Constitution of the United States

Prefatory Note

This brief treatise on the Constitution is the result of studies begun many years ago, and renewed at my leisure from time to time since. It has seemed to me that the relations between the national and state governments should be more clearly pointed out, and their respective spheres and duties more fully explained, than has been wont to be done in such treatises. I have hoped also, by greater directness, and the omission of unnecessary details, to set forth the essential doctrines of the Constitution, with not less distinctness, in somewhat less space than that usually devoted to them in manuals, and thus prepare a book on the subject that may be compassed in the necessarily short time which must be devoted to the study in a general course of education. Though brief, the treatise aims to be, and indeed claims to be, clear, discriminating, and comprehensive in its teachings.

Portland, 1879.

iii rNTRODUCTIOK

The present government of the United States is the successor of two preceding governments which had controlled the States for some fifteen years, — the former, called the Eevolutionary Government, for seven years ; and the latter, known as the Government of the Confederation, for eight years. The Constitutional Government, under which we now live, went into operation in the city of New York, March 4, 1789, under the Constitution, which had been formed about two years before by a convention of delegates assembled in the State House at Philadelphia, and had now been ratified by the required number of the thirteen States.

The Government of the Confederation went into operation March 1, 1781, — about six months before the surrender of Lord Cornwallis at Yorktown, which virtually closed the Revolution. The Articles of Confederation left each State independent, and conceded little more than advisory powers in certain national matters to the general gov-ernnuent, which was con-

V vi Introduction.

ducted by a Continental Congress, which sat continuously, either as a body or by a committee, in Independence Hall at Philadelj)hia, till January, 1785, when it removed to New York, and remained there four years, till the adoption of the present Constitution. There was no separate executive or judicial department provided for by the Articles ; but Congress had the initiative in these departments, as far as they were surrendered at all by the States, as well as in legislation, — and little but the initiative, as it could carr}^ through nothing of importance, whether in peace or in war, without the consent and co-operation of two-thirds of the States. It could recommend measures to the States, but of itself could execute nothing. It was a mere governmental league between independent States, the exertion of whose powers, at every important point, was to depend upon the consent of a two-thirds majority of the whole number. The eight j^ears of its existence showed its utter inadequacy for the purposes of a general government, and prepared the public mind for accepting the more comprehensive and trul}" national government formed by the Constitution, which immediately followed it.

The Revolutionary Government, also, which carried through the seven-years' contest with the power of Great Britain, was conducted by a Continental Congress sitting in Independence Hall at Philadelphia,

Introduction, vii

whence it issued, in 1776, the Declaration of Independence. This Congress first assembled in March, 1774, and conducted the general military operations of the united colonies by making requisitions upon them for men and means, leaving them to take care of their own local afiairs. The body was composed of delegates from the thirteen British colonies, which, from the pressm'e of a common danger and a common aspiration for liberty, acted together in the contest, and yielded to the Congress a voluntary, though not always a very energetic and prompt, obedience. Previous to this common struggle, the colonies — most of which had been in existence more than a hundred years — were politically distinct, and had never been able to form with each other any but the slightest and most temporary alliances : indeed, they were not allowed to do so by the mother-country. The Revolution was the first great step towards consolidating the States into a nation.

The system of government in the United States is one of grades, from the government of towns, counties, and States, to the government of the nation. The sum of governmental powers is distributed among these several divisions, each of them being allowed the share best fitted to its wants and most convenient for use. Each has a measure of legislative, executive, and judicial power, which it exercises within its sphere ;

viii Introduction,

the higher embracing not only the wider field, but the more general and comprehensive governmental duties. "While the towns govern their inhabitants in matters requmng immediate attention and of a local nature, the counties administer the higher and more comprehensive functions of government in the towns included in them. And as the States include, and govern in their more general interests, the towns and counties, so the United-States' government embraces and controls the States in their higher governmental relations, forming them into a harmonious Union, and making of them a common country.

The government of the Union is confessedly a limited government. It has merely those general public powers essential to a national government which are specified in the Constitution, and were surrendered to it by the people of the States in order to form under it a federal union. It does not direct the whole machinery of government through the entire mass of the people, as the States, retaining for themselves all powers not surrendered in the Constitution, consequently retain the vast field of common, every-day, local government. But, all the more for this, it is a national government. Its powers, by not being local and minute, become wholly national ; the highest idea of a nation being that of a people directed in its public relations by a common government, and recognized

Introduction, ix

as such by other nations. Such a people may originate in tribal affinities, and grow up and become consolidated under a hereditary ruler, or may be formed from heterogeneous elements by the pressure of a strong and arbitrary government ; but that is the highest type of a nation, which, like the United States, originally existing in separate, rival communities, from a consciousness of their separate insignificance in their fragmentary condition, and of their possibilities for a great future, has merged the separate sovereignties of the parts in the more exalted sovereignty of the whole.

TABLE OF CONTENTS.'

Page

Constitution entire 1-24

Constitution with Comments 25

DIVISION I.

PREAMBLE. — HOUSE OP REPRESENTATIVES.

The Preamble not an Enacting Clause, but expresses the

Motives for establishing the Government .... 26 The Three Departments of Government; the Thirteen Original States 26

Congress must consist of Two Houses ; so the English Parliament 28

Advantages of Two Houses 28

Kepresentatives are National Officers chosen every Two

Years, and the Qualifications of their Electors . . 29

People, Citizens, Voters 29

Length of a Congress and of a Parliament .... 30

The General Government embraces the "Whole Country . 30

Qualifications of Representatives 30

Citizens of the United States 31

The Right of Suffrage in England 32

Representative Population and Representatives ... 34 "Number of Members in Parliament and in the National

Assembly of France 34

The Census and Direct Taxes 35

Territorial Government 35

Vacancies in the House of Representatives must be filled . 36 The Speaker and the other Officers of the House of Representatives . . 36

The Power of Impeachment 37

1 As the titles of all the principal suhjects treated of in this hook are given in this table, and may be easily found, it will serve as an index as well as an analysis.

zi xii Table of Contents,

DIVISION II.

OF THE SENATE. ^

Pagb

"What the Senate represents, and Choice of its Members . 38

Of the Three Classes of Senators, and filling Vacancies . 39

Qualifications of Senators 40

The Vice-President to be President of the Senate, and why . 40

Ofi&ce and Pay of the Lord Chancellor of England . . 41

The President jpro fempej'e of the Senate 41

Trial of Impeachments, and who are Subject to them . . 42

Impeachments here and in England 43

Limitation of Punishment on Conniction by Impeachment . 43

DIVISION III.

SENATE AND HOUSE OP KEPRESENTATIVES CONJOINTIiT.

Regulations in Regard to choosing Senators and Representatives . . . ' 45

Times of Meeting of Congress and of Parliament ... 46

Each House to decide who are its Members, and to compel

the Attendance of Absentees to secure'a Majority . . 47

Contested Elections here and in England .... 47

Each House to establish its Rules, and punish for Disorderly

Conduct 48

Each House to keep a Journal, and record the Yeas and

Nays on Demand of One-Fifth of those Present . . 49

Neither House can adjourn more than Three Days without

the Consent of the other 50

Adjournment and Dissolution of Parliament, and of the

National Assembly of France . . . . . .50

The Pay of Members, and Freedom from Arrest and Punishment ; Members of Parliament not paid . . 51, 52

Officers of the Government cannot be Members of Congress, nor Members of Congress be appointed to Offices of their own Creation .53

DIVISION IV.

liEGISLATIVE POWERS OF CONGRESS.

Bills for raising Revenue must originate in the House of

Representatives 54

Tahle of Contents. xiii

Page

Method of passing Bills to Ibecome Laws 55

The Enrolment of a Bill 66

The Veto Power .56

Joint Resolutions to be passed in the Same Manner as Bills 57 Congress to have Power to lay and collect Taxes for National Debts, Defence, and Welfare . . . . 58, 59 State Taxation Subordinate to National Taxation ... 60 Expenses not to be paid by States, as under the Confederation 60

Congress to have Power to borrow Money, and its Securities

not Taxable by States . . 61

Congress to have Power to regulate Conmierce, and how it

has done it 61, 62

Commerce under the Confederation 62

Rule for Naturalization established by Congress . . .63

National and State Bankrupt Laws 64

Coining and Begulating the Value of Money by Congress . 64

Of Paper Money , .... 65

Of Weights and Measures 65

United States' and State Securities 65

The Power of Congress over Post-offices and Post-roads

Exclusive - . .66

Classes of Postmasters, their Pay and Numbers . ' . . 67 Congressional Laws for Copyright and Patents ... 68 Tribunals Inferior to the Supreme Court established by

Congress 68

Of Piracy and Felony as defined and punished by the Laws

of Congress 69

Offences against the Law of Nations 70

A State of War may be recognized without a Formal Decla-

ratio]* 70

A Declaration of Martial Law is a Declaration of War . . 71 War dissolves all Amicable Relations between the Parties

to it 71

Nature and Effect of Letters of Marque and Reprisal . .72

How a Capture iiiay be declared a Prize 72

Armies may be raised in any Mode by Congress ... 73 The Navy is provided and supported by Various Appropriations by Congress 73

The Land and Naval Forces to be governed by Rules provided by Congress 74

Congress can call forth the Militia and other Forces to execute the Laws of the Union, &c 75 xiv Table of Contents.

Page Congress is to determine the Plan of Organization for the Militia, and to have the Actual Government of them

when in Service 76

Congress is to exercise Exclusive Jurisdiction over the District for the National Government, and in Forts,

Docks, &c. 76

Congress is to make all Laws which are Necessary and Proper to render Effective all the Powers vested in the

Government .77

This General Power Necessary and Sufficiently Definite . 78 All United States' Laws are of this Nature .... 78 The Legislative Department of the Government necessarily

the most Fundamental 79

DIVISION V.

RESTRICTIONS OJST THE POWERS OF CONGRESS AND OP

THE STATES.

Nature of the Restrictions on Congress 80

Congress may not prohibit the Importation of Slaves into

States prior to 1808 80

The "Writ of Habeas Corpus not to he suspended, except in

War, Insurrections, and the like ..... 81

What a Bill of Attainder is, and what an Ex Post Facto Law 82

Direct Taxes to be according to the Eepresentative Population . . 83

No Tax to be laid on Exports, and no Preference to be

Money to be drawn from the Treasury only by Appropriations made by Law • . 84

No Title of Nobility to be granted by Congress, nor are

Presents to be received by Officials from Foreign Courts 85

Nature of the Restrictions on the States 86

' States prohibited from doing Certain Things allowed to the

United States 86

States prohibited from doing Certain Things impliedly allowed to the General Government 86

States forbidden to do Certain Things which are also forbidden to the General Government ...... 86

Bills of Credit ; impairing the Obligation of Contracts . . 87

States not to impose Duties on Exports or Imports . . 88

Table of Contents. xv

Page States are confined to Direct Taxation . . . . .89 States not to lay Tonnage Duties, nor keep Troops or Sliips

of War, nor enter into Compacts with other States . 90 Belation of the State and the United States' Governments . 91

DIVISION VI.

ELECTION AJfD INDUCTION OF THE PRESIDENT.

Of the Term of Office of the President . . . . 92, 93

President of the French Republic, and his Cabinet . . 94

Number of Electors of President to be chosen ... 94

The Manner of their Election varies 95

Their Choice by the Legislature not Constitutional . . 95

Choosing the Electors is virtually choosing the President . 96

Mode of voting for the President by the Electors ... 96 Differences between the Constitutional Kequirements in the

Original Clause and its Substitute 98

Points of Superiority in the Substitute 99

Electors are to make out Three Certified Lists of their Votes 99

Of counting the Votes in Congress ...... 100

The Electoral Commission in 1876 100

Senator Edmunds' Plan for counting the Votes . . . 100 A Choice by the House of Representatives gives the Smaller

States a Great Advantage 101

The Day for choosing the Electors, for giving their Votes, &c. 101

Qualifications of the President 102

The Vice-President to become President when the President is disabled 102

In case of the Disability, &c., of both President and Vice- President, the President pro tempore of the Senate, or

Speaker of House of Representatives, to act as President 103

Compensation of the President and Vice-President . . 104

Oath of Office by the President , . 104

DIVISION VII.

POWERS AND DUTIES OF THE PRESIDENT.

Is Commander-in-Chief of the Army and Navy, and of the

Militia when in Service 105

May require the Opinion of Cabinet Officers, and grant Pardons 105 xvi Table of Contents.

Page Cabinet Officers in the United States and in England . 106, 107 Punishment on Impeachment not to be remitted by the

President 108

Shall make Treaties with the Concurrence of Two-Thirds of

Shall nominate and, with the Consent of the Senate, appoint

all National Officers whose Appointment is not provided

for in the Constitution . 108

The Immense Patronage of the President .... 109

Of Treaties, Ambassadors, and Consuls 110

Of dismissing Functionaries from Service .... Ill The President and Members of Congress are Constituent

Officers of the Government Ill

Of filling Vacancies in Offices by the President . . . 112

General Government Officials protected in the States . . 112

Power and Duties of the President in Regard to Congress . 113 Is to receive Public Ministers, see the Laws executed, and

commission all Officers of the Government . . . 113 The President and all Civil Officers Liable to Impeachment,

but not Members of Congress 114

DIVISION vm.

JUDICIAIi DEPARTMENT.

The Department to consist of a Supreme Court, and such

Inferior Courts as Congress may establish . . . 115 The Judges to be Independent by Tenure of Office and a

Fixed Salary 116

Inferior Courts established by Congress . . . . . 116

Judicial System of England 117

"What is a Case in Law, and what a Case in Equity, both in

our Country and in England 118

What are Cases arising under the Laws, &c 119

Of Cases of Ambassadors, and of Admiralty Jurisdiction . 119

Of Special Controversies named 120

Of the Original and Appellate Jurisdiction of the Supreme

Court 121

The Supreme Court has no Jury except in Criminal Cases . 121

Trial of Crimes must be by Jury 122

Of Treason against the United States 122

Of the Punishment of Treason, and Confiscation of Keal

Table of Contents. xvii

DIVISION IX.

misceliiajsteous provisions.

Page

The Legislative and Judicial Acts and Records of One State

to have Full Credit in all Others 124

The Usual Privileges of Citizenship to be enjoyed in Common in all the States 125

Fugitives from Justice in One State to be surrendered by the

New States not formed from Others to be admitted to the

Union by Congress 128

The Territory and other Property of the United States to be

under the Control of Congress 129

States and Territories, and Regulations in Regard to the

Latter 130

Republican Government to be secured by the General Government to all the States ....... 130

What a Republican Government is ..... . 131

Manner of making Amendments to the Constitution . . 132

Obligations assumed by the Previous Governments to be

binding under this 133

The Constitution and Laws of the United States are the

Supreme Law of the Land 134

How the Constitutionality of the Laws are determined . 134

All Important Officers of both the State and the General Government to be bound by Oath to support the Constitution 135

Ratification of the Constitution, and Attestation of the Convention 136, 137

DIVISION X.

AMENDMENTS TO THE CONSTITUTION.

The Original Amendments designed as a Bill of Rights against the General Government, and not against the State Governments 138

No Religion to be established, nor its Freedom, nor the Freedom of the Press, nor the Right of Petition, to be interfered with 139

The Right of the People to bear Arms not to be infringed . 140 xviii Table of Contents.

Pagb Soldiers in Time of Peace not to "be quartered in any House

without the Consent of the Owner 141

The People to be Secure against General Search-Warrants . 141 Persons in Time of Peace to be tried for Crimes only on Indictment, and only Once for the same Crime, and to be deprived of Property only by Due Process of Law . 142

What an Indictment is 143

Persons to be Secure against Dilatory, Irregular, Inconvenient, and Arbitrary Trials for Crimes . . . .144 Right of Trial by Jury to be preserved in Common Law-suits

where the Amount at Stake exceeds Twenty Dollars . 145 Excessive Bail or Fines, or Cruel Punishments, are not to be

inflicted 145

That the Foregoing Protected Rights of the People are not

to be regarded as all their Rights 146

That Powers not delegated to the United States, nor prohibited to the States, are reserved to the People . . 146 The General Government certainly has the Right to exist, and to the Unimpeded Exertion of its Delegated and Implied Powers ......... 146

Abolition of Slavery 148

These Later Amendments are a Bill of Rights for the People

against State Laws and Governments .... 148 The Reconstruction Resolutions and their Requirements 149-152 The Right to Vote not to be denied or abridged on Account

of Race, Color, or Previous Servitude . . . . 153

Appendix

I. Declaration of Independence . , . . • . 155

II. Articles of Confederation 161

III. Washington's Farewell Address 171

CONSTITUTION

OF THE

UNITED STATES OF AMERICA.

We, the people of the United States, in order to form a more perfect union, estabhsh justice, insure domestic tranquilhty, 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.