Manual of the Constitution of the United States

Preface

THE development of Civil Government in the United States during the past twenty-fire years has rendered necessary the thorough revision and resetting of Andrews's Manual of the Constitution — a text-book which, in spite of numerous competitors published during the past decade, has continually increased in favor with teachers and students.

The book has been brought up to date in all particulars — including especially the more recent interpretations of the Constitution by the courts, and the important statutes calculated to produce permanent political effect. The utmost care, however, has been taken to keep to the original design of the book ; and those familiar with the work will find that no violence has been done to its original character.

Andrews's Manual grew out of the necessities and experiences of the classroom. For the proper instruction of the student in the important subject of Civil Government, a clear exposition of the great principles of the Constitution is needed, with a summary of the legislative provisions in which they have been embodied. When the author took charge of this department of study in Marietta College,1 he found himself embarrassed by the lack of suitable text-books meeting either of these requirements, especially the latter. Questions were continually suggesting themselves to which answers could be obtained only after laborious research and the study of scattered volumes.

1 Dr. Andrews was connected with Marietta College for fifty years ; he was made president of it in 1855, and died in 1SS8.

6 PREFACE

Urged on by a deep interest in the subject, and availing himself of the unusual facilities for the prosecution of studies of this character furnished by the library of the College, the anthor entered upon a somewhat extended investigation of our governmental history. The materials thus accumulated, having for some years furnished the basis for instruction by lectures, were condensed into this form, and given to the public in the hope that other instructors might be in some measure relieved from the excessive labor which similar personal examination would involve.

While the primary object was to provide a suitable text-book, adequate to all the requirements of the study, a conviction that a knowledge of our government can not he too widely diffused, and that large numbers would welcome a good work on this subject, led to the attempt to make the volume a manual adapted also for consultation and reference by the general public. With this end in view the author embodied in the work that kind — and, so far as space would allow, that amount — of information on the various topics which an intelligent citizen would desire to possess.

As the value of a work of this kind depends in large measure upon its accuracy, it is proper to say that in nearly every instance the statements touching the legislation or other action of the government have been taken from official publications.

List of Vice Presidents, Cabinet Officers, etc.,

The Declaration of Independence,

Articles of Confederation,

Ordinance of 1787,

Constitution of the United States,

Index, xvii

xxi

xxvii

xxxii

xlv

MANUAL OF THE CONSTITUTION

Chapter I

Civil Government — Its Object, Origin, and Nature — Different Forms of Government — Peculiarity of that of the United States — Not a Consolidated Republic nor a League of States.

Knowledge of our Government. — A knowledge of the nature and operation of the government under which we live is necessary for the successful prosecution of the business of life, and to secure the happiness of ourselves and of those dependent upon us. We can thus adapt ourselves to the circumstances in which we are placed, and avoid those perplexities and difficulties in which one ignorant of the laws and institutions of his country is liable to be involved. The fact that a man is subject to a government is a sufficient reason for studying its character and workings, although he may have no participation in its management.

In a republican government the importance of such knowledge is still greater, because the people are not only amenable to the laws, but also have a voice in electing those who make and execute them. He who lives under a despotism should acquaint himself with its character and workings for his own protection ; a citizen of a republic should do the same, because he is to some extent responsible for the government.

Two circumstances facilitate the acquisition of a competent knowledge of our government. First, our national existence extends over a comparatively brief period. But little more than a hundred years have passed since we became an independent people, while most of the civilized nations of the world have had a long and checkered history. Secondly, our Constitution is a written instrument, framed with the utmost caii'. and adopted by the people after the most careful deliberation. No other nation has a constitution that can compare with it, either in its comprehensiveness and completeness of subject, or in the precision of its language.

The Object of Civil Government can not be better expressed than in the words of our Constitution. It is to " establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty." These were the express ends to secure which the people of the United States ordained and established our national Constitution. These are the ends which all governments, of whatever form, are under obligation to seek. Civil governments are not established for the good of the rulers, but for the good of the people. They are not for the good of one or a few, at the expense of the others, but for the good of all.

Government a Necessity. — The general good could not be secured without government. Civil government is thus a necessity. Without it, justice could not be established, nor domestic tranquillity insured, nor the common defense provided for, nor the general welfare promoted, nor the blessings of liberty secured. Law is the guardian of liberty. Without law there would be no liberty, but in its stead, anarchy. One object of civil government is to protect us in our rights. It does this by restraining those who would interfere with these rights. Civil government is thus rendered necessary by the disposition of some to do wrong to others, and it can not be dispensed with so long as this disposition to interfere with the rights of others continues.

But government is not merely repressive. Its necessity is not wholly owing to the fact that there are wicked men in every community. Law and government are essential for the good as well as for the bad. The ''general welfare" is to be

0BJEC1 OF flO\ i.i:n MKNT 11

promoted, as well as the individual to be protected in his rights. There are many tilings to he done for the advancement of a nation, which could not he done without that combination and cooperation which are found only in governments. Science and art are to be fostered, education is to be encouraged, civilization to be advanced. Government has thus more to do than to restrain violence, to redress wrongs, and to punish the transgressor. There is government in heaven as well as on earth.

Government not a Necessary Evil — It is sometimes said that government is a necessary evil ; and that that government is best which governs least. The tendency of such language is to excite distrust and aversion, whereas governments should be respected, obeyed, and loved. A government founded in justice and administered with wisdom is always a good. Were government a necessary evil, it would be impossible to account for the existence and strength of patriotism. The love of country, which is stronger than the love of kindred, or any other of the natural affections, is itself a proof that by nature we regard government as a good and not as an evil. There may be abuses, but men look forward to the time when they will be remedied. That is not the best government which governs least ; though, other things being equal, that may be the best which makes the least show of governing. A wise ruler, whether in the family or the state, will never give needless prominence to the fact that he is a ruler, while an unwise ruler is disposed to make a display of his authority. In a good government, if the law is broken punishment must follow ; but the better the government, the less will be the tendency to break the law, and therefore the less the necessity of inflicting punishment. In a well-regulated school or family we see no manifestation of government, and apparently no government is needed ; but this apparent absence of government is itself a proof of the excellent manner in which the government is administered.

Society the Natural State. — Society is the natural state of man. His whole constitution shows that the intention of his Maker was that he should live in society and under government. History testifies that such has been the case from the beginning. In every age, and in every part of the earth, men have lived together in families, tribes, nations. They have been under some authority. Civil society is thus a universal fact. It is not the result of auy agreement among men, but it is the natural working out of the human constitution. We are born into the nation as into the family. We do not make society, — we find it already existing. We are to obey the laws of the land because they are the laws, just as the child is to obey the law of the family. In neither case is any consent asked.

Civil Authority not from any Compact. — It is not correct to say that civil society derives its authority through any compact or agreement, for then the power possessed by society would be limited to that received from the individual men composing the society. But the powers of government include those which never belonged to the individual man, and therefore could never have been conferred by him upon society. Indeed, if there ever was a state of nature, as some have supposed, prior to the existence of civil society, when men lived without government, all possessing equal rights, there could manifestly have been no right to govern, since no one could have had authority over another who was his equal. Men can not give what they do not possess, and society could never obtain its right to govern from the individual citizens, since they never had such a right.

Suppose, however, that this idea of a state of nature antecedent to civil society were fact and not fiction, and that men lived without government, all possessing equal rights ; what is to be done with those who do not choose to give up their rights ? Plainly, the majority could have no authority to coerce the minority, and government would be an impossi-

bility. Nor could ono generation bind the one -ucceeding it ; and each newborn citizen would be rightfully independent of all governmental control until his individual rights should be voluntarily deposited in the common stock.

The authority of civil society is not, then, derived from the individual citizens composing that society. They surrender nothing; society receives nothing. The fallacy in the theory of the "social compact," considered as an explanation of the origin of civil government, consists in confounding men as individuals with men as constituting a community. Wherever an independent community of men can be found, there is already civil society. There is no necessity for men to surrender a part of their rights in order to form a basis for authority ; the authority exists without any such surrender. In society, man has all the rights which he could have in any state of nature, if any such state of nature out of society can be conceived of. As has already been said, society is the natural state of man.

Society of Divine Origin. — It appears from the above that society is of divine origin. It is the intention of our Creator that we should live in society and under government, as it is that the race should be grouped into families, and the child be subject to his parents. " The powers that be are ordained of God." " There is no power but of God." No individual man has any divine right to be a king ; but as civil government is of divine origin, society has a divine right to have rulers. Whoever, therefore, exercises legitimately any function of the civil ruler, whether he be king or president, legislator or judge, is exercising an authority which is as divine in its origin as is the authority of a parent over his child.

Civil authority is of divine origin, and it is lodged in the people. It is held by the nation as a whole, and not by the people as individuals. Society is not a congress of sovereigns. The power of society does not come from the individual members, but it belongs to the nation as such. The nation receives it from God, as a parent receives from God his right to govern his children. If we suppose that civil society possesses no authority except what lias been imparted to it by the individual members, it follows, as we have already seen, that government can not be extended over those who have not surrendered their share of sovereignty. In such a case, majorities would have no right to control minorities. The supposition that civil government rests upon individual sovereignty would thus virtually destroy all governmental authority.

The Power of Society Limited. — It may be thought that the theory that the authority is in the community — the people as a whole — would lead to the other extreme of a social despotism. But, although the sovereignty is in the people collectively, they have no right to exercise any authority which God has not bestowed upon them. The parent has no right to govern his child except for the child's good ; neither has the nation any right to do anything which is not for the good of the people. Each member of the community has inalienable rights, with which society has no right to interfere. It is not claimed that all rights come from the state ; many do, but some do not. Some belong to man as man. Humanly speaking, the sovereignty is in the nation — the people collectively. But this sovereignty is not absolute ; it must be exercised in subordination to a higher sovereignty which recognizes the dignity and worth of the human being.

What is a Sovereign Nation ? — A political community, independent of all others, framing its own constitution, and enacting its own laws without hinderance or question from any other community — in short, a body politic, with no political superior, is a sovereign state or nation.1 France and

1 The word state is used by writers on government to signify a separate political com • munity ; it is synonymous with nation. In the United States it is also applied to a member of the American Union. In this volume, when used in the former sense, it will be written state ; when in the latter sense, state.

POLITICAL SOVEREIGN!) J 15

Great Britain are sovereign nations ; so is the United States. The sovereignty Ie in the state, as distincl from the government of the state. The people collectively constitute the state ; the body of men who for the time being are invested by the state with civil authority constitute the government. The political society exists ;is an historical fad : thus existing, it frames for itself a constitution and adopts a government. The nation must exist as a separate political community before it can give itself a constitution. The constitution does not constitute the nation, but only the government of the nation. A constitution is an organic law, and presupposes a body politic possessing the authority to enact such a law. The constitution thus made by a nation already existing, prescribes the mode in which the nation determines that its governmental affairs shall be managed. It is a kind of letter of instructions to those who are to act as its ministers in carrying on the government. It is the organic law to which all other laws must be conformed. The constitution is made by the nation for the guidance of the government. The government can not change it, but the nation can.

Distinction between Nation and Government. — This distinction between the state or nation, on the one hand, and the government on the other, is of great importance. The sovereignty is in the nation. As sovereign, the nation may constitute the government according to its own judgment, and give it such form as it pleases. But the sovereignty is in the nation as such, and not in the individual men composing it. The will of the nation is expressed in the constitution, which is the supreme law until the nation chooses to alter it ; and this alteration must be made in the mode which the nation has itself prescribed in the same organic law. A large majority of the people may disapprove of a clause in the constitution, but their disapprobation passes for nothing until the obnoxious clause is constitutionally removed from the constitntion. The same is true of the laws of a country. They are supposed to be valid until repealed. The constitution is made by the people, and the laws by the government ; but both are in force until changed or repealed by the power that enacted them. The people as a whole do not make the laws ; the government does not make the constitution.

The Constitution Twofold. — Some writers distinguish between the constitution of the nation and that of the government, Jameson calls the first a constitution considered as an objective fact. It is the " make-up of the commonwealth as a political organism ; that special adjustment of instrumentalities, powers, and functions, by which its form and operation are determined." The second is a constitution considered as an instrument of evidence.1 Brownson says, " The constitution is twofold ; the constitution of the state or nation, and the constitution of the government. The constitution of the government is, or is held to be, the work of the nation itself ; the constitution of the state, or of the people of the state, is, in its origin at least, providential, given by God himself, operating through historical events or natural causes. The one originates in law, the other in historical fact." 2

The constitution of the nation is unwritten. The constitution of the government may be written or unwritten. The constitution of the nation is its character — what it is, at any epoch. The constitution of the government is what the nation chooses to make it. As the nation changes, its constitution changes accordingly ; and the nation should change its governmental constitution from time to time, to make it correspond with the real constitution. The American nation was in existence a number of years before it formed a written governmental constitution. The present constitution, which went into operation in 1789, has received slight modifications at different times, and will continue to be modified in

1 Jameson's Constitutional Convention, page 66. a Brownson's American Republic, page 138.

FORMS OP GOVERNMEK I 17

future years, as the character of the nation itself is changed. We shall see, when the mode of amending the Constitution comes to be considered, that most ample provision has been made against hasty alterations in that instrument. Indeed, there is more reason to apprehend that needed changes will be delayed too long than that those which are unnecessary will be introduced.

Forms of Government. — There are various forms of government, differing from one another more or less widely. In a monarchy, the ruler is a single person. An aristocracy is a form of government in which the authority is held by a few. In a democracy, the power is exercised by the people themselves. But most existing governments combine two or more of these forms.

Monarchy. — In a monarchy, the whole authority is not necessarily in a single person. Most of the governments of Europe are called monarchies ; but in some of them the king has less power than the President of the United States. An absolute monarchy is a despotism. The monarch governs according to his own will and caprice, and not according to established laws. Such a government is clearly illegitimate. It is a government of force. In a limited monarchy, the king, prince, or emperor, or whatever he may be called, though nominally the sovereign, wields a power more or less restricted. Great Britain and all the provinces subject to it are called His Majesty's Dominions. The government is carried on in the sovereign's name. The army and navy are called His Majesty's troops and ships. But at the same time his real power is small. The laws are enacted by Parliament, and they are administered by the ministers, who are called His Majesty's government. Parliament is composed of two houses : the House of Lords, which is chiefly hereditary, and the House of Commons, which is elective.

Republic; Democracy. — A republic is properly a commonwealth. The domain belongs to the nation rather than to the A. C— 2- king or the nobles. It is a government in which the authority is exercised by the representatives of the people. It differs from a democracy in this, that in the latter the power is exercised by the people themselves, while in the former the people elect representatives to act for them. A pure democracy ran exist only in a small territory, where all the people can meet and enact laws. A republic may be democratic or aristocratic. If suffrage is universal, if the rulers are elected by the whole people, the government is a democratic republic. In proportion as suffrage is restricted and the number of voters diminished, the government becomes less democratic and more aristocratic.

Mixed Governments. — Most existing governments are, to some extent, republican, although at the same time monarchical. The monarchs of Great Britain rule by hereditary right ; most of the members of the House of Lords hold their seats by virtue of their birth ; but the members of the House of Commons are elected. The government is thus at the same time monarchical, aristocratic, and republican ; and in its republican part it is very democratic, as the suffrage is nearly universal. Macaulay calls the Roman emperors republican magistrates named by the Senate.

Peculiarity of our Government. — Our own government is peculiar. John Quincy Adams speaks of it as " a complicated machine. It is an anomaly in the history of the world. It is that which distinguishes us from all other nations, ancient and modern." Dr. Brownson says, " The American Constitution has no prototype in any prior constitution. The American form of government can be classed throughout with none of the forms of government described by Aristotle, or even by later authorities. Aristotle knew only four forms of government : monarchy, aristocracy, democracy, and mixed governments. The American form is none of these, nor any combination of them. It is original, a new contribution to political science, and seeks to attain the end of all wise and

(Ml; GOVERNMENT PECUL1 \ B \U

just govemmout. by means unknown or forbidden to the ancients, and w 1 1 i < • 1 1 have been lint imperfectly comprehended even by American political writers themselves." i 2

Our government is oot a simple or consolidated republic on the one hand, nor, on the other, is it a league of Btates. Many seem to suppose that there is no middle ground between these two; that the denial of the one is equivalent to the affirmation of the other. The American people constitute a nation, with a republican government. The nation has a constitution in which the character of the government is clearly delineated. This Constitution is the supreme law of the land. But the country is divided into divisions, called States, each of which has a constitution. The people of the whole nation have made the general Constitution, while the people of each State have made a constitution for that political division. The national Constitution is operative throughout the whole domain ; it is binding on all the people. The constitution of a State is confined in its operation to the State limits ; beyond them it has no force. But within the State it is the organic law, whose provisions, unless conflicting with the national Constitution or the laws enacted under it, must be carried out. Were the government a league of states, there could be no supreme national government ; were the nation a

1 Brownson, page 6.

a It is a noteworthy fact that the system that we have of dividing the sovereignty and jurisdiction of government, as to subject matter, between the States and the United States, making the States supreme over their respective territories and inhabitants as to certain subjects of power, and the United States supreme over the whole territory and all inhabitants as to the subjects of power confided to it. is somewhat like the system of government of the Five Nations, or Iroquois Nation, which originally inhabited New York. The government inaugurated under the Articles of Confederation was still more like the Iroquois form in that it embodied the distinctive feature of reliance upon moral force alone to enforce obedience to the federal authority by the local governments and the inhabitants. The Iroquois were the most powerful Indian tribe with which the English settlers came in contact, and this remarkable feature of their system of government, and its wonderful efficiency, excited much attention and caused it to be described by pre-revolutionary writers. The framers of the Constitution must have been conversant with this Indian government, and they may have received from this humble source some important suggestions for the system they adopted.

consolidated republic, there could be no State constitutions. Unquestionably, the American people are a single people, a nation in the same sense, and just as truly, as the people of France. But at the same time the national Constitution everywhere recognizes the existence of the States, with their separate constitutions and their various departments.

State and Nation not like County and State. — Were our government a simple republic, we should have no laws except those enacted at Washington. In that case, a State would bear to the nation the same relation that a county does to a State, as is sometimes affirmed to be the case now. But the statement is incorrect. A county can do nothing politically which it is not authorized by the State to do. A State can do anything politically which does not contravene a law or the Constitution of the nation. The people of a county, as such, have no constitution, and have no power to form one. The people of a State have a constitution, and may alter it at pleasure, provided its provisions are in harmony with the national laws and Constitution. The county originates nothing ; all its power comes to it from a political body above it. The State originates everything ; its power coming directly from the people themselves.

The Nation and the States Born Together. — Although the States have constitutions, and derive their governmental authority from the people, this does not make them sovereign states, or the general government a mere confederacy. The American people are one people, yet their government is not a consolidated one. They exist in States, yet their government is not a confederated one. From the day when the Declaration of American Independence was made, they have existed as a nation, yet grouped into States. The nation and the thirteen original States began their existence together. Neither preceded, neither followed. The American people "have not, as an independent sovereign people, either established their union, or distributed themselves into distinct and

THE POWERS OF GOVERNMENT DIVIDED 2\

mutually independent States. The union and the distribution, the unity and the distinction, are both original in their Constitution, and they were born United States as orach and as truly so as the son of a citizen is born a citizen, or as every one born at all is born a member of society, the family, the tribe, or the nation. The Onion and the States were born together, are inseparable in their constitution, have lived and, grown together ; and no serious attempt till the late secession movement has been made to separate them.'"1

The Powers of Government Divided. — " Say the people of the United States are one people, in all respects, and under a government which is neither a consolidated nor a confederated government, nor yet a mixture of the two, but one in which the powers of government are divided between a general government and particular governments, each emanating from the same source, and you will have the simple fact."2 " Strictly speaking, the government is one, and its powers only are divided and exercised by two sets of agents or ministries."8 To the same purpose Jameson : "And here I may remark that the Constitution of the United States is a part of the constitution of each State, whether referred to in it or not, and that the constitutions of all the States form a part of the Constitution of the United States. An aggregation of all these constitutional instruments would be precisely the same in principle as a single constitution, which, framed by the people of the Union, should define the powers of the general government, and then by specific provisions erect the separate government of the States, with all their existing attributions and limitations of power."4