Analysis of civil government, including a topical and tabular arrangement of the Constitution of the United States

Front matter

$ LI BRARY O F CONGRESS. I

A

^UNITED STATES OF AMKUIQA.g

Preface

The analytic method of this work furnishes its chief claim to superiority over others as a text-book on civil government. The Constitution of the United States is our fundamental law. To understand this well is to understand the whole theory ; and to analyze this is to analyze the entire American system.

The principal aim, therefore, of this work is to present analytically the subject of civil government as administered in this country.

The living, earnest teacher of to-day insists on a critical analysis of whatever subject he brings into the class-room. This has been the tendency of his profession for several years. A general acquaintance with miscellaneous and scattered facts bearing on his subject does not satisfy. He must get inside of things, and take his pupil with him.

No work has been published, known to the author, pretending to give a topical and tabular arrangement of the principles of our government. Several authors have written with ability on civil government, having direct reference to the wants of the schoolroom ; but they have not satisfied the instructor. Whether the present attempt shall add one more to the list of failures, time and the teacher will tell.

The Constitution of the United States consists of a combination of powers granted and powers prohibited. Each of these classes of powers is divisible into general topics

PREFACE.

under general titles. Each of these is subdivisible into more specific topics, having more specific titles ; and these last into others, and they into still others, until the point of final analysis is gained. Example : —

1. How composed.

2. Eligibility.

3. Tenure of office.

4. By whom chosen. 1. United-States J 5. When chosen.

Senate. 6. How classed.

7. Vacancies.

8. Vote.

9. Presiding officer.

I 10. Senate powers.

1. Legislative.

2. House of Representatives.

1. Proportion.

2. Apportionment.

3. Eligibility.

4. Term of office.

5. By whom chosen.

6. Electors.

7. Vacancies.

8. Census.

9. House powers.

2. Executive.

3. Judicial.

The executive and judicial branches are each divisible and subdivisible into topics, the same as the legislative

PREFACE. 5

branch. The sub-titles at the extreme right, or several of them, may be divided also. Take, for instance, Eligibility. Its conditions are, 1st, Age ; 2d, Citizenship ; 3d, Inhabitancy; 4th, Official Disencumbrance. Also Senate Powers: 1st, Legislative; 2d, Executive; 3d, Elective; 4th, Judicial.

Thus all the elements of kindred significance are grouped together in one table, under one common and appropriate title. For this purpose, paragraphs, sections, and clauses, whenever necessary, are severed from their original connections in the Constitution. Indeed, very little attention is paid to the original arrangement of the subjects of that document. The preceding example will give the teacher an idea of the manner in which lessons may be given by topics.

Exhaustively grouping the sections and clauses of the Constitution itself must necessarily make thorough work at every step. Every element of the main subject, even to critical minuteness, will be clearly comprehended by the pupil. He will experience the scholarly satisfaction also, that something is completed every lesson.

In the tabular arrangement of the sections and clauses of the Constitution, nothing is omitted or added ; and, as far as possible, the precise language of that instrument is retained.

Familiar and critical explanations of the Analysis, topic by topic, in the order of their arrangement, are given according to the views of the most eminent writers on constitutional law. Very little or no claim is laid by the author to originality of construction. In this, he acknowledges his entire indebtedness to the illustrious men who formed the Constitution, as their views appear in the Madison Papers and the Federalist ; and to the profound b PREFACE.

jurists whose works are accepted by the legal profession as of the highest authority.

For several years, there has been a growing conviction among educators, that civil government 'should be added to the list of studies in all our schools of the higher grades, and in the advanced classes of the common school.

The school-boy of to-day becomes the voter of to-morrow. The millions of youth now in the schools of America are soon to decide all the grave questions of national interest which concern us as a people. The ballot more than the bullet must determine the destiny of our country. The ballot in the hands of the ignorant may do more mischief than the torch of the incendiary in the towers of the metropolis.

If the publication of this work shall contribute to a more extended acquaintance by the masses of American youth with the fundamental principles of our government, the purpose for which it was written will be realized.

THE AUTHOR.

Rochester, N.Y., October, 1868.

Introduction

BY REV. JAMES E. LATIMER, D.D.

In these days, a new book can vindicate its claims to public notice and favor only on the ground that the topics of which it treats are absolutely new, or that it discusses a known subject in such a manner as to make us instantly feel that it meets an acknowledged want.

Such is the claim we make for the book before us. It treats a common subject, — one that was ably presented by the distinguished Judge Story, some thirty years since, in convenient form for the use of schools, and, since, by several authors of less distinction, though of acknowledged ability. But the peculiar merit of our author consists in the analytical method which he adopts. His aim is purely didactic, and to teach exactly what the Constitution contains.

This book is one that was not made, but grew. Prof. Townsend, the author, has for years made civil government a speciality in lessons and lectures before the teachers' institutes of New York. What was small and unpretending in the beginning has thus grown into importance on his hands, until it has become the full, well-rounded treatise which is here presented.

He has been urged to the preparation and publication of this work by the myriad voices of educators and teachers who have listened to his instructive lessons upon a subject which is usually so dry and repulsive.

8 INTRODUCTION.

He has drawn the materials for his work from original sources, and from commentaries of classic excellence. We see traces of interminable rummagings of the Madison Papers, the Federalist, Elliot's Debates, Story and Rawle on the Constitution, Kent's and Blackstone's Commentaries, as well as the most patient gleanings from official, statistical, and chronological tables.

In reading the author's manuscript, as I was permitted to do, I was struck with its absolute freedom from all political bias, the pure ether of impartiality that marks every page, the clear and well-defined statement of fact, and, above all, the almost faultless analysis and symmetry of the entire work.

The author has published the analysis in chart form, separate from the book, in large type, suitable for display in the schoolroom ; and has thus furnished an invaluable aid in the study of the book and in class-rehearsals.

We commend the book as a conscientious one, made on honor, and calculated to last. Not only graded schools, but colleges and the higher institutions of learning, will find it of advantage to introduce it into their course of study. The student of civil government will thank the author for such a book, as it will surely kindle a taste for the study of this subject. Besides, it will do much to remove the popular ignorance regarding our institutions, too long prevalent in this country, where the humblest citizen is invested with the attributes of political sovereignty.

JAMES E. LATIMER.

PART I. Chapter I. pxgb

Chapter XI.

tut.

Early Settlement of America

Origin of the Present Constitution

. 23

Chapter II . Chapter XII

Origin of Land-Titles in United States

Ratification of the Constitution .

. 29

Chapter m.

Chapter XQI.

Common Law in the Colonies .

Amendments to the Constitution

. 31

Chapter TV.

Chapter XTV.

Colonial Governments ....

Departments of Government

. 33

Chapter V.

Causes of the American Revolution .

Chapter X.

Analysis of the Constitution

. 78

Leading Defects of the Confederation,

Appendix . . .

. 106

Part II. Annotations On The Analysis

Preamble .

Departments

CHAPTER I.

HOUSE OF REPRESENTATIVES.

Article I. Proportion .

" II. Apportionment .

" III. Eligibility .

" IV. Term . . " .

" V. By whom elected " VI. Electors " VII. Vacancies .

" VIII. Census " IX. House-Powers .

CHAPTER n.

UNITED-STATES SENATE.

Article I. How composed . 44 II. Eligibility .

Art. III. Term .

. 132

" IV. By whom chosen

. 133

" V. When chosen

. 134

" VI. How classed

. 135

" VII. Vacancies .

. 135

" VIII. Vote .

. 137

" IX. Presiding Officer

. 137

44 X. Senate-Powers .

. 141

121 122 123

CHAPTER ni.

PROVISIONS COMMON TO BOTH

HOUSES.

Article I. Membership

. 148

" II. Quorum

. 148

" III. Journal

. 149

" IV. Yeas and Nays .

. 150

" V. Business-Rules .

. 151

" VI. Penalties .

. 151

" VII. Prohibitions

. 152

'« VIII. Oflicial Oath

. 153

" IX. Salaries

. 154

CONTENTS.

Chapter IV. Powers Of Congress. , Age>

Article I. Finances .... 157 " II. Commerce .... 163 " ///. Commercial . . .133 " IV. Penalties . . . .172 " V. Postal . . . .175

" VI. Patent and Copy Rights . 173

" VII. War 181

" VIII. Judiciary . . . .133 " IX. Naturalization . . .139 " X. Territory . . . .192 " XI. States . . . .197

" XII. Executive Vacancy . . 201 " XIII. Appointments . . .201 " XIV. Constitutional Amendments . . . .202 " XV. Slavery . . . .203 " XVI. General Law-making . 205 " XVII. Meeting . . . .203

Chapter V. Law-making

Article I. Proceedings . . .207

First Process . . .207

Second Process . . 207

Third Process . . 208

" II. Orders, Resolutions, and

Chapter VI. Prohibitions On The United States

Article 1. Habeas Corpus .

" II. Direct Taxes

" III. Export Duties .

" IV. Inter-State Commerce

" V. Public Money .

" VI. Nobility .

" VII. Penalties .

" VIII. Foreign Slave-Trade

" IX. Repudiation

" X. Freedom .

CHAPTER Vn.

RELATING TO OFFICERS

Article I. Ineligibility

" II. Foreign Patronage " III. The President .

" IV. Impeachment .

CHAPTER VHI.

RIGHTS OF STATES.

Article I. Representation .

" II. Citizenship

" III. State Amity

" IV. New States

" V. Elections .

" VI. Militia Officers .

" VII. Fcxleral Protection

" VIII. Fugitives .

" IX. Reservations

211 213

213 214 214

215 216 217 221

. 225

. 227 . 227

CHAPTER IX.

STATE SUBORDINATION.

Article I. Origin of State Obligations, 236 " II. Supremacy of United- States Authority . . 238 " III. Official Oath . . .239

CHAPTER X.

STATE PROHIBITIONS.

tass.

Article I. State relations .

. 240

" II. Commercial

. 241

" III. War .

. 244

" IV. Penalties .

. 245

" V. Nobility

. 245

" VI. Duties

. 245

" VII. Slavery

. 246

CHAPTER XI.

PERSONAL RIGHTS.

Article I. Domicile

. 249

" //. Security

. 249

" III. Judicial

. 250

" IV. Criminal Actions

. 252

" V. Civil Actions

. 256

" VI. Treason

. 257

" VII. Official Immunities .

. 259

CHAPTER XII.

EXECUTIVE DEPARTMENT.

Article I. In whom vested " II. Term .

" III. Eligibility .

" IV. Election " V. Oath of Office " VI. How removable " VII. Salary, " VIII. Powers and Duties

CHAPTER XIII.

VICE-PRESIDENT.

Article I. Eligibility .

" II. Election " III. Oath of Office .

" IV. Term .

" V. Powers and Duties

CHAPTER XIV.

JUDICIAL DEPARTMEN1

Article I. Where vested " II. Judges " 277. Jurisdiction

. 284 . 287 . 289

CHAPTER XV.

Article I. Presidents of the United

States . . . .296 " II. State Department . . 299 " III. Treasury Department . 301 " IV. War Department . . 302 " V. Navy Department . . 305 " VI. Post-office Department . 306 " VII. Interior Department . . 308 " VIII. Attorney-General':} Office. 310 " IX. Speakers of the House of

Representatives . . 312 " X. Presidents pro tempore of

the Senate . . .314

ANALYSIS OF CIVIL GOVERNMENT.

PAET I

Chapter I. Early Settlement Of America

§1. The North- American Colonies, over which the British Government maintained supremacy for more than a hundred years, were known as New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Ever since the Declaration of Independence, they have been called States.

§ 2. They were settled chiefly by British subjects, except New York and Delaware ; the former by emigrants from Holland, and the latter from Holland and Switzerland.

§ 3. The British claim to jurisdiction over these Colonies was founded on what Christian nations recognized as the right of discovery. Great Britain denied from the beginning the right of the Dutch to make settlements in America. That denial was based on the fact that John Cabot and his son Sebastian, British subjects, under commission from Henry the Seventh, sailed along the eastern coast of North America in 1497. The Cabots, however, made no attempt at settlement or conquest.

§4. At the time of its settlement, Delaware was an appendage

li to the government of New York ; but it was afterwards separated from that Colony, and came under the jurisdiction of Pennsylvania. New York was early wrested from the Dutch by conquest, and brought under British authority.

§ 5. The only title which the nations of Europe had to any part of the American continent was founded on what they called the right of discovery. It is difficult to comprehend the justice of this pretense, when it is known that the country was already occupied by a race of men who had been in undisputed possession for untold ages. As between themselves, it might not be unjust or improper that the European nations should make discovery the foundation of title; but, as against the natives of the soil, discovery could not furnish the shadow of a claim.

§ 6. The right of discovery set up by the Europeans, substantially ignores the sacred rights of the original inhabitants of this country. Nativity must furnish a more valid title than discovery ; and there is not a people on earth that would require any argument to convince them of this where their own rights were involved. Demonstrations of power are not always demonstrations of right.

§ 7. The Indians have always been treated as merely lawful occupants, having at most only a qualified right to the soil. The powerful nations of Europe, and our own government, have recognized them only as tenants-at-will, subject to removal at the pleasure of superior power.

§ 8. The learned Judge Story remarks in regard to the wrongs perpetrated on the red man, " They have not been permitted, indeed, to alienate their possessory right to the soil, except to the nations to whom they were thus bound by a qualified dependence : but, in other respects, they have been left to the free exercise of internal sovereignty in regard to the members of their own tribe, and in regard to the intercourse with other tribes ; and their title to the soil, by way of occupancy, has been generally respected, until it has been extinguished by purchase, or by conquest, under the authority of the nation upon which they were dependent.

§9. "A large portion of the territory in the United States to which the Indian title is now extinguished has been acquired by

Part L]

ORIGIN OF LAND-TITLES.

purchase ; and a still larger portion by the irresistible power of arms, over a brave, hardy, but declining race, whose destiny seems to be to perish as fast as the white man advances upon his footsteps."

CHAPTER n.

ORIGIN OF LAND-TITLES IN THE UNITED STATES.

§ 1. When our fathers conquered their independence, the States and United States succeeded to whatever title Great Britain previously had to the territory.

§ 2. The lapse of time, and general acquiescence, as well as the judicial and legislative authorities, have so established this source as the foundation of land-titles, that its validity can not now be successfully called in question. Whether just or unjust, it will probably remain for ever undisturbed.

§ 3. But these remarks are applicable to those lands only which were obtained through the revolutionary struggle with Great Britain, resulting in the achievement of our independence. Extensive additions have been made to the domain of this country by treaties with other powers ; and, of course, the origin of land-titles is traceable within any such territory to the treaties through which the titles have been acquired.

DATES OF THE SETTLEMENTS OF THE NORTH- AMERICAN COLONIES.

Virginia .

North Carolina .

. 1663

Massachusetts .

. 1620 1

South Carolina .

. 1663

New Jersey . .

. 1664

. 1681

Connecticut .

. 1682

Rhode Island .

Georgia . . .

. 1732

New York . .

These dates refer only to permanent settlements made under distinct organizations.

1 Originally called the Colony of Plymouth ; but afterwards united with Massachusetts proper, which was settled in 1628.

Chapter III. Common Law In The Colonies

§ 1. When territory is found uninhabited at the origin of new settlements therein, it is usual to adopt the laws of the nation from which the settlers have migrated, so far as they may be found applicable to the new condition of things.

Although this country was occupied by a wild, uncultivated, and savage population, without law or government in any civilized sense, the colonists chose to consider themselves as settling an uninhabited territory. As a large proportion of the new settlers of these Colonies were from England, they would naturally lean to the jurisprudence of that country.

§ 2. It must be remembered, also, that the Colonies were nearly all settled under the patronage and favor of Great Britain. Those that were not, soon came under the jurisdiction of the British Crown.

§ 3. These are the principal circumstances that led to the adoption of the English common law amon£ the North- American Colonies, and which constitutes to a great extent, at the present time, the system of jurisprudence in this country.

Chapter IV. Colonial Governments

The Colonial Governments may properly be divided into three

1. Provincial,

2. Proprietary, and

3. Charter.

1. Provincial Governments,

§ 1. The Provincial Governments were wholly under the control of the sovereign of Great Britain. They emanated froi* his

Part I.] COLONIAL GOVERNMENTS. 15

authority, and had no fixed constitution of government. The king issued his commissions to the royal governors from time to time, accompanied with specific instructions which were to be obeyed.

§ 2. The governors were, under these governments, regarded as the representatives or deputies of the king. The king also appointed a council, having limited legislative authority, who were to assist the governor in the discharge of his official duties. Both governor and council held their offices during the royal pleasure.

§ 3. The governor had authority to convene a general assembly of the representatives of the freeholders and planters of the Province. The governor, council, and representatives constituted the Provincial Assembly.

§ 4. Provincial Assembly, constituted of,

1st. The Representatives, — Lower House ; 2d. The Council, — Upper House ; 3d. The Governor, — having a veto on all the proceedings of the two houses, with power also to prorogue and dissolve them. These constituted the local law-making power, subject to the approval or disapproval of the Crown.

§ 5. The governor appointed the judges and magistrates.

Under this form of government were included the Colonies of New Hampshire, New York, Virginia, North Carolina, South Carolina, Georgia.

2. Proprietary Governments,

§ 6. The meaning of the word proprietary is owner, or proprietor. The proprietor, or proprietary, derived not only the title to the soil, but also the general powers of government, from the king. The powers of government extended over the whole territory so granted, which became a kind of dependent royalty.

§ 7. Under these governments, the governors were appointed by the proprietary or proprietaries. The legislature was convened and organized according to the will of the proprietary. He also had the appointment of officers of every grade.

ANALYSIS OF CIVIL GOVERNMENT. [Part I.

§ 8. Lord Baltimore held Maryland, and William Penn held Pennsylvania and Delaware, under this form of government, and as proprietaries.

3, Charter Governments,

§ 9. These were, in many respects, not unlike our State Governments. They were created by letters patent, or grants of the Crown, which conferred the soil within the limits denned, and all the powers of government, on the grantees and their associates and successors. These charters were similar to some of our State Constitutions, distributing the powers of government into three departments, — legislative, executive, and judicial.

§ 10. They defined the powers of the different branches of the government, and secured to the inhabitants certain political privileges and rights. " The appointment and authority of the governor, the formation and structure of the legislature, and the establishment of courts of justice, were specially provided for ; and generally the powers appropriate to each were defined."

Massachusetts, Rhode Island, and Connecticut had charter governments.

Chapter V. Causes Of The American Revolution

§ 1. The Colonies were not sovereignties in any political sense, not being endowed with power to enter into alliances or treaties with each other or with foreign nations. 'They were merely dependencies on the British Crown ; but the citizens of each Colony enjoyed the full rights of British subjects in all the Colonies, and were at liberty to move from one Colony to another, and to become inhabitants and citizens thereof.

§ 2. The growth of the Colonies. was slow and gradual, running along through a period of from one hundred to one hundred and fifty years. The prerogatives of the Crown and the rights of the people had not been clearly defined on the one side, nor accepted on

PARI L] CAUSES OF THE REVOLUTION. 17

the other. During the latter part of this period,, therefore, the relative rights of sovereign and subject became a matter of serious and earnest contention.

§ 3. The Colonial Legislatures claimed entire and exclusive authority in all matters relating to their own domestic and internal affairs. They denied all power of taxation, except under laws passed by themselves ; not admitting that even the British Parliament and Crown combined had any such power. They insisted that a free people could not be taxed without their consent in person, or through their accredited representatives.

§ 4. On the other hand, the British Parliament, by express declaration, claimed that the Colonies and Plantations in America have been, are, and of right ought to be, subordinate unto, and dependent upon, the imperial Crown and Parliament of Great Britain ; that the king, with the advice and consent of Parliament, " had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the Colonies and people of America in all cases whatsoever."

§ 5. The theory that Great Britain had the right to tax the Colonies, together with the attempt to carry that doctrine into practice on the part of the Crown and Parliament, and its denial on the part of the Colonies, united with the determination on their part to carry that denial to open, practical resistance, led to final separation from all connection with Great Britain.

§ 6. Hoping to prevent this result, Parliament passed an act intended to conciliate the Colonies, which declared that " Parliament would not impose any duty or tax on the Colonies, except for the regulation of commerce ; and that the net produce of such duty or tax should be applied to the use of the Colony in which it was levied." But this did not satisfy the disaffected colonists. They claimed to be sole judges of what should be done, even for their own good.

§ 7. The spirit of liberty was thus aroused ; and a sense of future danger inspired them to take the onward steps that finally led to the Declaration of Independence on the fourth day of July, 1776.

Chapter VI. Unity Of The Colonies

§ 1. Although the Colonies were not at any time united in any sense as a nation, they sometimes found it of advantage to unite temporarily for the common defense against the Indian tribes, as well as the Dutch; and also in 1754, for the purpose of defending themselves in case of war with France, which at that time seemed imminent.

§ 2. These experiences had taught them that there was safety as well as strength in union. Therefore, when England gave evidence of a determination to oppress the Colonies, they did not hesitate to unite in vindication of their common interests.

§ 3. A Congress, at the call of Massachusetts, assembled in Philadelphia Sept. 5, 1774, consisting of delegates from all the Colonies. This is known in history as the " First Continental Congress." It was the first in which all the Colonies were represented.

§ 4. This Congress published to the world a long and emphatic bill of rights, which may be regarded as the first decided step towards independence. It was clear to every reflecting mind, that, if that declaration of rights were accepted by the people, either England must take a speedy backward step, or the declaration of separation and independence was just at hand.

§ 5. The Second Continental Congress assembled in Philadelphia May 10, 1775. This Congress continued in session until the close of the Revolutionary War, and until a definite form of government was adopted. It passed the Declaration of Independence, in which, for the first time, the Colonies received the name of United States of America, — a title which has been continued ever since.

Chapter VII. Akticles Of Confederation

§ 1. On the eleventh day of June, 1776, it became evident that the Declaration of Independence was only a question of a few days'

Part L] PECULIARITIES. 19

time, as a committee was appointed on that day to draft such a document to be reported to Congress. This step rendered it more than ever necessary that some plan of union between the Colonies should be adopted. Another committee was therefore appointed to prepare Articles of Confederation, which should bring the Colonies into a closer and more definite union.

§ 2. This committee reported a plan of confederation July 12 following, just eight days after the adoption of the Declaration of Independence. This document consisted of twenty articles as it came from the hands of the committee. It was discussed at various times in Congress, running through a period of some sixteen months, subjected to various amendments, consolidated into thirteen articles, and finally adopted by Congress Nov. 15, 1777.

§ 3. The Articles of Confederation were immediately sent to all the States, with the Congressional recommendation for their approval and adoption. The new government constituted by these Articles was not to go into operation until the consent of all the States should be obtained.

§ 4. In July, 1778, the ratification of all the States was obtained, except Delaware, New Jersey, and Maryland. The assent of New Jersey was given Nov. 25 of the same year ; of Delaware, Feb. 22, 1779; and of Maryland, March 1, 1781. On the second day of March, 1781, Congress assembled under the Confederation.

§ 5. But the Revolutionary War, which began in 1775, had continued all this time ; during which the States had been united by the ties of a common interest, by the sense of a common danger, and by the necessities of a common cause, having no written bond of union. In short, they were held together by their fears.

Chapter VIII. Peculiarities Under The Confederation

Although the Articles of Confederation are given in full in another place, it is deemed proper to give here some of the peculiarities of that document which distinguish it from the present Constitution of the United States.

§ 1. The Confederation was declared to be a firm league of friendship between the several States.

§ 2. Delegates to Congress were to be appointed annually, in such manner as the Legislature of each State might direct.

§ 3. The power was reserved to the States to recall their delegates, or any of them, within the year, and to send others in their places for the remainder of the year.

§ 4. No State was allowed representation in Congress by less than two, nor more than seven, members.

§ 5. No person was eligible to a seat in Congress for more than three in any term of six years.

§ 6. Each State had to maintain its own delegates in a meeting of the States, and while acting as members of the Committee of the States.

§ 7. In determining questions in the Congress, each State had but one vote.

§ 8. All charges of war and other expenses, incurred for the common defense and general welfare, were to be defrayed out of a common treasury.

§ 9. The treasury was to be supplied by the several States, in proportion to the value of all lands, and the improvements and buildings thereon, within each State, granted to or surveyed for any person, to be estimated according to the direction of Congress.

§ 10. Congress was to send and receive ambassadors.

§ 11. Congress was the tribunal of last resort, on appeal, in all disputes and differences, between two or more States, concerning boundary, jurisdiction, or any other cause whatever.

§ 12. Congress was the tribunal to decide all controversies concerning the private right of soil claimed under different grants of two or more States, under certain limitations.