a nominal fee is paid, to show their
purity or genuineness, such requirement is not an export tax."
But such a stamp required for purposes of revenue comes
within the prohibition as a tax on exports."
Section 9, Clause 6. — No preference shall be given by any
regulation of commerce or revenue to the ports of one
State over those of another; nor shall vessels bound to or
from one State be obliged to enter, clear, or pay duties in
another.
Commercial Preferences. — It will be remembered that com-
mercial irregularities led to the Annapolis Convention, which
in turn led to the Convention that framed the Constitution.
It was the aim of this Convention to correct these troubles, and
to make sure that in commercial matters, at least, the govern-
ment should treat the States with absolute equality. Tn their
zeal the members were led into repetition, for the present
clause but reiterates what is already expressed in Section 8,
Clause 1, that all duties shall be equal. But it further in-
sures the equality of the States by saying that in no possible
manner shall matters of commerce and revenue ever be so
regulated by Congress as to result in the exaltation of the
ports of one State over those of another.
Entering and Clearing. — ^The prohibition expressed in the
last part of Clause 6 seems to repeat in a measure the thought
given in the first part : for to compel vessels bound to or from
one State to enter and clear from another is plainly preferring
the ports of one over the ports of another. Tlie restriction was
doubtless inspired by the harassing conditions of pre-revo-
" Pace V. Burgess, 92 U. S., 372.
"Almey v. California, 24 How., 169.
148 Constitutional Law
lutionary days, when American vessels bound to any European
port were obliged to enter and clear first from a British port.
To-day it has lost much of its significance.
To enter a port is to report the ship to the proper official
and obtain permission to land or to obtain cargo. To clear is
to obtain from the proper officials the necessary papers for
sailing from the port. Both of these requirements are for the
good of the vessel and the country to which it comes, and often
to the country to which it goes. The papers that a ship is
generally required to carry as evidence of her character, quality
and good intentions are: certificate of registry, sea letter or
passport, crew list, log book, charter party — if under affreight-
ment — invoice, and bill of lading. The list varies somewhat
with different nations, but the want of the requisite papers,
or any of them, gives a vessel a suspicious character. A vessel,
however, that has gone through the necessary formality of
clearing from any port in the United States cannot, by any
act of Congress, or by any usurpation of sovereignty on the
port of any State, be compelled to clear from another before
reaching its destination ; nor can a vessel bound to a port of the
United States be compelled to enter first any special port at
the designation of Congress, or of any State.
Although a State may not lay imposts, or substantially
regulate commerce, it may make minor needful rules govern-
ing the shipping about its ports, even though in so doing it
makes restrictions not demanded at other ports. Thus a State
may make rules for pilotage, provided they are reasonable,
and require ship owners to pay small pilotage fees." But a
State statute requiring every shipmaster to pay a fee for every
steerage passenger brought by his vessel to the ports of tlie
State is void as an attempt to lay duties and to regulate com-
merce unduly."
" Cooley V. Port Wardens, 12 How., 299.
" The Passenger Cases, 7 How., 283.
LiMITATIOXS ON CONGRESS 149
Section 9, Clause 7. — No money sliall be drawn from the
treasury but in consequence of appropriations made by
law; and a regular statement and account of the receipts
and expenditures of all public money shall be published
from time to time.
Appropriations. — This clause is a check on the Executive.
Congress holds the purse strings of the nation, and not a
penny of national funds can be paid out except in consequence
of Congressional appropriations. Were it otherwise, and had
the Chief Executive unlimited power to draw on the treasury,
there is no telling to what heights of despotism an ambitious
President might lift himself by the lavish use of money. Xot
even a lawful debt against the government can be paid by any
official until Congress has acted in the matter. In 1855 a
Court of Claims was established to determine the legality of
claims against the United States. But even the favorable
decision of that court does not constitute a lien on Federal
property," or authorize a lien on the public funds. The func-
tion of that tribunal is merely to determine what claims
against the government are legally valid, and what are not. A
creditor of the national government has no means of com-
pelling immediate payment; he must a^vait the action of
Congress.
It is the duty of the Treasurer of the United States to keep
strict account of all government expenditures and receipts,
and it is the duty of the Secretary of the Treasury to report
the same annually to Congress. These financial reports are
usually voluminous, and form a large part of the executive
documents of the nation. Thus the financial operations of the
country are kept open and above board. The meetings and
discussions of Congress are for the most part public, and the
published reports of the Secretary of the Treasury keep the
people informed as to how their money is spent.
" United States v. Barney. ?> Hall's L. J., 130.
150 Constitutional Law
Section 9, Clause 8. — No title of nobility shall be granted
by the United States; and no person holding any office of
profit or trust under them, shall, without the consent of
the Congress, accept of any present, emolument, office, or
title, of any kind whatever, from any king, prince, or
foreign State.
Titles of Nobility. — Equality is the foundation of American
institutions ; to create a privileged order would enter a wedge
against democratic government. In Section 10 of this Article
of the Constitution the States likewise are forbidden to grant
titles of nobility. These two provisions are perhaps unneces-
sary, but they were deemed reasonable precautions to insure
democratic equality in the United States.
Presents to Officers. — In forbidding public officials to accept
presents from any king, prince, or foreign State, the framers
of the Constitution placed a check on the possibly corrupting
influence of European and other governments. That it is
possible for one government to corrupt the officials of another
has been evidenced too often in history to be scouted to-day.
Hence, the prohibition herein expressed is wise. It applies
to both military and civil officers. As early as 1803 an amend-
ment was offered in Congress to extend the restriction to
private citizens; but the proposed amendment was never
ratified. It is, however, within the power of Congress to
remove the prohibition, and in some instances this has been
done.
Section 10, Clause 1. — No State shall enter into any
treaty, alliance, or confederation; grant letters of marque
and reprisal; coin money; emit bills of credit; make
anything but gold and silver coin a tender in payment of
debts; pass any bill of attainder, ex post facto law, or law
Impairing the obligation of contracts, or grant any title of
nobility.
Treaties, Alliances, or Confederations. — Treaty making is
exercising sovereign power. When one nation forms a treaty
Limitations on the States 151
with another the act is a formal recognition on the part of
each that the other is an independent State. It is with reason
therefore that the Constitution forbids to the States all acts
suggestive of a separate national existence.
It is not unconstitutional, however, for States to have com-
munication with each other as States, and to enter into agree-
ments, so long as such acts in no way prejudice the supremacy
of the United States." A phrase in Clause 3 of this Section
expressly allows such compacts with the consent of Congress,
for it is plain that there are many matters on which States may
agree, matters that promote more harmonious relations, etc.,
that do not work any serious political changes or affect the
nation at large in any way. The consent of Congress herein
required may be expressly given, or it may be implied by the
subsequent action of Congress — as where two States agree to
a change in their boundary lines, and Congress afterwards
districts the two in accordance with this change." An attempt,
however, on the part of a State to deliver up a fugitive from
justice to a foreign State has been construed as an attempt to
enter into an unauthorized agreement, as a usurpation of
power belonging to independent sovereignty.'*' So any com-
pact between two States, or among several, tending to enlarge
the political powers of any one of them would certainly come
within this constitutional limitation. (See also p. 182.)
Letters of Marque and Reprisal. — To issue letters of marque
and reprisal is, like treaty making, the exercise of sovereign
power. Had tlie individual States the authority to grant such
letters, it would be within their power to embroil the entire
country in war with its certain costliness and possible disaster.
All war powers, great and small, are more safely vested in the
national legislature. Congress may, however, even delegate
"Virginia v. Tenn., 148 U. S.. 503. Wharton v. Wise, 153 U. S.,
155.
"Holmes v. Jennisou, 14 Peters, 540.
152 CONSTITUTIO^TAL LaW
this great power to the States; and in certain extreme cases
the latter may engage in defensive war without the permission
of Congress. (See Clause 3 of this Section.)
Coining Money. — As to the wisdom of forbidding to the
States the coinage of money, one has but to review the mone-
tary history of the States just previous to the adoption of the
Constitution. Then each State coined money and adopted its
own monetary standards. There was uniformity nowhere. It
is utterly impossible to have a stable system of finance in the
United States, unless all power over the common medium of
exchange is vested in one authority.
Bills of Credit. — What constitutes a State bill of credit has
been the subject of many legal l)attles. It has long been
settled, however, that any written or printed certificate, issued
by a State, involving the credit of the State, and appropriate
for circulation as money, is a bill of credit. Certain loan
certificates, issued by the State of Missouri in 1821, although
not made legal tender nor designed to circulate as money, did
in fact so circulate, and were therefore classed as bills of credit,
and the statute authorizing them was declared void.'^ Al-
though the Constitution is silent as to the power of Congress
to issue bills of credit, it expressly forbids the power to the
States. But what a State may not do in this respect, it seems
that its fiscal agents may do. Thus notes issued by a bank,
chartered by a State, have been declared good, and not in con-
flict with this prohibition.''^ But since the imposition of the
Federal tax of 10 per cent on the notes of State banks, these
institutions have no longer found it profitable to issue such
paper. On the other hand, State certificates of stock and State
bonds are not bills of credit, for they do not circulate as money.
To prohibit their issuance on such grounds would be to deprive
the States of power to borrow money.
^ Craig V. State of Mc, 4 Peters, 410.
^Briscoe v. Bank of Ky., 11 Peters, 257. Darrington v. Bank of
Ala., 13 How.. 12.
Limitations on the States 153
Legal Tender. — The restriction in respect to legal tender, as
well as the two limitations preceding, was the result of an
effort on the part of the f ramers of the Constitution to secure
a uniform standard for all commercial transactions. Without
this restriction a State might declare any convenient medium
of exchange legal tender, witli the result that there might be
as many different ways of satisfying a debt as the minds of
different legislators could conceive. But this is not the worst.
It is not to be supposed that all State legislatures would agree
upon the same legal tender, and if they did not, the result
would be financial chaos. Coining money, emitting bills of
credit, and creating legal tender — these are serious acts, and
the power to perform them can better be lodged in one
authority than in many.
Bills of Attainder, etc. — This restriction requires little
comment. It would be obviously absurd to allow States, even
by implication, to exercise powers that are forbidden to the
general government.
Contracts. — A contract is an agreement between two or
more parties. It may be express, as where the terms are
openly avowed ; or implied, as where common reason, or justice,
supplies the terms from the nature of the transaction, or from
the acts of the parties — for it is an axiom of the law that every
man intends the natural consequences of his acts. A contract
may also be executory, as where one binds himself to do, or
not to do, something in the future ; or executed, as where the
terms of the agreement have been performed. A mutual con-
tract may thus be executed by one party, and remain executory
as to the other. The word contract, as used in this clause of
the Constitution, inc^ludcs all four kinds.'*
The Obligation of Contracts. — The obligation of contracts
is tlieir enforcibility, or that })0wer of the law, read into
every vvalid contract, which may be called into action to compel
^ Holmes v. Holmes, 4 Barber, 295.
154 Constitutional Law
the keeping of the terms of the agreement. To illustrate : If
A promises to pay B one hundred dollars in return for work
performed, this mutual agreement is an express, executory
contract. If after the work is performed A refuses to pay B,
the latter can enforce his legal right against A. If B per-
forms: work for A at the instance of the latter, and nothing is
said about the price, A is under an implied contract to pay B
a reasonable sum; and the obligation of that contract is as
good as the other. But if, meanwhile, by a change in the
municipal law, A is somehow released from his contract to
pay B, or the latter is deprived of his right of action against A,
the obligation of the contract is said to be impaired. It was to
prevent State legislatures from thus interfering with the
vested contract rights of its citizens, either wilfully or other-
wise, that the present clause was inserted in the Constitution.
To impair the obligation of contracts, however, a law must,
like an ex post facto law, be passed subsequent to the contract,
States have full power to enact laws regulating future con-
tracts among their citizens.
What Impairs a Contract. — Any law that enlarges, abridges,
or changes the intentions of the contracting parties impairs
the obligation of the contract; and the degree of such change
is not important. Any law which imposes conditions not be-
fore expressed or understood, or which does away with those
that are expressed, impairs the obligation. Likewise, a law
which makes a contract invalid, which was valid when made, or
which releases either party, impairs the obligations.** On the
other hand, a law that reasonably limits the rights of either
party to enforce the contract, or that extinguishes some remedy,
does not impair the obligation, provided some substantial
remedy is still left. Thus statutes of limitation and laws that
discharge debtors from prison, or that forbid their incarcera-
tion, are valid. They are sensible limitations, and do not
deprive the creditor of his substantial remedies.
•* Sturgls V. Crowningshield, 4 Wheat., 197.
Limitations ox tiie States 155
Charters. — A charter, as understood in municipal law, is a
legislative document creating a corporation. Charters may be
either public or private. They are public if granted to public
corporations, such as a city or township; they are private if
granted to private corporations, such as a private bank or a
bridge company. A private charter is a contract in the mean-
ing of the Constitution " ; a public charter is not. The reason
for this distinction is not hard to understand. A private
charter is a grant of privileges, under which multifarious
private rights become vested ; a public charter is practically a
statute enacted for the public good. Municipal corporations
are created as necessary conveniencies in government. They
are parts of the governing power of the State, and hence their
powers and privileges are subject to legislative modification
and recall.
Exceptions. — There are some exceptions to the general
principles stated above. If a charter contains a clause reserv-
ing to the State legislature the right of repeal, or modification,
that right remains. To repeal or to modify is then in accord-
ance with the charter itself. The same is true if the State
constitution provides that all charters shall be subject to legis-
lative control." Furthermore, all charters are subject to the
superior right of the State to exercise the power of eminent
domain," and to the restraints of the State's police power,"
and all other reasonable regulations imposed by State
authority. There is no reason why contract rights should be
any better off in these respects than any other property within
the State. It should ever be borne in mind that the welfare of
** Dartmouth College v. Woodward, 4 Wheat., 518.
=' Murray v. Charleston, 96 U. S., 432. Railroad Co. v. Georgia,
98 U. S., 359.
" Const. Limitations, Cooley, 6 Ed. 339. West River Bridge Co.,
V. Dix, 6 How., 507.
"-" U. S. V. Dewitt, 9 Wall., 41.
156 COXSTITUTIOXAL LaW
the people is of supreme importance, and that while a State
may irrevocably bind itself by contracts with persons, or cor-
porations, or with other States, it cannot do so to the serious
detriment of its people, or at a loss of any of the essential
powers of sovereignty. In the exercise of its police power, a
State may lawfully modify or annul many of its agreements
having contractural elements in them, when such action re-
sults in moral or physical good to the people. Thus no license
laws are valid, even though they deprive some individuals of
the right to manufacture and sell liquor; and railroad com-
panies may be compelled to fence in their tracks, or to slow
down their trains at exposed places. Such regulations are
reasonable precautions for the public safety.
Grants. — There is no discrimination between public and
private grants, as with charters ; each is irrevocable when com-
pleted. A grant extinguishes the right of the grantor, and im-
plies a promise on his part not to reassert it. In this respect
a State has no greater power than its humblest citizens. A
grant is an executed contract, and as such is not to be impaired
by future legislation. Thus when a State makes a grant of
land to an individual, or to a corporation, the grant cannot be
repealed or modified by any succeeding legislature. In 1758
the Colonial legislature of New Jersey authorized the purchase
of a tract of land within the State for the use of the Delaware
Indians, and exempted the land from taxation. In 1803, the
Indians having all died, the land was sold by legislative
authority to private persons, and in 1804 the legislature re-
pealed the law of 1758 exempting the land from taxation. It
was decided, however, that the act of 1758 was in the nature
of a contract and irrepealable, and the act of 1804 was there-
fore unconstitutional.'"' This case established the constitu-
tional principles that a State cannot annul a conveyance,
when once made, or repudiate an exemption when once created.
* N. J. V. Wilson, 7 Cranch., 164.
Ll^[lTATIONS OX THE STATES 157
A State may therefore exempt parties or lands from taxation,
and if the terms of the exemption are clear, and the exemption
is not made as a mere favor, it becomes irrevocable.'"
Public Offices. — An office holder gets his position either by
election or by appointment. While a State or municipality
is' always under an implied contract to pay for services
rendered in office, the office itself is not such a contract as may
not be impaired by subsequent legislation. A public office may
be modified or abolished at any time, unless some constitu-
tional provision expressly prohibits such change.
Special Privileges. — Generally speaking, all special privi-
leges obtained under the general law of the State, such as
licenses to carry on a business not open to the general public,
or exemptions from military or jury duty, or exemptions of
property from taxation, may be taken away by subsequent
legislation. These are looked upon as special favors, and arc
not contracts within the prohibition of the Constitution for-
bidding the impairment of contracts." The case of Stone v.
Miss., which is in point, was as follows :
" In 1867 the legislature of Mississippi granted permission
to a certain lottery company to carry on its business for twenty-
five years. In 1867, however, the State amended its Constitu-
tion by a clause forbidding lottery companies to do business
within the State. Stone, for conducting the lottery organized
under the Act of 1867, was sued by the attorney-general of
Mississippi. He maintained in defense that the amendment
under which he was sued was unconstitutional in so far as it
applied to him. The court, distinguishing between a charter
and a mere license to enjoy privileges for a time, held that —
" 1. While a private charter is irrevocable, a license may be
revoked at any time.
" 2. Lotteries are public evils, and no legislature can for-
»" New Orleans v. Houston, 119 U. S., 265.
"" Stone V. Miss., 101 U. S., 814. Fell v. State, 42 Md., 71.
158 Constitutional Law
ever defeat the will of the people in respect to such business by
granting an irrevocable charter.
"3. Under the so-called police power a State may depart
from the strict letter of the constitution where such departure
is reasonable and for the general good of the people."
Titles of Nobility. — The Federalist, No. 84, has the follow-
ing to say regarding this restriction : " Nothing need be said
to illustrate the importance of the prohibition of titles of
nobility. This may truly be denominated the corner-stone
of republican government; for so long as they are excluded,
there can never be serious danger that the government will
be any other than that of the people."
Section 10, Clause 2. — No State shall, without the consent
of the Congress, lay any imposts or duties on imports
or exports except what may be absolutely necessary for
executing its inspection laws: and the net produce of all
duties and imposts, laid by any State on imports or
exports, shall be for the use of the treasury of the United
States; and all such laws shall be subject to the revision
and control of the Congress.
•'States May Not Lay Duties. — This clause, in a general way,
reiterates the fact that all interstate and foreign commerce is
under the exclusive control of Congress : for to tax imports or
exports is to control commerce in a greater or less degree. The
framers of the Constitution determined that the commercial
interests of the nation would prosper better under the control
of one central authority than under many scattered ones. At
the same time they recognized the fact that the individual
States were entitled to some discrimination in the matter of
imports and exports; and, furthermore, that the restriction
of their right to tax articles of commerce should not interfere
with their inherent right to tax the property of their own
citizens for municipal purposes. In other words, they realized
the necessity of State inspection laws, and of ordinary State
Limitations on the States 159
taxation; and the courts have many times distinguished be-
tween export or import duties, levied as such, and reasonable
restrictions on exports and imports imposed in the interests
of public health, and internal revenue taxes on goods that
might or might not become subjects of interstate or foreign
commerce.
Taxes on Exports. — Although the States are forbidden to
levy export taxes, they may pass various laws, in the interests
of public health, even if tlic result of such laws is to limit
the export trade. For example, a State may entirely prohibit
the exportation of game shot within its borders**; and it may
prohibit the manufacture of liquor, including liquor intended
wholly for the export trade.** Furthermore, since States' may
undoubtedly tax the property of their citizens for domestic
purposes, the fact that certain goods produced or manu-
factured within the State are designed for shipment beyond
the State does not exempt them from such taxation." The
solution in these cases, as in so many others, depends on the
question of reasonableness and intent. If the tax, or the
restriction, is reasonable, and the purpose of it is not to limit
trade beyond the State, it is not likely to be pronounced invalid
by the courts.
Inspection Laws. — These are undoubtedly restrictions on
commerce, but they are expressly allowed by the Constitution.
They provide for the examination and approval of goods in-
tended for export or for domestic use ; their object is to pre-
serve the character of the goods and to protect the community
against fraud. The tax, or duty, necessary for the execution
of such laws is in the nature of a fixed fee paid for the labor of
the inspection. The net proceeds of these fees, however, are
for the use of the treasury of the United States. Thus States
«Geer v. Conn., 161 U. S.. 519.
" Kidd V. Pearson, 128 U. S., 1.
** Coe V. Errol, 116 U. S., 517. Pace v. Burgess, 92 U. S., 372.
160 Constitutional Law
are effectually prevented from gaining a revenue from imports
or exports under the cover of inspection fees.
Character of Imported Goods. — The general rule is that
imported goods do not lose their character as imports until the
original package has been broken up for use or for retail by
the importer, or until the package has passed from his hands
to the hands of the purchaser. Goods in the original package,
or bale, while in the hands of the importer, are not subject to
State taxation, but become so when the package, or bale, is
broken up by the importer, or when the goods pass to the hands
of a purchaser. Goods in transit are articles of interstate
commerce until received at their destination. If received at
the ports of one State, but destined for the ports of another,
they are not taxable until they have arrived at their destina-
tion.'* It has been held in a numl)er of cases that the words
imports and exports, as used in this connection, refer to
foreign commerce only, not to commerce between the States.
Thus, although States may not levy an import tax on goods
brought in from other States, they may tax such goods as
property of their citizens, even in the original package."
Indirect Taxation. — For a State to tax imports or exports
indirectly is quite as unlawful as to tax them directly. The
State of Maryland once enacted a law requiring all importers
of foreign goods to take out a license costing fifty dollars. The
State of California enacted a law requiring a stamp on all bills
of lading for gold exported from the State. Both laws were
declared unconstitutional by the Supreme Court: the first as
an indirect tax on imports '^; the second as an indirect tax on
exports,'* Neither could be justified as an inspection law.
'"Brown v. Maryland, 12 Wheat., 419.
"Brown v. Houston, 114 U. S., 622. Woodruff v. Parham, 8
Wall., 123.
"Brown v. Maryland, 32 Wheat., 419.
" Almey v. Cal., 24 How., 1G9.
Limitations ox the States 161
Section 10, Clause 3. — No State shall, without the consent
of Congress, lay any duty of tonnage, keep troops or
ships of war in time of peace, enter into any agreement
or compact with another State or with a foreign power,
or engage in war, unless actually invaded, or in such im-
minent danger as will not admit of delay.
Tonnage Dues. — Tonnage is the carrying capacity of a
vessel reckoned in tons. In England tonnage is the number
of tons burden a ship can carry; in the United States it is the
vessel's internal cubic capacity, reckoned in tons of 100 cubic
feet each,*' Since this is estimated rather generally, however,
the ofiicial tonnage of a vessel in the United States is' below its
actual capacity to carry freight." The duty of tonnage, pro-
hibited by this clause in the Constitution, is a charge upon a
vessel based on its tonnage for the privilege of entering or
leaving port, or of navigating certain waters. If this re-
striction were not in the Constitution, States might seriously
hamper both interstate and foreign commerce under the guise
of tonnage dues. Hence, any charge levied upon a vessel as
an instrument of commerce, or for the privilege of trading at
a port, is void."
A ship, however, is property, and as such may be taxed by
the State in which the owners reside." Furthermore, wharf-
age charges, or fees for the privilege of lying at wharves and
discharging cargo there, are not duties of tonnage, even if
graded according to the carrying capacity of a vessel."
Troops and Ships of War. — The word troops used in this
clause means "standing army," not militia. The Constitu-
~R. S., 4150, et seq.
** Roberts v. Opdyke, 40 N. Y., 259.
*» Steamship Co. v. "Wardens, 6 Wall, 31. Peete v. Morgan, 19
Wall., 581.
"Transp. Co. v. Wheeling, 99 U. S.. 273. St. v. Ferry Co., 11
Wall., 483.
*• Packet Co. v. Keokuk, 95 U. S., 80.
11
162 Constitutional Law
tion recognizes the necessity and value of the States' militia;
in fact the 2d Amendment declares that a well regulated
militia is necessary to the security of a free State. But for a
State to maintain regular troops and vessels of war would be
to assume the appearance of a sovereign and independent
power. The general power to declare war, and to maintain
armies and navies, is wisely placed in the Federal govern-
ment. But in cases of sudden invasion, or of imminent danger
of such, a State may take the necessary steps for self-defense
without waiting for Congress to act.
Agreements and Compacts Forbidden. — It should be noticed
that the restrictions in the first clause of Section 10 are abso-
lute; those in the second and third clauses are qualified. In
the first all treaties, alliances and confederations among the
States are wholly forbidden; in the third States may enter
into compacts and agreements if Congress consents. What the
precise difference is between " treaties, alliances and con-
federations," and " compacts and agreements," the Constitu-
tion does not make clear. But the reasonable, if not probable,
intent of these two restrictions so different in character is,
on the one hand, to forbid absolutely all acts that would tend
to increase the power and influence of one State, or group of
States, at the expense of other States, or of the national gov-
ernment, or that would tend to clothe a State, or group of
States', with the dress of sovereignty; on the other hand, it is
not to make impossible that reasonable intercourse and mutual
action concerning questions of boundary and other matters of
common interest which should tend to promote harmony
among adjoining States, but which do not immediately con-
cern the Federal government. This matter was discussed
somewhat under Section 10, Clause 1, page 151, and need not
be further treated here.
When the consent of Congress is necessary to legalize the act
of a State that consent may be expressly given, or it may be
Limitations ox the States 163
implied from the subsequent attitude of Congress. It is
implied when Congress adopts the particular act by sanction-
ing its objects and enforcing them. Where a State is ad-
mitted into the Union upon a compact between it and the
State of which it was formerly a part the act of admitting the
State is an implied consent to the compact."
Retrospect. — Here, at the end of the first Article to the
Constitution, it is well for the student to reflect a little upon
what he has read. It was the task of the makers of the Con-
stitution to set up a strong central government without making
it despotic, to bring into harmony thirteen jarring States, and
to make them subordinate to that government, without making
them subject to it. That they did the task well, later history
has amply shown. In the language of Chief Justice Story,
" We cannot but be struck with the reflection, how admirably
this distribution and division of legislative powers between the
State and the national governments are adapted to preserve
the liberty and promote the general happiness of the people of
the United States." "
"Case of the admission ol Kentucky. (See Green v. Biddle,
8 Wheat., 85.)
" Story's Constitutional Law, Vol. 2, 312.
CHAPTER V
THE EXECUTIVE POWER
Article 2, Sections 1-4
THE EXECUTIVE TOWER
Article 2
Section 1, Clause 1. — 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:
Executive Power. — The Judicial and the legislative powers
are vested in many persons, the executive in one. Executive
power is directing power. Human experience has shown that
such power is best lodged in a single responsible hand ; that to
divide it is to divide responsibility and thereby open the way
to dissension, feebleness, and probable failure. One defect
of Rome as a republic was that it had too many executives;
the great trouble with the Articles of Confederation was that
they provided for no executive, but placed all powers of govern-
ment in a congress of a varying size. On the other hand, laws
can best be made and judgments most fairly rendered by as-
semblies of men, for such matters require deliberation, dis-
cussion, and the meeting of many minds.
Executive Immunity. — It is the work of the Chief Executive
to see that the laws passed by Congress are faithfully carried
out, and in a large sense to direct the business policy of the
nation. In carrying out his work the President is assisted by
an army of minor officials, who are responsible to him or to the
courts for the faithful performance of their duties. But the
President is responsible to none. He is above the law in the
exercise of the functions of his office. For willful misfeasance
he may be impeached by Congress and removed from office, and
if at the end of his term he has been found weak or in any way
undesirable he may fail of re-election to a second term ; but in
168 CoNSTiTUTioisrAL Law
no other way can he be made to suffer for acts done in the per-
formance of official duty. He cannot be controlled by the
judiciary by mandamus proceedings/ by injunction/ or by
any other means." Executive officers of lesser rank, such as
heads of departments, are likewise exempt from judicial in-
terference in respect to acts that involve their discretion, but
not in respect to ministerial acts, or acts required by the law
to be done.* As to unofficial acts done by the President and
other executive officers there is no immunity. That is, for
unlawful acts done as private citizens they are probably as
amenable to the courts as are other private citizens.
Term of Office. — In the Constitutional Convention it was
suggested that the presidential term be limited to seven years,
and that there should be no re-election. Both these sugges-
tions failed of adoption. The office was finally limited in
length to four years, and no clause was inserted in the Consti-
tution forbidding a re-election. Under the law there is no
limit to the number of presidential terms to which a man may
be elected; but the general feeling among the people has
always been that third-term Presidents are not desirable. A
number of Presidents have, however, served two terms.
Whether one term is better than two, and whether re-
election should be forbidden, are perhaps idle questions to dis-
cuss here. On general principles it would seem that the term
of office of the Chief Executive should not be so long as to
allow a bad man in office to bring ruin on the country, or so
short, or the number of terms so limited, as to deprive the
nation prematurely of the services of a good man.
* Boynton v. Blaine, 139 U. S., 306.
» New Orleans v. Paine, 147 U. S., 261. Miss. v. Johnson, 4 Wall.,
475.
' Spaulding v. Vilas, 161 U. S., 483.
• Kendall v. U. S., 12 Peters, 524.
The Executive Power 169
Section 1, Clause 2. — Each State shall appoint in such
manner as the legislature thereof may direct, a number
of electors equal to the whole number o£ Senators and
Representatives to which the State may be entitled in the
Congress; but no Senator or Representative, or person
holding an office of trust or profit under the United States,
shall be appointed an elector.
Presidential Electors. — Historically this clause is a remark-
able illustration of how a part of a written constitution may
be changed in its obvious purpose without repealing a word
or blotting a line. By it the framers of the Constitution evi-
dently meant to do two things: to take the election of the
President out of the hands of the people, and to place it above
popular clamor and party prejudice. They failed largely in
both. That the President should not be chosen by the people
they placed his election in the hands of a few electors to be
appointed by the States in such manner as the legislatures
thereof should direct. Uniformity was not required, and for
many years there was none. For a time the legislatures of
some States appointed the electors; in other? they directed
that the electors should be chosen by the people voting in dis-
tricts; in others by general ticket. Since 1872, however, all
the States have chosen their electors by the last method. That
is, in every State at presidential elections the people vote for
the electors, who in turn vote for the President. Thus, in-
directly at least, the people vote for the Chief Executive. That
tlie appointment of electors has failed to remove the election
of the President from popular clamor and party prejudice is
obvious to the most indifferent student of politics. It may be
that the first two or three bodies of electors chosen cast their
ballots quite independent of parties. But the machinery of
politics has since grown with the development of the country,
and the high purpose and significance of the electoral body
have become quite lost. Presidential electors to-day, instead
of being free from party politics, are bound entirely by them.
170 Constitutional Law
An independent elector is unknown. Eepublican electors cast
their ballots for the Republican nominee, Democratic electors
cast theirs for the Democratic nominee. Thus, although the
people actually vote for the presidential electors — for their
names appear on the official ballots, practically they vote for
the President, since the election of a majority of Eepublican
electors means the election of a Eepublican President, and vice
versa. As soon therefore as the electors have been voted in,
it is known who is to be the next President ; and the act of the
electors in casting their ballots later, though a solemn func-
tion, has come to be an empty form."
The letter of this clause of the Constitution has thus been
kept, but its purpose evaded. It is better so, for there is little
reason why, in a republic, the President should not represent
as nearly as possible the choice of the people. On general
principles it is better to interpret a constitution literally
rather than figuratively ; strictly rather than loosely. But the
electoral system, as made imperative by the Constitution, is
at best awkward. It is complex in operation, and it sometimes
fails to register the wish of a majority of the people, even as at
present developed, for the candidate receiving the most
electoral votes is not always the choice of the majority of the
people.
A simple hypothetical case will show how this is possible.
Suppose five States only are concerned in the election of a
President. Suppose four of these States control three electoral
votes each, and the other State ten. The four small States may
go Democratic by the slight plurality of 1000 each; the large
State may go Eepublican by a large plurality of 100,000.
° So strong is this adherence to party that the presidential vote
of a State may be divided, according to the political faith of the
electors. In Maryland, in 1909, five Democratic electors were
chosen and one Republican, and each cast his ballot for the candi-
date of the party that chose him.
The Executive Power 171
What is the result? Under the electoral system the Demo-
cratic candidate is elected, for he receives twelve electoral votes
against the Eepublican's ten. Under any other system, on
the other hand, the Ecpublican vi^ould be elected, for his
plurality of 100,000 in the one State would offset the sum of
the small Democratic pluralities in the other four States.
This is somewhat the situation that developed in 1888. Mr.
Cleveland in that year received a plurality of 95,534 votes,
yet from the electors he received but 168 votes against Mr.
Harrison's 233.
The Electoral College. — The whole body of electors is
commonly known as the electoral college. Its size varies with
the growth of Congress, for each State is entitled to as many
electors as' it has national Senators and Eeprcsentatives. As
to the qualifications of the electors, the Constitution is nega-
tive rather than positive. National legislators, and Federal
oflBce holders, and those barred by the 14th Amendment, may
not be appointed electors. Anybody else may be.
AMENDMENT 12 •
The electors shall meet in their respective States, and
vote by ballot for President and Vice President, one of
whom, at least, shall not be an inhabitant of the same
State with themselves; they shall name in their ballots
the person voted for as President, and in distinct ballots
the person voted for as Vice President, and they shall
make distinct lists of all persons voted for as President
and of all persons voted for as Vice-President, and of the
number of votes for each, which lists they shall sign and
certify, and transmit sealed to the seat of the government
of the United States, directed to the president of the
Senate; the president of the Senate shall, in the presence
of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted; the per-
son having the greatest number of votes for President
shall be the President, if such number be a majority of the
'Adopted in 1S04.
172 Constitutional Law
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 immediately, by ballot, the President. But in
choosing the President, the votes shall be taken by States,
the representation from each State having one vote; a quo-
rum for this purpose shall consist of a member or mem-
bers from two-thirds of the States, and a majority of all
the States shall be necessary to a choice. And if the House
of Representatives shall not choose a President whenever
the right of choice shall devolve upon them, before the
fourth day of March next following, then the Vice Presi-
dent shall act as President, as in the case of the death or
other constitutional disability of the President. The per-
son having the greatest number of votes as Vice President
shall be the Vice President, If such number be a majority
of the whole number of electors appointed, and if no per-
son have a majority, then from the two highest numbers
on the list, the Senate shall choose the Vice President; a
quorum for the purpose shall consist of two-thirds of the
whole number of Senators, and a majority of the whole
number shall be necessary to a choice. But no person con-
stitutionally ineligible to the office of President shall be
eligible to that of Vice President of the United States.
Election of President. 12th Amendment.— Until 1804 the
President was elected by the method prescribed in the 3d
Clause of Section 1, Article 2. The adoption of the 12th
Amendment in that year made the clause a dead letter, and
since then the election of the President has been carried on in
accordance with the Amendment. The provisions of the 12th
Amendment are plain. The difference between it and the
clause which it abrogated may readily be seen by a careful
comparison of the two. It is not necessary to discuss this
difference here, but it may be worth while to draw attention
to certain contingencies for which the 12th Amendment makes
wise provision. (For the repealed clause see p 327.)
The Executive Power n3
Contingencies. — 1. If no candidate receives a majority of
the electoral votes, the choice then devolves on the House of
Eepresentatives, which must decide by ballot, from those per-
sons on the list of candidates not exceeding; tlircc, who shall be
President. This duty has devolved on the House twice : once
before the adoption of the 12th Amendment, and once after
it. In 1800 Thomas Jeircrson and Aaron Burr tied for first
choice. The election therefore went to the House, and it
required 36 ballotings by that body to break the tie. This
dilemma was largely responsible for the adoption of the 12th
Amendment. The other instance occurred in 182-4 when John
Quincy Adams was chosen over Andrew Jackson and others.
2. If no person receives a majority of the electoral votes for
Vice President, the Senate must choose from the two highest
on the list of candidates. This has happened once : Eichard
M. Johnson was chosen by the Senate in 1836. That this con-
tingency should be settled by the Senate is peculiarly fitting,
for the Vice President becomes the Senate's presiding officer.
3. In case the House, when the choice of President devolves
upon it, fails to elect before the 4th of March next following,
then the Vice President becomes President, as he would
naturally on the latter's death or permanent disability. This
has never yet happened. As to what must be done should both
the House and the Senate fail to perform their electoral duty
by the 4th of ]\Iareh the Constitution does not provide.
State Influence on Elections. — In presidential elections the
influence of the States as separate commonwealths is strongly
felt. In the first place, the method of appointing electors is
left to the State legislatures. In the second place, although
the people do indirectly elect their President, they do not act
in so doing as a collective unit, but as segregated into their
local commonwealths, that is, the States. And in the third
place, in case the election of either President or Vice President
goes to the House or the Senate, the voting there is strictly by
174 Constitutional Law
States, each State having one vote. In this proceeding the
smallest and least populous State has as much authority as the
largest and most populous.
In the transaction of this business a quorum in each House
consists of a representation from two-thirds of the States;
whereas in ordinary legislation a bare majority of the members
is sufficient, with no reference to States : and although a bill
may be passed by a majority vote of a quorum, the President
or Vice President is elected by a majority vote of all the States.
It requires little mathematics to show that such an important
thing as the election of the Chief Executive may be done when
left to the House by a much smaller number than is necessary
to transact ordinary legislation.
Presidential Nominations; Primaries. — The Constitution
does not even suggest how candidates for the office of Presi-
dent shall be chosen. The method in vogue to-day is the result
of expediency and convenience rather than of law. Until 1832
nominations were made usually by the legislatures of the
States ; since then they have been made by conventions of dele-
gates. These conventions are strictly party affairs, the several
political parties in the country holding their separate meetings
for the specific purpose of nominating candidates for the
presidency. To these nominating conventions each State is
allowed to send twice as many delegates as it has Senators and
Representatives in Congress. But it has so often happened
that a few leading spirits have been able to control the con-
ventions and virtually to name the person that later was to
become President, that many States now hold primary, or
preliminary, elections, in which the people are given a chance
to indicate their choice for President. These " presidential
primaries," as they are called, are not binding, they merely
make plain the wishes of the majority of the Republicans, or
of the Democrats, or of any other great party in the State,
respecting the men from whom their delegates in the conven-
The Executive Power n5
tion are later to choose a candidate. After such preliminary
elections, however, the delegates are more likely to vote for the
man who has been the choice of the majority in their respective
parties than for some other who is not. Thus primary elec-
tions are a part of the present-day progressive movement to
prevent the control of elections and the dictation of candidates
by the few. They are but another step in the direction of the
popular election of Presidents; another step away from the
method prescribed by the Constitution. i^
Section 1, Clause 4. — The Congress may determine the
time of choosing the electors, and the day on which they
shall give their votes; which day shall be the same
throughout the United States.
Election Day. — By the authority of this clause Congress has
passed several statutes regulating presidential elections, but
since 1845 the electors have been chosen on the Tuesday next
after the first Monday in November, of every fourth year.
Since 1887 the electors have been required to meet in their
respective States and cast their ballots on the second Monday
in January immediately following their election.
How the Election is Officially Determined. — By the act of
1887 the Governor of each State is required, as soon as possible
after the results of the general election are known, to make
out a certificate stating that there has been a proper ascertain-
ment of electors in his State, and giving the names of the
electors and the number of votes for each. He is then required
to transmit one copy of this election certificate to the Secretary
of State, and to deliver three to the State electors on or
before the day of their meeting, all copies to be under the seal
of the State. When the electors meet on the second Monday
in January in their respective States they are required to make
out and sign three certificates of all the votes given by them
for President and Vice President, and to enclose in each of
these certificates one of those received from the Governor.
176 Constitutional Law
One of these certificates, with its enclosure, is then sent by
messenger to the President of the Senate ; another is forwarded
to the same person by mail; the third is deposited with the
judge of the district in which the electors are assembled.
On the second Wednesday in February following, at one
o'clock in the afternoon, both Houses of Congress are required
to convene in the Eepresentative chamber to hear the result
of the voting. The President of the Senate presides and opens
the certificates of election in the alphabetical order of the
States. Tellers previously appointed read and record the
votes, and when this has been done, the presiding officer an-
nounces the result. The names of the newly elected President
and Vice President, together with the list of votes, are then
entered on the journals of the two Houses. This proceeding
is very formal and quite in keeping with the dignity of the
high office of President; but coming as it does three months
after the people have voted, when everybody knows who the
new Executive is to be, it is not without a certain droll aspect
to those critics who are humorously inclined.
Double Returns. — It sometimes happens that two sets of
certificates of election, each purporting to be a correct return
of the electoral vote, are sent in from the same State.^ Where
voting is close it is possible for the Democratic electors to
^The Hayes-Tilden election, in 1876, is a case in point. The
result of the election depended on disputed returns from several
States. Congress finally settled the controversy by appointing a
commission of fifteen members: five Senators, five Representa-
tives, and five Justices from the Supreme Court. As it happened,
the five Senators were Republican, the Representatives were
Democratic; two of tlie five judges were Democratic, and three
were Republican; and all voted on strict party lines. In each
case the commission decided in favor of the Republican returns
by the close vote of eight to seven. Hayes was accordingly elected
by a vote of 185 to 184. The law under which this determination
wag made was not intended to apply to future disputes.
The Executive Power 177
believe that they are elected, when in fact the Republican
electors receive a slight majority instead, or vice versa, and
each group of electors sends in its certificate of election. To
meet this dilemma the act of 1887 provides that each State
may by law provide a method for determining the correct vote
of that State. If such determination is reached at least six
days before the meeting of the electors, it shall be final ; if
not, provision is made for its settlement by Congress. It has
been decided that such a matter, because it is political, not
judicial, is not within the jurisdiction of any court.
Section 1, Clause 5. — No person, except a natural-born
citizen, or a citizen of the United States at the time of the
adoption of this Constitution, shall be eligible to the office
of President; neither shall any person be eligible to that
office who shall not have attained to the age of thirty-five
years, and been fourteen years a resident within the
United States.
Qualifications of the President. — The qualifications of
the President, like those of Senators and Representatives, re-
late to citizenship, age and residence. Naturalized citizens are
not now eligible to the presidency; but only citizens of native
birth. At the time of the adoption of the Constitution, how-
ever, many prominent inhabitants were of foreign birth, some
of whom were members of the Convention. These were ex-
cepted from the general rule. Whether it was wise to forever
prohibit citizens of alien birth, except those in being at the
time of the adoption of the Constitution, from aspiring to the
high office of President is open to question, for certainly
many able, distinguished and patriotic citizens of the United
States have been foreign born. But the evident purpose of
the restriction was to make the office purely American. Noth-
ing in the clause debars women from the presidency ; but this
possibility was probably not contemplated by the Convention.
The fourteen years residence required by this clause does
12
178 Constitutional Law
not bar citizens who have been abroad in the public service/
or on private business. The fourteen years need not be con-
secutive. If a citizen, natural born, has had for fourteen years
previous to his nomination to the presidency such an in-
habitancy as includes a domicile in the United States, he is'
eligible.
The Vice President. — The Constitution does not prescribe
the qualifications of the A'ice President. The 12th Amend-
ment, hovi^ever, declares that " no person constitutionally in-
eligible to the office of President shall be eligible to that of
Vice President of the United States." Ftirthermore, the Vice
President is the lawful successor to the President in the event
of the latter's death or disability. It would necessarily follow
from this, even without the 12th Amendment, that the qualifi-
cations for the two Federal offices must be the same.
Section 1, Clause 6. — In case of the removal of the Presi-
dent from office, or of his death, resignation, or inability
to discharge the powers and duties of said office, the same
shall devolve on the Vice President; and the Congress
may by law provide for the case of removal, death, resig-
nation, 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 removed, or a President shall be elected.
Presidential Succession. — Should the office of President be-
come vacant by either death, removal or resignation, the Vice
President immediately becomes President by operation of law,
and he may hold office until the end of the original term.
Should the President become temporarily disabled instead, the
Vice President assumes the duties of the office only until the
disability is removed. But in case the offices of both the Presi-
dent and the Vice President become vacant during the term,
the duty of filling the Chief Executive's chair devolves on
•James Buchanan was minister to England just prior to hi3
election to the presidency.
The Executive Power 179
Congress. Accordingly, in 1792, Congress provided that, in
such a case, the president pro tempore of the Senate should
act as President, or if there were no such person to act, then
the Speaker of the House of Representatives. In 1886, how-
ever, this law was repealed, and the present law of presidential
succession was enacted. This provides that, in case of the
default of both the President and Vice President, the duties
of the office of the Chief Executive shall devolve on the mem-
bers of the cabinet in order of seniority, to wit : the Secretary
of State, the Secretary of the Treasury, the Secretary of War,
the Attorney General, the Postmaster General, the Secretary
of the Navy, the Secretary of the Interior, etc. It is probable
that a cabinet minister would not in this case become President
in fact; he would merely fulfill the duties of the office until a
new President could be elected, or until the disability of either
the President or the Vice President, if that were the cause of
the vacancy, should be removed. But no cabinet member can,
by the law of 1886, act as President, who does not have the
constitutional qualifications of age, citizenship, and residence.
Several Presidents have died in office." Several Vice Presi-
dents also have died in office, and one has resigned," but at
no time have the offices of both the President and the Vice
President become vacant during the alloted term. No Presi-
dent has as yet resigned from office, and none has been re-
moved. If one should desire to resign. Congress has provided
that the resignation must be in writing, subscribed by the
President, and delivered to the office of the Secretary of State."
Section 1, Clause 7. — The President shall, at stated times,
receive for his services a compensation, which shall
neither be increased nor diminished during the period
'W. H. Harrison, 1S41; Zachary Taylor, 1S50; A. Lincoln, 1865;
J. R. Garfield, 1881; W. McKinley, 1901.
"J. C. Calhoun, 1832.
«R. S., 151.
180 Constitutional Law
for which he shall have been elected, and he shall not
receive within that period any other emolument from the
United States, or any of them.
The President's Compensation. — Men do not aspire to the
presidency for the salary alone; that, in comparison with the
emoluments received by the executives of certain other nations,
is relatively small." If the office paid no salary, it would not
lack worthy aspirants, for the honor is greater than mere
money compensation. But in order not to limit the nation's
highest office to men of independent means, it was wisely made
a salaried position. The salary of the first President was
fixed by Congress at $25,000 per year; that of the Vice Presi-
dent at $5000. In 1873 these amounts were increased re-
spectively to $50,000 and $10,000 per year. The latter was
reduced in 1874 to $8000. In 1909 the President's salary was
further increased to $75,000, that of the Vice President to
$12,000. These salaries are paid in monthly installments.
Besides salary, the President receives other emoluments,
making the office really more compensative than it appears' to
be. A furnished house, the White House, is provided for the
President and his family at Washington ; a fast vessel is at
his disposal for transportation on the sea; mileage is allowed
for inland travel; and there are numerous minor accessories.
But whatever the compensation is, Congress must provide for
it before the Executive enters on his term of office, for by the
present clause of the Constitution it cannot be done during his
incumbency ; nor can it be diminished within the period.
The provisions of this clause secure the complete inde-
pendence of the President, for Congress may neither weaken
his fortitude by working on his necessities, nor corrupt his
integrity by appealing to his avarice; and what Congress and
*^The King of England receives £470,000; the Emperor of Russia
receives no stated sum, but income from over one million square
miles of crown lands; the President of France, 1,200,000 fr.
The Executive Power 181
the nation at large may not do in this respect, may not be done
by any individual State.
Section 1, Clause 8. — 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
execute the office of President of the United States, and
will, to the best of my ability, preserve, protect, and defend
the Constitution of the United States."
Oath of Office. — It has become customary, though not re-
quired by law, for the Chief Justice of the Supreme Court to
administer the oath of office to the President-elect. Anybody
legally qualified to administer oaths could perform the cere-
mony, but it is perhaps fitting that the highest executive officer
should be sworn in by the highest judicial officer. The cere-
mony of swearing in the President-elect, wliich is a part of
the formalities of inauguration, takes place at noon on the 4th
of March next succeeding his election. Weather permitting,
it is done in the open air before the Capitol in the presence of
the two Houses of Congress and of the assembled people.
The Constitution does not require the Vice President-elect
to take any special oath other than the general oath to support
the Constitution which is required by Article 8, Clause 3, of
every executive officer of the United States and of the several
States. On succeeding to the office of President, in the event of
the latter's death, resignation or removal, the Vice President
takes the prescribed oath of office.
Section 2, Clause 1. — The President shall be commander-
in-chief of the army and navy of the United States, and of
the militia of the several States when called into the actual
service of the United States; he may require the opinion.
In writing, of the principal officer in each of the executive
departments, upon any subject relating to the duties of
their respective offices, and he shall have power to grant
reprieves and pardons for offenses against the United
States, except in cases of impeachment.
182 Constitutional Law
The War Power. — The President, as Chief Executive of the
nation, has supreme directing power over the military and
the naval forces of the United States. In peace and in war
this amounts to the same thing: namely, that the President
controls the movements of the army and the navy; he pre-
scribes the stations and duties of both offices and men ; he plans'
campaigns, establishes blockades and sieges, and directs all
marches and cruises. He may order United States troops and
ships anywhere to protect Federal property, or American
citizens and their property. To suppress insurrection, or to
repel invasion, he may call the militia into the service of the
government, and then he may exercise the same authority
over them as over United States troops — except that he cannot
send them beyond the confines of the country. The President
may not declare war. That great power is vested in Congress
alone; but when Congress has declared war, it is incumbent
on the President to direct all military and naval operations.
He does not take the field in person ; he promulgates his orders
through the proper officials of the War and the Navy Depart-
ments; or, what amounts to the same thing, he approves or
disapproves their orders and suggestions. Neither the courts
nor the legislatures may interfere directly with the President
as commander-in-chief. Indirectly, however, Congress might
hamper the President considerably, for the House of Eepre-
sensatives might refuse to appropriate funds for the main-
tenance of war, and the Senate might refuse to confirm the
President's nominations to office.
Executive Departments. — The executive departments herein
mentioned are nowhere defined in the Constitution, or their
number limited by it; but from time to time as necessity has
demanded, they have been provided by law. There are now
ten of these : the Department of State, the Department of
the Treasury, the Department of War, the Department of
Justice, the Post- Office Department, the Department of the
The Executive Power 183
Navy, the Department of the Interior, the Department of
Agriculture, and the Departments of Commerce and Labor.
The chief officer of each of those departments is styled Secre-
tary, except the heads of the departments of justice and of the
post-office, who are titled respectively Attorney-General, and
Postmaster-General. The general purpose of these depart-
ments is to assist the President in his executive business.
Thus the Department of War controls the operations of the
army, the Department of State is the medium through which
the government communicates with foreign governments, and
so on. Collectively the heads of the executive departments
form the President's cabinet ; they are appointed by the Presi-
dent, and they act in an advisory capacity to him. At any
time he may demand their opinions in writing on any subject
relating to their offices. This perhaps has been most fre-
quently done of the Attorney-General, whose published
opinions now fill many printed volumes. As authoritative
statements of the law, these opinions are entitled to great
respect.
For the origin of the cabinet we must look to custom rather
than to law. The Constitutional Convention did not con-
template the creation of an advisory council to the President,
but rather that there should be heads of departments, whom
he might consult individually and at his pleasure. Washing-
ton, however, formed his department heads into an advisory
body, and the custom of so doing has since been followed.
The Pardoning^ Power. — Eecognizing that human justice is
not infallible, that in the long run justice is best when
tempered with mercy, the framers of the Constitution placed
in the President the great and almost unlimited power of
executive clemency. In so doing, however, they evolved no
new principle : the power to pardon has been inseparably con-
nected with sovereignty since time immemorial. But it is a
vast power for one man to have. By it the President may
184 Constitutional Law
render null and void the decision of the highest tribunal; by
it he may remit all fines and debts due to the government ; by
it he may open the doors of all the Federal prisons ; and neither
Congress nor any court may restrict him in the slightest
degree." But it was expected that he would use this power
with reason, and thus far the people of the United States have
had little cause to complain against the misuse of executive
grace.
A reprieve is a temporary suspension of punishment, a stay
of execution; a pardon is a complete release from penalty.
The law recognizes four kinds of pardons. First, a pardon
may be complete, unlimited. As such it restores a criminal
to the condition of a free citizen, remitting all punishment.
Second, it may be conditional," as where its force is made to
depend on the criminal's doing some positive act, such as leav-
ing the country, or accepting a penalty in lieu of that imposed
by the court. Third, it may be before conviction as well as
after. Fourth, it may apply to individuals or to masses of
people. Where masses of people are pardoned, as in the case
of an unsuccessful rebellion, the executive act is known as
amnesty. The President may issue any kind of pardon known
to the law.
The sole exception to the President's pardoning power is in
cases of impeachment. Since the main object of impeachment
is to purify public offices, it is well that the President should
not have it in his power to prevent a thorough investigation of
the conduct of public officials, or to relieve them from punish-
ment if convicted. Furthermore, since the President him-
self is liable to impeachment, he might, if it were not for this
exception, pardon himself, should occasion arise.
Power of the Legislature. — The only way in which the
legislature can relieve offenders from the consequences of their
" Ex parte Garland, 4 Wall., 333, 380.
"Ex parte Wells, 18 How., 307; 1 Opinions of Att'y-Gen., 341.
The Executive Power 185
acts is by repealing the law that defines the crime and appor-
tions the punishmeut. The Constitution gives to Congress no
pardoning power and no authority either to aid or to hinder
the Executive in the act of clemency. Herein the United
States differs from Great Britain, where the power to pardon
is in both Parliament and the Crown.
Pardoning Power in the States. — The power to pardon
offenses against State laws is usually in the Governor. The
constitution of the State of Maryland, for example, grants the
power to the Governor in precisely the language that the
United States Constitution grants it to the President. In
some States, however, the authority is vested in commissions,
or pardon boards." This, on the whole, seems to be the better
way. Executive clemency originated far back in history, when
the king was absolute, and kingly grace was akin to Heaven's
grace. But absolutism in earthly rulers has largely passed
away. In America, at least, executive officers are elected by
the votes of the people, and their terms of office are limited.
Frequently they are not learned in the law, and their general
calilier is often not above that of many of the electorate. That
an ordinary citizen, therefore, raised for a brief while by
popular votes to an exalted position, should be able to set free
those whom courts and juries have deemed it wise to shut up is
little short of the preposterous."
Section 2, Clause 2. — He shall have power, by and with
the advice and consent of the Senate, to make treaties,
provided two-thirds of the Senators present concur; and
" In Massachusetts it is in the Governor and council; in Pennsyl-
vania, it is in the Governor and the legislature.
"An instance of the extreme use of gubernatorial clemency oc-
curred in 1909, when Governor Patterson, of Tennessee, uncon-
ditionally pardoned Duncan Cooper, accessory to the murder of
United States Senator Carmack. Of Cooper's guilt there does not
seem to have been any question.
186 Constitutional Law
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
established by law; but the Congress may by law vest
the appointment of such inferior officers as they think
proper, in the President alone, in the courts of law, or in
the heads of departments.
Treaties. — A treaty is an agreement, or contract, between
sovereign States. In England, the power to make treaties is in
the Crown; under the Articles of Confederation, it was vested
in Congress alone; under the Constitution, it is in the Presi-
dent and the Senate. The Senate, however, acts in a checking
capacity only, for the power of negotiation and inception is in
the Executive alone. Acting through the Secretary of State
and foreign representatives, the President makes all treaty
stipulations, and the Senate may neither dictate a word con-
cerning foreign relations, nor force the President into any
particular line of action. It is for the Senate merely to
approve or to disapprove when the treaty is presented to that
body for consideration. The words " advice and consent " are
usually determined to mean consent only. Although it is not
without precedent for the Chief Magistrate to consult the
Senate before drawing up a treaty," he usually goes elsewhere
for advice.
Kinds of Treaties. — Treaties are either executed or execu-
tory. An executed treaty brings into existence at once a cer-
tain state, or right. Such is a treaty of peace. Hostilities are
expected to cease, and a state of peace to begin, with the sign-
ing of the treaty, and without further action by either the
Executive or the legislature. An executory treaty, on the
other hand, necessitates further action by one or both parties
" President Polk in connection with the Oregon treaty.
The Executive Power 187
to the treaty, before the thing agreed to may be said to be
accomplished. Thus an agreement between the United States
and Great Britain to maintain a fleet on the African coast in
1842 for the suppression of the slave trade was an executory
treaty.
Weakness of Treaties. — Suppose in the ca.se just mentioned
the President had neglected to order warships to the African
coast; what could have been done? Probably nothing.
Neither Congress nor the courts could have forced the Presi-
dent to execute the terms of the treaty. Furthermore, a
statute of the United States can be enforced by the courts, but
no common and superior tribunal exists an}'where, able to
compel either party to a treaty to keep its agreements — except
the great tribunal of war." Therein lies the weakness of all
international agreements.
Treaty Power Limited. — In general, the treaty making
power extends to every kind of treaty. The Constitution
places no limits to its exercise, but common sense may suggest
some. The power plainly cannot be so used as to override the
Constitution itself, or to weaken or destroy the fundamental
principles of government. A treaty that should attempt to
deprive Congress, or the judiciary, or the Executive of general
powers' granted by the organic law would be absolutely null
and void." So would a treaty that materially altered the
boundary lines of any State without the latter's consent; or
that tended to deprive the citizens of one State of rights en-
joyed by the citizens of other States.
Concurrence of the Senate. — Every treaty to which the
United States isJ a party must be approved by the Senate.
Although the latter cannot take the initiative, its consent is
absolutely necessary before any treaty can become a law. The
Senate may, however, after a treaty is presented to it for
"Foster v. Neilson, 2 Peters, 253; Pomeroy's Const. Law, 450.
" Geofrey v. Riggs, 133 U. S., 258, 267.
188 Constitutional Law
approval, suggest alterations or amendments, or it may ap-
prove or condemn it in entirety. If amendments are sug-
gested, they must be accepted by the President and the repre-
sentatives' of the foreign State before the treaty thus changed
can become binding. In any case, the approval of the Senate
and the signature of the President are essential. A treaty
dates from the day it is signed.*"
The House of Representatives has nothing to do with origi-
nating, making, or ratifying a treaty. It is possible, however,
for the House to render a treaty a nullity by refusing, or
neglecting, to pass the legislation necessary to give it effect.
This is in respect to an executory treaty. To illustrate : should
the treaty require the payment of money, as in the case of
the purchase of territory, the agreement can have no effect
until the House has voted the necessary funds. It is the evi-
dent duty of that body to appropriate money when it is re-
quired by the terms of a treaty, but neither the Executive nor
the judiciary can compel it to do so.**
A State of the Union, not being a sovereign power, can be
a party to no treaty.
Appointments to Office. — Before a person can be appointed
to office the office must exist. The Constitution provides for
certain offices; Congress has created many more, and may
create others, as necessity demands. We have seen how the
offices of President and Vice President, Senators and Repre-
sentatives, Speaker of the House, and certain minor positions
in both branches of the legislature are filled. These are the
only purely elective offices under the government. All other
Federal offices, and there are many thousands of them, are
'" Shepard v. Ins. Co., 40 Fed. Rep., 341. Davis v. Police Jury,
9 How., 280.
" Before the purchase of Louisiana, of Florida, and of California,
Presidents Jefferson, Monroe, and Polk ascertained the wishes
of Congress, thus apparently recognizing tlie power of the House
to refuse to make appropriations.
The Executive Power 189
filled in the four ways provided by this clause: by the Presi-
dent and the Senate, by the President alone, by heads of de-
partments, and by courts of law. The Constitution directs
that "Ambassadors, other public Ministers and Consuls,
Jud<,res of the Supreme Court, and all other officers of the
United States, whose appointments are not otherwise herein
provided for" shall be appointed by the President and the
Senate. It allows Congress to vest the appointment of all
other officers in any of the authorities mentioned above. Ac-
cordingly, Congress has vested the appointment of certain
officers in the President alone; of certain others in heads of
departments; and of still others in courts of law. For ex-
ample: the President alone appoints the Librarian of Con-
gress; the Postmaster-General appoints all postmasters whose
salaries are less than $1000.00 per annum; Federal courts
provide their own stenographers and clerks, the Supreme
Court, its own marshal and reporter. There are no officers
mentioned in the Constitution, " whose appointments are not
herein otherwise provided for," unless the heads of depart-
ments are such. These are appointed by the President and
the Senate. Should Congress create an office and fail to direct
how it should be filled, it follows from this clause that the
appointment thereto would vest in the President and the
Senate.
Power to Remove. — History teaches, and most writers on
constitutional law agree, that the power to appoint to a
national office is a ruler's prerogative, and that the power to
remove from office is a necessary consequent of the power to
appoint. The Constitution limits the appointing power of the
President somewhat by compelling him to send the nomina-
tions to certain offices to the Senate for approval; it is silent
regarding the power to remove from office. Had the Consti-
tution said nothing about appointments to office, the Presi-
dent's right to fill all Federal offices by personal appointees
190 Constitutional Law
would have been absolute. In the absence of any reference in
the instrument to the matter of removal, it follows that the
Executive's right thereto is without limitation. This, at
least, has been the opinion of Story, Pomeroy, Cooley, and
other eminent publicists; it was the opinion of the majority
in the Convention; every President has exercised the right,
and the matter may be regarded as settled. The Tenure
of Office Act, passed in 18G7, denied to the President the
power to remove from office in all cases where the consent of
the Senate was necessary to fdl the office, without first con-
sulting the Senate. The constitutionality of the Tenure of
Office Act was doubtful, for if Congress cannot deprive the
President of a right expressly granted by the Constitution,
how could it do so of a right implied ? This act, however, was
repealed in 1887, so that the right of the President to remove
a Federal officer is the same to-day as in the day of Wash-
ington.^
This is a vast power for one man to have ; but like the power
to pardon it is not likely to be exercised without reasonable
cause. A nation must have an executive, and that executive
must, if he is to be anything but a puppet, have sweeping
powers. There is little danger that any President will ever
become a Caesar. The checks in the Constitution itself, backed
by an intelligent people, are ample protection. Furthermore,
in the language of Mr. Madison : " The wanton removal of
meritorious officers would subject him (the President) to im-
peachment and removal from his own high trust."
Section 2, Clause 3. — The President shall have power to
fill up all vacancies that may happen during the recess of
the Senate, by granting commissions which shall expire at
the end of their next session.
^The judges of the courts of the United States are protected
from sudden removal by Art. 3, Sec. 1 of the Constitution. Mili-
tary and naval officers are protected by the Act of 1866, which
provided for their removal only after conviction by court-martial.
The Executive Power 1^1
Vacancies in Office. — Vacancy in this clause seems to moan
a state of inoccupancy after the office has once been filled by
lawful appointment. Hence, an office created by Congress,
but remaining unfilled at the end of the session, does not make
a vacancy during the recess of the Senate which the President
phould fill. This, at least, is the opinion of most law writers;
but the President, in his executive position, may take the other
view and act accordingly." Vacancies may happen from many
causes, such as death, resignation, removal, and the accepting
of incompatible offices." Whatever the cause may be, it is
expedient that the vacancy be filled immediately, if the work
of the government in that department is to go on. The Chief
Executive is therefore given power to act at once and alone on
these cases. But to guard against the possibility of the Presi-
dent's creating vacancies by arbitrary removal and filling them
with favorites while the Senate is not convened, the commis-
sion herein authorized to be granted expires at the end of the
next session of Congress. If, meanwhile, the President nomi-
nates the same person to the office, and the Senate when con-
vened confirms the nomination, a new commission is made out,
and the incumbent remains in office.
State Offices. — These are filled according to the dictates of
State constitutions or State legislatures. As in so many
other political matters, there is no uniformity among the
States.
Section 3. — He shall, from time to time, give to the
Congress information of the state of the Union, and
recommend to their consideration such measures as he
« President Washington adopted this other view in October,
1786, -when he appointed Rufus Putnam to the office of Surveyor
General. The office was created in IMay of that year, but remained
unfilled at the end of that session.
" Failure of the Senate to reject or confirm a nomination before
adjournment creates a vacancy which the President may fill.
192 Constitutional Law
shall judge necessary and expedient; he may, on extraor-
dinary 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 sucli 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 the ofRcers of the United States.
Special Sessions; Adjournment. — Article 1, Section 4,
Clause 2 of the Constitution provides for the regular meetings
of Congress. But under the authority of the present clause
the President may at any time, if necessity demands, convene
either House of Congress, or both of them, in extra session;
and in case of disagreement between them on the question of
adjournment he may adjourn them to such time as he alone
deems fit. These are great powers, but necessary. Normally
Congress is not in session for from six to nine months of the
year; during which time many things may happen, such as
financial crises, insurrection, or invasion, demanding the
attention of the Federal legislature. It is well therefore that
the Executive should be able to summon that body to his
assistance. Since the adoption of the Constitution many
special sessions have been called. The Senate has been con-
vened frequently to act on treaties and nominations to office,
but the House has never been convened alone. The power to
dismiss Congress has never been used by any President, a fact
iliat speaks well for the sanity of Federal legislatures. It is
wise that the power should exist, however, in order to put a
stop to unseemly wrangling over a matter of only minor im-
portance. In England, the king may dissolve Parliament
at will, as ho may call extra sessions at will.
The President's Message. — Legislation originates in Con-
gress, but the President may advise and recommend; and
from his official position as Chief Executive his advice and
recommendations are often of value. The Executive Depart-
The Executive Power 193
merit has better means for getting information of the state
of the Union than has Congress. Such matters as foreign
relations, revenue and expense, the condition of the army and
the navy, postal needs and many others are directly under its
cognizance; and it is vital that the Chief Executive should,
from time to time, impart such intimate knowledge to the law-
making body, as he in his official position may acquire.
The Constitution does not say how or when this information
shall be communicated to Congress, but it has become cus-
tomary for tlie President to present it at the opening of each
session in the form of a written message. Presidents Wash-
ington and John Adams read their messages in person in
the two Houses in joint assembly; Jefferson instituted the
custom, which has been followed by all Presidents since," of
sending his message to each House to be read by the clerk.
No answer is given, and none expected. To these documents
the members of Congress usually give respectful attention, but
it is reasonable to suppose that they do not hold them all in
quite the same awe, as the ancient Greeks held the utterances
of the oracle at Delphi. Presidents are but men, their wisdom
is limited, and their recommendations are not always followed
to the letter. The President holds no whip over Congress, a
fact which that body is well aware of. Indeed, whenever it
happens that the President and the majority in either House
of Congress are of opposite political faiths, or when for any
reason lack of harmony prevails between the Executive and
the Legislative Departments, measures that the President
recommends are likely to make slow progress.
Not all the Executive's messages are presented at the open-
ing of a session of Congress. The President may at any time
transmit information to that body, or recommend special
measures, and either House of Congress may at any time
" President Wilson, in 1913, revived the old custom by delivering
his message to Congress in person.
13
194 Constitutional Law
request such information as may seem desirable, even on
matters over -which it has no direct legislative power. On the
other hand the President may decline to communicate facts,
if in his judgment the public welfare demands their secrecy.
These irregular executive documents are termed " special
messages."
Ambassadors and other Public Ministers. — ^These are
diplomatic agents, representing the sovereignty of the nations
which accredit them. To receive such a political representa-
tive is to recognize the nation from which he comes as a
sovereign State. The language of this clause is imperative:
" He shall receive." This does not mean, however, that any
and every foreign diplomatic agent must be accepted ; but only
such as are agreeable to the United States are to be formally
received by the President. States, Congress, and courts of law
have nothing to do with foreign relations; these are carried
on entirely by the President and the Department of State.
The President alone is judge of the sovereignty of the foreign
State, and of the fitness of its representatives. It follows
therefore that the power to receive carries with it the power
to refuse to receive, and to demand the recall of an accepted
agent — either on the ground that he is personally undesirable,
or that the relations between the two governments have be-
come too far strained to admit of his further continuance in
office.*" All this is delicate business. To refuse to receive a
foreign diplomatic agent, or to demand his recall, may be
looked upon by the other nation concerned as a very unfriendly
act. Hence it is highly essential that the person to whom is
intrusted this delicate power should be one of tact and sound
judgment.
^Mr. Genet, French minister, was recalled on demand in 1793;
Mr. Jackson, British minister, 1809; Mr. Poussin, French, in 1849;
Sir John Crampton, British, 1856; Mr. Catacazy, Russian, 1872;
Lord Sackville, British, 1888.
The Executive Power 105
Until 1893 no ministers from the United States were styled
Ambassadors. In that year Congress authorized the President
to confer the title on the ministers to all foreign governments
that sent agents of such rank to the United States. Ambassa-
dors are now sent to the following countries : Great Britain,
Fran,ce, Germany, Eussia, Italy, Japan, Mexico, Austria-
Hungary, Brazil;, Turkey, Spain, Argentina, and Chili.
The duty of an Ambassador, and of any other foreign
minister, is in general to foster pleasant relations with the
government to which he is accredited. He is his nation's
mouthpiece. Whatever he may say in public of a political
nature is supposed to reflect the sentiments of his home govern-
ment. All intercourse between the foreign nation and his own
is carried on through him. His position therefore requires a
distinct gift for diplomacy.
Other Public Ministers. — These are in order of rank:
Envoys Extraordinary, Ministers Plenipotentiary, Ministers
Ecsident, and Charge d'Affaires. Like Ambassadors, these are
purely political agents. The difference between them is not
easy to determine, for their duties are the same. Their relative
ranks depend on the importance of the country to which they
are sent. Ministers Eesident from the United States are few
in number. The title is often merged in that of Consul-
Gencral. Charge d'Affaires are not often sent out.
Consuls. — These are commercial, rather than diplomatic,
agents. Their purpose is to further the business interests of
their respective countries. Their duties are rather various.
They hold the required papers of all American vessels while
in their ports; they hear complaints of seamen; they reclaim
deserters ; they appoint examiners for vessels reported unsea-
worthy, they cause mutinous sailors to be arrested and sent
home for trial ; they take possession of the personal property
of American citizens dying abroad ; they take measures to save
stranded vessels and their cargoes ; they report the condition
196 Constitutional Law
of business in their respective localities ; and they are ex officio
notaries for all the States of the United States. Consular
reports are published frequently, and thoy often are of great
service to American business men engaged in foreign trade.
The Constitution is silent respecting the reception of con-
suls. The term " public ministers " does not embrace them.
The power of the President to receive them may, however, be
fairly implied by the Constitution. In fact foreign consuls
always receive their exequatur from the President through
the State Department. The consular corps is far larger than
the diplomatic corps. In 1911 there were over 1100 consular
representatives abroad. Formerly these agents were paid by
fees, but since 1906 all have been paid regular salaries. Fees
which they may collect are accounted for to the United States
government.
Exterritoriality of Public Ministers. — By a political fiction,
public ministers are not subject to the jurisdiction of the
countries to which they are accredited, but to the home
country. That is, they carry with them into the foreign land
the rights and privileges accorded them by their own sovereign,
and are amenable only to his laws. Consuls, not being public
ministers, do not usually enjoy these exterritorial privileges,
but are answerable to the laws of the country in which they may
be serving.
Execution of the Laws. — To execute the law is to enforce it.
The laws of the United States which the President is required
to enforce comprise the Constitution itself, the treaties with
foreign nations, and the statutes yearly enacted by Congress.
For this purpose, he may ask Congress for appropriations that
are necessary under the provisions of a statute, and as com-
mander-in-chief he may call into action United States troops
or ships. The duty is wholly on the President; neither Con-
gress, nor the judiciary, nor any other department of the
government may lawfully hinder him in enforcing the law, or
The Executive Po"U'er 197
take any initial steps therein. The case of Miss. v. Johnson,
4 Wall., 475, is illustrative.
This was a petition by Messrs. Sharkey and Walker, on be-
half of the .State of Mississippi, for a perpetual injunction to
restrain Andrew Johnson, President, from executing certain
acts of Congress. The petition asserted that the acts in ques-
tion were unconstitutional, and had been vetoed by the Presi-
dent but passed over his veto. The court held : that the in-
junction could not be issued ; that the President was bound by
the Constitution to execute the laws, and it made no difference
whether he believed the laws to be unconstitutional or not.
The courts could not restrain him.
Although the President may exercise a certain discretion
respecting the manner or the means of executing the law, he
has no discretionary power over the law itself. That is, he
may not lawfully refuse to execute it on the ground that it is
invalid or impolitic. Whatever Congress enacts is presump-
tively valid, and the President must see that it is faithfully
executed, whether it is passed in the usual manner, or over his
veto by the requisite two-thirds. It is for the judiciary to
determine, in a case properly before it, the validity or in-
validity of a statute.
Coininissions. — Appointing to office and commissioning
officers are not the same. All Federal officers duly appointed
are commissioned by the President, but not all officers of the
United States are appointed by him, as has been pointed out
in a previous paragraph. A commission is, in the sense under-
stood here, a document issued l)y the President, signed by
him and bearing the seal of the United States, authorizing the
person named therein to hold a Federal office, and to enjoy all
its rights and privileges. The commission is not the appoint-
ment; it is but the evidence of it, and the appointee's right
to the office does not depend on the possession of the commis-
sion. As was well said in the case of the United States v.
198 Constitutional Law
Le Baron, 19 Howard, 74, "The transmission of the com-
mission to the officer is not necessary to his investiture of the
office."
Officers of the United States. — From this phrase it is reason-
able to infer that those only are officers of the United States
who receive their commissions from the President.
Section 4. — 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.
Who May be Impeached. — It is a logical inference from
this clause that the President, Vice President, and all civil
officers of the United States may be impeached. The term
civil officers is not defined in the Constitution. It is used,
apparently, in contradistinction to military and naval officers,
who may be court-martialed, but not impeached. It may be
said to include all other officers of the United States who
derive their appointments from the national government,
rather than from the State governments, or from the people.
Senators and Representatives cannot be impeached." They
are not " civil officers of the United States," for they derive
their appointments from the States, or from the people. On
the other hand, cabinet members, Federal judges, public
ministers and consuls are such civil officers as may be im-
peached, for they derive their appointments from the national
government.
One President, Andrew Johnson, has been impeached,"
" Senator William Blount, of South Carolina, was impeached
in 1797. When the Senate convened as a court, counsel for Blount
entered a plea to the jurisdiction: to wit, that when the offense
was committed Blount was not an officer of the United States.
By a vote of 14 to 11, the plea was allowed, and the case dismissed.
*• 1868. Acquitted. See Blaine's " Twenty Years in Congress,"
Vol. 2, Chap. 14.
The Executive Power 199
but no "Vice President. One cabinet member, Secretary
Belknap, lias been impeacbed. Tbis was in 1876, The Sec-
retary was acquitted. Six judges bave been impeached.
They are as follows: Judge Pickering, 1803; Judge Chase,
1801; Judge Peck, 1830; Judge Humphries, 1862; Judge
Swayne, 1905, and Eobt. W. Arcbbald, 1912. Of these Judges
Pickering, Humphries, and Arcbbald were convicted. " Judge
Pickering, of the District Court of New Hampshire, lost his
reason, and to get him off the bench it was necessary to go
through the form of impeachment." " Judge Humphries was
convicted of " aiding the Rebellion, ill-treating loyal men,
confiscating their property, etc." Robert W. Arcbbald, Asso-
ciate Judge of the Commerce Court, formerly U. S. District
Judge for middle Pennsylvania, was impeached on July 11,
1912, for corrupt collusion with certain coal mine owners and
railway officials while in office. He was removed from the
bench and disqualified for further holding any office under
the government. The last two have been the only ones to
suffer the extreme punishment provided by the Constitution
for those convicted in impeachment trials.
Offenses Leading to Impeachment. — The Constitution makes
a very general enumeration of the offenses for which an officer
may be impeached : " treason, bribery, and other high crimes
and misdemeanors." Treason is the act of levying war against
the government, or adhering to its enemies, giving them aid
and comfort. Bribery is the act of receiving any undue
reward by a person whose profession is the administration of
public justice, or the act of offering an undue reward to such
person, in order to influence his behavior in office. The
phrase " other high crimes and misdemeanors " is very gen-
eral. In all probability it was purposely made so in order to
give Congress a wide latitude in the matter of impeachment.
It would be futile to attempt, within the limits of the Consti-
» Baldwin's "American Judiciary," 323.
200 Constitutional Law
tution, to enumerate all the possible crimes and misdemeanors
for which one might be impeached. It may be regarded as
settled that, in addition to such conspicuous crimes as treason
and bribery, at which society revolts, a Federal office holder
may be impeached for innumerable lesser acts which render
him an undesirable official.
The Punishment. — Since the object of impeachment is not
so much to punish the person as to purify the office, the penalty
is comparatively light. Congress may neither fine, imprison,
nor pronounce sentence of death, all of which the British
Parliament, sitting in impeachment, may do. The Constitu-
tion limits Congress in its infliction of punishment to two
things, one of which it makes compulsory, the other per-
missive. Congress must, on conviction, remove the offender
from office ; it may further disqualify him to enjoy any other
office under the United States. In any case, the findings of
the Senate cannot be reviewed by any other authority, and not
even the President may pardon one whom the Senate has
convicted."
»» Const, 2, 2. 1. Ante, p. 184.
CHAPTER VI
THE FEDERAL JUDICIARY
Article 3, Sections 1-3
THE FEDETJAL JUDICIARY
Article 3
Section 1. — The judicial power of the United States shall
be vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain and
establish. The judges, both of the supreme and inferior
courts, shall hold their oflSces during good behavior, and
shall, at stated times, receive for their services a com-
pensation which shall not be diminished during their
continuance in office.
The Judicial Power. — The judicial power is the right to
hear and determine a controversy according to the rules of
established law. The Constitution vests this power in one
Supreme Court, and in such inferior courts as Congress may
from time to time establish. The word court here means a
tribunal for the administration of justice. It may consist of
one judge or several. As a judicial body it is to be dis-
tinguished from both counsel and jury.
The Supreme Court. — This is the highest court in the United
States, the court of last resort, as the name implies. It con-
sists of nine members, one Chief Justice and eight Associate
Justices, of whom six make a quorum. The court holds one
annual term in the city of Washington, D. C, commencing
on the second Monday in October, and such special, or ad-
journed, terms as the business before it may require. This
subject is considered further under Article 3, Section 2, Clause
2, page 216.
Inferior Courts. — The " inferior courts " that Congress has
created are the following: Circuit Courts, Circuit Courts of
Appeals, Distriet Courts, the Court of Claims, the Commerce
204 COXSTITUTIONAL LaW
Court, and Territorial Courts (including those of the Dis-
trict of Columbia), The Circuit Courts, established in 1789,
were abolished by act of Congress in 1911; the Commerce
Court, established in 1911, was abolished in 1913. These
courts therefore are no longer in the judicial system of the
United States. In addition to these Congress has provided for
certain quasi courts, like the Interstate Commerce Commis-
sion, and for such occasional tribunals as courts-martial and
consular courts.
Circuit Courts of Appeals. — For systematizing judicial busi-
ness Congress has divided the country into nine circuits, corre-
sponding in number to the justices of the Supreme Court.
Each of these circuits includes several States. For example,
the first circuit consists of Maine, New Hampshire, Massa-
chusetts, and Rhode Island. In each of the nine circuits is one
Circuit Court of Appeals, consisting normally of three circuit
judges,^ two of whom make a quorum. By law the nine
judges' of the Supreme Court are assigned to duty on the
circuits, one to each. The allotment is made by the Chief
Justice. In addition to these, the several District Judges
within a circuit are competent to sit in the Circuit Court of
Appeals. Hence three classes of judges may sit in this court.
Supreme, Circuit and District Judges. But no judge, before
whom a case has been tried in the District Court, may hear
the same case in the Court of Appeals. The work of this court
is to review cases coming to it from the District Court on
appeal or by writ of error. Its decision is final in some of
these eases; in others it is not, these being appealable to the
Supreme Court.
District Courts. — As Congress has divided the whole country
into circuits, so it has divided the States into districts. Un-
like circuits, judicial districts are entirely within State lines.
Large States, such as New York, Pennsylvania, California,
* The number varies from two to four.
The Federal Judiciary 205
Texas, etc., contain from two to four districts; smaller States,
but one. Usually one judge is appointed to a district, but
where the districts are large, there are two. At present (1912)
there are 77 judicial districts, but 84 District Judges.
The jurisdiction of the United States District Courts is
very extensive. It includes practically all Federal cases except
a few that by law go at once to the Supreme Court. For ex-
ample, offenses against the Federal government; prize cases;
civil causes (a) arising under the Constitution, laws and
treaties of the United States, or (2) between citizens of dif-
ferent States, or between citizens and aliens ; and cases arising
under the patent, copyright, postal, immigration, or bank-
ruptcy laws, or the Sherman Anti-Trust Act — all these are
triable before the United States District Courts.
The Court of Claims. — This court consists of one Chief Jus-
tice and four Associate Justices, who hold one annual session,
beginning on the first Monday in December. It was estab-
lished in 1855 for the purpose of deciding the legality of claims
against the government. The United States cannot be sued
in the ordinary sense, but a claim, or debt, against the gov-
ernment may be laid before the Court of Claims for adjudica-
tion. If the decision of the court is favorable to the claimant,
it is so reported to Congress, and a bill may then be prepared
to give the decision effect. The court is thus a kind of stand-
ing committee on claims. Before its establishment there was
no way of collecting a debt against the government, except by
engineering a bill througli Congress — a lengthy, indeterminate
proceeding, in which there was no legal interpretation of the
claim except that given by the members of Congress. Under
the present system Congress must still be appealed to, it is
true, but only when the justice of the claim has been judicially
determined, when it becomes possible for that body to make
the necessary appropriation.
206 Constitutional Law
Territorial Courts. — Congress has established supreme and
inferior courts in the Territories, by virtue of the general
power prescribed by Article 4, Section 3 of the Constitution.
The judges in these courts are appointed by the President and
the Senate for definite terms, usually four years, but may be
removed by the President at any time previous to the expira-
tion of their terms.
Consular Courts. — Provision has been made by treaties with
certain non-Christian foreign countries, such as China, Siam,
Japan, Madagascar, Egypt, Persia and Turkey, for the estab-
lishment of consular and ministerial courts. In other words,
both consuls and ministers appointed to these countries are
invested with power to try cases of both civil and criminal
nature, to which citizens of the United States may be parties.
Appeal is allowed from the decisions of consuls in certain
cases' to the accredited minister, and in more serious cases,
to the Circuit Court for the District of California.
(For the Interstate Commerce Commission, see p. 94.)
Military Courts. — These are tribunals for the trial of
offenses arising in the military or naval forces. Their juris-
diction is limited; their existence, temporary. They are
occasional courts, coming into existence when necessity de-
mands, and dissolving when their special work is finished. In
the naval service they are of two kinds, general and summary.
In the army, besides the general courts, there are regimental
and garrison courts. General courts-martial have jurisdiction
over every offense for the trial of which a military court may
be convened. When organized, these military tribunals con-
sist of from five to thirteen commissioned officers, of whom
at least one-half must be superior in rank to the person to be
tried. In the navy they may be convened by the P^-esident
or the Secretary of the Navy, or by the commander-in-chief of
a fleet or squadron with the express permission of the Presi-
The Federal Judiciary 207
dent.' In the army, they are convened by any general com-
manding an army, or colonel commanding a department; or
in time of war by a brigade or division commander. The
presiding officer of a general court-martial is termed the
president ; the prosecuting officer is called the judge advocate.
Conviction may be had on a majority vote of the court, except
whore the sentence of death is to be imposed, when two-thirds
must concur. Summary courts-martial are for the trial of
petty offenses and persons of inferior ratings. In the navy
they consist of three officers, not below the rank of ensign, and
a recorder. They may be convened by the commander of any
vessel in the naval service, or by the commandant of any navy
yard, naval station, or marine barracks.
The findings of both general and summary courts-martial
must be reviewed by the convening authority before the
sentence of the court can be carried into effect. "When the
findings of a military court having jurisdiction have been
reviewed and confirmed, it is not proper for any other court,
military or civil, to review the case. It is always proper, how-
ever, for a civil court to inquire into the jurisdiction of a mili-
tary court.*
Besides being temporary tribunals, military courts differ
from ordinary courts in other respects. The members are
usually not versed in the law, and tlieir proceedings, although
they must be in conformity to the law, are commonly free
from the technicalities so often seen in municipal trials. The
courts have neither judge nor jury; or better, perhaps, the
members act in both capacities, sifting the evidence on the
one hand, and weighing the facts on the other. Lastly, a
person to be subject to trial by a military court need not be
first indicted by a grand jury, and conviction does not depend
on the unanimity of the court.
* This permission not necessary when the fleet Is In foreign
waters.
' In re Grimley, 137 U. S., 147.
2Q8 Constitutional Law
•^ The Military Power Subordinate. — When martial law is de-
clared in any district, all offenses calculated to impede the
operations of the military authorities are triable before mili-
tary commissions. But if conditions are reasonably peaceful,
and the civil courts are in operation, military commissions
have no power to try persons not attached to the military or
naval forces.* The rule is that the military power is sub-
ordinate to the civil, unless necessity demands the contrary.
State Courts. — All that has just been said about courts
relates to the Federal courts, that is, tribunals established by
Congress under the authority of the Constitution. The vast
majority of courts in the United States, however, have very
little to do with Congress or the Federal judicial system.
These are the State courts. Just as the general government
operates a judicial system, every State has its system. Con-
sequently, there are as many systems for the administration
of justice in the United States as there are States, and among
them are great differences in title, jurisdiction, and manner
of operation. To illustrate: in Connecticut is one Supreme
Court, corresponding to the Supreme Court of the United
States; Superior Courts, similar in a general way to the
Federal Circuit Courts of Appeals ; Courts of Common Pleas ;
Probate Courts (tribunals for the settlement of wills and
estates) ; and Justice, or Police Courts. In Maryland, on the
other hand, the highest court is called the Circuit Court of
Appeals. Below that is the Circuit Court, and below that is
the Justice Court. Here the Probate Courts are termed
Orphans' Courts. There is no Federal tribunal for the admin-
istration of wills and estates. Thus the courts of these two
States, although designed to attain the same ends, differ
greatly from each other in name, and do not altogether re-
semble the courts in the Federal system. An examination of
the courts of other States would disclose still further varia-
* Ex parte Milligan, 4 Wallace, 2.
The Federal Judiciary 209
tions, but enough has been said to show that the system for the
interpretation of laws and the administration of justice in the
United States is very complex.
Federal and State Systems are in Harmony. — Notwith-
standing this apparent confusion of titles and systems, Federal
and State courts work together smoothly. Federal courts are
sanctioned wholly by the Constitution and statutes of the
United States; State courts derive their functions entirely
from the constitutions and laws of the respective States, or
from the common law as adopted by them. Both systems
within their respective spheres are supreme.'* The decisions
of the courts of one State are given full faith and credit in
the courts of other States, and in the courts of the United
States. Most of the litigation arising in any State is settled
by the courts of that State, only those cases being appealable to
the Federal courts that concern the Constitution, treaties and
laws of the United States.
Tenure of Office; Salary. — Federal judges hold office prac-
tically for life.* They may resign at pleasure, and on reaching
the age of seventy years they may retire from active duty;
but they are excepted by the present clause from the Presi-
dent's sweeping power of removal. The sole way of removing
a Federal judge from office is by the long and tedious process
of impeachment. Much more than a century has now elapsed
since the adoption of the Federal Constitution, and although
several judges have been impeached, only three have been pro-
nounced guilty of the offense charged and removed from office *
• — a fact that testifies as much perhaps to the cumbersomeness
of that method of removal as to the rectitude of judges. The
"Collector v. Day, 11 Wallace, 113.
'Exception: judges in the Court of Claims, and in territorial
courts are appointed for limited periods.
' See p. 199.
14
210 Constitutional Law
'salary of Federal judges is determined by Congress; when once
fixed it may not be diminished during their respective terms of
office. These provisions' insuring tenure of office and con-
tinuance of salary were intended to secure the complete in-
dependence of the Federal judiciary, without which it would
be difficult to insure the proper administration of public
justice.
In State Courts. — There is some variation among the States
in respect to the appointment and tenure of office of judges.
In some States judges are appointed by the Governor, in others
they are elected by the people ; in some States they hold office
during good behavior, in others, for limited periods only; in
others they are subject to the recall.
Kecall of Judges. — The " recall," as the term implies, is a
process by which elective officers may be ousted from their
positions by popular vote. On the petition of a certain per-
centage of the voters in a district the question whether an
official, against whom some complaint has been made, shall be
continued in office is put to the ballot. Like the " initiative "
and the " referendum " the " recall " is regarded by many
people as a panacea for all official malfeasance and incompe-
tence. They argue that, especially in a democratic country,
holders of public offices are public servants, and as such they
should be directly responsible to the people. Accordingly, in
some States the " recall " has been adopted by constitutional
amendment for administrative and executive officers ; in other
States it includes the judiciary as well. In respect to Federal
officers, the " recall " is unknown.
The chief objection to the " recall," and especially to the
" recall " of judges is that it tends to weaken the office by
lessening the independence of the occupant. One who holds
a public office of any importance should be free to act without
fear or favor; he cannot feel free if liable at any time to be
voted out of office on the petition of any section of the com-
The Federal Judiciary 211
munity that he may displease by his act or decision. On the
other hand, one who is secure for life or for a limited period in
a public office is in a position to do more or less mischief. To
find the best means of limiting this power in a public officer to
do harm, and at the same time to secure his complete inde-
pendence, is a great problem in practical politics.
Officers of the Courts. — The officers of the Federal courts
are : attorneys, marshals, commissioners, reporters, and
clerks. In a broad sense, every lawyer practising before a
United States court is an officer of the court. The Attorney-
General, however, and his immediate assistants are the only
attorneys having distinct duties before the court. This officer
is charged with the duty of conducting all suits in the Supreme
Court to which the United States is a party. As head of the
Department of Justice, he has a seat in the cabinet, and is
required to give legal advice to the President, and to the heads
of the other departments as well, when requested.
United States marshals are executive officers appointed for
each judicial district, whose duties are to carry out all man-
dates of the court. They correspond to the sheriffs in the State
courts.
United States commissioners are justices of limited juris-
diction appointed by the District Courts. In a general way,
they are like justices of the peace in the States.
The duty of a court reporter is to keep a record of the facts
in all the cases adjudicated by a court, together with the
opinions of the court, and cause the same to be published.
The Supreme Court reports now fill many volumes. In the
early days, these reports were named after the reporter wlio
made them. Thus a reference to 5 Wheaton, 317, means the
5th volume of \Yhea ton's Supreme Court Eoports, page 317.
To-day, however, these reports are arranged in a numerical
series and are called United States Eeports. A reference to
169 U. S., 17, means volume 169 of the Supreme Court Ee-
ports, page 17.
212 Constitutional Law
Clerks of the court care for the seals and records, sign and
seal all process, and record the decrees of the court. The word
process here includes all those means necessary to compel the
performance of the orders of the court, such as summonses,
warrants, and subpoenas.
Section 2, Clause 1. — The judicial power shall extend to
all cases in law and equity arising under this Constitution,
the laws of the United States, and treaties made, or which
shall be made, under their authority; to all cases affecting
ambassadors, other public ministers and consuls; to all
cases of admiralty and maritime jurisdiction; to contro-
versies 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 claim-
ing lands under grants of different States; and between
a State, or the citizens thereof, and foreign States, citizens,
or subjects.
Admiralty and Maritime Jurisdiction. — The words " admi-
ralty " and " maritime," as used in the Constitution, are not
synonymous'. The difference is broadly this : Admiralty juris-
diction extends to cases that occur or have their origin on the
high seas, including navigable rivers, lakes and ship canals,
as well as the ocean; a maritime cause is one arising from a
maritime contract, whether made at sea or on land. Prize
cases, and all offenses committed at sea come under the
admiralty jurisdiction. Contracts to insure ships or cargoes,
and contracts for launching or for removing ballast are mari-
time contracts. The court of original admiralty and maritime
jurisdiction is the United States District Court.
Judicial Precedents. — ^When a court has mice applied the
law to a set of facts, its decision becomes a sort of judicial
precedent for the guidance of the same court, or of other
courts, in the settlement of other cases. Judges, in their deter-
mination of legal questions, give great consideration to the
previous decisions of other courts bearing on the same or
The Federal Judiciary 213
similar questions ; and students of law find it quite as useful
to study actual law cases, as to study the principles of law laid
down in text-books. A case that has established some principle
of law is called a leading case. Such is the case of Dartmouth
College V. Woodward, 4 Wheaton, 518, which established the
principle that the charter of a college is such a contract as the
State legislature cannot annul or impair.
This adherence to precedent is both good and bad. It is
good in that it helps to preserve a sort of continuity and
harmony among judicial decisions, thus tending to make the
law more sure and stable ; it is bad in that it fails to allow for
that change in sentiment and belief which is more or less
linked with human evolution.
Cases Under the Constitution, Laws and Treaties.— A case
is said to arise under the Constitution, the laws of the United
States, and treaties made, when its correct decision depends
on the construction of any clause in the Constitution, or law,
or treaty of the United States. It is the character of the suit
that gives the court jurisdiction. Thus any controversy which
raises the question of the constitutionality of a Federal law
or treaty may be tried in a Federal court, regardless of the
amount involved.
Other Cases. — The other seven classes of cases, over which
the national courts have jurisdiction, are less general. Power
over these is given to the Federal judiciary, either because they
involve foreign relations, or because the Federal government
is directly concerned, or because it is desirable that they be
taken before a common superior tribunal, free from pernicious,
partisan influence. Cases affecting public ministers, and
admiralty and maritime cases may involve foreign relations;
cases to which the United States may be a party directly
affect the government ; and cases between States, or between
a State and citizens of another State, or between citizens of
different States or between citizens of the same State claiming
214 Constitutional Law
lands under grants of different States, all are less liable to
partisan influence if tried before national courts than if tried
before State courts. Again, the jurisdiction is not as a general
thing exclusive. For example, controversies between citizens
of different States may be instituted in the State courts, and
they very frequently are. The United States, as a party to a
suit, may commence proceedings in a State court, or in a
Federal court, as circumstances may require."
" Cases in Law and Equity." — Courts are not legislative,
executive, or advisory bodies. Their duty is solely to interpret
the law in relation to facts, which when presented in the form
of a controversy between parties constitute a " case." It is
not the province of the judicial department of the United
States to advise, or control in any way, the executive or the
legislative departments, for each in its sphere is supreme. No
court, furthermore, will of its own volition decide the validity
of a law ; it does so only when that question is at issue in a case
legally before the court. Neither do courts decide concurrent,
or contingent matters, or questions suggested by a case in
hand. They determine the point at issue, and nothing more.
A case in law is one that must be decided by strict legal
principles ; a case in equity is decided by equitable principles.
By the latter is meant those broader principles of right and
fairness which a petitioner in court may invoke to obtain sub-
stantial justice, in cases where the strict rules of the law do not
grant it. Both the common law and the statutes are limited
in their scope. Neither covers every conceivable situation.
When a suitor therefore asks for relief which the law cannot
grant, a court having equitable powers may give equitable
relief. Injunctions are common equitable remedies. To illus-
trate : A dams a stream, causing the back flow to injure B's
property. At law the utmost relief that B can obtain is money
damages. But this may not be adequate compensation. The
« Principles of Constitutional Law, Cooley, 133, and cases cited.
The Federal Judtciary 215
relief that B seeks is the restoration of his land to its former
state, not money damages. In such a case a court of equity
might supplement the inadequacy of the law by issuing an
injunction compelling A to remove the dam, or restraining
him from so building it as to injure B's property. By the
authority of the present clause of the Constitution Federal
courts administer both legal and equitable principles.
Section 2, Clause 2. — In all cases affecting ambassadors,
other public ministers, and consuls, and those in which a
State shall be a party, the Supreme Court shall have origi-
nal 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.
Jurisdiction. — In law the term jurisdiction is synonymous
with judicial power, i. e., the power of a court to try a legal
controversy. The word legal is important here. It is not the
business of a court to settle diplomatic, business, or political
questions. The jurisdiction of a court may be either ex-
clusive or concurrent ; original or appellate. It is exclusive in
a case, if no other court has power to act; it is concurrent
where two or more courts have authority to try a case at the
option of the suitor; it is original where the court has power
to try a cause in the first instance; it is appellate where the
court may review the decision of another court. Judicial
tribunals in the United States, and likewise in the several
States, are arranged in a sort of ascending series, so that while
the lowest courts have usually only original jurisdiction, the
intermediate and the highest courts have mainly appellate
jurisdiction, but are given original jurisdiction over some
cases. The United States District Courts, for example, hear
causes in the first instance only ; the Circuit Court of Appeals
has appellate power only; but the Supreme Court is given
original power over some cases, and appellate over others.
Neither the Supreme Court, nor any other court that has
216 Constitutional Law
original and appellate jurisdiction, may review its own de-
cisions, although it may re-try the same cause. To re-try a
cause is to hear the facts a second time as if they were new ;
to review is to examine the record of proceedings in the
original case.
The Original Jurisdiction of the Supreme Court. — The Con-
stitution gives the Supreme Court of the United States
original jurisdiction over two classes of cases: 1st, those
affecting ambassadors, other public ministers and consuls;
2d, those in which a State shall be a party. It has been decided
that Congress can neither enlarge nor abridge this jurisdic-
tion." Furthermore, the jurisdiction of the Supreme Court is
not exclusive. Congress has provided that in all cases' brought
by ambassadors or other public ministers, or in which a consul
is concerned, other Federal courts may have jurisdiction con-
currently with the Supreme Court; and in cases between a
State and its citizens, or between a State and citizens of
another State, or aliens, the jurisdiction is likewise concur-
rent; in other cases it is exclusive in the Supreme Court.^"
The Appellate Jurisdiction. — This is much more extensive
than the original jurisdiction. It includes all the cases men-
tioned in the first clause of this' Article. The first item in that
clause makes the Supreme Court the court of last resort for
all so-called constitutional cases. This is a wide range. Any
ease, whether between high functionaries over extensive
claims, or between the humblest citizens involving but a trivial
interest, if it turns wholly or in part on the application or
interpretation of the Constitution, the validity of an act of
Congress, or the force and extent of a treaty, comes fairly
under the Constitution, laws or treaties of the United States,
and may properly be appealed to the Supreme Court. The
question of appeal in these cases depends, not on the bigness of
• Marbury v. Madison, 1 Crancli, 137.
'» R. S., 687.
The Federal Judiciary ^H
the claim, or the importance of the parties, but on the principle
at stake. Both questions of law and questions of fact may be
carried to the Supreme Court for review, but the majority of
the cases decided by that court involve questions of law only.
By such questions is meant : the validity or meaning of a law
or statute, or the rulings of the lower court on matters of pro-
cedure and evidence. These questions are always determined
by the judges without a jury. Questions of fact, on the other
hand, are triable before a jury; but jury trials in this court
are rare.
The Power of Congress to Make Exceptions. — The matter of
appeal is wholly subject to the legislative power of Congress,
as shown by the phrase, "with such exceptions and under
such reservations as the Congress shall make." Under this
authority Congress has determined that certain cases decided
in the State courts may be appealed to the Supreme Court —
as where the highest State court decides against the validity
of a law or treaty of the United States, or decides, on the other
hand, that a State statute is not repugnant to the United
States Constitution." Congress has enacted, furthermore,
that some cases may be decided finally by the Circuit Courts of
Appeals, some by the District Courts, and some by the Court
of Claims. To determine in any case whether a controversy
should come properly before a Federal court, or is properly
appealable to the Supreme Court, one must consult the
statutes enacted by Congress.
Limitations of the Federal Courts. — The Federal courts
have no common law jurisdietion. That is to say, all their
powers are derived from the Constitution or the Federal
statutes. This is especially evident in regard to crimes.
There are no common law crimes in the United States, except
as recognized by the several States. Hence no act is triable
as an offense before a Federal tribunal, unless Congress has
"R. S., 709.
218 Constitutional Law
previously declared the act to be an offense against the United
States."
Section 2, Clause 3. — 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 committed within any
State, the trial shall be at such place or places as the
Congress may by law have directed.
The Trial of Crimes by Jury. — The phrase " trial of all
crimes," refers to offenses against the United States only. Such
offenses, as we have said, must be defined by the public statutes
before they can be tried in the Federal courts, for there are no
common law offenses against the United States. The jury
which the Constitution requires for the trial of crimes is a
body of twelve impartial men, chosen from the district where
the violation of law occurred, all of whom must concur in the
guilt of the accused before he can be convicted. It is not im-
proper for the States to provide for juries of a greater or less
number than twelve for the trial of State offenses, or to allow
conviction by the vote of a majority. Most of the States, how-
ever, still cling to the old idea that the trial jury should con-
sist of twelve men, and that conviction should be only on a
unanimous verdict. This trial body is called the petit jury.
Need of Change in the Jury System.— The Constitution
requires all crimes to be tried before a jury. The requirements
of a jury to-day, however, are practically the same as the re-
quirements of centuries ago, and it is becoming more and more
a question whether trial by jury should not be abolished, or
drastic reforms made in the method of procedure. At present
the system is hedged about by straight-laced demands and
restrictions, and burdened by arbitrary, antiquated forms. So
many classes of men are excused from jury duty by law, and so
many drawn by lot are excused by the court for various
" U. S. V. Hudson, 7 Cranch, 32. U. S. v. Bevans, 3 Wheaton, 336.
Baldwin's American Judiciary, 142.
The Federal Judiciary 219
reasons, that it is becoming more and more difficult to impanel
a full jury. Furthermore, the requirement that a juryman
shall have no previously formed opinion of the case before the
court seems, in these days of almost universal education and
rapid dissemination of knowledge, almost an absurdity. But
legal methods are slow to change, and this way of determining
justice will probably continue for a good many years to come.
Exceptions. — Not all cases at law, it should be noticed, are
tried by jury in the Federal courts; but only criminal cases,
and those issues of fact which the Constitution and the judi-
ciary acts require to be so tried. Equity cases are rarely taken
before the jury, but are determined by the court. Civil causes
in admiralty are likewise heard by the court without a jury,
except in a few special cases (R. S., 5G6).
Place of Trial. — The trial of all crimes must be in the State
where they are committed. By this provision the accused is
made to suffer as little inconvenience as possible; witnesses
are more easily summoned, and information is more readily
obtained, than if the trial should be held in some place remote
from the scene. Ordinarily the trial takes place in or near the
locality where the crime was committed, but if for any reason
the defendant cannot be assured of a fair trial in that locality,
the case may be taken to some other. This is called change of
_yenue. All these things, as well as the requirements regard-
ing the number and unanimity of the jury, favor the accused.
Offenses " not committed in any State " are those committed
in the District of Columbia, in the Territories, on lands owned
by the Indians, in the forts and arsenals of the United States,
and on the high seas. Congress has provided for all these:
those committed on the high seas being triable in the State
where the vessel first arrives. In the case of an American
vessel outward bound to a foreign port, it would be the duty of
the American consul at that port to cause the offender, on the
arrival of the vessel, to be arrested and sent back to the United
States for trial.
220 Constitutional Law
Section '3, Clause 1. — Treason against the United States
shall consist only in levying war against them, or in ad-
hering to their enemies, giving them aid and comfort.
No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on
confession in open court.
Section 3, Clause 2. — The Congress shall have power to
declare the punishment of treason, but no attainder of
treason shall work corruption of blood, or forfeiture,
except during the life of the person attainted.
Treason Limited to Definite Acts; Constructive Treason. —
The definition of treason in the Constitution serves two pur-
poses : first, it makes conspicuous the acts which may be
punished as treason; second, it absolutely excludes all other
acts from being considered treason. The latter purpose is the
greater. The substance of this definition was taken directly
from the English Statute of Treasons, 25, Edward III. Before
the enactment of that statute judges sometimes determined
acts to be treasonable that were not believed to be such when
committed. From their decisions arose what was known as
constructive treason. Under the Constitution constructive
treason is absolutely impossible. The common law, further-
more, distinguished between high and petit treason; high
treason being practically what the Constitution defines as
treason, petit treason being the killing of a husband by his
wife, or of a master by his servant. The old distinction be-
tween high and petit treason, known to the common law and
still adhered to by some nations, does not exist in the United
States.
What is Treason? — The Constitution recognizes only two
classes of acts as treasonable: first, levying war against the
United States, or any one of them; second, adhering to their
enemies, giving them aid and (;omfort. To constitute the
offense of levying war there must be an actual breaking out of
hostilities for the purpose of subverting the government.
The Fedeilvl Judiciary 221
A conspiracy to overthrow the government, although an in-
dictable offense, is not in itself treason." Adhering to the
enemies of the United States, giving them aid and comfort, is
a broad phrase. It embraces every act which renders any
assistance to the enemy, unless such act is done under com-
pulsion. Among these treasonable acts are : joining with the
enemy to give assistance, delivering up forts, arsenals, and
ships of war, and supplying the enemy with money, supplies
and ammunition. j\rere personal sympathy for the enemy is
not necessarily treason. Only the overt act is criminal. In
this' connection, however, even acts that are not intended as
treasonable may sometimes be so construed, if the effect of
them is to render assistance to the public enemy. To illus-
trate : in the Civil War, when the loyal owners of two steam-
boats which had been seized by the Confederates were offered
pay for them by the Southern government, they were in-
formed by the Secretary of State that the acceptance of pay
would be considered treasonable, as showing adherence to the
enemy. In any event, it is not necessary that material damage
be done, or that the aid given be of tangible assistance to the
enemy. It is enough if a hostile, overt act is committed.
Since treason, however, is really a breach of allegiance, it can
be committed only by one who owes allegiance, that is, by a
citizen."
Conviction. — Treason is the most serious crime that a man
can commit, for it strikes at the foundations of the govern-
ment. For this reason more than ordinary proof is required
to establish guilt. Mere circumstantial evidence is not
enough; a private confession amounts to nothing. To convict
of treason, there must be the evidence of two witnesses to the
same overt act, or confession in open court.
" Ex parte Bellman, 4 Cranch, 75.
"U. S. r. Villato, 2 Dallas, 370. U. S. v. Wiltberger, 5 AVheaton,
97.
222 Constitutional Law
Punishment of Treason ; Attainder. — Under the old English
law, the punishment of treason was death in some horrible
form. Congress has declared the punishment of treason
against the United States to be imprisonment, or death by
hanging. The Constitution has further softened the old pun-
ishment by declaring that " no attainder of treason shall
work corruption of blood, or forfeiture, except during the life
of the person attainted." The word attainder, as used in this
clause, means simply judicial conviction. To work corruption
of blood is to destroy all power of inheriting or transmitting
property according to the regular laws of descent. Under the
old English law, not only might a man convicted of treason
be put to death, but his property might be confiscated by the
State, and all right in his descendants to inherit property
either from him, or through him, be forever cut off. His blood
was said to be corrupted, and his punishment was visited upon
his descendants for successive generations. Corruption of
blood in this sense is forever prohibited by the Constitution,
and forfeiture of property is possible only to a limited extent.
The case of Day v. Micou, 18 Wall., 156 (1873), will perhaps
illuminate this point.
In 1858 J. P. P.cnjamin mortgaged his land to Madame
Micou. In 1865 Benjamin was adjudged guilty of treason
against the United States, and his property was confiscated by
the government and sold to Madison Day. Later, Madame
Micou brought suit against Day to recover the mortgage debt.
Day resisted the suit on the ground that forfeiture and sale
of the property by the government had relieved it of all en-
cumbrances. The court held that punishment for treason can-
not work a forfeiture of estate beyond the life of the person
attainted. Forfeiture took away merely l\Tr. Benjamin's in-
terest in the property, which was a life estate; it could not
deprive anyone else of his interest. The mortgagee's claim
was still good, since it attached to the property previous to
the forfeiture.
The Federal Judiciary 223
Treason and Rebellion. — When entire communities levy war
against the government they create a state of treason rather
difficult of settlement. During the Civil War all who were
in arms against the government were technically guilty of
treason, but the government chose rather to regard them as
belligerents than as traitors. Although Congress passed many
acts for the disposition of captured property, and both legis-
lative and judicial acts of the Confederacy were held to be
absolutely void," no steps were taken at the close of the war to
punish the offenders according to statute. " You cannot indict
a whole people,'' said Edmund Burke ; and both the President
and Congress saw the absurdity of trying to punish a rebellious
community. Accordingly, the offense of having levied war
against the government was pardoned by general proclama-
tions of amnesty, issued by Presidents Lincoln and Johnson.
Later, the 14th Amendment, Clause 3, imposed disabilities on
certain ones who had engaged in rebellion, but more for the
purpose of rewarding and insuring loyalty than for punish-
ing disobedience. In 1898 these disabilities were removed.
Misprision of Treason. — Since Congress may declare the
punishment of treason, it also must have the power to declare
the punishment of lesser crimes in the nature of treason.
Accordingly, " misprision of treason," or the willful conceal-
ment of known treason by one who takes no part in the same,
has been declared an offense and made punishable. Guilty
knowledge here constitutes the wrong. Congress has likewise
provided for the punishment of conspiracy against the govern-
ment, where no overt act has been committed." y
"Knox V. Lee, 12 Wall. (79 U. S.), 457. In this case Lee, a loyal
citizen whose property had been confiscated under Confederate
statutes, was allowed to recover from Knox, the purchaser, on the
ground that the sale of property under void statutes was illegal.
" R. S., 5440.
CHAPTER VII
MISCELLANEOUS
Article 4, Sections 1-4
AMENDING THE CONSTITUTION
Article 5.
VALIDITY OF DEBTS; FUNDAMENTAL LAW; OATH
OF OFFICE
Article 6, Sections 1-3
EATIFICATION OF THE CONSTITUTION
Article 7
15
A
/
MISCELLANEOUS
Article 4
Section 1. — Full faith and credit shall be given in eacn
State to the public acts, records, and judicial proceedings
of every other State. And the Congress may, by general
laws, prescribe the manner in which such acts, records,
and proceedings shall be proved, and the effect thereof.
Faitli and Credit. — The full faith and credit to which the
public acts, records, and Judicial proceedings are entitled in
other States is the same faith and credit to which they are
entitled in the State where they originate.* But all such
things are facts to be proved, in case the question of their
existence arises; for the courts of one State are not required to
take judicial notice of the public proceedings in other States,
that is, to accept them as matters of common knowledge.
Proving Public Acts, etc. ; Act of Congress. — Congress has
provided for this in the following way : " The acts of the
legislature of any State or Territory, or of any countrs' subject
to the jurisdiction of the United States, shall be authenticated
by having the seal of such Territory, State, or country afifixed
thereto. The records, and judicial proceedings of the courts
of any State, Territory, or of any such country, shall be proved,
or admitted in any other court within the LTnited States, by
the attestation of the clerk and the seal of the court annexed, if
there be a seal, together with the certificate of the judge, chief
justice, or presiding magistrate, that the attestation is in due
form." '
" Public acts " are the State's legislative enactments.
" Eecords " are the registration of deeds, wills, legislative
* Mills V. Duryea, 7 Cranch, 4S1.
'R. S., 905.
228 Constitutional Law
journals, etc. " Judicial proceedings " are the judgments,
orders, and due procedure of organized courts.
Section 2, Clause 1. — The citizens of each State shall be
entitled to all privileges and immunities of citizens in the
several States.
The General Purpose. — The general purpose of this amend-
ment was to settle all uncertainty regarding the rights of
citizens of any State while passing through, sojourning, or
residing in any other State. No state may pass laws discrimi-
nating against citizens of other States. Conversely, citizens
of one State may not carry into another State privileges that
are not enjoyed by citizens of the latter. To illustrate : John
Doe, of New Hampshire, on removing to Maine, may enjoy all
the privileges and immunities of the citizens of Maine. He
may claim police protection; he may acquire and hold prop-
erty ; he may institute suits in the State courts, and in respect
to most matters may act as a citizen of Maine. But he may
not carry into that State any rights and privileges not allowed
by the laws of Maine to its own citizens. Thus he may not
engage in a business there which is illegal under ]\rnine
statutes, on the ground that such business is legal in Xcw
Hampshire.
Exceptions; Political Privileges. — ^WHiat has just been said
is true of citizens in respect to their private, or business rela-
tions. In respect to their relations with the State a different
rule may obtain. Political privileges, such as the right to vote,
to hold State offices, etc., may certainly be reserved by the
State to its own citizens. Furthermore, on the ground of
public ownership, a State may with reason limit certain other
privileges, such as shooting on public game preserves and
fishing in public waters, to its own body politic.
Although corporations are often called artificial citizens, in'
no sense are they citizens in fact. Hence, a State is not bound]
Miscellaneous 229
to accord to corporations created by other States all the
privileges and iinnmnities granted to its own corporations or
enjoyed by its private citizens.* But all restrictions imposed
by a State on corporations chartered by other States must be
in conformity with the Constitution and laws of the United
States. For example, a State may forbid foreign corporations
to acquire real property within the State by devise,* that is by
will or testament, but it cannot restrict the navigation of its
waters to domestic citizens or corporations, for that would be a
regulation of interstate commerce ; nor may it deny to foreign
corporations, which it allows to do business within its borders,
privileges and immunities which its own citizens enjoy. This,
at least, was the decision of the Supreme Court in the case of
Blake v. McClung, 172 U. S., 239 (1898), as follows:
A Tennessee statute gave the citizens of that State priority
over citizens of other States in the settlement of the estates of
insolvent foreign corporations doing business in Tennessee,
although foreign corporations were allowed to operate in
Tennessee by permission of the legislature.
The Supreme Court held that the State of Tennessee could
not deny to citizens of other States whom it allowed to do
business there privileges and immunities that its own citizens
enjoyed. The terms privileges and immunities, it said, were
not easy to define, but they must include the right of creditors
to participate on terms of equality in the assets of a debtor.
Section, 2, Clause 2. — A person charged in any State with
treason, felony, or other crime, who shall flee from justice,
and be found in another State, shall, on demand of the
executive authority of the State from which he fled, be
delivered up, to be removed to the State having juris-
diction of the crime.
• Paul V. Va., 8 Wallace, 168. Horn Silver Mining Co. v. N. Y.,
143 U. S., 305.
*U. S. V. Fox, 94 U. S., 315.
230 Constitutional Law
Fugitives From Justice. — A fugitive from justice is a person
who, having committed a crime in one jurisdiction, flees to
another to avoid punishment. The matter of returning such
persons by one nation to another is rcguhited by treaties. The
United States government has such treaties witli most, but
not all, foreign States. In the United States, the matter is
provided for by the present clause in the Constitution. With-
out this regulation the several States would become asylums
for the fleeing criminals of each other, for the courts of one
have no jurisdiction in any other, and the States are forbidden
by the Constitution to make treaties, or, without the consent
of Congress, to enter into any compact or agreement with each
other. The act of returning escaped criminals, or fugitives
from justice, from one nation to another, or from one State
to another, is called extradition. The formal demand for such
delivery is termed requisition.
The Procedure. — The procedure in extradition was pre-
scribed by Congress in 1793. Substantially it is as follows:
First, formal demand by the executive of the State from which
the alleged criminal has fled must be made on the executive of
the State to which he has fled. Second, this demand must be
accompanied by a copy of the indictment found against him,
or by an affidavit made before a magistrate charging the
fugitive with the commission of a crime. Third, when it has
been shown to the satisfaction of the executive on whom the
demand is made that a crime against the demanding State has
been committed by the person named in the requisition, he
shall cause the latter to be arrested and delivered up to officers
from the demanding State. The law in these cases allows the
Governor little discretion. But the charge against the person
must be in the nature of a crime; he cannot legally be ex-
tradited to satisfy a private demand. What seems like an ex-
ception to this is in the law providing for the extradition of
bankrupts. Whenever a bankrupt is suspected of an intention
Miscellaneous 231
to leave the district in which the court is sitting tlie court may
issue a warrant for his detention. Should he tlicn remove to
some other district he may be extradited, as in the case of a
fugitive against whom an indictment is pending." The phrase,
" fugitive from justice," implies an actual fleeing from one
jurisdiction to another. Accordingly, if the person in ques-
tion has never been in the demanding State, he cannot be said
to have fled from it, and he is not demandable as a fugitive."
It is not always necessary to resort to these formal proceed-
ings in order to secure a fugitive for trial. He may be enticed
back into the State from which he has fled, or kidnapped and
brought back, then arrested, tried, and punished, and such
proceedings have been declared valid.' In any case, whether
returned by extradition, or by less formal proceedings, he may
be tried for the alleged offense, or for any other that he may
be afterwards charged with.*
This Clause not Mandatory. — No doubt the framers of the
Constitution intended that this clause should be mandatory.
Time and the courts have decreed otherwise. The imperative
sJluU has become in practice the permissive may. That is, the
Governor of the State on whom the demand is made, although
morally bound in a proper case to deliver up the alleged
criminal, cannot be compelled to do so,* for Congress has as
yet made no provision to coerce an obstinate State executive.
Furthermore, in case the fugitive is arrested in the State to
which he has fled, it is always proper for the courts of that
State to inquire by habeas corpus proceedings into the
' Statutes at Large, 30, 549.
•Ex parte Smith, 3 McLean, 133.
' Ker. V. 111., 119 U. S., 456. Malion v. Justice, 127 U. S., 700. Cook
V. Hart, 146 U. S., 1S3.
'Lascelles v. Georgia, 148 U. S., 537.
' Kentucky v. Dennison, 24 Howard, 66.
233 Constitutional Law
sufficiency of the charge against him"; and unless the requisi-
tion papers are complete, and show at least a prima facie case
against the accused, he may be released.
Section 2, Clause 3. — No person held to service or labor
in one State, under the laws thereof, escaping into another,
shall, In consequence of any law or regulation therein, be
discharged from such service or labor, but shall be de-
livered up on claim of the party to whom such service or
labor may be due.
Fugitives from Labor. — This clause is mainly of historic
interest to-day. It was doubtless intended to apply both to
slaves and to apprentices; but as the 13th Amendment has
forever abolished slavery, and as the custom of apprenticing
is falling into disuse, the clause is practically a dead letter.
Section 3, Clause 1. — New States may be admitted by the
Congress into this Union; but no new State shall be
formed or erected within the jurisdiction of any other
State; nor any State be formed by the junction of two or
more States, or parts of States, without the consent of the
legislatures of the States concerned as well as of the
Congress.
Western Claims. — At the conclusion of the Eevolutionary
War a vast unorganized territory lay west of the thirteen
States. Some of this land was claimed by the various States ;
the rest was owned by other nations. In 1780 Congress
pressed on those States that had claims to western land the
advisability of giving up their conflicting holdings for the
common good. This they did one by one, until at the time of
the adoption of the Constitution only two States, South Caro-
lina and Georgia," retained their western claims ; all the rest
" Roberts v. Reilly, 116 U. S., 80. Ex parte Reggel, 114 U. S., 642.
"By 1802 Georgia and South Carolina had relinquished their
claims.
Miscellaneous 233
of the land west of the original colonies, not owned by other
nations, had come into the possession of the United States.
Gradually Congress acquired possession of the western conti-
nental territory held by other nations; but before this was com-
pleted the work of dividing western lands into States and
Territories had begun.
Status of New Territory. — Although Section 3, Article 4,
had immediate reference to the western claims of the original
States, the language is broad enough to cover whatever land
the United States might acquire, and by whatever means.
The Constitution does not expressly empower Congress to add
to the national domain by purchase, conquest, treaty, or by
any other mode; but the United States has repeatedly exer-
cised the power as appertaining to national sovereignty.
Normally, land acquired by the government to be added to
the national domain passes through two stages before reach-
ing the dignity of statehood. First, whether it be barbarous
land, or land with a de facto government, it is a dependency,
a mere possession, and ruled entirely by the general govern-
ment; secondly, it becomes a territory with a greater or less
degree of organization, and with a limited self-government.
From this status it may develop into a State with self-govern-
ment and a highly developed political organization."
The fact that a dependency, or Territory, is contiguous to
the established Union does not make its statehood any more
certain, nor the fact that it lies remote, forever keep it from
that desirable status. Whether a Territory shall become a
State rests entirely on the will of Congress.
How States are Admitted. — The mode of admitting new
States into the Union has not been entirely uniform. It is
usually done as follows : When a Territory has sufficient popu-
lation it draws up and sends to Congress a memorial, or peti-
tion, asking for permission to form a State constitution, and
"Texas, the single exception, was admitted a full-fledged State.
234 CoxsTiTUTioxAL Law
to be admitted to the Union. Congress then passes an " en-
abling act," authorizing the inhabitants of the Territory to
form a constitution. When this is done the document is sent
to Congress for approval. If the proceedings have been regu-
lar, and the constitution is free from objections. Congress
passes an act, commonly a joint resolution, admitting the new
State into the Union, " on an equal footing with the original
States in all respects whatsoever." The example of Louisiana
is typical. In 1804 the great region purchased from France,
under the name of Louisiana, was divided by Congress into
the district of Louisiana and the district of Orleans. In 1811
Congress passed an act " to enable the people of Orleans to
form a State constitution and State government." In 1813
an act was passed " for the admission of the State of Louisiana
into the Union, and to extend the laws of the United States
to the said State."
Exceptions. — The power of Congress to make new States
has two limitations. It may not divide a State, or amalgamate
two or more, without the consent of the legislatures of the
States concerned. But such consent may be implied by sub-
sequent acts as well as expressly given."
Section 3, Clause 2. — The Congress shall have power to
dispose of and make all needful rules and regulations
respecting the territory or other property belonging to
the United States; and nothing in this Constitution shall
be so construed as to prejudice any claims of the United
States, or of any particular State.
General Provisions. — Territories are portions of the
national domain having a more or less developed political
organization for purposes of government. The land is owned
by the Federal government; the political rights of the people
depend on the will of Congress. The executive and the judicial
"Virginia v. West Virginia, 11 Wallace, 39.
Miscellaneous 235
officers are appointed by the President and the Senate for
limited terms, and are subject to removal by the President at
any time. The provisions of the Constitution defining the
limits of judicial power have no application to the Territories.
Congress may make the jurisdiction of territorial courts what
it pleases, or abolish them altogether. The legislature of a
Territory is usually elected by the people; but its enactments
are subject to the supervision of Congress, and the latter may
make void any or all of them." Territories levy their own
taxes for local purposes. They may be taxed for national pur-
poses, but only under the same rules and for the same purposes
as are the States.
The territorial condition is generally regarded as temporary
and preparatory. The inhabitants, as soon as they are suffi-
cient in numbers, and local conditions are suitable, may, at
the discretion of Congress, establish State institutions for
themselves. It has not been the policy of the United States to
keep any people, or section of country, in a position of de-
pendence longer than conditions make necessary. At present,
1913, the Territories of the United States consist of Alaska,
Hawaii, Porto Pico, the Philippine Islands, and the small
islands of Cluam and Tutuila. As these differ politically in
some particulars, it may be well to point out what those par-
ticulars are.
Alaska. — Alaska was purchased from Pussia in 1867. It is
not yet a fully organized Territory. Although it has a Gov-
ernor, courts, attorneys, marshals, and commissioners, it has
SS legislature. For many years the laws of Oregon were, so
far as applicable, extended over Alaska; but in 1898 and 1900,
respectively, special criminal and civil codes were enacted by
Congress for its government. Alaska is represented in Con-
gress bv one delegate, who may participate in the discussions
of the House and serve on committees, ])ut who lias no vote.
" Mormon Church v. United States, 136 U. S., 1.
236 Constitutional Law
Hawaii. — The Hawaiian Islands were annexed to the
United States in 1898 by the terms of a joint resolution of
Congress. Previously they had been at various times a king-
dom under native rulers, a United States protectorate, and a
republic. Since 19U0 Hawaii has been an organized Terri-
tory. It has a Governor appointed by the President, a dele-
gate in Congress, elected by the people, and a legislature con-
sisting of a Senate and a House of Representatives. The
judiciary consists of a Supreme Court, a Circuit Court, and
such inferior courts as the legislature may establish. The
judges are appointed by the President and the Senate.
Porto Rico. — This island came into the possession of the
United States in 1898, as a result of the war with Spain.
From then until May 1, 1900, when Congress established a
civil government for the island, it was governed by the Presi-
dent through the War Department. Porto Rico now has a
Governor, appointed by the President and the Senate. The
legislature consists of a council, appointed by the President
and the Senate, and a House of Delegates chosen by the people.
It has Supreme and District Courts, the judges of which are
appointed by the President and the Senate. Instead of hav-
ing a delegate in Congress, Porto Rico maintains a resident
commissioner " near the Congress," who represents the island
in all official matters.
The Philippine Islands. — These islands were ceded to the
United States in 1898, for $20,000,000. For two years there-
after the government was purely military, the Filipinos carry-
ing on the same desultory warfare against the United States
that they had previously waged against Spain. In 1900 the
President appointed a commfssion of five men to establish a
civil government for the islands ; in 1903 the head of this com-
mission was made civil governor of the Philippines, with the
title of Governor-General. In 1907 provision was made for
the election of a native assembly. The commissioners (now
Miscellaneous 237
nine in number) and the assembly together form the legis-
lature. The judiciary consists of a Supreme Court and a
number of lesser courts. The judges are appointed by the
President ajid the Senate. The islands are represented in the
United States by two commissioners.
The condition of both Porto Rico and the Philippines is at
present unsatisfactory. Both are under the absolute control
of Congress; both are regarded as domestic territory; but they
have not yet been incorporated as part of the United States
within the meaning of the revenue laws, or of that clause of the
Constitution requiring " all duties, imposts, and excises to be
uniform throughout the United States." Hence the law pro-
viding for a small tax on goods shipped from the United States
to Porto Pico, and from the latter place to the United States,
was held to be valid." The political status of the inhabitants
of the Philippines has not yet been fully determined.
Guam and Tutuila. — Guam was ceded to the United States
in 1899. Tutuila, a part of the Samoan Islands, came into the
possession of the United States in 1900, through a treaty
entered into by Great Britain, Germany and the United States,
concerning the final disposition of this group. Politically,
both Guam and Tutuila are little more than dependencies.
They are governed by the President through the Navy Depart-
ment, and have no official representative in the United States.
Section 4. — 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 appli-
cation of the legislature, or of the Executive (when the
legislature cannot be convened) against domestic vio-
lence.
Republican Government. — The obvious meaning of the first
part of this clause is that only a republican form of govern-
"Dooley v. United States. 183 U. S., 151. Stat, at Large. 77.
Downes v. Bidwell, 182 U. S., 244.
238 Constitutional Law
ment shall be allowed to exist in the United States. By repub-
lican is meant representative, rather than monarchical, oli-
garchical, or democratic. In a monarchy the government is
hereditary; in an oligarchy it is restricted to a certain class;
in a pure democracy it is vested in the whole people; in a
republic the people are the source of all power, although the
actual business of governing and law making is in the hands of
officers regularly chosen by the people to act for them. The
government is " representative." Such was the character of
the governments in the several States at the time of the adop-
tion of the Constitution, and such is the character of the Fed-
eral government. It is to be presumed therefore that this is the
form of government guaranteed by the Constitution to every
State in the Union. It is not expected, however, that every
State government shall correspond in every detail with the
governments of all or any of the thirteen original States, or
with that of the United States, for there are many shades of
republicanism ; but that every State government in the Union
shall be representative in character. In every case. Congress
is the final judge of the character of the government set up in
any State. In the exercise of this power Congress, at the close
of the Civil War, provided for the reconstruction of republican
governments in the States that had passed ordinances of
secession.
Foreign Invasion and Domestic Violence. — It would plainly
be the duty of the Federal government, without this Constitu-
tional guaranty, to use its great powers to protect any State
against invasion, for injury to one is injury to all; but it is
plainly not its duty to interfere in every domestic disturbance.
Most cases of domestic violence are local in character. They
affect distant States and the Federal governmeut indirectly,
or not at all. They are easily within the power of State or
municipal authorities to settle. For the United States to in-
termeddle on any and every such occasion would tend to pro-
Miscellaneous 239
voko dipsension, since the States are naturally zealous of their
ability to take care of themselves. But on the demand of the
State legislature, or of the Governor (when the legislature
cannot be convened), it is the duty of the United States gov-
ernment to bring its vast strength to the aid of any State
having domestic trouble. And in any case, it is proper and
lawful for the United States to protect Federal property and
the interests of the people at large, whether threatened by
internal or external violence. This was conclusively shown
at the time of the
Chicago Riots. — In 1894 occurred a great strike among rail-
road employees. At Chicago, where the chief disturbances
were, the strikers attempted to prevent trains from operating
in the city. Their acts amounted to such serious interference
with interstate commerce and the passage of United States
mails, that President Cleveland, without the demand of the
Governor of Illinois, and even against his protest, called out
the Federal troops to suppress the disorder. The Supreme
Court sustained the act of the President, thus establishing
the principle stated above."
" In re Debs, 158 U. S., 564.
240 Constitutional Law
AMENDIXG THE CONSTITUTION
Article 5
The Congress, whenever two-thirds of both houses shall
deem it necessary, shall propose Amendments to this Con-
stitution, or, on the application of the legislatures of two-
thirds of the several States, shall call a convention for
proposing amendments, which, in either case, shall be
valid to all intents and purposes as part of this Constitu-
tion, when ratified by the legislatures of three-fourths of
the several States, or by conventions in three-fourths
thereof, as the one or the other mode of ratification may be
proposed by the Congress: provided, tliat no amendment
which may be made prior to the year one thousand eight
hundred and eight shall in any manner affect the first and
fourth clauses in the ninth section of the first article; and
that no State, without its consent, shall be deprived of its
equal suffrage in the Senate.
Methods of Proposing and Ratifying Amendments. — The
5th Article provides two ways of proposing and of ratifying
the Constitution. Since the Constitution was adopted it has
been amended seventeen times, and each time the amendment
was proposed by Congress and ratified by the legislatures of
the States. The other method of obtaining the same end has
been regarded as cumbersome, if not actually dangerous. It is
perhaps well that tlie legislatures of two-thirds of the States
have never yet petitioned Congress to call a convention for
proposing amendments. A large convention called together
for that purpose would be likely to arouse endless excitement,
and to keep business at a standstill awaiting the result of the
deliberations; and the members of the convention, although
assembled to propose one amendment, might in their zeal be
led to propose a great many more. It has been far better for
that deliberative body which is annually in session, namely,
the Congress of the United States, to do such proposing, and
Amending the Constitution 241
for the ratification to be left to those similar deliberative
bodies in the States which are yearly in readiness to act.
The President's Signature Unnecessary. — A proposal by
Congress to amend the Constitution has always taken the form
of a joint resolution. It has been decided that such a resolu-
tion is legal without the President's signature." This is a
point which hardly seems to need judicial interpretation,
since the majority required to propose an amendment, two-
thirds, is precisely the majority required to pass a bill over the
President's veto. Furthermore, a proposal by Congress to
amend the Constitution does not bind the country until ac-
cepted by three-fourths of the States.
State Equality in the Senate. — It is said that the last clause
in Article 5 is the one part of the Constitution not susceptible
to amendment. In other words, no matter how many amend-
ments are proposed to limit the suffrage of any State in the
United States Senate, that State has an absolute veto on every
one of them. The idea that any State should consent freely
to a limitation of its suffrage is not conceivable.
Amendments Prior to 1808. — The provision that no amend-
ment made prior to the year 1808 should affect the 1st and the
4th Clauses of the 9th Section of the 1st Article of the Con-
stitution has no longer any force.
Reason for Allowing Amendments. — The Constitution is
the fundamental law of the land. It is a written document
of fixed and very definite principles. The makers of the in-
strument recognized the fact that their judgment was not
infallible, their foresight but limited. They could not foresee
the vast expansion which the nation was to achieve, and pro-
vide at once for all the possible needs of the people, or for the
exigencies to which they might come. Realizing therefore
that a written constitution to be successful must be made to
conform to changes which progress and development bring,
" Hollingsworth v. Va., 3 Dallas, 378.
16
242 Constitutional Law
they provided ways for amending the instrument which they
had made. But in so doing they had regard for two possible
dangers : 1st, of making amendments so easy that their num-
ber might in time become a burden, if not a jest among other
nations; 2d, of making them so difficult as to be impossible,
or so that revolution might seem in comparison to be the
surer way of effecting the desired change.
Are Further Amendments Possible? — The methods of pro-
posing and of ratifying amendments, as finally agreed to,
seemed at the time of the Convention to be such as to avoid as
much as possible the two extremes just mentioned. When the
nation was young these methods worked well. Within seven-
teen years after the adoption of the Constitution twelve amend-
ments were added. For sixty years thereafter, though many
were proposed in Congress, no m^re were adopted by the States.
Meanwhile, the number of States, and consequently the num-
ber of Congressmen, was increasing, and it was becoming
more and more difficult for two-thirds of both Houses of Con-
gress to agree to propose an amendment, and for three-fourths
of the States to ratify it when proposed. Then during that
time of unrest and political excitement immediately following
the Civil War, three more amendments were proposed and
ratified. It is very possible that these three amendments would
not have been made but for the unsettled condition of politics
at the time. Forty-three years after the 15th Amendment was
added to the Constitution the 16th and 17th were proposed
and ratified, settling forever vexed questions of very long
standing. Thus in one hundred and twenty-four years but
seventeen amendments have been added to the Constitution,
and most of these at wide intervals. More amendments may
possibly be made from time to time ; but the truth of the mat-
ter is that population has so increased, States have become so
many, and business interests are now so amazingly extensive
and intricate that amending the Constitution has come to be a
Validity of Debts, Etc. 243
gigantic task. What was but reasonably difficult one hundred
years ago is now possible only after a very wide demand and a
prolonged agitation.
K^
VALIDITY OF DEBTS, FUNDAMENTAL LAW.
OATH OF OFFICE
Article 6
Section 1, Clause 1. — All debts contracted and engage-
ments entered into, before the adoption of this Constitu-
tion, shall be as valid against the United States under
this Constitution as under the Confederation.
Section 1, Clause 2. — This Constitution, and the laws of
the United States which shall be made in pursuance there-
of, 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, anything in the constitution or laws of
any State to the contrary notwithstanding.
Section 1, Clause 3. — The Senators and Representatives
before mentioned, and the members of the several State
legislatures, and all executive and judicial officers, both
of the United States and of the several States, shall be
bound by oath, or affirmation, to support this Constitution ;
but no religious test shall ever be required as a qualifica-
tion to any office or public trust under the United States.
Pre-existing Debts. — Section 1, Article G, is now only of
historical and ethical interest. At the time of the Conven-
tion, however, the insertion of this clause validating previous
debts and engagements was both just and politic. It was just,
since there is no more reason for a nation to escape self-made
indebtedness than for an individual ; it was politic, for it set
forth to all the world the fact that the United States govern-
ment was honest. The clause, however, established no new
idea. It has long been a settled principle of law that whenever
244 Constitutional Law
a nation changes its form of government, the new government
succeeds not only to all the rights and privileges of the old, but
to all its obligations. Hence the United States government
could hardly have repudiated any honest indebtedness to which
it had fallen heir.
The Supreme Law. — The besetting weakness of the Confed-
eration was that no member of it recognized a " supreme law
of the land." Each State was sufficient unto itself. Section 2,
Article 6 of the Constitution plainly establishes the supe-
riority of the Federal government and states expressly what
the supreme law is. Categorically the meaning of this is as
follows :
1. The Constitution is supreme over every constitution
enacted in the States, and over every law created by Congress
or by any State, and over every Federal treaty.
2. Every Federal law and treaty, made in conformity with
the Constitution, is also supreme over every law enacted by
the States.
3. But every law and treaty of the United States, not in
conformity with the Constitution, is null and void.
4. And every State statute, not in conformity with the
Federal Constitution, laws' or treaties, or with its own constitu-
tion, is also void.
5. Lastly, every judge in every State is bound to observe
these principles.
The last sentence means this : Every judge, whether sitting
in a State or a Federal court, not only may decide a State law
or a United States law to be unconstitutional, but he is bound
to do so if it so appears to him in a regularly instituted case.
But every law and treaty is deemed to be constitutional until
it has- been declared otherwise by a competent court. The
court of last resort for all cases involving the constitutionality
of a law or treaty is, of course, the Supreme Court.
Validity of Debts, Etc. 245
Oath of Office. — A previous clause (Article 2, Section 1,
Clause 7) prescribes the oath of office for the President. Con-
gress, in its first session, 1789, devised the following oath for
all Federal and State officers : " I, A. B., do solemnly swear,
or affirm (as the case may be), that I will support the Con-
stitution of the United States." This simple oath was in use
for many years, but in 1871 it was superseded by the follow-
ing: " I, A. B., do solemnly swear (or affirm) that I will sup-
port and defend the Constitution of the United States against
all enemies, foreign and domestic ; that I will bear true faith
and allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and
that I will well and faithfully discharge the duties of the office
on which I am about to enter. So help me God." "
Test Oath of 1862. — ^foved no doubt by the very tense and
exalted state of public feeling Congress, in 1862, adopted a
very stringent oath of office for all persons elected or appointed
to any position under the government. The act required the
appointee to swear that he had never taken up arms against
the United States, or aided its enemies ; that he had not sought
or held office under, or yielded any support to, any pretended
government hostile to the United States. The act was broad-
ened by amendment in 1865 to include attorneys practicing
in the Federal courts. This oath, commonly known as the
" Ironclad oath," practically excluded all Southerners from
holding office under the government. With the close of the
Rebellion this unpopular restriction began to appear more and
more unnecessary. It was pronounced unconstitutional by the
Supreme Court in 1867, in so far as it related to attorneys
practicing before that court " as being ex post facto and a bill
of attainder. In 1884 it was repealed.
Religious Toleration. — Toleration, especially in religious
matters, is a striking characteristic of American freedom.
"Rev. Stat., 1757.
" Ex parte Garland, 4 Wallace, 334.
246 Constitutional Law
The members of the Convention realized the fact that a man
may be a very good office holder despite a lack of religion.
No general desire has ever been shown to remove the prohibi-
tion contained in the last clause of Section 3 of Article 6, and
to introduce a religious test as a qualification to public office.
Among the States this broad spirit of toleration has not
been universal. In some States no man vt^ho denies the exist-
ence of a Supreme Being can hold public office. For example,
the State of Maryland requires all holders of public offices to
profess the Christian religion, or a belief in a future state of
rewards and punishments.
EATIFICATION OF THE CONSTITUTION"
Akticle 7
The ratification of the conventions of nine States shall
be sufficient for the establishment of this Constitution be-
tween the States so ratifying the same.
Ratification. — The chief thing to note here is that the
establishment of the Constitution depended on a fractional,
rather than unanimous, vote of the thirteen States. Had
unanimous consent been required, it is possible that the Con-
stitution would never have gone into operation. One stubborn
State could have put to naught the tremendous labors of the
Convention. As soon as nine States, however, had signified
their willingness to accept the Constitution, steps were taken
to organize the government and put it in operation. What
would have been the status of any State that had persisted
in refusing to join the Union is to-day an interesting question,
perhaps, but not profitable to discuss here.
Organizing the New Government. — The Constitution was
signed by the members of the Convention September 17, 1787,
and forwarded immediately to the Continental Congress, with
a request that it be transmitted to the several States for their
Eatification of the Constitution 247
ratification. On the 28th of September the Congress voted
unanimously to transmit the Constitution to the State legis-
latures, with the request that they submit it to " conventions of
delegates chosen in each State by the people thereof." This
plan was followed in all the States, and the Constitution was
ratified by the people through their delegates in the following
order: Delaware, Pennsylvania, New Jersey, Georgia, Con-
necticut, Massachusetts, Maryland, South Carolina, Xew
Hampshire, Virginia, New York, North Carolina and Ehode
Island. Hence it became truly a people's Constitution. The
last two States deferred their consent until November 21,
1789, and May 20, 1790, respectively. Meanwhile, as soon as
New Hampshire, the ninth State to take favorable action, had
ratified the Constitution, Congress set to work to put the new
government into operation. This labor devolved naturally on
the Continental Congress, for until a new government should
be actually established by the election of a new Congress and
of a President and a Vice President, that body was still the
source of authority. In September, 1788, provision was made
for the immediate election of two Houses of Congress, and of a
President and a Vice President, and the first Wednesday in
March of the next year was selected as the day on which the
new government should commence operations'. When the first
Wednesday in ^March, 1789, came, which that year was the
fourth day of the month, the Continental Congress ceased to be,
and the first term of Congress under the Constitution officially
began.
CHAPTER VIII
AMENDMENTS TO THE CONSTITUTION
Articles 1-17
AMENDMENTS TO THE CONSTITUTION
In General. — Twenty-one amendments have been proposed
by Congress; seventeen have been accepted and ratified by the
States. Instead of being inserted in various suitable places
in the text of the Constitution, these amendments have been
appended to the instrument in succession, and numbered ac-
cordingly. They have as much legal force as any clause in the
original document.
The first ten amendments, which in substance form a group
by themselves, were proposed by the first Congress, 1T91. They
were proposed at a time when fears were rife that the people
were in danger of oppression by the Federal government They
were intended to be a sort of bulwark for the people against
the possible tyranny of that government. They are in the
nature of a bill of rights, the necessity for which does not now
seem so apparent as it did when they were adopted.
The 11th and 12th Amendments form a second group. The
11th Amendment, adopted in 1798, merely put a restriction on
the Federal judiciary. The 12th Amendment, adopted in
1804, established the present method of electing the Presi-
dent of the United States.
The 13th, 14th and lotli Amendments, adopted shortly
after the Civil War, make a third group. The general purpose
of these acts was to improve the status of the negroes, and to
prevent the oppression of citizens by the States.
The IGth and the 17th Amendments, adopted in 1913, for-
ever settled two great questions. The 16th Amendment gave
Congress the power to tax incomes, a matter that had been in
dispute for a century and more ; the 17th Amendment gave the
252 COiSrsTiTDTiONAL Law
people the right to elect the members of the United States
Senate, a question that had been agitated quite as long.
Article 1
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech or of the press; or the
right of the people peaceably to assemble, and to petition
the government for a redress of grievances.
Religion and the Law. — The student will remember that
Clause 3 of Article 6 states that " no religious test shall ever
be required as a qualification to any office or public trust under
the United States." The 1st Amendment goes beyond that
by forbidding Congress to make any religion the established
religion of the United States, or to prevent the free exercise
of any religion. To the last, however, there is this exception :
namely, that Congress is not to be prevented from legislating
against any religion which, in the common sense of mankind,
is not harmonious with public morals. For example, polygamy
and bigamy are none the less crimes because encouraged by a
religious sect. To call their advocacy a tenet of religion is to
offend the common sense of mankind.*
Acts of Congress providing for chaplains in the two Houses
of the national legislature, and in the army and the navy, are
not to be regarded as establishing a religion. They merely
recognize in a general way the benefits of the Christian
religion. Although criticized by some, they have received the
general approval of the nation.
The restriction in this amendment, it should be noticed,
applies only to Congress. As a matter of fact, however, most,
if not all, the States have similar constitutional guaranties, so
that religious freedom within the United States is perma-
nently assured.
Freedom of Speech and of the Press. — ^The restriction on
Congress to abridge the freedom of speech and of the press
* Davis V. Beason, 133 U. S., 333.
Amexdmexts to the Constitution 253
has been construed with liberality. Liberty is not license, and
it cannot be insisted that even in the United States one may,
with perfect impunity, speak or print what he pleases. What,
in fine, is meant by this popular phrase is that one may speak,
or write, or print anything, provided the result is not injurious
to some one else, or subversive of public morals. Liberty of
speech, like liberty of action, is always subject to reasonable
limitations, for certainly a person has no greater constitutional
riglit to injure another by word than he has by deed.
Libel and Slander. — According to the common law of Great
Britain, one who made false and defamatory statements to the
injury of another was guilty of slander, and one who published
such matter was guilty of libel, and for either he could be
prosecuted. The 1st Amendment to the Constitution alters
these rules in no degree. Any person therefore who suffers
injury through slander or libel may maintain action against
the wrong-doer to recover damages for the injury suffered ;
and if the spoken or printed matter is such as to disturb the
public peace, or to impair pu])lic morals, the author may be
criminally liable. Laws enacted by the United States, or by
the States, tending to prevent such abuse of the constitutional
privilege of free speech are valid, if not to be condemned on
other grounds.
Censorship of the Press. — Tn Great Britain, prior to the
independence of the American colonies, the government exer-
cised supervision over the press, charging officials to allow
nothing to be published that was likely to injure either the
government or the people, and to suppress all publications of
such a character that were in print. In some European
countries such oversight of the press is still carried on to some
extent. In America official censorship is impossible. The 1st
Amendment to the Constitution is intended rather to deny
this power to the Federal government than to relieve from
liability any person guilty of the abuse of the great privilege
of free speech.
25J: Constitutional Law
Privileged Matter. — The general rule regarding defamatory
matter has some exceptions. The saying that circumstances
alter cases is often true in respect to libel and slander. Thus,
words that in their nature are slanderous, and matter that is
per se libelous, may nevertheless be spoken or printed without
the incurrence of liability, if circumstances justify them.
Among such cases of privilege are the following :
1. Matter that is true.
2. Matter contained in the records of judicial cases.
3. Speeches and publications of legislators made in the
course of official business.*
Eight to Assemble and Petition. — The right of the people
to assemble and petition for redress of grievances, guaranteed
by the 1st Amendment, is highly prized. Perhaps such a
guaranty in a republican constitution may seem superfluous,
but the insertion of it makes assurance doubly sure. The
priviles^e has been much used : statutes have been enacted, and
even the Constitution has been amended, as results of per-
sistent popular demand. But the right of assembly is regu-
lated by law, and any gathering that becomes riotous may be
dispersed. The prohibition herein binds Congress only; but
since to petition Congress for redress of grievances is a privi-
lege of the United States' citizenship, it cannot be abridged
by any State.'
Article 2
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.
Right to Bear Arms. — The purpose of this amendment evi-
dently is twofold : first, to check the government from arbi-
trarily disarming the people and reducing them to the con-
'^ Constitution, 1, 5, 3; 1, 6, 1.
»U. S. V. Cruikshank, 92 U. S., 542.
Amendments to the Constitution 255 *
dition of serfs; sccondl}', to allow men so to familiarize
themselves with weapons as to keep tlie nation ever ready for
emergencies. This amendment is not necessary to give the
States the right to maintain militia, for that right is recog-
nized elsewhere in the Constitution.* iSTeither does it restrain
the States or Congress from regulating the matter of bearing
arms, or preventing the needless parade of the same, or their
careless use to the peril of the public. Hence, statutes for-
bidding private citizens to carry concealed weapons are con-
stitutional.*
Article 3
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.
Quartering of Troops. — The 3d Amendment is a recognition
of the common law principle that every man's house is his
castle, which he may defend against the entrance of any person
except the authorized officers of the law. The -ith Amendment
recognizes the same principle. The quartering of troops in the
houses of private citizens might become an almost unbearable
species of tyranny. Such tyranny was fresh in the minds of
the members of the first Congress, being one of the many
acts of the British sovereign denounced in the Declaration of
Independence." Under this amendment the quartering of
troops is impossible in times of peace, and impossible in times
of war, except in ways prescribed beforehand by law ; that is,
by the people themselves. The amendment, however, could
hardly be stretched to protect the enemies of the country in
time of war.
♦Constitution, 1, 8, 16.
" Andrews v. State, 8 Am. Rep. 8. State v. Shelby, 90 Mo., 302.
Presser v. 111.. 116 U. S.. 252.
•Dec. of Ind., Par. 13-17.
256 Constitutional Law
Article 4
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 particularly describing the place to be
searched, and the persons or things to be seized.
Warrants. — A warrant, within the meaning of this amend-
ment, is a document issued by a justice or other competent
authority, authorizing the arrest of some person named
therein, or the examination of a house or other place particu-
larly described for stolen or other goods alleged to be concealed
therein. The first is a warrant for arrest; the latter, a search
warrant. They are alike hedged about with peculiar, stringent
rules. They must particularly describe the person to be
arrested, or the place to be searched. A warrant calling for
the arrest of John Brown would be invalid for the arrest of
James Brown ; or one authorizing the search of a certain house
on B street would be invalid for the search of a similar house
on any other street. Again, a warrant calling for the seizure
of liquors would not authorize the confiscation of counterfeit
dies found in the same place. Furthermore, a warrant requir-
ing the search of house A, and the seizure of anything illegal
found therein, would be void for generality. The Constitu-
tion requires that warrants shall be issued only upon probable
cause — that is, on the complaint of some party who has reason-
able grounds to suspect that an offense has been committed;
and that the comi)laint shall be supported by oath or affirma-
tion. These requirements, which are as old as the common
law, tend to secure the people against willful interference by
the State.
General Warrants. — A general warrant names or describes
no person to be arrested, or place to be searched, or goods to
be seized, but allows the officer to whom it is directed full
Amendments to the Constitution 257
discretion. They are such convenient instruments for op-
pression and annoyance that they have never been in use in
the United States, The 4th Amendment forl)ids them by
implication. They had been in use in England prior to the
American Revolution, and were not unknown in the colonies.
The writs of assistance, issued in Massachusetts in 1761, were
general warrants.
Searches and Arrests Without Warrants. — Without a
warrant, search of a house may be made for the purpose of
arresting a person known to be concealed within it charged
with treason, felony, or breach of the peace; or for the pur-
pose of evicting an unlawful occupant; or perhaps to enforce
sanitary or police regulations. Furthermore, one person may
without a warrant arrest another whom he sees committing,
or attempting to commit, a felony or breach of the peace ; and
a peace officer may arrest without warrant at any time on
reasonable grounds for suspicion, or when municipal laws are
violated in his presence. All these are exceptions to the con-
stitutional guaranty of private liberty, but are justified on the
ground of necessity. The privacy of the dwelling should not
unduly hinder the proper execution of the law, and the house
should not become a sanctuary for crime; nor should the
Constitution become a technicality to hinder swift justice in
serious cases. But the burden of proof that the search or the
arrest without a warrant was made under such justifiable cir-
cumstances is always on the person who conducted the search
or made the arrest.
Article 5
No person shall be held to answer for a capital or other-
wise infamous crime, unless on a presentment or indict-
ment of a grand jury, except in cases arising in the land
or naval forces, or in the militia when In actual service
in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy
17
258 Constitutional Law
of life or limb; nor shall be compelled in any criminal
case to be a witness against himself; nor be deprived of
life, liberty, or property, without due process of law;
nor shall private property be taken for public use without
just compensation.
Crimes. — A capital crime is punishable by death where such
punishment is allowed ; an infamous crime subjects the guilty
person to infamous punishment. The courts have held that
infamous punishment is confinement in prison or penitentiary.^
Presentments and Indictments. — The distinction between
these two methods of bringing a person to trial is of no great
value. Properly, a presentment is the charge, or finding, of a
grand jury, based on their own knowledge or observation, and
laid before the court for further action; an indictment is a
document drawn up by the prosecuting officer of the court —
in the United States courts, the District Attorney — charging
some person, or persons, with offenses, and laid before the
grand jury for their investigation. An indictment is the
formal statement of an offense, prepared by the duly author-
ized officer of the State ; a presentment is only formal notice
to the court that an offense has been committed. If well
founded, a presentment leads to an indictment, for it is the
duty of the court, on receiving such formal notice, to cause
the prosecuting officer to frame a proper indictment and sub-
mit it to the grand jury. Hence, the effect of each is the same.
It is rare, however, that Federal grand juries make present-
ments. The criminal business of the Federal government is
small, and it is usually brought before the courts by indictment
only.
The Grand Jury. — The jury mentioned elsewhere in the
Constitution is the well-known petit, or trial jury, composed
of twelve men. The grand jury is very different in both
number and purpose. It is generally larger than the petit
^Ex parte Wilson, 114 U. S., 417.
Amendments to tiie Constitution 259
jury; it does not try offenses, but investigates charges; and its
determinations do not depend on unanimity, or settle one's
guilt or innocence.
At common law the grand jury consisted of from twelve to
twenty-three men. In the various States the number to-day
is a matter of local regulation. In many the common law rule
is followed, but in others it has been changed. The tendency
is to reduce the number. In the Federal courts, however, the
number is regulated by statutes, which declare that the grand
jury shall consist of at least sixteen and not more than twenty-
three, of whom twelve must concur to find an indictment.
Members of the grand jury are summoned at intervals by
the sheriff in the State courts, by the marshal in the Federal
courts, from among the male inhabitants of the vicinity. The
purpose of these men, as has been intimated, is to investigate,
cither on their own initiative or at the instance of the prose-
cuting officer of the court, all offenses within the jurisdiction
of the court. Although they may make charges on their own
volition, they rarely do so, but confine their attention to
matters brought to their notice by formal indictment. Their
sessions are usually in secret, and they have authority like a
court to summon and examine witnesses. If on investigation
of a charge they find sufficient evidence to warrant a public
prosecution they return the indictment endorsed " A true
bill." If they do not find sufficient evidence, they endorse the
indictment " Not found," and proceedings against the accused
are quashed. The finding of a true bill by the grand jury
does not mean that the accused is guilty of the offense charged ;
that is a question to be settled later by the trial jury. Thus
both juries are bulwarks of the people's liberties. Before a
person can be made to suffer judicial punishment for a serious
illegal act, he must first be charged with the offense by the
grand jury or by the proper officer; the charge must then be
investigated by the grand jury, after which he must be tried
260 Constitutional Law
before the petit jury, all of whom must concur before pro-
nouncing him guilty.
Exceptions. — Cases excepted from the operation of this
amendment are those arising in the land or naval forces, or
in the militia while in actual service of the United States.
Congress, as we have seen, may provide for calling forth the
militia to suppress insurrections or repel invasions. When
thus called forth, the militia of the States cease to be State
troops; they belong to the military arm of the government,
and as such are subject to military regulations. In order to
enforce discipline, offenses in the army, navy, and the militia
while in service, are triable before martial courts, the pro-
ceedings of which have already been explained.
Second Trial. — The clause, "nor shall any person.... be
twice put in jeopardy of life or limb," is an old expression
belonging to the common law. It means simply that no one
shall be tried twice for the same offense. It includes mis-
demeanors as well as capital offenses.' The provision binds
only the United States,' but the majority of the States, if not
all, have adopted the same rule. Immunity from second trial
exists, however, only when there has been actual jeopardy, and
when the offenses are identical. That is, when by the verdict
of a jury duly impanelled before a court having jurisdiction,
a person has been acquitted of an accusation, he cannot again
be put to trial on the same charge. Conviction is likewise a
bar to further action except on the petition of the prisoner
himself. Offenses are said to be the same when evidence to
support one indictment will equally sustain the other. In
case of a mistrial this clause has no application. Thus if the
jury disagree,"* or are discharged before reaching a verdict,"
•Bishop's Criminal Law, 1, 990; Ex parte Lange, 18 Wall., 163.
"Fox V. Ohio, 5 Howard, 410. Maxwell v. Dow, 176 U. S., 581.
"U. S. V. Perez, 9 Wheaton, 579.
"Bishop's Criminal Law, 1, 1033. Dreyer v. 111., 178 U. S., 71.
Amendments to ttie CoxnTiTFTiON 261
or judgment is arrested after a verdict, there is no jeopardy for
which the accused can claim immunity from a second arraign-
ment.
Self-incrimination. — The 5th Amendment restates another
principle of the common law in declaring that no person shall
be compelled in any criminal case to be a witness against him-
self. Herein the common law, as administered in England
and in the United States, is far more favorable to the accused
than the civil law, as administered in certain other countries.
Under the civil law an accused may not only be forced to
testify in respect to the point at issue, but to disclose his
previous history, whether it is relative to the case or not ; and
in times past torture was not uncommon as a means of wring-
ing from him a confession of guilt. The freedom from self-
incrimination, guaranteed by the 5th Amendment, applies not
only to accused persons, but also to all who give testimony in
criminal cases: no one can be compelled to answer questions
rendering him liable to a subsequent prosecution. It is gen-
erally held, however, that a prisoner, although he cannot be
forced to give testimony against himself, may take the witness
stand on his own volition, in which case he may be cross-
examined like other ^vitnesses on his voluntary evidence.
The rule against self-incrimination does not apply to civil
cases, and it is questionable if in criminal cases it is best for
all concerned. It is supported by reverence for the past, and
it is quite in keeping with the principle that the entire burden
of proving a criminal charge is on the accuser; but it closes
at once the most direct path of inquiry leading to the truth.
Due Process of Law. — This phrase is not self-explanatory.
Not every thing done in the name of law is due process; not
every proceeding engineered by legislators is law in the ac-
cepted sense. That is due process of law which is in accord-
ance with the general law of the land. In judicial proceedings
due process demands a hearing before condemnation, a judg-
263 Constitutional Law
ment before dispossession or punishment; in legislative
matters it allows only such exertion of the powers of govern-
ment as the settled maxims of the law permit. A judicial
decree therefore after proper investigation, however onerous
it may be, is due process, but lynch law is not; taxation and
the exercise of the right of eminent domain, which divest
persons of property somewhat against their wills, and draft
acts, which arbitrarily restrain men of their liberty, are due
process, because they are all in accordance with established
principles of law; but bills of attainder, acts of confiscation,
legislative judgments and forfeitures, although made in the
likeness of law, are not due process within the meaning of the
5th Amendment. The individual, no matter how insignifi-
cant, is thus secured against the arbitrary exercise of power;
the maxim that might makes right loses its significance."^
Eminent Domain. — The right to take private property for
public use, commonly called the right of eminent domain, has
been an attribute to sovereignty since time immemorial. It
is an arbitrary exercise of governmental power, but sanctioned
by necessity, and softened by compensation. Although the
government may take private property, it may do so only for
public purposes and after reasonable payment.
Exercised by Whom. — 1st, The Federal government may,
for national purposes, exercise this power anywhere within the
geographical limits of the United States." 2d, Every State
may exercise the power for State purposes anywhere within
its boundaries. 3d, Every State may delegate the right to
municipal corporations," or to private persons or corporations
"For a fuller discussion of this phrase see the argument of
Daniel Webster in the case of Dartmouth College v. Woodward,
4 Wheaton, 519; Webster's Works, 5, 487.
"Cherokee Nation v. Kans. R. R., 135 U. S., 641. Kohl v.
United States, 91 U. S., 367.
" Dallas V. Hallock, 44 Oregon, 246.
Amendments to ttte Constitution 2G3
engaged in public business.'" Accordingly, railroad and canal
companies are allowed to exercise the power, since their busi-
ness is public.
Public Use. — What constitutes public use is a question to be
decided by the merits of every case. It is sufficient if the use
to which the property is put is generally advantageous to the
community, but there is no rule as to the degree of the ad-
vantage to be thus gained. Among the uses that have been
declared public sufficiently to support this arbitrary right are
the following: highways, canals, bridges, railroads, wharves,
waterworks, parks, school houses, and telegraph and telephone
lines.
Property. — Almost any kind of property, real and personal,
tangible and intangible (such as franchises), may be taken,"
unless already put to a public use. Money cannot be seized,
for the payment must be in money."
Proceedings.— The Constitution does not prescribe how the
right of eminent domain shall be exercised ; that is left en-
tirely to the discretion of the legislature which exercises or
delegates the power. In general, offers to purchase are made
first. If these are not accepted, notice that condemnation
proceedings are about to begin is then sent to the owner—
although this is not compulsory. Appraisers then view the
property to estimate its fair value, and on their report, what
is judged to be a fair compensation is given to the owner, and
the property is ready to be put to the desired use. The pro-
ceedings thus result in a sort of forced sale of property for the
benefit of the public at large.
"Young r. Buckingham, 5 Ohio, 485.
"West River nridge Co. v. Dix, 6 Howard, 507.
" Burdett v. Sacramento, 12 Cal., 76. Cary Library v. Bliss, 151
Mass., 364.
264 Constitutional Law
Article G
In all criminal prosecutions, tlie accused sliall 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 sliall have been previously as-
certained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for ob-
taining witnesses in his favor, and to have the assistance
of counsel for his defense.
Privileges of Accused Persons. — The Constitutional guaran-
ties to persons accused of crime are many. Summed up in
one paragraph, including those in the present amendment and
in other clauses in the Constitution, they are as follows : The
trial of all crimes, except in cases of impeachment, shall be by
jury, and shall be held in the State where the crime was com-
mitted, or where Congress may provide; the jury shall be
chosen from the district in which the crime shall have been
committed; before trial, the accused shall be presented, or
indicted, by a grand jury, except in military circles, and shall
be informed of the charge against him ; the trial shall be speedy
and public; the accused shall be confronted with the witnesses
against him, shall have compulsory process for obtaining
witnesses in his favor, and shall be allowed counsel for his
defense ; after one acquittal or conviction, the accused cannot
be tried again for the same offense ; he cannot be forced to
testify against himself, or be deprived of life or liberty without
due process of law ; and lastly, excessive bail shall not be re-
quired of him, cruel and unusual punishments shall not be
imposed on him, and excessive fines shall not be demanded.
By these provisions the Constitution safeguards the citizen
against many things: against secret and inquisitorial trials;
against long delays; against confinement without cause, accu-
sation without defense, judgment without proof, and punish-
ment that is inhuman. To realize how much less stringent the
Amexdments to the Con'stitutiox 2G5
criminal law and procedure of to-day is than was that of long
ago, one has but to read histor)\ Time was when men lan-
guished in prison on trumped up charges for indefinite periods;
when brought to trial they had not the assistance of witnesses
or of counsel, and upon conviction they suffered punishment to
the extreme of barbarity. To-day, at least in those countries
where the English common law prevails, it is the aim of
criminal jurisprudence to give accused persons every possible
chance of defense. Not only is the burden of proving every
criminal charge on the State, but the State enables the accused
to obtain witnesses, and even provides him with counsel, if he
is unable to obtain such assistance himself.
These constitutional guaranties have force only in connec-
tion with Federal offenses. States are not bound by them,
except where so commanded by the 14th Amendment; but
most, if not all, of the States have similar provisions in their
own constitutions. Furthermore, some of these are not to be
taken in the narrow, literal sense. For example, the Constitu-
tion provides for a " speedy and public trial." But only such
• speed and publicity can be given as is consistent with the
nature of the crime. It is often necessary to postpone a
trial, much against the wishes of the accused, on account of
the press of other business before the court, or to allow time in
which to investigate fully the circumstances of the case ; and al-
though criminal trials are usually open to the public, it is some-
times necessary to exclude certain persons from the court, either
because they have no connection with the case, or for fear of
their being morally corrupted by the facts brought out. Again,
the Constitution provides that the accused shall be confronted
by witnesses against him, in order that he may hear their testi-
mony and cross-examine them : but in homicide cases the dying
declarations of the person killed are allowed as evidence, and
the sworn testimony given in a former trial by witnesses long
since dead is admitted in a second trial ; and these do not
266 Constitutional Law
admit of cross-examination. Finally, although these con-
stitutional provisions are worded imperatively, there is no
doubt that the accused may waive most of them, if he so desires
and the court consents.
Article 7
In suits at common law where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury shall
be otherwise re-examined in any court of the United
States, than according to the rules of the common law.
The General Purpose. — The general purpose of this amend-
ment was to preserve the jury for all issues of fact, where
the value in controversy should exceed a certain amount; and,
furthermore, to prohibit a review by a court without a jury
of the conclusion of fact reached by a jury in the first instance.
In other words, if a cause is tried before a jury in the first
place, the issue of that cause, if re-examined at all, must be
re-examined before a jury. The common law recognized two
methods of bringing about the review of a case: 1st, by the
grant of a new trial before the court in which the action was
first tried; 2d, by a writ of error to a higher court. When,
however, a case is carried to a higher court on a writ of error,
the court reviews nothing but the rulings in law of the lower
court, not the facts. In case the review court finds error in the
proceedings of the other, it usually remands the cause back to
it for retrial. Most of the cases removed to the Supreme Court
are carried there on writs of error. Appeal is a process of civil
law origin, not known to the common law. An appealed case
is reviewed by a superior court both as to law and fact.
Waiver of Trial. — The phrase, " right of trial by jury shall
be preserved," is not imperative. In any civil suit, the right to
trial by a jury may be waived by the party entitled to it, and it
frequently is.
Amendments to the Constitution 207
The Common Law. — What is the common law? It is that
system of jurisprudence which has prevailed in England since
time immemorial and has been adopted in the United States
to a greater or less extent — a system which rests for its
authority, not on the will of legislatures, but on the universal
consent and long-continued practice of the people. It is some-
times called the lex non scripta, and customary law, because
its prmciples were not created offhand and expressed in written
form like statute law, but developed by slow degrees out of
custom and tradition. A custom long in use among a people
may come in time to have the binding force of law ; it becomes
an established legal principle when sanctioned by judicial
decisions. Such, in brief, was the origin of the common law.
There is no distinct body of American common law. Juris-
prudence in the United States is based on the English common
law as it existed in the colonies at the time of their severance
from the mother country. 'Many of the most valued principles
of the common law were embodied in the Constitution of the
United States, particularly in the first ten amendments, and
in the constitutions of the several States ; and in many States
the common law is by their constitutions declared to be the law
until repealed or superseded by statute. That is, where there
is no express statute that can be applied to settle a controversy,
it is settled if possible according to the principles of the Eng-
lish common law, as adopted in the State where the contro-
versy arose. To illustrate : in the absence of a statute to the
contrary, a married woman would, on the death of her hus-
band, be entitled to a life estate in one-third of the real
property of her husband, providing she had had a child by him
ca])able of inheriting the property. This dower right of a
married woman is one of the oldest principles of the common
law.
The Common Law Modified. — '^^any common law principles
were severe as suited to harsh times. For example, the legal
268 Constitutional Law
existence of a woman was, by marriage, merged in that of the
husband. She and all her property were his. But this hard
feature of the law has since been so modified, both in England
and in the United States, that a married woman has many
rights to-day that were utterly unknown to the old law. Simi-
larly, although some of the rules of the common law still
remain unchanged, most of them have been greatly modified,
and some altogether blotted out, by statutes.
Common Law Crimes. — Since there is no common law of the
United States, no act can be declared an offense against the
Federal government which has not been previously so declared
by statute." In other words, there are no common law crimes
of which Federal courts can take cognizance.
The Civil Law. — The phrase common law is often used in
contradistinction to civil law. Briefly, the latter is the system
of jurisprudence used as the basis of law and judicial pro-
cedure in all the continental countries of Europe, and in all
the western world except the United States. It is a written
code, many principles of which may be traced back to the
Institutes of Justinian, or the Roman law. It differs mate-
rially from the common law in many of its rules and methods
of procedure, and in its origin, having been compiled by law
writers, not founded on custom. It is the fundamental law of
one State in the Union — Louisiana.
" Suits at Common Law." — This phrase has been interpreted
to mean : " suits in which legal rights were to be ascertained
and adjusted, as distinguished from purely equitable rights
and remedies; suits which the common law recognized as
among its old and settled proceedings."" Actions for debt,
for bailment, for trespass, and for slander are examples of
well-known suits at common law.
"U. S. V. Hudson, 7 Cranch, 32. U. S. v. Brltton, 108 U. S., 199.
*• Parsons v. Bedford, 3 Peters, 433, 447.
Amendments to the Constitution 269
Article 8
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Bail. — Bail, as used here, is the security offered or demanded
for the temporary release of persons under arrest. It is in
accordance with modern progress to inflict as little incon-
venience on accused persons as possible, until they have been
tried and found guilty. Hence, it is the rule, rather than the
exception, to allow such persons their liberty during the time
between arrest and trial, provided some other responsible
person or persons will become surety for their appearance at
the trial. The person, so delivered or bailed, is thereafter in
the custody of his' sureties, and may, at any time or place, be
arrested by them personally, or on their warrant, and sur-
rendered to the court in discharge of their liability. If the
bailee appears in court at the time specified, the sureties are
discharged; if he fails to appear, the bond of the sureties is
forfeited, and may be collected like any property due to the
State. The provision that " excessive bail shall not be re-
quired" prevents the courts from placing the amount of the
bond so high as to be prohibitive, or out of proportion to the
crime. Whether in any case bail is excessive depends on the
circumstances. For very serious cases, like murder, it may be
reasonable to make the amount very great, or to refuse it alto-
gether; but for slight offenses a moderate sum should be
sufficient. The same principles apply, of course, to the im-
posing of fines.
Cruelties. — The prohibition respecting cruel and unusual
punishments was intended to soften the rigors of the common
law, which allowed such punishments as drawing and quarter-
ing, burning, branding, and mutilating. Death by hanging
or by electricity, life imprisonment, disfranchisement, for-
feiting of civil rights — these, although severe, are not regarded
as cruel and unusual ; nor is whipping, which in some States
270 Constitutional Law
is legalized and regarded as salutary. In all cases, it is for
the legislature to determine the punishment for offenses, and
only in extraordinary cases would its judgment be questioned.
Article 9
The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others retained
by the people.
The first eight amendments to the Constitution simply
record certain popular common law rights. The fact that such
a specific statement is made might lead some to infer that
other rights were not to be recognized. To check any such
inference the 9th Amendment explicitly declares that this
enumeration of rights shall not mean a denial of other rights
naturally incident to the people. In other words, the Federal
government may not, on the strength of this incomplete enu-
meration, deny the people liberties not herein mentioned. The
very language of the amendment shows the utter impossibility
of making any complete enumeration of rights.
Article 10
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.
The moaning of this is clear. The Constitution has given
to the general government certain large powers: the power to
tax, to declare war, to regulate commerce, etc. Furthermore,
the Constitution prohibits to the States the exercise of certain
pnumerntod powers: to coin money, to emit bills of credit, to
lay export duties, etc. All other powers, the 10th Amend-
ment declares, are reserved to the States' in their corporate
capacity, or to the people, which amounts to the same thing.
In effect, the amendment is a recognition of the fact that the
people are the source of power in the United States. The
AjIEXDilENTS TO THE CONSTITUTION 271
people have organized a double government, that of the United
States, and that of the States. Whatever powers of govern-
ment the people have not delegated by their Constitution to
the United States, or prohibited to the several States, they have
reserved to themselves, as segregated in their respective States.
Thus the people of the States may not coin money, for that
is forbidden to the States by the Constitution; but they may
establish private banks for the circulation and deposit of
money, for that is not forbidden. Again, the people of the
States may not make regulations of commerce affecting other
States or foreign nations, for the Constitution delegates that
power to the United States ; but they may regulate commerce
within their own borders to any reasonable extent, for the
Constitution neither delegates that power to Congress, nor
forbids it to the States. It is such a right as is " reserved to
the States respectively, or to the people."
Article 11
The judicial power of the United States shall not be
construed to extend to any suit in law or equity com-
menced or prosecuted against one of the United States by
citizens of another State, or by citizens or subjects of any
foreign State.
Suits against States. — Tliis amendment became a part of
the fundamental law in 1798. A few years previous the
Supreme Court, in the case of Chisholm v. Georgia,"* had
decided that, according to the Constitution and the Judiciary
Act of 1789, a State of the Union could be sued in a Federal
court by citizens of another State, or by citizens or subjects of
foreign nations. The decision caused much apprehension.
Theoretically, sovereignty cannot be sued, because sovereignty
is above the law; hence, to say that States could be made un-
*>£ Dallas, 419,
272 Constitutional Law
willing defendants to suits at law by private citizens, was, in
the opinion of many, an entering wedge in the principle of
State rights. The 11th Amendment was therefore proposed
and ratified shortly after to correct this situation. By it the
dignity of the States was no doubt bolstered up, but in the
minds of many people, the power of the national judiciary to
work substantial justice to the citizens was in many cases
weakened. The law regarding the suability of States is now
settled as follows :
1. The United States cannot be sued at all except with its
own consent, but that consent has been given by the establish-
ment of the Court of Claims.
2. A State cannot be sued by any private citizen without its
consent**; and suits against a State's executive officers are
suits against the State." Most of the States, however, have
made provision for the maintenance of suits against them by
citizens in their own courts.
3. A State may be sued without its consent by the United
States, by another State, and probably by a foreign govern-
ment.
The restriction in the 11th Amendment applies only to
original suits. It does not preclude a review of the decisions
of other tribunals in the Supreme Court, although the review
may cause a State to become defendant."
Article 12
This has been already discussed in connection with Article
2, Section 1, Clause 3. See ante, page 171.
Article 13
Section 1, Clause 1. — Neither slavery nor involuntary
servitude, except as a punishment for crime, whereof the
** Hans V. La., 134 U. S., 1. R. R. Co. v. Tenn., 101 U. S., 337.
»*N. C. V. Temple, 134 U. S., 22.
*» Cohens v. Virginia, 6 Wheaton, 264.
Amendments to the Constitution 273
party shall have been duly convicted, shall exist within
the United States, or any place subject to their juris-
diction.
Section 1, Clause 2. — Congress shall have power to en-
force this article by appropriate legislation.
Slavery. — Tn the 13th Amendment is tlie only occurrence
of the word slavery in the Constitution. Undoubted reference
to the system of slavery is made in three places in the instru-
ment," but each time by a euphemism. The 13th Amendment
put an end forever to a social system that for nearly a century
had caused more trouble within the United States than almost
anything else. It had stirred up political bitterness and sec-
tional strife, which culminated in the costliest war in history.
Congress, from time to time, had legislated around and about
it; but not until the Eebellion had given the system its mortal
hurt, and the Chief Executive had proclaimed officially against
it, were the people sufficiently united to end it. It is impossible
in this book to go extensively into the history of slavery and
the slave trade, but the following brief summary presents the
most important steps taken by the government in the matter.
1. In 1787 the Continental Congress, in the Ordinance for
the Government of the Northwest Territory, forbade slavery
in that Territory.
2. In 1794 Congress prohibited the slave trade with foreign
nations.
3. In 1808 Congress made the importation of slaves un-
lawful.
4. In 1820 Congress declared the slave trade to be piracy.
5. In 1862 Congress abolished slavery in the District of
Columbia and in the Territories.
(). In 1863 President Lincoln issued the Emancipation
Proclamation.
"Constitution, 1, 2, 3; 1. 9, 1; 4, 2, 3.
18
274 Constitutional Law
7. In 1865 Congress passed, and the required number of the
States ratified, the 13th Amendment.
Involuntary Servitude. — It is probable that the 13th Amend-
ment was aimed chiefly at negro slavery, but the phrase " in-
voluntary servitude " is broad enough to include any system
of compulsory service, even though limited to a term of years,
such as the padrone system common in Italy, or the peonage
system in Mexico. Laws that allow convicts to be employed
at involuntary labor in penitentiaries are not unconstitutional,
for such labor is part of " a punishment for crime, whereof
the party shall have been duly convicted." But the constitu-
tionality of State statutes' that allow convicts to be let out on
contract to the highest bidders is certainly open to question.
Power to Enforce. — Prohibitory statutes are self -executing.
The present amendment therefore hardly needs the power to
enforce it given in the 2d Clause of this act. Furthermore,
under the theory of implied powers, a theory established
years before this amendment, Congress would certainly have
power to legislate in this matter.
Article 14
Section 1, Clause 1. — All persons born or naturalized in
the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citi-
zens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due
process of law, nor deny to any person within its juris-
diction the equal protection of tlae laws.
Citizens. — The 13th Amendment freed the slaves; the 14th
made them citizens. It did more: it defined citizenship, stat-
ing clearly and briefly the two qualifications. All persons horn
or naturalized in the United States, and subject to the juris-
diction thereof, are citizens. The phrase " all persons " in-
Amendments to the Constitution 275
eludes men, women, and ehildren, black or white, and of every
degree. A child is a citizen as truly as a man, but without as
many political privileges. He is entitled to protection, and
we may say that he owes allegiance, but he has not the political
privilege of voting. Suffrage, or the right to vote, is purely
a privilege ; citizenship is a state of being — a matter of acci-
dent. A child born of American parents in the United States
is at once a citizen, whether he or his parents wish it or not.
But he cannot possess suffrage until he reaches a certain age,
and the State where he resides gives it to him. But not all
children born within the United States are, ipso facto, citizens.
They are not, unless they are subject to the jurisdiction of the
United States. In brief, birth and jurisdiction must com-
bine to produce a citizen. Perhaps ninety-nine per cent of
the children born in the United States are at once citizens.
The small per cent that are not include the following :
1. Indians whose parents are not wholly subject to the juris-
diction of the United States by reason of being members of
Indian tribes. These, however, may become citizens by natu-
ralization."
2. Chinese. (See citizens by naturalization, below.)
3. Children of foreign ambassadors, and other public
ministers, temporarily residing in the United States.
4. Children of aliens having temporary residence in the
United States. In this case a right of choice is recognized. If
the child remains in the country until he reaches his majority,
he may claim citizenship by birth.
Citizens by Naturalization. — The mode of naturalizing
citizens has been already explained (see page 96). Any alien,
white or black, may become a citizen of the United States by
this process, unless prevented from entering the countrv' on
the ground of pauperism, or dipea,<?e. or criminality. Although
Chinese cannot be naturalized, the children of Chinese parents
*Elk V. Williams, 112 U. S., 94.
276 Constitutional Law
who reside in the country and were citizens before the exclu-
sion acts were passed, or who have a permanent residence in
the United States, are citizens "
United States Citizenship. — It was maintained by many
statesmen during the half century and more preceding the
Civil War that the people of the United States were citizens
of States only, or that national citizenship resulted entirely
from State citizenship. The 14th Amendment asserts the
opposite. It plainly suggests a twofold citizenship, a double
allegiance. " Citizens of the United States and of the States
wherein they reside^'; this is the language, and if it means
anything it is that an American, whether such by birth or by
naturalization, is first a citizen of the United States, and
second a citizen of that State wherein he maintains his resi-
dence. It is impossible to be a citizen of a State and not of the
United States; but it is not impossible for a citizen of the
United States to have no State citizenship. The latter is
largely a matter of residence. Many members of the army and
the navy have no residence in any State. They are citizens of
no State ; but they are citizens of the United States. Inhabi-
tants of the Territories, if citizens at all, are citizens of the
United States, but of no State. To the United States they owe
allegiance, and from the general government alone may de-
mand protection.
Privileges and Immunities. — The provision in the 14th
Amendment, that no State shall abridge the privileges and
immunities of citizens of the United States, affirms expressly
what before was a matter of implication merely. Since the
government of the United States is superior to that of the
States, it necessarily follows that privileges and immunities
granted by the United States are beyond the reach of State
legislation ; and any unreasonable abridgment of them by any
*" In re Look Tin Sing, 21 Fed. Rep., 905. U. S. v. Wong Kim
Ark, 169 U. S., 649.
AMENDME>rTS TO THE CONSTITUTION 277
State is at once illegal. The immediate reason for stating
this and the other restrictions on the States in this amend-
ment was to insure equality of protection to the negroes in
the several States. But so important are the provisions, and
so broad their application, that a formal statement of them
is almost essential.
What are these privileges and immunities? The privileges
are such as naturally go with Federal, rather than State,
citizenship. A State may not even restrict its own citizens in
respect to privileges conferred by the United States. Among
such privileges are the right to use the postal service, to par-
ticipate in foreign or interstate commerce, to use the navigable
waters of the United States, to pass unhampered from State
to State, and many others. The privileges of course suggest
the immunities. The case of Crandall v. Nevada, 6 Wall., 35
(1867), is somewhat illustrative of these principles.
The State of Xevada passed a law to compel the owners of all
railroad and stage coach lines to pay a tax of one dollar per
head on all passengers transported out of the State. Crandall,
agent for a stage coach line, was arrested and put on trial for
refusing to pay the tax. The court in this case held that the
statute was inconsistent with the doctrines of Federal govern-
ment and the rights of the people. The United States may re-
quire the services of the citizens at the seat of government at
any time; it has the right to transport troops through any
State, and the people have the right to visit the scat of gov-
ernment and all Federal offices in the States. The statute of
Nevada interfered with these rights. The power to tax is
unlimited. If any State could levy a tax of one dollar per
head on all travelers passing through it, it could lay a tax
of one thousand dollars per head, thus practically destroying
the rights of the government and of the citizens as mentioned
above.
Liberty and Property. — Judicial decisions have widened the
ordinary meaning of these terms. Liberty has been held to be
278 Constitutional Law
more than freedom from restraint ; property, more than lands
and goods. Thus the right to pursue a livelihood or calling,
and for that purpose to enter into such contracts as may be
proper, is liberty which no State can take away without due
process of law. Property may be both tangible, such as lands
and goods, and intangible, such as debts, franchises, in-
corporeal hereditaments, and the right to labor. Both are
within the scope of this amendment.
Due Process of Law. — This phrase has been discussed fully
under Amendment 5. There the prohibition is on Congress;
here it is on the States. Most State constitutions have similar
provisions. We may add this here: A statute is not neces-
sarily due process of law, for such an interpretation would
render this clause of the amendment nugatory. Thus an act
cannot be defended as due process of law, unless the statute
authorizing it is above criticism ; or unless sanctioned by age,
custom, or established authority.
Equal Protection of the Laws. — In general, this part of the
14th Amendment is a prohibition against discriminating laws.
Although enacted primarily for the benefit of the colored
people, it applies to all irrespective of color. Corporations are
persons within the meaning of the amendment"; so also are
aliens'' and Chinese"; and State laws that deprive them of
privileges which they as citizens are entitled to are void. Leg-
islation is not contrary to the amendment, however, if all per-
sons subject to it are treated substantially alike under similar
circumstances. Accordingly, a State may establish one set of
laws for one section, a different set for another section, and
the arrangement denies to no one equal protection of the laws,
if all persons are treated alike under the laws of any section.
" Howe Ins. Co. v. New York, 134 U. S., 594. Gulf R. R. Co. v.
Ellis, 165 U. S., 150.
*»In re Ah Fong, 3 Sawyer fU. S.), 144.
» In re Lee Sing, 43 Fed. Rep. 359.
Amendments to the Constitution 279
The prohibition in the amendment is aimed rather against
social, racial, or class distinctions. To illustrate : a statute
denying to colored people the privilege of sitting on a jury has
been held to be a denial of the equal protection of the laws *° ;
likewise, a law excluding colored children from schools " ; and
one forbidding corporations to employ Chinese or Mongolians."
On the other hand, statutes that provide separate schools for
white and colored children do not discriminate against either
class, if the accommodations for each are substantially equal ";
neither do statutes that provide separate cars, or compart-
ments, for colored passengers on railroad lines operating
within the State," In respect to lines operating through
several States, however, such a statute might be void as a regu-
lation of commerce."
Monopolies. — The grant by a State of exclusive privileges
creates a monopoly, and is thus an infringement on equal
rights. Theoretically, all such monopolies should be banned
by the 14th Amendment, but in fact they are often justified
on the ground that the public interests are best served by con-
fiding a certain business to one person, or to a group of per-
sons, rather than by allowing it to be spread about among
many. Accordingly, the grant of the exclusive right to supply
water to a city, or to slaughter cattle for a city market, doing
so impartially to all who apply, is not unconstitutional. Not
every monopoly is illegal, but only those that are unreason-
able. The reasonableness of a thing often justifies it in the
eyes of the law, when technically it is illegal. Hence, it has
«> Strauder v. West Va., 100 U. S., 303.
" State V. Duffy, 7 Nev., 342.
" In re Parrott, 6 Sawyer, 349.
"Ward V. Flood. 48 Cal., 36.
"The Sue, 22 Fed. Rep., 843. Murphy v. Railroad, 23 Fed.
Rep., 637.
"Hall V. De Culr, 95 U. S., 485.
280 Constitutional Law
come to be the accepted rule that even private monopolies, so
long as they are reasonable in their scope, are justifiable. As a
general rule a monopoly may be said to be unreasonable when
it ceases to serve the public impartially — a question to be
settled in every case by the courts.
The Police Power. — The meaning of this phrase has already
been discussed, see ante page 92. A State may, under its
police power, pass many acts in defiance of the 14th Amend-
ment, provided the general welfare of the people require them.
Thus, although a State may not deprive any one of property
without due process of law, it may arbitrarily cause property
to be removed or destroyed that is dangerous to the public
health ; and it may prohibit miners to work in mines more than
a certain number of hours per day. Both of these are depriva-
tions of property, but justified under the police power. Again,
although a State may not deprive any person of the equal pro-
tection of the laws, it may compel a certain business or trade
to be carried on in a specified way, or confine it to a limited
area, if the nature of it demands such adverse legislation."
But the legislature may not, under the guise of protecting
public interests, arbitrarily interfere with private business,
or impose unnecessary and unusual restrictions upon lawful
occupations. Its determination of what is lawful in the exer-
cise of its police power is not final, but subject to the super-
vision of the courts."
Section 1, Clause 2. — Representatives shall be appor-
tioned among the several States according to their re-
spective numbers, counting the whole number of persons
in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors
for President and Vice President of the United States,
Representatives in Congress, the executive and judicial
8' Slaughter House Cases, 16 Wall., 36.
" Lawton v. Steele, 152 U. S., 133, 137.
Amendments to the Constitution 281
officers of a State, or the members of the legislature
thereof, is denied to any of the male inhabitants of such
State, being twenty-one years of age, and citizens of the
United States, or in any way abridged, except for partici-
pation in rebellion or other crime, the basis of represen-
tation therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such
State.
" Respective Numbers." — According to Art. 1, Sect. 2, CI. 3,
of the Constitution, the respective numbers, that is, the popu-
lation of a State, should be ascertained by adding to the free
inhabitants, excepting Indians not taxed, three-fifths of all
other persons. But with the abolition of slavery, and the ac-
ceptance of the 14th Amendment, that provision became a dead
letter. The respective numbers of the States must now include
all persons, excepting Indians not taxed.
Purpose of this Clause. — The purpose of this clause was to
secure colored citizens in their right to vote. Neither the Con-
stitution nor the amendments define suffrage : but the present
clause implies that normally it shall be in the hands of male
citizens, twenty-one years of age. When the slaves were freed,
and by the first clause in this amendment were made citizens,
they became at once eligible to the suffrage. For fear there-
fore that certain States, through hatred or jealousy of former
slaves, or of their descendants, might arbitrarily deprive its
colored male citizens of their right to vote. Congress added
this clause to the 14th Amendment. The clause does not
bestow the ballot on the negro, or upon anyone. It does not
refer in terms to the colored race. It simply provides that
when suffrage is restricted, representation in Congress shall
also be restricted, and proportionately. In other words, it
declares that no State shall count out any number of its male
citizens in making up its electorate, but count in all such
citizens for the purposes of population, and therefore repre-
sentation in Congress.
283 Constitutional Law
Denial of Suffrage. — What constitutes a denial of suffrage
witliin the meaning of this amendment? Is any limitation of
the right to vote such a denial ? Probably not. To demand, as
a prerequisite of the right to vote, that a citizen shall pay a
poll tax, or reside in the county and be registered there, or
pass a fair educational or property test — these are not gen-
erally regarded as denials' of suffrage. They are reasonable
and flexible limitations within the power of any man to over-
come; they create no class distinctions and impose no special
hardship. A denial, as understood here, must be something
insurmountable in its nature, such as one based on color,
foreign birth, or class'.
Enforcement of this Clause. — Although certain States have
been accused of denying to many of their colored male citizens,
twenty-one years old and citizens of the United States, the
right to vote, either by imposing unreasonably severe restric-
tions, or by the tyranny of their election officials, Congress
has never yet legislated to enforce the penalty provided by this
amendment. It has perhaps' recognized that to do so would be
both futile and dangerous, and until there occurs an open and
purposed violation of this clause, it is probable that Congress
never will so legislate. In the first place, it would be very
difficult for Congress to estimate the number of voters denied
the ballot, and thus be able to make any proportionate and
accurate reduction in representation ; in the second place, the
object of the clause has been better gained by the 15th Amend-
ment; and in the third place, the clause is unjust, for its
threat includes the innocent as well as the guilty without
discrimination, and is so in the nature of a perpetual menace
as to be a constant irritation to a spirited race. For these and
other reasons, the 14th Amendment has been severely arraigned
by its enemies, and even its friends have been forced to admit
that its passage was an error. Not to prohibit an act, but to
allow it under a penalty, does not seem the best of statesman-
ship.
Amendments to the Constitution 283
Section 1, Clause 3. — No person shall be a Senator or
Representative in Congress, or elector of President and
Vice President, or hold any office, civil or military, under
the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as
an officer of the "United States, or as a member of any
State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies
thereof. But Congress may, by a vote of two-thirds of
each House, remove such disability.
Clause 3 of the 14th Amendment has only historic interest
to-day. Its purpose was to debar from public office all who
had taken up arms against the government. Shortly after its
passage, Congress began in individual eases to remove the
disability created by it, and in 1898, by special act, it removed
all such disabilities outstanding. Althou2:h the clause has no
force to-day, the prohibition in it would revive in the event
of another rebellion.
Section 1, Clause 4. — The validity of the public debt of
the United States, authorized by law, including debts in-
curred for payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not be ques-
tioned. But neither the United States nor any State shall
assume or pay any debt or obligation incurred in aid of in-
surrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all
such debts, obligations, and claims shall be held Illegal
and void.
Section 1, Clause 5. — The Congress shall have power
to enforce, by appropriate legislation, the provisions of
this article.
The Public Debt. — The immediate purpose of this clause in
the 14th Amendment was to pledge the payment of all lawful
debts incurred in putting down the Eebellion; but the Ian-
284 Constitutional Law
guage is broad enough to include public debts whenever they
may be made. The principle expressed in the first sentence is
the same as that already discussed under Article 6, Section 1.
War Claims; Void Debts. — No nation can be expected to
make compensation to its enemies for losses occasioned by war.
Such losses are the fortunes that follow unsuccessful strife.
All debts incurred in the aid of unsuccessful rebellion are un-
collectable, and all such contracts are void. These rules are
unpleasant; but so is rebellion, and the government cannot
be expected to indemnify those who bring the unpleasantness
about. Since the Civil War bills have been presented in Con-
gress to pension Southern soldiers or their widows, or to com-
memorate Southern heroism, but as yet none of these has
passed. It is doubtful if such bills, should they become laws,
could be regarded as constitutional in the face of this amend-
ment.
The prohibition regarding slave property cannot be regarded
as altogether equitable, for many loyal owners' as well as the
disloyal owners suffered the loss of their slave property, and
their losses cannot be said to have been incurred in aid of
insurrection. But it was felt at the time of the passage of the
amendment that, since slavery was largely the cause of the war
and its attendant calamities, its destruction was the destruc-
tion of a public enemy, and that no just claim should arise
from it. Mrs. Alexander's Cotton, 2 Wall., 417, is a case in
point. In May, 1864, a party from the Ouachita, a gunboat
belonging to Admiral Porter's expedition on the Eed Eiver,
captured 72 bales of cotton belonging to Mrs. Alexander, which
were then stored in a gin one mile from the river. The cotton
was confiscated and sold by the Federal government. After
the war Mrs. Alexander sued the purchasers in the District
Court for the value of the cotton. Mrs. Alexander maintained
that she had been loyal to the United States through the war.
The court held: (1) tliat since cotton was the main reliance
Amendments to the Constitution 285
of the South for securing means to prosecute the war it was
contraband, and hence liable to confiscation; (2) that contra-
band goods belonging to loyal people residing among the
enemy were not to be distinguished from enemy's property.
Article 15
Section 1, Clause 1. — The right of citizens of the United
States to vote shall not be denied or abridged by the
United States, or by any State, on account of race, color,
or previous condition of servitude.
Section 1, Clause 2. — The Congress shall have power to
enforce this article by appropriate legislation.
Why Adopted. — The lath Amendment, like the 13th and
the 1 1th, was adopted during the unsettled period that fol-
lowed the Civil War. Its purpose was twofold : first, to prosper
the nation — for it was thought at the time that the presence
in the South of so large a body of f reedmen lacking the political
privileges of other citizens would be a constant source of dis-
content and consequent danger to the country ; second, to pro-
tect the colored man in his political rights — for it was mani-
festly the duty of the general government, having freed the
negro and given him citizenship, to secure to him the suffrage
which that status had opened to him. For the latter reason
the second clause in the 14th Amendment had been adopted,
but that having failed in its object, the 15th Amendment was
proposed and ratified.
What the Amendment Does. — The 15 th xVmendmcnt docs
not confer the right to vote on the negro or anybody else. That
right comes to a citizen only by State laws and processes. The
amendment is intended to prevent discrimination in popular
suffrage on accoimt of race, color, or previous condition of
servitude. The language is plain, offering little or no room
fcr quibbling. Though passed obviously as a protective meas-
ure for the colored people in the United States, it is sweeping
286 Constitutional Law
enough in its terms to include citizens of every race. There
has been little litigation over this amendment, and Congress;
has not yet been called on to enforce it by appropriate legis-
lation. Indeed, the amendment is self-executing, since any
State or Federal statute that denies or abridges the right of
citizens of the United States to vote on account of race, color,
or servitude, is unconstitutional, and may be declared void
by any court.
Power of States Narrowed. — The 10th Amendment declares
that " 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." Previous to the
adoption of the 15th Amendment, Congress possessed no power
to legislate respecting State elections. That was reserved to
the States respectively, or to the people, since the Constitution
did not confer it on the United States, or prohibit it to the
States. But with the passage of the 15th Amendment Congress
obtained such power. In this respect therefore the power of
the Federal government was augmented slightly at the expense
of the States.
Article 16
The Congress shall have power to lay and collect taxes
on incomes, from whatever source derived, without ap-
portionment, among the several States, and without re-
gard to census or enumeration.
In 1894, the student will remember, the Supreme Court
ruled that income taxes were direct taxes, and that, since the
income tax law of that year did not provide for levying the
tax according to population, it was unconstitutional and void.
The decision in effect prohibited Congress from ever again im-
posing an income tax, for it is next to impossible to apportion
such a tax according to representation. Incomes, however,
have long been deemed proper subjects for taxation, and it was
Amendments to the Constitution 287
considered very unfortunate that Congress should be deprived
of that great source of revenue. Partly, therefore, to enable
Congress to obtain revenue from that source, and partly to
satisfy a growing, insistent demand that the swollen fortunes
of the wealthy be made to contribute more directly to the
public expense, Congress finally proposed the present amend-
ment. The clause was introduced at the first session of the
Gist Congress. It passed the Senate July 5, 1909, by a unani-
mous vote; it passed the House, July 12, by a vote of 317 to
14, and was later approved by the President. It was submitted
at once to the legislatures of the several States. In January,
1913, having been ratified by three-fourths of the States, it
became an integral part of the Constitution.
This amendment settles forever a perplexing question. It
makes no difTcrence now whether wo regard income taxes as
direct or indirect so far as their availability for purposes of
revenue is concerned. Congress may now tax incomes, with-
out apportionment, and without regard to census or enumera-
tion. Until Congress acts under this power, however, and the
courts interpret whatever questions may arise under such acts,
it is impossible even to suggest the possible limitations to this
addition to the Constitution.
Income Tax Law. — The first income tax law under the IGth
Amendment was passed during the special session of Congress
convened by President Wilson in the spring of 1913. This
law calls for the assessment of a graduated tax on all incomes,
from whatever source derived, above $3000 per annum as fol-
lows : On incomes above $3000 per annum and not exceeding
$20,000, a tax of one per cent; on incomes above $20,000 and
not exceeding $50,000, a tax of two per cent ; on incomes above
$50,000 and not exceeding $75,000, a tax of three per cent;
on incomes above $75,000 and not exceeding $100,000, a tax of
four per cent; and on all incomes exceeding $100,000, a tax
of five per cent.
288 Constitutional Law
Every resident within the United States, whether citizen or
not, and every citizen of the United States, whether residing
at home or ahroad, is liable to this tax. Every person thus
liable is required annually to make a true return of his total
net income from all sources during the preceding calendar
year to the Commissioner of Internal Revenue, under rules
prescribed by him and approved by the Secretary of the
Treasury, Failure to make such true return is made punish-
able under hea^^ penalties.
Exemptions. — Certain exemptions and deductions are al-
lowed by the income tax law as follows :
1. Incomes from State and municipal bonds and obliga-
tions of the United States are not taxable ; nor are the salaries
of the President, United States judges, or of State or mu-
nicipal officers.
2. All persons are entitled to the minimum exemption of
$3000 ; but a married man living with his wife, or a married
woman living with her husband, is allowed a further exemption
of $1000, provided that the said wife or husband has not also
a taxable income. In no case, however, is the exemption
allowed to both husband and wife at the same time.
3. Every person in making out his return of net yearly
income for assessment may deduct from his gross income
(a) all necessary business expenses, not including living and
family expenses; (b) all interest on indebtedness; (c) all
national, State, county, and municipal taxes paid within the
year; (d) all losses sustained during the year and not covered
by insurance; (e) all debts and claims charged off as worth-
less; (f) a reasonable amount for wear and tear of property
in use; (g) dividends on stock in corporations which are them-
selves subject to the tax; and (h) all incomes already taxed at
the source. By the last is meant income derived from interest
on bonds, mortgages, deeds of trust, etc.
It is idle at this date (1913) to speculate on the validity and
Amendments to the Constitution 289
usefulness of this law. On its face, however, it appears to be a
reasonal)le enactment, which while making available for taxa-
tion sources of revenue that have hitherto been exempt, at the
same time is very liberal in its exemptions. It is the hope of
its framers that the law will provide revenue enough to more
than make up for possible losses from reductions in the tariff,
besides distributing the burden of Federal taxation more
equitably than has hitherto been thought to be the case.
Article 17
The 17th Amendment has already been discussed on
page 46.
19
CHAPTER IX
LEADING CASES
LEADING CASES
1
Van Brocklin v. Tennessee, 117 U. S., 151 (1886)
Certain lots of land in the city of Memphis, Tenn., were
sold to the United States for non-payment of direct taxes.
After a lapse of several years the former owners redeemed the
land from the government. Whereupon, the State of Tennes-
see made formal demand on the owners (Van Brocklin and
others) for taxes due on the lots in the interim. The case was
first tried in a State court, which decided that the tax was
collectable. Van Brocklin then carried the case before the
U. S. Supreme Court, which reversed the decision. Why?
2
Fort Leavenworth E. E. v. Lowe, 114 U. S., 525 (1885)
The State of Kansas ceded to the United States exclusive
jurisdiction over the land occupied by the Fort Leavenworth
Military Eeservation, "saving to the State the right to tax
railroad, bridge, or other corporations on said property."
The plaintiff, a corporation organized under the laws of
Kansas, was the owner of a railroad in the reservation, and
was taxed therefor by the board of assessors of the State. The
corporation paid the tax under protest, and then brought suit
to recover the money paid, on the ground that since the prop-
erty was entirely within the reservation it should be exempt
from taxation by the State. What are the rights of the parties
concerned ?
3
Transportation Co. v. Wheeling, 99 U. S., 273 (1878)
The Wheeling Transportation Company, whose home port
and principal offices were at Wheeling, operated boats run-
ning to various ports up and down the Ohio River. These
294 Constitutional Law
boats were licensed under acts of Congress to engage in the
toasting trade. The city of Wheeling laid a tax on these
vessels as personal property in the city. The company refused
to pay the tax, holding that it was an unwarranted regula-
tion of interstate commerce, and therefore unconstitutional.
How would you decide this ?
Packet Company v. Keokuk, 95 U. S., 80 (1877)
A packet, or steamboat company, engaged in interstate
commerce, and duly licensed by Congress to engage in the
coasting trade, refused to pay fees to the city of Keokuk for
the privilege of using the city wharves, maintaining that the
fees were in effect a burden on interstate commerce, and that
the law imposing them was null and void. How would you
decide this ?
5
Veazie v. Moore, 14 Howard, 568 (1852)
The State of Maine granted to Moor and others the ex-
clusive right of navigating the Penobscot Eiver above Bangor.
It was impossible to navigate a vessel into these waters from
below because of natural obstructions in the stream. Veazie,
being sued by Moor for running a steamboat on the water
above Bangor in contravention of the statute, set up the fol-
lowing defense : 1st, that he had a Federal license to engage
in the coasting trade ; 2d, that the Maine statute was uncon-
stitutional, since it amounted to a regulation of commerce.
Ought the court to regard this defense good ?
6
McEeady v. Virginia, 94 U. S., 391 (1876)
A law of Virginia made it illegal for anyone not a citizen
of Virginia to plant oysters in tbc tidal waters of that State.
McEeady, a citizen of Maryland, was arrested and tried for
Leading Cases 295
violation of this law. His defense was that the law was un-
constitutional, being in violation of Article 1, Section 8,
Clause 3 ; Article 14, Section 1. It is established law that each
State owns the beds of tidal waters within its jurisdiction.
Kelly v. Ehoads, 188 U. S., 1 (1902)
Ehoads, tax collector for Laramie County, Wyo., collected
from Kelly $250 in taxes on a herd of sheep. The sheep were
oeing driven across Wyoming from Utah to Nebraska, sup-
porting themselves on the way by grazing. A statute of
Wyoming authorized the taxing of live stock brought into the
State for the purpose of grazing. Kelly sued to recover the tax
on the ground that the law, as applied to him, was void as a
regulation of commerce.
8
Geer v. Connecticut, 161 U. S., 519 (1896)
The plaintiff, indicted for violating a statute of Connecticut
which forbade the killing of game for the purpose of trans-
portation out of the State, or having it in possession for that
purpose, set up as his defense that the statute was unconstitu-
tional, being an unreasonable regulation of interstate com-
merce, besides unduly depriving him of his property,
9
Minnesota v. Barber, 136 U. S., 313 (1889)
Barber, a dealer in fresh meats, was convicted before a
Minnesota court of violating a statute, which forbade the sale
of any fresh beef, veal, mutton, pork or lamb, that had not been
inspected before slaughter by an inspector within the State.
Barber maintained that the statute in question was unconsti-
tutional, and his conviction therefore illegal. Was he right?
296 Constitutional Law
What constitutional principles apply? What writ would be
available to secure for him an immediate hearing?
10
United States v. Wong Kim Ark, 169 U. S., 649 (1897)
Wong Kim Ark was born in 1873 of Chinese parents domi-
ciled in San Francisco. On returning from a visit to China
he was refused permission to land in the United States, on
the ground that he was not a citizen of this country. Previous
to this time he had lived in San Francisco 21 years. What
should be the decision in this case ?
11
Elk v. Williams, 112 U. S., 94 (1884)
Elk, the complainant, brought suit against Williams be-
cause the latter, as registrar of voters in Omaha, Nebraska,
had refused to register him as a qualified voter. Elk stated
that he was an Indian born in the United States, but had
voluntarily severed all tribal relations and had become a bona
fide resident of the city of Omaha, State of Nebraska; that
under the 14th Amendment, therefore, he was a citizen of the
United States, and entitled to all privileges as such. How
would you decide this case ?
12
United States v. Villato, 2 Dallas, 370 (1797)
Francis Villato, a citizen of Spain, moved in 1793 from
Louisiana to Philadelphia, where he subsequently swore alle-
giance to the State of Pennsylvania, and became according to
the existing requirements a bona fide resident of that State.
Some years later he took service with the French against the
United States and was captured while in command of a prize
brig. He was tried for treason, as having levied war aijainst
the United States and adhered to their enemies. He wiis
acquitted. Why?
Leading Cases 297
13
Parker v. Davis, 12 Wallace, 79 U. S., 4G1 (1870)
Parker promised, in payment of a certain sum of lawful
money, to convey a lot of land to Davis, Later he refused to
execute the contract. Whereupon, the case being brought to
the Massachusetts Supreme Court, 1867, Davis was ordered
to pay into court the sum promised and Parker to execute
the deed for the land. Davis paid into court the sum named
in notes of the United States, known as " greenbacks." Parker
then refused to execute the deed on the ground that he was
entitled to have the sum in coin. Was the latter's position
good?
14
Fox V. Ohio, 5 Howard, 46 U. S., 410 (1847)
Malinda Fox, for the offense of passing counterfeit cur-
rency in the State of Ohio, was convicted in the highest courts
of that State. She appealed her case to the United States
Supreme Court, on the ground that the offense with which she
was charged was national in character, and that the courts of
the State of Ohio did not have jurisdiction over it. How
would you decide this ?
15
WiiEATOx V. Peters et al, 8 Peters, 223 (1834)
Wheaton, author of 12 volumes of cases decided by the
Supreme Court, sued Peters et al. to recover damages for pub-
lishing a volume entitled, " Condensed Peports of Cases in
the Supreme Court," which contained among others all the
cases in the first volume of Wheaton's reports, in violation of
the complainant's copyright. Wheaton claimed (1) a common
law right in his own published works; (2) a copyright in them
under the statutes of the T"^nited States. The fact was brought
out, however, that he had failed to conform to the law of 1790
298 Constitutional Law
(Stat, at Large, 124), requiring an applicant for copyright to
give public notice of his work in the newspapers, and to de-
posit a copy of it in the Department of State.
16
Diamond Match Co. v. Ontonagon, 188 U. S., 83 (1902)
The complainant company floated logs down the Ontonagon
Eiver to the village of Ontonagon, where they kept them in
boom, shipping them out from time to time as required. The
defendant, tax collector for the village of Ontonagon, levied
a tax on these logs. Thereupon the complainant filed a bill
in equity to restrain the collection of the tax on the following
grounds: 1st, that it was a tax on exports; 2d, that it was a
burden on interstate commerce, since the logs were shipped
out of the State. Do you think the complainant's position
good?
ir
Cornell v. Coyne, 192 U. S., 418 (1903)
A Federal statute provided: "That upon all filled cheese
which shall be manufactured there shall be assessed and col-
lected a tax of one cent per pound, to be paid by the manu-
facturer thereof." The plaintiff protested this tax on the
ground that the cheese whicli he manufactured was intended
for export and under the Constitution was exempt from taxa-
tion. Was his position good ?
18
TJ. S. V. Smith, 5 Wheaton, 597 (1820)
Smith and others, part of the crew of a private armed
vessel (commissioned by Buenos Ayres, then at war with
Spain), mutinied, left tlieir vessel in Margaritta, and seized
by violence a ship called the Irrestible, a private vessel com-
missioned by tlie government of Artigas, also at war with
Leading Cases 299
Spain. They then proceeded to sea without documents or
commission, and in 181!) plundered a Spanish ship on the
high seas. Later they were indicted before the Circuit Court
for the District of Virginia for the crime of piracy. Their
defense was: that since Congress had not yet defined piracy,
they could not be punished for piracy; that before the Federal
courts could punish an act as a crime, Congress must first
define the act to be a crime. They based their contention on
Article 1, Section 8, Clause 10.
19 ^
Holmes v. Jennison, 14 Peters, 540 (1840)
Holmes, a Canadian, fled from arrest in Canada and took
refuge in the State of Vermont. Here he was arrested by the
authority of the Governor of the State of Vermont and held
for the action of Canadian officials. He applied for a writ of
habeas corpus on the ground that the act of the Governor was
unconstitutional. Should it have been so regarded by the
court ?
20
Sturgis V Crowxingshield, 4 "WTTEAToy, 122 (1819)
The defendant in this case had made two promissory notes
due in August, 1811. He did not pay, and when sued in 1817
for the debt he set up as defense the fact that, under a statute
passed in 1812 by the State of New York, he had passed
through bankruptcy and was discharged from all liability.
He offered in court the certificate of discharge from all debts,
dated 1812.
21
CuMMiNGS V. State of Missouri, 9 Wall., 323 (1866)'
An amendment to the constitution of the State of "Missouri,
adopted in 1865, forbade any person to act as professor or
teacher in any educational institution within the State without
300 Constitutional Law
first taking a prescribed oath that he had never been in armed
hostility to the United States. The Eev. Mr. Cummings
was, soon after the adoption of this amendment, indicted and
convicted in a Missouri court for the crime of teaching and
preaching without having taken the prescribed oath, and was
fined $500. The case was taken to the U. S. Supreme Court
on writ of error, and that court declared the Missouri statute
unconstitutional and void. On what grounds?
Mormon Church v. United States, 136 U. S., 1 (1890)
The charter granted in 1851 by the Territory of Utah to
the Church of Latter Day Saints was repealed by act of Con-
gress in 1887. When proceedings were instituted by the
United States to enforce this act the corporation resisted on
the ground that the act was unconstitutional. How would
you decide this case ?
23 ^
Morgan S. S. Co. v. Louisiana Board of Health, 118 U. S.,
455 (1888)
A statute of Louisiana allowed the resident physician on
the Mississippi River the following fees for the inspection of
vessels entering the ports of that State: $30 for a ship; $20
for a bark; $10 for a schooner, etc. The plaintiff company
resisted the payment of the fees, maintaining :
1. That the law imposed a tonnage tax and was void.
2. That it was void as a regulation of commerce.
3. That it was repugnant to Article 1, Section 9, Clause 6.
24
OwiNGS V. Speed, 5 Wheaton, 688 (1820)
In 1780 the State of Virginia granted to Bard and Owings
a tract of 1000 acres' of land, on which the town of Bardstown
was later laid off. In 1788 the Virginia legislature vested 100
acres of this land in trustees to be laid off in lots. Thereupon
Leading Cases 301
Owings sued Speed, one of the trustees, on the ground that
the act of 1788 was unconstitutional as impairing the obliga-
tion of contracts.
25
Hawker v. New York, 170 U. S., 189 (1898)
In 1893 the legislature of Xew York enacted that any per-
son who should practice medicine after conviction of a felony
should be fined accordingly. Hawker, who had been con-
victed in 1878 of a statute felony was indicted in 1896 for
violating this enactment. He maintained that the law, at
least in respect to himself, was ex post facto. Can this case
be distinguished from ex parte Garland? See pp. 1-44, 1-15.
26
Almy v. State of California, 24 Howard, 169 (1860)
The State of California enacted a law requiring a stamp to
be placed on all bills of lading of gold shipped out of the State.
The plaintiff refused to buy and affix the required stamps,
holding that the law was unconstitutional. Was his position
correct? The California courts upheld the statute.
27 -■
Peete v. Morgan, 19 Wallace, 581 (1873)
The State of Texas established quarantine stations at
various Texas ports, and enacted: " That every vessel arriving
at a port having such quarantine station should pay a fee for
the support of the same, of $5.00 for the first 100 tons and
1^ cents for every additional ton." ^Nforgan, a ship owner in
Louisiana, engaged in transportation business with Texas
ports, refused to pay the tax, and brought bill to enjoin Peete,
the collector of the taxes, from collecting any more fees under
that statute. The Court granted the injunction, holding that
the Texas law was unconstitutional. Why? Would it be
possible to lay a tax for the purpose that would be constitu-
tional ?
302 Constitutional Law
*" 28
In re Green, 134 U. S., 377 (1890)
Charles Green, disfranchised by the laws of Virginia for
petty larceny, was imprisoned by order of the city court of
Manchester, Va., for knowingly voting at an election for the
presidential electors. He sued out a writ of habeas corpus on
the ground that his act, if an offense at all, was an offense
against the Federal government, and hence not triable before
a State court. How should this be decided?
29
Davis v. Packard, 7 Peters, 276 (1833)
Packard and others brought suit against Davis in the courts
of New York and obtained judgment against him. Davis was
then Consul-General from Saxony, stationed in the city of
New York. The Supreme Court, on writ of error, reversed
the decision of the State court. Why?
30
Schooner Exchange v. McFaddon, 7 Cranch, 116 (1812)
The schooner Exchange, a public armed vessel of France,
was libelled in the port of Philadelphia by McFaddon, on the
ground that it had formerly belonged to him but had been
forcibly seized by certain persons and disposed of under the
orders of Napoleon. The Circuit Court ordered the vessel
restored to its former owners; the Supreme Court reversed the
decision. Why ?
31
Cherokee Nation v. Georgia, 5 Peters, 1 (1831)
The Cherokee Nation, occupying lands in the State of
Georgia, filed an original bill in the Supreme Court, as though
it were a foreign State, praying for an injunction to restrain
Leading Cases 303
Georgia from enforcing its laws within the territory occupied
by the Cherokces. The court refused the injunction. Ques-
tions: 1. "What may have been the grounds for this refusal?
2. Was it proper to bring the original suit in the Supreme
Court? 3. Why was not the suit barred by the 11th Amend-
ment?
32 ^
Wallach v. Van Riswick, 92 U. S., 202 (1875)
The complainants, children and heirs of Wallach, a Con-
federate officer Avhose property had been condemned and sold
by the Federal government, sought to obtain an interest in the
property now possessed by Van Eiswick, on the grounds: 1.
That Congress could not compel the forfeiture of the property
beyond the life of the offender (Constitution, 3, 3, 2).
2. That the proclamation of amnesty pardoning all who had
taken up arms agamst the government restored the property to
its original status.
33
Il\scelles v. Georgia, 148 U. S., 537 (1892)
Lascclles, extradited from New York to Georgia for lar-
ceny, was indicted by the jury on the charge of forgery. His
defense was that, having been extradited for one offense, he
could not be tried for another. Was the defense good ?
34
American Publishing Co. v. Fisiier, 166 TJ. S., 464 (1897)
Plaintiffs sued the defendant for $20,000 in the District
Court, Salt Lake City, Territory of Utah, before a jury of
twelve men. Nine of the latter gave verdict for the defendant,
the others not concurring. The court accepted the verdict.
Section 3171 of the laws of Utah allowing decisions by nine or
more of a jury. The Supreme Court found the law to be un-
constitutional. Whv ?
304 Constitutional Law
35
Hyatt v. People, 188 U. S., 691 (1902)
Hyatt was arrested by the authority of the Governor of New-
York, acting in pursuance of requisition papers from the
Governor of Tennessee. The papers recited that Hyatt had
been indicted in Tennessee for grand larceny, and that he
was a fugitive from justice from that State ; but in the papers
it did not appear that he was in Tennessee when the alleged
offense was committed. Should Hyatt be held under these
facts?
36
United States v. Fox, 94 TJ. S., 315 (1876)
Charles Fox, of the city of New York, died, bequeathing his
property to the United States. The heirs contested the devise
on the following grounds :
1. That the Federal government could not acquire property
by such means.
2. That the laws of New York governing the descent of
property limited devises to natural persons, or to such artificial
persons (corporations) as were created under the laws of the
State.
37
Patterson v. Bark Eudora, 190 U. S., 169 (1902)
A Federal law made it unlawful for any person to pay to
any seaman wages in advance of services performed, or to pay
such wages to anyone else. Patterson and others, seamen on
the British bark Eudora, sued for their wages in the District
Court for the Eastern District of Pennsylvania, alleging that
part of their wages had been paid in advance to the shipping
agent at Portland, Me., through whom they had been em-
ployed. It was admitted at the trial that such advance pay-
ment was not contrary to the shipping laws of Great Britain.
Leading Cases 305
The District Court dismissed the suit. The Supreme Court
reversed the decision. Why?
38
Davis v. Beasox, 133 U. S., 333 (1889)
A statute of Idalio forbade anyone to vote at any election,
or to hold any office of honor, trust, or profit in the Territory,
who was a bigamist or polygamist, or who belonged to any
organization that encouraged bigamy or polygamy. Davis,
indicted for procuring himself to be made an elector in viola-
tion of the statute, contended that the 1st Amendment to the
Constitution made the statute unconstitutional. Was his con-
tention valid?
39 ^^
Presser r. Illinois, 116 U. S., 252 (1885)
A statute of Illinois, after providing for an organized
militia, forbade all other bodies of men to associate together
as military organizations, or to drill in public or parade
with arms, without the consent of the Governor. Presser,
indicted and tried for parading at the head of a private mili-
tary company in violation of the statute, contended that the
statute was unconstitutional, being repugnant to the 2d
Amendment and to Section 1 of the 14th Amendment. Was it?
40
Boyd v. United States, 116 U. S., 616 (1885)
The court in this case decided that the fifth section of the
act of June 22, 1874, authorizing a court of the United States
in revenue cases, on motion by the government attorney, to
require the defendant to produce in court his private books,
invoices, papers, etc., or else the charge against him should be
taken as confessed, was repugnant to certain amendments to
the Constitution. To which was it repugnant, and why?
20
306 Constitutional Law
41
Ex PARTE Lange, 18 Wallace, 163 (1873)
Lange was convicted of the crime of embezzling from the
U. S. mails, the punishment for the offense, as provided by
statutes, being fine or imprisonment. The court sentenced
him to pay a fine of $200 and to be imprisoned for one year.
He paid the fine and began to serve his sentence. Next day he
was returned to the court, and the same judge remanded the
fine, but resentenced him to imprisonment. Lange then sued
out a writ of habeas corpus, on the ground that the sentence
was contrary to the 5th Amendment. Was his contention
correct ?
, 42
U. S. V. Perez, 9 Wheaton, 579 (1824)
Joseph Perez was put to trial for a criminal offense. The
jury, being unable to agree on a verdict, were discharged by
the court without the consent of the prisoner or his counsel.
The latter then demanded the discharge of his client, on the
ground that further trial would subject him to be twice tried
for the same offense.
^43
Dreyer v. Illinois, 187 U. S., 71 (1902)
In the case of Dreyer, who was prosecuted for a misde-
meanor, the jury, unable to agree, were discharged without
the consent of the accused. Dreyer then demanded his dis-
charge, on the ground that another trial would not be due
process of law. Was he right ?
44
Maxwell v. Dow, 176 IT. S., 581 (1899)
A statute of the State of Utah allowed trial on an informa-
tion, and conviction by juries of eight persons. The plaintiff
in this case protested that his conviction under the law was
Leading Cases 307
unconstitutional : that it was not " due process of law " ; and
that he had a constitutional right to an indictment and to be
tried by twelve jurors instead of eight.
45
Knox v. Lee, 12 Wall., 457 (1870)
During the Civil War the property of Lee, a loyal citizen
residing in Texas, was confiscated and sold under statutes
enacted by the Confederate government. After the war Lee
sued Knox, the holder of the property, to recover the value
thereof. Had he any rights in the case ?
46
McDonald v. Massachusetts, 180 U. S., 311 (1901)
In 1887 the legislature of Massachusetts enacted that who-
ever should be convicted of a felony thereafter, who had been
twice convicted before and sentenced to three or more years
for each offense, should be deemed an habitual criminal and
be sentenced to prison for twenty-five years. The plaintiff,
adjudged and sentenced as an habitual criminal under this
law, contended that it was unconstitutional. Was he right?
47
Pervear v. Commonwealth, 5 Wallace, 475 (1866)
Pervear, a resident of Massachusetts, was indicted in the
courts of that State for selling intoxicating liquor without a
license. His defense was: 1. That he had already paid the
internal revenue tax demanded by the Federal government
and could not be taxed therefore by the State. 2. That the
law of ^fassachusetts, under which he was indicted, was un-
constitutional because it imposed an excessive fine. The
statute imposed a fine of fifty dollars for each offense.
308 Constitutional Law
48
Hans v. Louisiana, 134 U. S., 1 (1889)
The plaintiff, citizen of Louisiana, brought suit against the
State in the Federal Circuit Court to recover the value of cer-
tain bonds issued by the State, alleging a case under the Con-
stitution and laws of the United States. Was he right? The
case finally came to the Supreme Court, which decided that
the Federal courts had no jurisdiction. Why?
49
North Caeolina v. Temple, 134 JJ. S., 23 (1890)
The original suit was brought by Temple against the State
of North Carolina and its auditor, W. Brooks, to compel the
State and its officials to levy a tax for the payment of the
interest on certain bonds. The Circuit Court granted the
decree, whereupon the defendants carried the case to the
Supreme Court on writ of error. What should the decision be ?
50
TiNDAL V. Wesley, 167 IT. S. (1896)
Wesley, citizen of New York, sued Tindal and Boyles,
citizens of South Carolina, to recover possession of certain
property wrongfully held by them in the city of Columbia,
S. C. The defendants replied that they held the property in
behalf of the State, Tindal as Secretary of State, Boyles a^
his clerk, and that the suit was therefore void under the 11th
Amendment to the Constitution. The record of the case as
presented to the Supreme Court did not show any evidence
in support of their assertion. What should the decision be ?
51
Plessy v. Ferguson, 163 U. S., 540 (1895)
Plessy, one-eighth African, was fined for occupying a seat in
a railway car set apart for whites, in defiance of a statute com-
Leading Cases 309
polling separate accommodations for the two races on rail-
roads within the State of Louisiana. He pleaded in defense
that the statute was unconstitutional, violating Amendment
13, and Section 1 of Amendment 14. Plessy was not an inter-
state passenger.
52
Bradwell v. Illinois, 16 Wallace, 130 (1872)
^frs. Bradwell, born in Vermont but residing at the time in
Chicago, 111., on being refused admission to the bar of that
State on the grounds that females were not eligible under the
laws of Illinois, carried her case to the Supreme Court, alleg-
ing among other things : 1. That as a citizen of Vermont and
of the United States she was denied the privileges and im-
munities of the citizens of the several States. Was her con-
tention sound?
53
Atkin v. Kansas, 191 IT. S., 207 (1902)
A Kansas statute made it unlawful for laborers to be cm-
ployed on behalf of the State or any of its municipalities for
more than eight hours per day. Atkin, engaged in building a
road for Kansas City, employed one Eeese to work ten hours
per day at the eight hour rate. When prosecuted he con-
tended that the statute was unconstitutional as depriving him
of property without due process of law.
'A
In re Parrott, 1. Fed. Rep., 481 (1880)
Parrott was accused of violating the following act of the
legislature of California : " Xo corporation now existing, or
hereafter formed under the laws of this State, shall employ
any Chinese or Mongolian." What possible defense was open
to him under the Constitution ?
310 COXSTITUTIOXAL LaW
oa
Slaughter House Case, 16 Wall., 36 (1872)
The legislature of Louisiana granted to a certain corpora-
tion the exclusive right to maintain slaughter houses, land-
ings and yards for cattle within the parishes of Orleans,
Jefferson and St. Bernard; it further provided that all
cattle intended for beef in that district should be brought to
the yards and houses of the said corporation, and that the
latter should charge a prescribed fee for the use of its yards
and for the slaughter of animals.
1. Does this constitute an unlawful monopoly?
2. To what clause of the Constitution does the enactment
appear to be repugnant?
3. Under what principle might it be declared valid?
APPENDICES
A. The Articles of Confederation
B, The Constitution of the United States
APPENDIX A
ARTICLES OF CONFEDERATION
Abticles of Confederation' and Perpetual Union between the
States of New Hampshire, Massachusetts Bay, Rhode
Island and Providence Plantations, Connecticut, NE^v York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia.
Article I.— The style of this confederacy shall be, " The United
States of America."
Article II. — Each State retains its sovereignty, freedom, and in-
dependence, and every power, jurisdiction, and right, which is not
by this confederation expressly delegated to the United States iu
Congress assembled.
Article III. — The said States hereby severally enter Into a firm
league of friendship with each other, for their common defense,
the security of their liberties, and their mutual and general wel-
fare, binding themselves to assist each other against all force
offered to, or attacks made upon them, or any of them, on account
of religion, sovereignty, trade, or any other pretense whatever.
Article IV. — The better to secure and perpetuate mutual friend-
ship and intercourse among the people of the different States in
this Union, the free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice excepted, shall be entitled
to all privileges and immunities of free citizens in the several
States; and the people of each State shall have free ingress and
regress to and from any other State, and shall enjoy therein
all the privileges of trade and commerce, subject to the same
duties, impositions, and restrictions, as the inhabitants thereof
respectively; provided that such restrictions shall not extend so
far as to prevent the removal of property imported into any
State, to any other State of which the owner is an inhabitant;
provided, also, that no imposition, duties, or restrictions, shall be
laid by any State on the property of the United States or either
of them.
314 COXSTITUTIONAL LaW
If any person guilty of, or charged with, treason, felony, or other
high misdemeanor in any State, shall flee from justice, and be
found in any of the United States, he shall, upon demand of the
governor or executive power of the State from which he fled, be
delivered up, and removed to the State having jurisdiction of his
offense.
Full faith and credit shall be given, in each of these States, to
the records, acts, and judicial proceedings of the courts and magis-
trates of every other State.
Article V. — For the more convenient management of the general
interests of the United States, delegates shall be annually appointed
in such manner as the legislature of each State shall direct, to
meet in Congress on the first Monday in November, in every year,
with a power reserved to each State to recall its delegates, or any
of them, at any time within the year, and to send others in their
stead for the remainder of the year.
No State shall be represented in Congress by less than two, nor
by more than seven members; and no person shall be capable of
being a delegate for more than three years, in any term of six
years; nor shall any person, being a delegate, be capable of holding
any office under the United States, for which he, or another for
his benefit, receives any salary, fees, or emolument of any kind.
Each State shall maintain its own delegates in any meeting of
the States and while they act as members of the committee of
the States.
In determining questions in the United States in Congress as-
sembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not be im-
peached or questioned in any court or place out of Congress; and
the members of Congress shall be protected in their persons from
arrests and imprisonments during the time of their going to and
from, and attendance on Congress, except for treason, felony, or
breach of the peace.
Article VI. — No State, without the consent of the United States,
In Congress assembled, shall send any embassy to, or receive any
embassy from, or enter into any conference, agreement, alliance,
or treaty, with any king, prince, or state; nor shall any person
holding any office of profit or trust under the United States, or
any of them, accept of any present, emolument, office, or title of any
kind whatever, from any king, prince, or foreign state; nor shall
the United States, in Congress assembled, or any of them, grant
any title of nobility.
Appendices 315
No two or more States shall enter into any treaty, confederation,
or alliance whatever between them, without the consent of the
United States, in Congress assembled, specifying accurately the
purposes for which the same is to be entered into, and how long it
shall continue.
No States shall lay any imposts or duties which may interfere
with any stipulations in treaties entered into by the United States,
in Congress assembled, with any king, prince, or state, in pursu-
ance of any treaties already proposed by Congress to the courts
of France and Spain.
No vessels of war shall be kept up in time of peace, by any
State, except such number only as shall be deemed necessary, by
the United States in Congress assembled, for the defense of such
State or its trade; nor shall any body of forces be kept up, by any
State, in time of peace, except such number only as, in the judg-
ment of the United States, in Congress assembled, shall be deemed
requisite to garrison the forts necessary for the defense of such
State; but every State shall always keep up a well regulated and
disciplined militia, sufficiently armed and accoutered, and shall
provide and constantly have ready for use, in public stores, a due
number of field-pieces and tents, and a proper quantity of arms,
ammunition, and camp equipage.
No State shall engage in any war without the consent of the
United States, in Congress assembled, unless such State be actually
invaded by enemies, or shall have received certain advice of a
resolution being formed by some nation of Indians to invade such
State, and the danger is so imminent as not to admit of a delay
till the United States, in Congress assembled, can be consulted;
nor shall any State grant commissions to any ships or vessels of
war, nor letters of marque or reprisal, except it be after a declara-
tion of war by the United States, in Congress assembled, and then
only against the kingdom or state, and the subjects thereof against
which war has been so declared, and under such regulations as
shall be established by the United States, in Congress assembled,
unless such State be infested by pirates, in which case vessels of
war may be fitted out for that occasion, and kept so long as the
danger shall continue, or until the United States, in Congress
assembled, shall determine otlierwise.
Article VII.— When land forces are raised by any State for the
common defense, all officers of or under the rank of colonel, shall
be appointed by the legislature of each State respectively by
316 Constitutional Law
whom such forces shall be raised, or in such manner as such
State shall direct, and all vacancies shall be filled up by the State
which first made the appointment.
Article VIII. — All charges of war, and all other expenses that
shall be incurred for the common defense or general welfare, and
allowed by the United States in Congress assembled, shall be
defrayed out of a common treasury, which shall be supplied by
the several States, in proportion to the value of all land within
each State, granted to, or surveyed for, any person, as such land
and the buildings and improvements thereon shall be estimated
according to such mode as the United States, in Congress assem-
bled, shall, from time to time, direct and appoint. The taxes for
paying that proportion shall be laid and levied by the authority
and direction of the legislatures of the several States, within the
time agreed upon by the United States, in Congress assembled.
Article IX. — The United States, in Congress assembled, shall
have the sole and exclusive right and power of determining on
peace and war, except in the cases mentioned in the sixth Article;
of sending and receiving ambassadors; entering into treaties and
alliances, provided that no treaty of commerce shall be made
whereby the legislative power of the respective States shall be
restrained from imposing sucli imposts and duties on foreigners,
as their own people are subjected to, or from prohibiting the expor-
tation or importation of any species of goods or commodities what-
soever; of establishing rules for deciding, in all cases, what cap-
tures on land or water shall be legal, and in what manner prizes
taken by land or naval forces in tlie service of the United States,
shall be divided or appropriated; of granting letters of marque
and reprisal in times of peace; appointing courts for the trial
of piracies and felonies committed on the high seas; and estab-
lishing courts for receiving and determining finally appeals In all
cases of captures; provided that no member of Congress shall be
appointed a judge of any of the said courts.
The United States, in Congress assembled, shall also be the last
resort on appeal, in all disputes and differences now subsisting,
or that hereafter may arise between two or more States concerning
boundary, jurisdiction, or any other cause whatever; which author-
ity shall always be exercised in the manner following: Whenever
the legislative or executive authority, or lawful agent of any State
In controversy with another, shall present a petition to Congress,
stating the matter in question, and praying for a hearing, notice
Appendices 317
thereof shall be given by order of Congress, to the legislative or
executive authority of the other State in controversy, and a day
assigned for the appearance of tlie parties by their lawful agents,
who shall then be directed to appoint, by joint consent, com-
missioners or judges to constitute a court for hearing and determ-
ining the matter in question; but if they cannot agree. Congress
shall name three persons out of eacli of tlie United States, and from
the list of such persons each party shall alternately strike out one,
the petitioners beginning, until the number sliall be reduced to
thirteen; and from that number not less than seven nor more
than nine names, as Congress shall direct, shall, in the presence
of Congress, be drawn out by lot; and the persons whose names
shall be so drawn, or any five of them, shall be commissioners or
judges, to hear and finally determine the controversy, so always as
a major part of the judges, who shall hear the cause, shall agree
In the determination; and if either party shall neglect to attend
at the day appointed, without showing reasons which Congress
shall judge sufficient, or being present, shall refuse to strike, the
Congress shall proceed to nominate three persons out of each State,
and the secretary of Congress shall strike in behalf of such party
absent or refusing; and the judgment and sentence of the court, to
be appointed in the manner before prescribed, shall be final and con-
clusive; and if any of the parties shall refuse to submit to the
authority of such court, or to appear or defend their claim or cause,
the court shall nevertheless proceed to pronounce sentence or judg-
ment, which shall in like manner be final and decisive; the judg-
ment or sentence and other proceedings being in either case trans-
mitted to Congress, and lodged among the acts of Congress for the
security of the parties concerned; provided, that every commis-
sioner, before he sits in judgment, shall take an oath, to be ad-
ministered by one of the judges of the supreme or superior court
of the State where the cause shall be tried, " well and truly to hear
and determine the matter in question, according to the best of liis
Judgment, without favor, affection, or hope of reward." Provided,
also, that no State shall be deprived of territory for the benefit
of the United States.
All controversies concerning tlie private rigiit of soil claimed
under different grants of two or more States, whose jurisdictions,
as they may respect such lands, and the States which passed such
grants are adjusted, the said grants or either of them being at
the same claimed to have originated antecedent to such settlement
318 Constitutional Law
of jurisdiction, shall, on the petition of either party to the Congress
of the United States, be finally determined, as near as may be,
in the same manner as is before prescribed for deciding disputes
respecting territorial jurisdiction between different States.
The United States, in Congress assembled, shall also have the
sole and exclusive right and power of regulating the alloy and
value of coin struck by their own authority, or by that of the
respective States; fixing the standard of weights and measures
throughout the United States, regulating the trade and managing
all affairs with the Indians not members of any of the States;
provided that the legislative right of any State, within its own
limits, be not infringed or violated; establishing and regulating
post-offices from one State to another throughout all the United
States, and exacting such postage on the papers passing through
the same, as may be requisite to defray the expenses of the
said office; appointing all officers of the land forces in the service
of the United States, excepting regimental officers; appointing
all the officers of the naval forces, and commissioning all officers
whatever in the service of the United States; making rules for the
government and regulation of the said land and naval forces, and
directing their operations.
The United States, in Congress assembled, shall have authority
to appoint a committee, to sit in the recess of Congress, to be de-
nominated "A Committee of the States," and to consist of one
delegate from each State; and to appoint such other committees
and civil officers as may be necessary for managing the general
affairs of the United States under their direction; to appoint one
of their number to preside, provided that no person be allowed to
serve in the office of president more than one year in any term of
three years; to ascertain the necessary sums of money to be raised
for the service of the United States, and to appropriate and apply
the same for defraying the public expenses; to borrow money or
emit bills on the credit of the United States, transmitting every
half year to the respective States an account of the sums of money
so borrowed or emitted; to build and equip a navy; to agree upon
the number of land forces, and to make requisitions from each
State for its quota, in proportion to the number of white inhabi-
tants in such State, which requistion shall be binding; and there-
upon the Legislature of each State shall appoint the regimental
officers, raise the men, and clothe, arm, and equip them in a
Boldier-like manner at the expense of the United States; and the
Appendices 319
officers and men so clothed, armed, and equipped shall march to
the place appointed, and within the time agreed on by the United
States, in Congress assembled; but if the United States, in Con-
gress assembled, shall, on consideration of circumstances, judge
proper that any State should not raise men, or should raise a
smaller number than its quota, and that any other State should
raise a greater number of men than the quota thereof, such extra
number shall be raised, officered, clothed, armed, and equipped
in the same manner as the quota of such State, unless the Legis-
lature of such State shall judge that such extra number cannot be
safely spared out of the same, in whicli case they shall raise,
officer, clothe, arm, and equip as many of such extra number as
they judge can be safely spared, and the officers and men so clothed,
armed, and equipped shall march to the place appointed, and
within the time agreed on by the United States, in Congress
assembled.
The United States, in Congress assembled, shall never engage
in a war, nor grant letters of marque and reprisal in time of
peace, nor enter into any treaties or alliances, nor coin money,
nor regulate the value thereof, nor ascertain the sums and expenses
necessary for the defense and welfare of the United States, or any
of them, nor emit bills, nor borrow money on the credit of the
United States, nor appropriate money, nor agree upon the number
of vessels of war to be built or purchased, or the number of land
or sea forces to be raised, nor appoint a commander-in-chief of
the army or navy unless nine States assent to the same, nor shall
a question on any other point, except for adjourning from day
to day, be determined, unless by the votes of a majority of the
United States, in Congress assembled.
The Congress of the United States shall have power to adjourn
to any time within the year, and to any place within the United
States, so that no period of adiournment be for a longer duration
than the space of six months, and shall publish the journal of their
proceedings monthly, except such parts thereof relating to treaties,
alliances, or military operations as in their judgment require
secrecy: and the yeas and nays of the delegates of each State, on
any question, shall be entered on the journal, when it is desired
by any delegate; and the delegates of a State, or any of them,
at his or their request, shall be furnished with a transcript of the
said journal, except such parts as are above excepted, to lay before
the legislatures of the several States.
320 Constitutional Law
Article X. — The committee of the States, or any nine of them,
shall be authorized to execute, in the recess of Congress, such of
the powers of Congress as the United States, in Congress assem-
bled, by the consent of nine States, shall, from time to time, think
expedient to vest them with ; provided that no power be delegated
to the said committee, for the exercise of which, by the articles
of confederation, the voice of nine States, in the Congress of the
United States assembled is requisite.
Article XI. — Canada acceding to this confederation, and joining
in the measures of the United States, shall be admitted into, and
entitled to all the advantages of this Union; but no other colony
shall be admitted into the same unless such admission be agreed
to by nine States.
Article XII. — All bills of credit emitted, moneys borrowed, and
debts contracted by or under the authority of Congress, before the
assembling of the United States, in pursuance of the present con-
federation, shall be deemed and considered as a charge against
the United States, for payment and satisfaction whereof the said
United States and the public faith are hereby solemnly pledged.
Article XIII. — Every State shall abide by the determinations of
the United States, in Congress assembled, on all questions which
by this Confederation are submitted to them. And the Articles
of this Confederation shall be inviolably observed by every State,
and the Union shall be perpetual; nor shall any alteration at any
time hereafter be made in any of them, unless such alteration be
agreed to in a Congress of the United States, and be afterwards
currence of two thirds of the Members present.
And whereas it hath pleased the great Governor of the world
to incline the hearts of the legislatures we respectively represent
in Congress, to approve of, and to authorize us to ratify the said
Articles of Confederation and perpetual Union, Know ye, that we,
the undersigned delegates, by virtue of the power and authority
to us given for that purpose, do, by these presents, in the name
and in behalf of our respective constituents, fully and entirely
ratify and confirm each and every of the said Articles of Con-
federation and perpetual Union, and all and singular the matters
and things therein contained. And we do further solemnly plight
and engage the faith of our respective constituents, that they shall
abide by the determinations of the United States, in Congress as-
snmbled, on all questions which by the said Confederation are
submitted to them; and that the Articles thereof shall be inviolably
Ari'EXDicES 321
observed by the States we respectively represent, and that the
Union shall be perpetual. In witness whereof, we have hereunto
set our hands in Congress. Done at Philadelphia, in the State
of Pennsylvania, the ninth day of July, in tlio yoar of our Lord
1778,* and in the third year of the Independence of America.
APPENDIX B
The Constitution of the United States of Axiehica,
AVITII THE SeVEIUL AMENDMENTS
Printed from the official records, in conformity with the original
orthography.
CONSTITUTION OF THE UNITED STATES OF AMERICA.
We the people of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States
of America.
Article I.
Section 1. — All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of
a Senate and House of Representatives.
Section 2. — The House of Representatives shall be composed o^
Members chosen every second Year by the People of the several
States, and the Electors in e^ch State shall have tlie Qualiflcationa
requisite for Electors of the most numerous Branch of the State
Legislature.
No Person shall be a Representative who shall not have attained
to the Age of twenty-five Years, and been seven Years a Citizen
* Only ten states took action upon the Articles at this time.
New Jersey, Delaware, and Maryland did not ratify them until
later.
21
322 Constitutional Law
of the United States, and who shall not, when elected, he an
Inhabitant of that State in which he shall be chosen.
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, including those
bound to Service for a Term of Years, and excluding Indians not
taxed, three-fifths of all other Persons. The actual Enumeration
shall be made within three Years after the first Meeting of the
Congress of the United States, and within every 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 Hamp-
shire shall be entitled to chuse three, Massachusetts eight, Rhode
Island and Providence Plantations one, Connecticut five, New York
six, New Jersey four, Pennsylvania eight, Delaware one, Mary-
land six, Virginia ten, North Carolina five, South Carolina fire,
and Georgia three.
When vacancies happen in the Representation from any State,
the Executive Authority thereof shall issue Writs of Election to
fill such Vacancies.
The House of Representatives shall chuse their Speaker and
other Oflicers; and shall have the sole Power of Impeachment.
Section 3.— 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.
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 Seats 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 Appoint-
ments until the next Meeting of the Legislature, which shall then
fill such Vacancies.
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 Inhabitant
of that State for which he shall be chosen.
Appendices 323
The Vice President of tlie United States shall be President
of the Senate, but shall have no Vote, unless they be equally
divided.
The Senate shall chuse their other Officers, and also a President
pro tempore, in the Absence of the Vice l^resident, or when he
shall exercise the OflTce of President of the United States.
The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside; And no Person shall be convicted without the Con-
currence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and enjoy
any Office of honor. Trust or Profit under the United States: but
the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.
Section 4. — The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any
time by law make or alter such Regulations, except as to the
Places of chusing Senators.
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 5. — 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.
Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behavior, and, with the Concurrence
of two thirds, expel a Member.
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 tlie Yeas and Nays of the
Members of either House on any question shall, at the Desire of
one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without
the Consent of the other, adjourn for more tlian three days, nor
to any other Place than that in which the tv/o Houses shall be
sitting.
324 Constitutional Law
Section 6. — The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and
paid out of the Treasury of the United States. They shall in all
Cases, except Treason, Felony and Breach of the Peace, be privi-
leged from Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from the same;
and for any Speecli or Debate in either House, tliey shall not be
questioned in any other Place.
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 Emolu-
ments whereof shall have been encreased during such time; and
no Person holding any office under the United States, shall be a
member of either House during his Continuance in Office.
Section 7. — All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur
with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States; If he approve he shall sign it,
but if not he shall return it, with his Objections to that House
in which it shall have originated, who shall enter the Objections
at large on their Journal, and proceed to reconsider it. If after
such Reconsideration two thirds of that House shall agree to
pass the Bill, it shall be sent, together with the Objections, to the
other House, by which it shall likewise be reconsidered, and if
approved by two thirds of that House, it shall become a Law.
But in all such Cases the Votes of botli Houses shall be determined
by yeas and Nays, and the Names of the Persons voting for and
against the Bill sliall be entered on the Joufnal of each House
respectively. If sny Bill sliall not be returned by the President
within ten Days (Sundays excepted) after it shall have been pre-
sented 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.
Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary
(except on a question of Adjournment) shall be presented to the
President of the United States; and before the Same shall take
Effect, shall be approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate and House of Repre-
Appexdice3 325
sentatives, according to the Rules and Limitations prescribed in
tlie Case of a Bill.
Section 8. — The Congress shall have Power To Lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide
for the common Defence and general Welfare of the I'nited States;
but all Duties, Imposts and Excises shall be uniform throughout
the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform
Laws, on the subject of Bankruptcies throughout the United
States;
To coin Money, regulate the Value thereof, and of foreign Coin,
and fix the Standard of Weights and Measures;
To provide for the punishment of counterfeiting the Securities
and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the
high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money
to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land
and naval Forces;
To provide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the
Service of the United States, reserving to tlie States respectively,
the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession
of particular States, and the Acceptance of Congress, become the
326 Constitutional Law
Seat of the Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of the Legis-
lature of the State in which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, dock-Yards, and other needful Build-
ings; — And
To make all Laws which shall be necessary and proper for carry-
ing into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.
Section 9. — The Migration or Importation of such Persons as
any of the States 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 or duty may be imposed on
such Importation, not exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Pro-
portion to the Census or Enumeration herein before directed to
be taken.
No Tax or Duty shall be laid on Articles exported from any
State.
No Preference shall be given by any Regulation of Commerce
or Revenue to the Ports of one State over those of another: nor
shall vessels bound to, or from, one State, be obliged to enter,
clear or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law; and a regular Statement and
Account of the Receipts and Expenditures of all public Money shall
be published from time to time.
No Title of Nobility shall be granted by the United States: And
no Person holding any Office of Profit or Trust under them, shall,
without the consent of the Congress, accept of any present, Emolu-
ment, Office, or Title, of any kind whatever, from any King, Prince,
or foreign State.
Section 10. — No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money;
emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment of Debts; pass any Bill of Attainder, ex post
facto Law. or Law impairing the Obligation of Contracts, or grant
any Title of Nobility.
Appf.ndices 327
No state shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except wliat may be
absolutely necessary for executing it's 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 Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty
of Tonnage, keep Troops, or Ships of War in time of Peace, enter
into any Agreement or Compact with another State, or with a
foreign Power, or engage in War, unless actually invaded, or in
such Imminent Danger as will not admit of delay.
Abtici£ II.
Section 1. — 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
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 an Office of Trust or Profit under the United States,
shall be appointed an Elector.
[Repealed by Xllth Ametidment, page 336.]
The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an In-
habitant of the same State with themselves. And they shall make
a List of all the Persons voted for, and of the Number of Votes for
each; which List they shall sign and certify, and transmit sealed
to the Seat of the Government of the United States, directed to
the President of the Senate. The President of the Senate shall,
in the Presence of the Senate and House of Representatives, open
all the Certificates, and the Votes shall then be counted. The
Person having the greatest Number of Votes sliall be the President,
if such Number be a Majority of tlie whole Number of Electors
appointed; and if there be more tlian one who have such Major-
ity, and have an equal Number of Votes, then the House of Repre-
sentatives shall immediately chuse 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 siiall in like Manner chuse
the President. But in chasing the President, the Votes shall be
taken by States, the Representation from each State having one
328 Constitutional Law
vote; A quorum for this Purpose shall consist of a Member or
Members from two thirds of the States, and a Majority of all the
States shall be necessary to a Choice. In every Case, after the
Choice of the President, the Person having the greatest Number
of Votes of the Electors shall be the Vice President. But if there
should remain two or more who have equal Votes, the Senate
shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors,
and the Day on which they shall give their Votes; which Day shall
be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this Constitution,
shall be eligible to the Office of President; neither shall any person
be eligible to that Office who shall not have attained to the Age
of thirty five Years, and been fourteen Years a Resident within
the United States.
In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and
Duties of the said Office, the Same shall devolve on the Vice Presi-
dent, and the Congress may by Law provide for the Case of Re-
moval, Death, Resignation or Inability, both of the President and
Vice President, declaring what Officer shall then act as President,
and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services,
a Compensation, which shall neither be encreased nor diminished
during the Period for which he shall have been elected, and he
shall not receive within that Period any other Emolument from
the United States, or any of them.
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 execute the Office of President of the United
States, and will to the best of my Ability, preserve, protect and
defend the Constitution of the United States.
Section 2. — The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the United
States; he may require the Opinion, in writing of the principal
Officer in each of the executive Departments, upon any Subject
relating to the Duties of their respective Offices, and he shall have
Appendices 329
Power to grant Reprieves and Pardons, for Offences against the
United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators
present concur; and he shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be estab-
lished by Law: but the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions
which shall expire at the End of their next Session.
Section 3. — He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions, convene both
Houses, or either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper: he shall receive
Ambassadors and other public Ministers: he shall take Care that
the laws be faithfully executed, and shall Commission all the
Officers of the United States.
Section 4.— 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.
Articij: III.
Section 1.— The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The
Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stilted Times, receive
for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.
Section 2.— The judicial Power shall extend to all Cases, In
Law and Equity, arising under this Constitution, the laws of
330 Constitutional Law
the United States, and Treaties made, or which shall be made,
under their Authority;— to all Cases affecting Ambassadors, other
public Ministers and Consuls; — to all Cases of admiralty and
maritime Jurisdiction; — to Controversies to which the United
States shall be a Party; — to Controversies between two or more
States; — between a State and Citizens of another State; — be-
tween Citizens of different States, — between Citizens of the same
State claiming Lands under Grants of different States, and be-
tween a State, or the Citizens thereof, and foreign States, Citizens
or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme
Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
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 committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed.
Section 3. — Treason against the United States, shall consist only
in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the same
overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Pimishment of
Treason, but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attainted.
Article IV *
Section 1. — Full Faith and Credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of every
* Cf. Art. of Confederation;
"Art. IV. The better to secure and perpetuate mutual friend-
ship and intercourse among the people of the different states in
this union, the free inhabitants of each of these states, paupers,
vagabonds, and fugitives from justice excepted, shall be entitled
to all privileges and immunities of free citizens in the several
states; and the people of each state shall have free Ingress and
Appendices 331
other State. And the Congress may by general Laws prescribe
the Manner in which such Acts, Records and Proceedings shall
be proved, and the Effect thereof.
Section 2. — The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in tlie several States.
A Person charged in any State with Treason, Felony, or other
Crime, who siiall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from
which he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.
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 3. — New States may be admitted by the Congress into
this Union; but no new State shall be formed or erected wltliin
tlie Jurisdiction of any other State; nor any State be formed by
the Junction of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned as well as of
the Congress.
The Congress shall have Power to dispose of and make all need-
ful Rules and Regulations respecting the Territory or other Prop-
erty belonging to the United States; and nothing In this Consti-
tution shall be so construed as to Prejudice any Claims of the
Ignited States, or of any particular State.
egress to and from any other state, and shall enjoy therein all tlie
privileges of trade and commerce, subject to the same duties, impo-
sitions, and restrictions as the inhabitants thereof respectively,
provided that such restriction shall not extend so far as to prevent
the removal of property imported into any state, to any otlier
state of which the Owner is an inliahitant, provided also that no
Imposition, duties or restriction, shall be laid by any state, on tho
property of the Ignited States, or eitlier of tliem.
If any person guilty of, or charged with treason, felony, or other
high misdemeanor in any state, shall flee from Justice, and bo
found in any of the united states, he shall upon demand of the
Governor or executive power, of the state from which he fled, be
delivered up and removed to the state having jurisdiction of his
offence.
Full faith and credit shall be given in each of these states to
the records, acts and judicial proceedings of the Courts and
magistrates of every other state."
332 Constitutional Law
Section 4. — 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, whanever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution, or,
on the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments, which,
in either Case, shall be valid to all Intents and Purposes, as Part
of this 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 pro-
posed by the Congress; Provided that no Amendment which may
be made prior to the Year One thousand eight hundred and eight
shall in any Manner affect the first and fourth Clauses in the
Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of its equal Suffrage in the Senate.
Article VI.
All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United
Stateij under this Constitution, as under the Confederation.
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.
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this Con-
stitution; but no religious Test shall ever be required as a Quali-
fication to any Office or public Trust under the United States.
ArrENDicES
333
Article VII.
The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the
States so ratifying the Same.
Done in Convention by the Unanimous Consent of the States
present the Seventeenth Day of September in the Year of our
Lord one thousand seven hundred and Eighty seven and of the
Independence of the United States of America the Twelfth.
In Witness whereof We have hereunto subscribed our Names.
G": Washington
Presidt. and deputy from Virginia.
New Hampshire
Massachusetts
Connecticut
New York
New Jersey
Pennsylvayiia
Delaware
Maryland
Virginia
North Carolina
JJOITN' LANOnON
\NltIIOLAS GlLMA.N
/Nathamel Goriiam:
\RuFus King
CWm. Saml. Johnson
\Kogh:b Sherman
Alexander Hamilton
'"Wll: Livingston
David Brearley
Wm. Paterson
.Jona: Dayton
B. Franklin
Thomas Mikflin
HoBT. Morris
Geo. Clymer
Tiios. Fitzsimmons
Jared Ixgersoll
James Wii-son
GOLY Moiuus
Geo: Reed
Gunning Bepforo Jun
John Duki.^son
Richard Bassett
Jaco: Brown
James McHenry
Dan of St. Tiios. Jenifer
Danl. Carroll
John Blair —
James Madison, Jr.
fWM. Bloint
RICHD. Dobus SrAIGHT
Hu Williamson
334 Constitutional Law
South Carolina
j. rutledge
Chakles Cotesworth Pinckney
Chables Pinckney
L Pierce Butler
Georgia (Y^'^^l^''' ^^"^
\Abr. Baldwin
Attest William Jackson, Secretary
AMENDMENTS OP THE CONSTITUTION.
[Article I.— 1791.]
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
[Article II.— 1791.]
A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed.
[Article III.— 1791.]
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.
[Article IV.— 1791.]
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 prob-
able cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.
Appendices 335
[Article V— 1791.]
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or In
the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in
any Criminal Case to be a witness against himself, nor be de-
prived of life, liberty, or property without due process of law;
nor shall private property be taken for public use, without just
compensation.
[Article VI.— 1791.]
In all criminal prosecution, 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; to be con-
fronted with the witnesses against him; to have compulsory proc-
ess for obtaining Witnesses in his favor, and to have the Assist-
ance of Counsel for his defence.
[Article VII.— 1791.]
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise re-examined in any
Court of the United States, than according to the rules of the
common law
[Article VIII.— 1791.]
Excessive bail shall not be required, nor excessive fines Imposed,
nor cruel and unusual punishments inflicted.
[Artici^ IX.— 1791.]
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
336 CoxsTiTUTioxAL Kvw
[Article X.— 1791.]
The powers not delegated to the United States by the Constitu-
tion, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.*
[Article XL— 1798.]
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.
[Article XII.— 1804.]
The Electors shall meet in their respective states, and vote by
ballot for President and Vice-President, one of whom, at least,
shall not be an inhabitant of the same state with themselves; they
shall name in their ballots the person voted for as President, and
in distinct ballots the person voted for as Vice-President, and they
shall make distinct lists of all persons voted for as President,
and of all persons voted for as Vice-President, and of the number
of votes for each, which lists they shall sign and certify, and
transmit sealed to the seat of the government of the United
States, directed to the President of the Senate; — The President
of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then
be counted; — The person having the greatest number of votes
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 immediately,
by ballot, the President. But in choosing the President, the votes
shall be taken by states, the representation from each state having
one vote; a quorum for this purpose shall consist of a member
or members from two-thirds of the states, and a majority of all
the states shall be necessary to a choice. And if the House of
*Cf. Art. II of the Articles of Confederation. "Each State
retains its sovereignty, freedom, and independence, and every
power, jurisdiction, and right, which is not by this confederation
expressly delegated to the United States in Congress assembled."
Appendices 337
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 Presidont,
as in the case of the death or other constitutional disability of the
President. The person having the greatest number of votes as
Vice-President, shall be the Vice-President, if sucli number be
a majority of the whole number of Electors appointed, and if no
person have a majority, then from tlie two higliest numbers on
the list, the Senate shall choose the Vice-President: a quorum for
the purpose shall consist of two-thirds of the whole number of
Senators, and a majority of the whole number shall be necessary
to a choice. But no person constitutionally ineligible to the office
of President shall be eligible to that of Vice-President of the
United States.
[Abticle XIII.— 1S65.]
Section 1. — Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.
Section 2.— Congress shall have power to enforce this article by
appropriate legislation.
[Article XIV.— 1868.]
Section 1. — All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection
of the laws.
Section 2.— Representatives shall be apportioned among the
several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the choice
of electors for President and Vice-President of the United States,
Representatives in Congress, the Executive and Judicial officers of
a State, or the members of the Legislature thereof, is denied to
any of the male inhabitants of such State, being twenty-one years
22
338 Constitutional Law
of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis
of representation therein shall be reduced in the proportion
which the number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such State.
Section 3. — No person shall be a Senator or Representative in
Congress, or elector of President and Vice-President, or hold any
office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member
of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall
have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may
by a vote of two-thirds of each House, remove such disability.
Section 4.— The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States
nor any State shall assume or pay any debt or obligation incurred
in aid of insurrection or rebellion against the United States, or
any claim for the loss or emancipation of any slave; but all such
debts, obligations and claims shall be held illegal and void.
Section 5. — The Congress shall have power to enforce, by ap-
propriate legislation, the provisions of this article.
[Article XV.— 1870.]
Section 1.— The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude.
Section 2. — The Congress shall have power to enforce this article
by appropriate legislation.
[Article XVI.— 1913.]
The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment,
among the several States, and without regard to census or enumer-
ation.
Appendices 339
[Article XVII.— 1913.]
The Senate of the United States shall be composed of two Sena-
tors from each State, elected by the people thereof, for six years,
and each Senator shall have one vote. The electors in each State
shall have the qualifications requisite for electors of the most
numerous branch of the State legislature.
When vacancies happen in the representation of any State in
the Senate, the executive authority of such State shall issue v^rits
of election to fill such vacancies: Provided, That the legislature
of any State may empower the executive thereof to make tempo-
rary appointments until the people fill the vacancies by election
as the legislature may direct.
This amendment shall not be so construed as to affect the elec-
tion or term of office of any Senator chosen before it becomes
valid as part of the Constitution.
INDEX
INDEX
Adjournment of Congress, 64.
Admiralty and maritime juris-
diction, 212.
Admission of new States, 233-
234.
Agreements and compacts for-
bidden, 162.
Alaska, government of, 235.
Alexander's (Mrs.) cotton, 284.
Aliens, naturalization of, 96.
Almey v. California, 147, 160,
301.
Ambassadors and public min-
isters, 194.
duties of, 195.
American Pub. Co. v. Fisher,
303.
Annapolis Convention, 19, 90.
Amendments to bills, 78.
Amendments to the Constitu-
tion:
methods of proposing, 240.
prior to 1808, 241.
possibility of further, 242.
reasons for, 241.
Amendments to the Constitu-
tion:
1st, 252.
2d, 254.
3d. 255.
4th, 256.
5th, 257.
6th, 264.
7th, 266.
8th, 269.
9th, 270.
10th, 270.
11th, 271.
12th, 171-172.
13th, 272-273.
14th, 97, 274. 280, 283.
purpose of, 281.
Amendments to the Constitu-
tion— (Cont'd).
15th, 285.
16th, 286.
17th, 46.
Appellate jurisdiction, 216-217.
Appointment to office. 186-189.
Appropriations limited bv law,
149.
for the army, 124-125, 127.
Archbald. R. W., impeached,
199.
Army, power of Congress over,
124-125.
Articles of Confederation, Ap-
pendix A.
Atkin V. Kansas. 309.
Attainder of treason, 220, 222.
bills of, 245.
Attendance, compelling, 60.
Bail, not to be excessive, 269.
Banknotes, 110.
Bankruptcy controlled by Con-
gress, 101-102.
contrasted with Insolvency,
102.
law of 1898, 102.
results of. 103.
State laws on, 103.
Belknap, Secretary, Impeached,
199.
Bills, amendments to, 78-79.
method of passing. 70, 76-79. '
public and private, 74-76.
introduction of, 76.
readings of. 76. 78.
" riders " to. 71.
Bills for revenue, 69.
Bills of attainder, 143, 153, 245.
Bills of credit forbidden, 152.
344
Index
Bills of pains and penalties,
143.
Blake v. McClung, 229.
Blount, William, impeached,
198
Bonds, 88-89.
Boyd V. United States, 305.
Bradwell v. Illinois, 309.
Brown v. Maryland, 92, 160.
Burr, Aaron, 173.
Cabinet, origin of, 183.
members of, 183.
Capitation tax a direct tax, 86.
clause concerning, 145.
Captures, rules concerning, 124.
Cases (see Leading Cases).
Cases under the Constitution,
213.
affecting ambassadors, etc.,
213-214.
in law and equity, 214.
Charters, distinguished from
licenses, 157.
public and private, 155.
Chase, Samuel, impeached, 199.
Cherokee Nation v. Georgia, 95,
302.
Chicago riots, 239.
Chinese, citizenship of, 98, 99.
excluded, 99, 135.
naturalization of, 275-276.
Chisholm v. Georgia, 271.
Circuit court of appeals, 204.
Citizens defined, 97.
Chinese, 98.
who are, 274.
Citizens by naturalization, 274.
privileges and immunities of,
276-277.
rights in other States, 228.
Civil officers liable to impeach-
ment, 198.
Senators and Representatives
are not, 198.
Clerk of the House, 42.
Coinage, acts of, 106.
of money forbidden, 152.
Commerce, intra- and interstate,
91.
Act of 1887, 94.
Commerce — ( Cont'd ) .
Federal regulation of, 90.
with Indian tribes, 95.
Commissions issued by Presi-
dent, 197.
Committees in Congress, 76.
advantages of, 77.
of the whole, 77.
work of, 77.
Common law defined, 267.
crimes at, 268.
how modified, 267.
suits at, 2G6, 268.
Concurrent resolution, 74, 75.
Confederation, Articles of, 16,
18, Appendix A.
Conferences in Congress, 79.
Congress, adjournment of, 64,
192.
character of, 31.
compelling attendance in, 60.
Continental, 17, 18.
has control over land, etc.,
1 OO 1 oo
Loii, loo.
journals of, 63.
limitations on, 139-163.
makes exceptions in appeals,
217.
meetings of, prescribed, 57.
military powers of, 126.
named, 58.
powers of, 83-136.
powers of, under the Articles,
18.
special sessions of, 192.
sessions of, unequal, 58.
voting in, 63.
Congressmen, compensation of,
64.
not liable for duress, 62.
offices debarred to, 68.
scope of, 49.
special privileges of. 65.
Constitution defined, 15.
amendments to (see Amend-
ments).
chronology of, 9.
how ratified, 246.
of the United States, Appen-
dix B.
Index
345
Constitution— ( Cont'd ) .
put in operation, 22.
the supreme law, 244.
Consular courts, 206.
Consuls, duties of, 195, 219.
Contempts defined, 62.
punishment for, 62.
Contested elections, 59.
Continental Congress, 17-18.
Contracts defined, 153.
charters as, 155.
obligation of, 153, 154.
Convention, Annapolis, 19, 90.
Constitutional, 20-22.
Cooper, Duncan, pardon of, 185.
Copyrights, 116-117.
Cornell v. Coyne, 298.
Corporations as citizens, 228-
229.
Counterfeiting defined. 111.
power to punish. 111.
Court of Claims, composition
of, 205.
function of, 149.
Courts, Circuit of Appeals, 204.
Consular, 206.
District, 204.
inferior. 119, 203.
martial, 206-207.
may punish after impeach-
ment, 55.
military. 127, 206-207.
of Claims, 149, 205.
officers of, 211.
of States, 208.
of Territories. 206.
power to establish, 119.
Supreme, on income tax, 87.
tenure of office in, 209.
Crandall r. Nevada, 277.
Crimes against the United
States, 218.
at common law, 268.
capital and infamous, 258.
trial of. 218-219.
Cruelties in punishments for-
bidden, 269.
Cummings v. Missouri, 144, 299.
Currency, paper, 107.
kinds of, 107-110.
Dartmouth Coll. v. Woodward,
155, 213, 262.
Davis V. Beason, 252, 305.
Davis V. Packard, 302.
Day V. Micou, 222.
Debts, pre-existing, valid, 243.
validity of, 283.
void if contracted in rebel-
lion, 284.
Diamond Match Co. v. Onto-
nagon, 298.
Dilatory motions, 64.
Direct tax, 86-87.
District-attorney, duties of, 258.
District of Columbia, 131.
crimes in, 219.
District Court, 204.
jurisdiction of, 205.
in admiralty cases, 212.
Dreyer v. Illinois, 306.
Duties of tonnage, 161.
States may not levy, 158.
Due process of law, 261, 278.
Elections, acts of Congress re-
garding. 56.
certificate of, 48.
contested, 59.
of the President, 171-172.
of Representatives, 33-34.
of Senators, 46.
State influence on, 173.
Electoral system, 169-170.
Electors, qualifications of, 33,
171.
Elk V. Williams, 275, 296.
Embargo act, 93, 135.
Eminent domain defined, 262.
proceedings under, 263.
Equity distinguished from law,
214.
Executive, immunity of, 167.
departments, 182.
power, 167.
Export duties forbidden, 158-
159.
Ex post facto laws, 144-145.
Expatriation, right of, 98.
Extradition, 230.
316
Indes
Faith and credit, 227.
Federal courts, named, 203-204.
in harmony with State courts,
209.
limitations of, 217.
Federalist, on titles of nobility,
158.
on the post-oflBce, 112.
Felonies, 120.
Filibustering, defined, 60-61.
Fines, excessive, not allowed,
269.
Fiske, John, 28.
Foreign coin, value regulated,
110.
Forfeiture of property, 223.
Fort Leavenworth R. R. v.
Lowe, 293.
Fox V. Ohio, 112, 260, 297.
Freedom of speech, 66, 252.
Fugitives from justice, clause
not mandatory, 231.
defined, 230.
procedure in return of, 230-
231.
Fugitives from labor, 232.
Garland, case of, 144, 184, 245.
Geer v. Conn., 159, 295.
Gibbons v. Ogden, 91, 93, 140.
Gold certificates, 107.
and silver, 106.
Grand jury, 258, 259.
Grants by States to citizens, 156.
case of in New Jersey, 156.
defined, 156.
Great Britain, constitution of,
15.
Green, in re, 302.
Greenbacks, 108.
Guam and Tutuila, 237.
Habeas corpus, writ of, 140.
in extradition cases, 231.
power to suspend, 142.
who may issue writ of, 143.
Hamilton, Alexander, in An-
napolis Convention, 19.
in Constitutional Convention,
20.
Hans V. Louisiana, 272, 308.
Hawaii, government of, 236.
Hawker v. New York, 301.
Heads of departments, 183.
Hayes-Tilden controversy, 176.
Holmes v. Jennison, 151, 299
Hill, David B., Senator and
Governor, 68.
House of Representatives:
officers of, 42.
originates bills for revenue,
69.
power of, to impeach, 42.
punishment of members of,
61.
punishment of members of,
for contempt, 62.
rules of, 61.
speaker of, 42.
Humphries, West H., im-
peached, 199.
Impeachment defined, 42.
in the States, 54.
offenses leading to, 199.
President cannot pardon in,
184.
presiding officer in, 54.
procedure in the House, 43.
procedure in the Senate, 53.
punishment on conviction of,
54, 55, 200.
purpose of, 52.
who are liable to, 198.
Implied powers, doctrine of,
133.
limit of, 135.
Imports, character of, 160.
States may not tax, 158.
Income tax, law of 1913, 287.
rulings of the Supreme Court
on, 87, 286.
Indians, citizenship of, 275.
commerce with, 95.
not taxed, 37.
relations with the govern-
ment, 37.
Indictment distinguished from
presentment, 258.
Indirect taxes, 160.
Index
347
Insolvency, 102.
Initiative and referendum. 72.
Inspection laws allowed to
States, 159.
Interstate Commerce Commis-
sion, 94.
Involuntary servitude, 274.
Johnson, Andrew, impeached,
198.
Joint resolutions, 74, 76.
Journals of Congress, 63.
Judicial power, explained, 203.
Judicial precedents, 212.
Judicial proceedings, 228.
Jurisdiction, admiralty and
maritime, 212.
defined, 215.
of the Supreme Court, 216-
217.
Jury, grand, 258-259.
need of change in, 218.
trial by, in suits at common
law, 266.
Kelly V. Rhoads, 295.
Knox, P. C, a case in point, 69.
Knox V. Lee, 223, 307.
Lands for forts, 132.
Lange, ex parte, 260, 306.
Lascelles v. Georgia, 231, 303.
Law, defined, 13.
cases in, and equity, 214.
civil, 268.
common, 267.
Constitutional, defined, 13.
due process of, 2G1.
equal protection of, 278.
ex post facto, 144-145.
immigration and exclusion,
99.
Inspection, 159.
martial and military, 128.
municipal, 13.
of presidential succession,
179.
religion and, 252.
the supreme, 244.
Leading cases, 293-309.
Legal tender, defined, 105.
notes, 108.
restrictions on States regard-
ing, 153.
Legislative grants, 156.
Legislation, methods of, 76-79.
Legislature, power to relieve
offenders, 184.
Letters of marque, 123, 151.
Libel and slander, 253.
Liberty and property defined,
277-278.
Louisiana, admitted as a State,
234.
civil law in, 268.
McCulloch V. Maryland, 83, 84,
85, 134, 135.
McDonald v. Mass., 307.
McKeady v. Virginia, 294.
Majorities, 70.
Marshall, John, 83, 135.
Maxwell v. Dow, 261, 306,
Military rules, 127.
Militia, defined, 128.
legislation concerning, 129.
necessary to a free State, 254-
255.
organization of, 130.
service of, 130.
Minnesota v. Barber, 295.
Misprision of treason, 223.
Mississippi r. Johnson, 1G8, 197.
Money, defined, 104.
legal tender, 105.
method of borrowing, bonds,
88.
paper, 107.
power to borrow, 88.
States forbidden to coin, 152.
value of, regulated, 1U5-107.
Monopolies, 279.
Morgan S. S. Co. v. La. Board
of Health, 300.
Mormon Church v. Unite 1
States, 235, 300.
Mrs. Alexander's cotton, 284.
Naturalization, apparent ex-
ception to rule of, 101.
348
Index
Naturalization — (Confd).
a uniform rule of, 100.
mode of, 96-97.
of communities, 99.
power of Congress over, 100.
Navy, appropriations for, 127.
since the Revolution, 125.
New Jersey v. Wilson, 156.
Nobility, titles of, 150.
North Carolina v. Temple, 272,
308.
Oath of office, 245.
test, 245.
Obligation of contract, 153.
Office, appointment to, 188-189.
oath of, 245.
power to remove from, 189-
190.
public, not a contract, 157.
under the United States, 55.
vacancies in, 191.
Officers, commissioned by Pres-
ident, 197.
of the courts, 211.
of the United States, 198.
other, in the House, 42.
other, in the Senate, 51.
presents to, 150.
Offenses against the law of na-
tions, 121.
place of trial of, 264.
Owings V. Speed, 300.
Packet Co. v. Keokuk, 161, 294.
Pardons, kinds of, 184.
power to issue in the States,
185.
power of President to issue,
183.
Paris, treaty of, 124.
Parker v. Davis, 297.
Parliament, pay of members,
65.
power in impeachment, 54.
Parrott, in re, 309.
Patents, 117.
qualifications of, 117.
Patterson v. Bark Eudora, 304.
Peck, James H., impeached, 199.
Peete v. Morgan, 161, 301.
Pensacola Tel. Co. v. Western
Tel. Co., 90.
Pervear v. Commonwealth, 92,
307.
Petit jury, 258.
Philippines, government of, 236.
Pickering, John, ex parte trial
of, 53.
impeached, 199.
Piracy, 119.
slave trade as, 120, 273.
Place of trial, 219.
Plessy V. Ferguson, 308.
Police power of a State, 92, 280.
Porto Rico, government of, 236.
Ports, entering and clearing,
147-148.
no preference among, 147.
Post-office and post-roads, 113-
114.
department of, 113.
expenses of, 115.
organization of, 114.
Powers not delegated, 270.
Preamble, 27.
Presentments, 258.
Presents to officers, 150.
President, as com.-in-chief, 182.
compensation of, 180.
commissions officers, 197.
election of, how determined,
175.
election of, double returns,
176.
election by the House, 173.
electors of, 169.
executive power in, 196.
message of, 192-194.
mode of electing, 172.
nominations for, 174.
oath of office of, 181.
participates in treaties, 186.
power to appoint, 188.
power to convene and adjourn
Congress, 192.
power to fill vacancies, 191.
power to pardon, 185.
power to remove, 189.
Index
349
President — (Cont'd).
primary election of, 174.
qualifications of, 177.
receives ambassadors, etc.,
194.
succession of, 178.
term of office of, 168.
veto power of, 71.
President of the Senate, Vice
President as, 50-51.
pro tempore of the Senate,
51-52.
Presidential succession, 178.
Press, censorship of, 253.
freedom of, 252.
Presser v. Illinois, 305.
Primaries, presidential, 174.
senatorial, 45.
Privateering, Congress on, 124.
Privileged matter, 254.
Privileges and immunities of
citizens, 228.
exceptions to, 228.
of accused persons, 264-266.
of citizens of the United
States, 276.
Public debt, validity of, 273.
Public acts, 227.
Public ministers, exterritorial-
ity of, 196.
named, 195.
Public use, 263.
Qualifications of President, 177.
of Representatives, 34.
of Senators, 49.
Quorums, counting a, 60.
defined, 59.
in Congress and Parliament,
59.
in election of President by
House, 174.
Raising revenue, meaning of,
69.
power to raise, 69.
Randolph. Edmund, Virginia
plan of, 21.
Reed, Thomas B., counts a quo-
rum, 60.
Ratification of the Constitution,
22, 246.
by the States, 247.
Rebellion, debts in aid of, 284.
Whiskey, 130.
Shays's, 29.
Recall of judges, 210.
Records, 227.
Religion and law, 252.
Religious toleration, 245-246.
Removals from office, 189.
Reporters, duties of, 211.
Representation, equality of, 4-1.
Representatives, apportionment
of, 38.
at large, 40.
election of, 33-34.
number in first Congress, 38.
number in 1913, 39.
privileges of, 62, 66.
qualifications of, 34.
residence, 35-36.
term of office, 32.
vacancies in office of, 41.
Representative government, 238.
Requisition, 230.
Resolutions, concurrent, 74.
forms of, 75-76.
joint, 74.
use in admission of States,
234.
Respective numbers, 281.
Returns, double, 176.
Right to assemble, etc., 254-255.
Rules of the House, 61.
military, 127.
Schooner Exchange v. McFad-
don, 302.
Searches and seizures, 256.
Second trial, 260.
Securities defined. 111.
Self-incrimination, 261.
Senate, as a court, 53.
elects Vice President, 173.
officers of, 51.
participates in treaties, 187.
presiding officer of, 50.
size of, 32.
vacancies in, 48,
350
Index
Senators, certificate of election
of, 48.
classes of, 47.
election of, 44-46.
privileges of, 62-65.
qualifications of, 49.
removal of, from the State,
50.
Shays's rebellion, 29.
Sherman Act, 109.
Silver certificates, 107.
ratio of, to gold, 106.
Slaughter House Case, 280, 310.
Slave trade, acts relating to,
273-274.
not prohibited till 1808, 139.
Slavery forbidden, 273.
Speaker of the House, 42.
may appoint committees, 77.
Special privileges under States,
157.
Speech, freedom of, 253.
States, how admitted, 233-234.
faith and credit to, 227.
police power in, 92, 280.
prohibitions on, 150-163.
suability of, 272.
taxation in, 87.
Statutes defined, 14.
Stone V. Mississippi, 157.
Story, Judge, quotation from,
163, 190.
Sturgis V. Crowningshield, 102,
154, 299.
Suffrage, denial of, 281-282.
Fifteenth Amendment on, 285.
Suits against States, 271.
Supreme Court, how consti-
tuted, 203.
jurisdiction of, 216-217.
Swayne, Judge, impeached, 199.
Taxation by the United States,
83.
limitations on, 83-85.
Taxes, cajiitation, 145.
direct, 86-87.
export, 146.
income, 87, 286-289.
indirect, 86.
Taxes— (Cont'd).
kinds of, 85.
on goods for export, 159.
Tenure of office, 190.
Test oath, 245.
Territories, courts in, 206.
how represented, 40.
of the United States, 235.
provisions respecting, 234.
status of new, 233.
western claims to, 232.
when become States, 233.
Three-fifths rule, 37.
Tindal v. Wesley, 308.
Titles of nobility, 150.
quotation from Federalist on,
158.
Tonnage, defined, 161.
duties of, forbidden, 161.
Trade-marks, 118.
Transportation Co. v. Wheeling,
93, 161, 293.
Treason, defined, 220.
and rebellion, 223.
attainder of, 222.
conviction of, 221.
punishment for, 222.
misprision of, 223.
Treasurer, duties of, 149.
Treaties, alliances and confed-
erations, 150.
Treaties defined, 186.
take effect when signed, 188.
weakness of, 187.
Trial by jury, 218-219.
in suits at common law, 266.
second for same offense, 260.
waiver of, 266.
Troops of war, quartering of,
forbidden, 255.
States not to maintain, 161-
162
True bill, 259.
United States bonds, 88.
citizenship in, 276.
commissioners, 211.
marshals, 211.
notes, 108.
reporters, 211.
treasury notes, 109.
Index
351
United States v. Fox, 229, 304.
United States v. Freight Co., 95.
United States v. LeBaron, 197.
United States v. Perez, 260, 306.
United States v. R. R. Co., 84.
United States v. Smith, 298.
United States v. Wong Kim
Ark, 98. 99, 276, 296.
United States v. Villato, 221,
296.
Vacancies In office, in Congress,
41, 48.
President's power to fill, 191.
Van Brocklin v. Tennessee, 84,
293.
Veazie v. Moore, 91, 294.
Veto power. 71-72.
Vice President, election of, by
Senate, 173.
duties of, 51.
method of electing, 172.
oath of office of, 181.
Vice President — (Cont'd).
presides over the Senate, 50.
qualifications of, 178.
Voting, methods of, 63.
Waiver of trial, 206.
Wallach v. Van Riswick, 303.
War. declared twice, 122.
power of Congress in, 123.
power of President in. 182.
power to declare, 121, 123.
States not to declare, 161-162.
Warrants. 256.
general, forbidden. 256-257.
searches without. 257.
Washington, view of vacancy,
191.
Weights and measures, 110.
Wheaton v. Perez. 297.
Wilson. Woodrow, message to
Congress, 193.
Yea and nay vote, 63.
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