Review of the Constitution of the United States; including changes by interpretation and amendment; for lawyers and those not learned in the law

Preface

The tendency of the officials of every nation is to augment their own importance and powers by grasping additional powers for the government they represent.

The accomplishment of this augmentation of powers to the government must take place by periodic steps, each step appearing innocent at the time, or of too little importance to attract attention.

Every additional power seized for the government must be taken from the reserved powers, or from powers lodged elsewhere by the organization of the government.

In the United States, certain powers are retained in the states, and all powers not granted to the United States, nor prohibited to the states, are reserved to the states respectively or the people.

This division of powers between the United States and the several states, makes each, in guarding its own powers, necessarily guard the reserved powers of the people ; so that, whether the powers so seized for the United States be taken from the people, or the states, the people will be the sufferers ; hence, we must not only be watchful of the reserved powers of the people, but must be mindful of the powers of the states.

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" It is very uncommon to see the laws and constitution of a state openly and boldly opposed ; it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imaginations of men ; they are detailed in history ; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service to show from history how many states have thus entirely changed their nature, and lost their original constitution.

' ' This would awaken the attention of mankind — impressed thenceforward with this excellent maxim (no less essential in politics than in morals) principiis obsta — they would no longer shut their eyes against innovations which, though inconsiderable in themselves, may serve as steps to mount to higher and more pernicious enterprises. ' ' *

Powers not granted by the letter of the constitution have been adjudged to the United States by the supreme court on the alleged theory that they were incidental to the sovereign government thereof.

Sovereignty, being supreme, absolute, uncontrollable au? thority, it can neither be divided nor put in the custody of two separate jurisdictions. Therefore, if it was reserved to the people (as is contended for by all) it must be wholly in the people ; and, if it is in the government,, it must be wholly in the government.

* Vattel's Law of Nations, Chap. 3, p. 9.

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Nor can it be divided between the United States and the respective states, as held by the supreme court in the McCulloch case ; so that, unless that authority resides exclusively in the people, it must be exclusively in the the United States (as its authority must be paramount to that of the states) , and the United States must be an empire, with the states as its provinces, instead of the federal republic the American people boast of.

The executive has also assumed powers not granted to it by the letter of the constitution, and in some instances has encroached on the powers expressly delegated to the legislative department by the constitution.

The congress has also assumed powers not granted to it by the letter of the constitution, or by the spirit of that instrument.

The assumptions of ungranted powers by each of said departments has been accomplished by the exercise of some apparently unimportant authority at periodic steps, or an authority claimed to be necessary for the time, and not to be repeated, though they have been invariably used as precedents to excuse the exercise, not only of the same powers, but to go further in their encroachments on the reserved powers of the people. Sometimes their assumptions of powers have been claimed as necessary to keep up with advancing civilization ; but this plea is a mere apology to quiet the people while the construction of a new form of government, to be builded on interpretation alone, is being constructed step by step, to take the place of the republican form of government ordained by the constitution.

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The constitution itself furnishes incontrovertible evidence of the bad faith of this plea. That instrument provides ample facilities for its own amendment whenever the advance in civilization shall require an amendment ; and every substantial advance in civilization is encouraged by the constitution, by authorizing congress to protect inventions, writings, and developments in the fine arts, by patent rights and copyrights.

However, no amendment can be made to the constitution without the sanction of the people, and their sanction thereto can not be secured without informing them of the character of the desired change, and this information would likely divulge the secret object of the advisers of the change, and check their revolutionary schemes.

This Review is written in plain English, avoiding all unnecessary technicalities ; and the provisions of the constitution are explained according to the general use and meaning of the words and phrases by which they are expressed, as used at the time the constitution was ordained. I have endeavored to give to each provision the meaning and functions it was intended to perform by the convention that made the constitution, and the construction given by the several departments of the United States, and the interpretation as advocated by each of the two great political parties, so that the reader may have the benefit of each interpretation.

Of course, I have used the strongest arguments in my

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power to sustain my understanding of the provisions of that great instrument, and the office each is to perform, and wherever a different interpretation than the letter thereof is indicated, whether by the supreme court, the executive, or legislative departments, or by either of the two great political parties, I have argued in favor of the interpretation that sustains the letter thereof.

Instead of relying on the statements of any one as to what was meant by the several provisions thereof (except the letters of Messrs. Madison, Hamilton and Jay published while the constitution was before the people of the states for adoption, and compiled in a volume known as the Federalist), I have relied on the organization and lodgment of the powers and duties under the constitution ; the manner they are required to be executed by the officials intrusted with them ; the retention of the sovereign authority in the people as shown by the great Declaration of Independence, and the provision of the constitution authorizing the people of the states to amend or alter the constitution without the sanction of the United States, or any department thereof, by demanding a federal convention to propose amendments to be ratified by conventions of the states, as was done in making the constitution of 1787 ; the language used to express the several provisions, particularly that used in the preamble delaring the objects for ordaining the constitution ; the language used in proposing the several provisions of the constitution by the delegates in the convention, and the action of the convention thereon, before adopting the

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same as provisions of the constitution to ascertain the intent and meaning the delegates in the convention ascribed to each provision of the constitution ; and the functions the convention intended each provision to perform in the government of the United States and in the several states of the more perfect union.

While every provision of the constitution is to some extent considered in this Review, that class of powers relating to the civil rights and business interests of the people more properly belong to a commentary on the constitution, which is beyond the purpose of this work ; they are therefore but briefly explained.

But that class of powers that relate to the form and character of the government of the United States, and its relations to the states and the people, are extensively and minutely shown, together with the conflicting interpretations by either of the three departments, and by the two great political parties, with each of which the interpretation given by this Review is carefully compared.

The interpretation adhered to in this Review conforms to the Declaration of Independence and the great American principles introduced into the science of government by our colonial ancestors, which are shown to have been incorporated into the constitution of 1787, and to form the guiding principle of that great charter, so that by those guides every power granted by the constitutionshould be construed.

Chapter I

Relates to charters and settlements, under English authority, of what constitutes the United States, — The first permanent settlement was made in 1607, the second in 1620. — Brief reference to the origin and growth of the principles taken from the English constitution. — Of the three great American principles (viz) : how to retain the sovereignty in the people with governments as municipal agents incorporated by themselves. — The ordaining conventions as the only organs through which to express the sovereign will of the people. — The separation of the two grand objects of government from each other and committing each to a separate jurisdiction. — The organization of the states and confederation as respective parts of a complete municipality. — The date the states constructed their respective state corporations, and the date each state ratified the articles of confederation, 1

Chapter II

Relates to calling and holding the convention of 1787, to amend the articles of confederation. — The resolution offered and discussed. — The division of the delegates on the character of government, whether it should be " a federal republic " or a strong empire. — The compromise on the plan of the report of the grand committee, giving the corporations of the states representation through the senate, and the people of the states representation through the house of, representatives. — The adoption and report of the constitution, .... 33

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Chapter III

Relates to the various interpretations as to the character of government ordained by the constitution. — The interpretation of the supreme court and anti-slavery party ; that by the proslavery party and others ; and that which appears to be the only logical interpretation consistent with the compromise of the convention, .82

Chapter IV

Relates to the organization of the two houses of congress, so as to make the senate represent the union of the municipal corporations of the states, and the house of representatives to represent the union of the people of the states. — The functions of each house separately, and of both combined, . . 109

Chapter V

Relates to the authority of congress. — To lay and collect taxes. — To borrow money. — To coin money and regulate the value thereof and of foreign coin. — To regulate commerce with foreign nations, and among the several states, and with the Indian tribes, 131

Chapter VI

Relates to powers appertaining to the political laws, such as authority to establish naturalization laws. — Bankrupt laws. — Prescribe punishment for counterfeiting the coin or securities of the United States. — To establish post-offices and post-roads. — To promote the progress of science and by protecting inventors by patent-rights and copy-rights. — To constitute tribunals inferior to the supreme court. — To define punishment for piracies. — To declare war. — Raise and support armies. — Provide and maintain a navy. — Make rules for the government

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of the land and naval forces.- — Provide for calling forth the militia. — Provide for organizing, arming and disciplining the militia. — To exercise legislation over the district set apart for the capitol. — To make laws to carry the powers granted. — To limitations on the powers of congress. — And to limitations on the powers of the states, . . . . . . 174

Chapter VII

Relates to the organization of the executive. — The mode of electing the president and vice-president. — The term of office of each. — The powers vested in each. — And the mode the office of president shall be filled in absence or inability of the president to serve, 205

Chapter VIII

Relates to the organization of the judiciary department. — The change made therein by the committee on style. — The powers and jurisdiction as changed by said committee. — Which powers and jurisdiction are disputed by able statesmen, and were disputed by Presidents Jefferson, Jackson and Lincoln, and said powers and jurisdiction are in conflict with the sixth article of the constitution, 236

Chapter IX

Relates to the cohesive principles upon which the union rests. — Such as requiring full faith and credit to be given in each state to the public acts of all of the states ; each state being required to extend equal privileges and immunities to the citizens of all of the states. — The requiring of each state to capture fugitives from justice and upon requisition turn them over to the authorities of the state in which the crime was committed. — Each of which provisions constitute the supreme law of the land,

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notwithstanding any law of congress or any state to the contrary. — The mode provided by the constitution for amending the same. — Defining what shall constitute the supreme law of the land. — Requiring all officers of the several states and of the United States to be bound by oath or affirmation to support the constitution ; and when nine states ratify the constitution it shall be binding between the states ratifying it, . 268

Chapter X

Relates to the several amendments of the constitution. — The first ten amendments, frequently spoken of as the bill of rights, are extensively considered. — The eleventh amendment restrains and limits the jurisdiction of the courts of the United States. — The twelfth changes the plan of electing president and vice-president. — The thirteenth abolishes the institution of slavery in the United States. — The fourteenth purports to declare the native born of African descent citizens of the United States and of the state wherein they reside ; but it concedes on its face that the states have the right and ability to defeat the declaration of citizenship, or the right to vote of said native. — But the fifteenth amendment proposes to force the states to per mit them to vote, 316

REVIEW

CHAPTER I. Organization of the States and Confederation

The first permanent settlement under English authority in this country, was made under a grant to two companies by the sovereign kingdom of Great Britain, in 1606, in the name of Sir Thomas Gates and others. The first company consisted of citizens of London and elsewhere, and the second company consisted of citizens of Bristol, Exeter, Plymouth and elsewhere.

The grant to both companies comprised all the territory between north latitude 34 and 45 °, extending from the Atlantic ocean one hundred miles inland. The part thereof granted to the first company comprised all the territory between latitude 34 ° and 41 ° ; and the part thereof granted to the second company comprised the territory between north latitude 38 ° and 45 °. It will be observed that a conflict appears in the boundaries granted to these two companies, but an amendment of the charter of the first company, in 1609, changed the boundary of the territory granted to that company, so as to extend two hundred miles northwardly, and two hundred miles southwardly from Point Comfort, in Virginia, on the Atlantic coast, and to extend from sea to sea.* The purpose of England in planting her colonies in this country was to acquire vacant territory, and the amendment of the charters of these two companies was to extend the actual possession of that kingdom to the Pacific ocean, with a view of appropriating the territory between Canada and Florida from sea to sea.f

The first company sent over three ships laden with emigrants to aid in settling the country (under said grant to said first company), to be known as Virginia. But the emigrants that came over in 1606 made no permanent settlement, until another colony arrived in the spring of 1607, whose ships landed at James City (afterward called Jamestown), on the James river. The charter of that company was again amended in 1611-12, which amendment provided for a treasurer, and a London board or committee, to manage the financial affairs, all of whom were required to reside in England and hold their meetings in London, and a governor, to be appointed by the king, to preside over the colony.

The London board of directors or committee was authorized to provide for and constitute such officers as that committee and the governor should agree on, to manage the affairs of the colony ; and at the instance of the board of managers residing in England, a committee or board of managers to reside in the colony was instituted to aid the governor, which was authorized by the amendment of 1611-12, and authority was also given to adopt rules for the general welfare of the colony.

By selling the lands in small parcels to those who would settle on them, this first colony prospered, and as it increased in wealth and population it grew in power, and

*Poore, "Fed. and State Const, and Col. Charters" — Virginia, f Ibid. — Massachusetts.

with that increase in wealth and power came a desire for greater liberty and a more congenial government ; and the people began to show such a spirit of unrest as to cause Sir George Yeardly, the then governor, to call a general assembly, composed of representatives from the several boroughs and plantations, in 1619, to exercise the functions of legislation ; and this was the first legislature that ever assembled on this continent. This body of representatives of course acted in conjunction with the committee chosen by the Knglish directors and the governor, which gave this first legislature some resemblance to the British parliament.

This example of a domestic parliament to regulate the internal affairs of the colony was found to be so indispensable to the welfare and quiet of the colony as to induce the English committee to issue a permanent ordinance in 1621, establishing a legislative representation of the colony fashioned after the British parliament. The Knglish committee appointed the council, composed of citizens of the colony, which corresponded to the House of I^ords ; and the citizens of the plantations and boroughs elected representatives to another house, which two houses acted separately. This lower house corresponded with the House of Commons in the British parliament, and the governor occupied the relation of chief executive. After 1627 the governors were elective by the two houses of the legislative department ; but if they failed to elect, then the king might appoint a governor, provided he appointed a citizen of the colony known to be favorable to the welfare of the colony.

The charter of the second company was renewed in 1620, and by that renewed charter the boundary was changed, so as to embrace the territory between north latitude 40 ° and 48 °, which left a gap between the two grants instead of a lap, as it was under the charter of 1606; and the second company was then named "New England" under the amendment of 1620.* Under that amendment, or renewed charter, the Plymouth settlement first began by the emigration brought over on the Mayflower.

As the colony of Virginia had demonstrated that a liberal government would cause the colonies the more readily to be settled up, and therefore greatly redound to the interest of the stockholders, the Plymouth emigrants were assured of the aid of their English committee in giving them a liberal government for their colony. The emigrants who came over on the Mayflower planned their government while on board the ship, and proceeded to organize under that government as soon as they were landed.

The other colonies obtained their respective charters many years after that of New England, and they were generally granted with such form of government as those who were deputed to apply for them would ask for, and indeed they were often prepared and voted on by the people before the charter would be applied for, and were seldom, if ever, refused.

The colonies, settled by English people under authority of the crown of England, brought with them the English common law and constitution, as well as their British charters ; and when the separation took place it left the people clothed with English common law, and the entire sovereign authority thereof ; although they may have lost the provisions of their respective charters, as the charters were entirely municipal, and were sustained alone by the support they were getting from the sovereign kingdom of Great Britain ; and when the munici-

Poore, "Charters," etc. — Massachusetts.

pal cord that bound the colonies to Great Britain was severed, they could no longer draw any municipal authority from that kingdom.

But as all sovereign authority originally comes from the people, and their rules and customs, or common law, antedate and constitute the basis of the government, it is never lost with the loss of the government, but survives the government, as a part of the civilization of the people of the country. Still, the colonies chose to retain the laws enacted by themselves under their British charters, and carried them into their respective state governments under constitutional sanction.

The colonies originating under British authority, and the people thereof, being clothed with the English common law and the British constitution, as far as applicable to the condition and needs of each colony, many valuable principles were drawn from the English constitution and common law, that enter into the American system, therefore a brief mention of the origin and growth of such of the principles of the English common law and constitution as enter into and become a part of the American system, may aid in reaching a clearer understanding of the American system.

Whatever may have been the laws or customs of the British, it is not necessary to inquire into, as they were supplanted by the Angles or English, a race of people who came in the fifth century from the heart of the peninsula that separates the Baltic from the North sea, who after many years of relentless struggle, with the aid of the Jutes and Saxons, succeeded in conquering the Britons. Therefore we must look to the customs and laws of the Angles, or English people, for the fundamental principles of the constitution of Great Britain.

The most important and guiding principle upon which the English civilization and constitution was founded, consisted of the sacredness with which the family and family governments were regarded.*

Whether these conquerors drew their sacred regard for their home governments from biblical revelation, or from the natural inclination to sustain their domestic tranquillity and family governments, is not material to this inquiry.

However, Schlegel, in his great work on the philosophy of history, claims that the four great convulsions of the world became necessary to purge the world of the sins that grew out of a disregard of marital relationship.

It is true, the language used in pronouncing the curse, or judgment in each case, includes that sin ; though other sins were also mentioned in the judgments, still it must be admitted that the sins named in each judgment were in some way connected with and arose out of disregard of monogamy in marital relationship.

However, wherever those unlettered invaders derived their sacred regard for their family government, and strict adherence to monogamy and loyalty in marriage, the moral life growing out of it constituted the foundation of their future greatness as a nation of people.

The recognition of marriage being instituted by God, as a sacred institution, necessarily carries with it the recognition of a government of divine authority ; and as no government can subsist without a head, and rules to be obeyed, from the natural formation of man and woman, as well as the natural division of duties consigned to each, the man must necessarily constitute the head of the family government.

So that the husband and father, while acting as the head of his family, is authorized to bind them in compact

* Green's English People, ch. i (larger edition).

or covenant with other families, in order to secure the maintenance of the cherished religious and civil rights to be enjoyed by his family, together with the families of the other parties to the covenant or compact ; this may be the foundation of representative government brought by that people with them to Great Britain, which is so thoroughly grounded in their system of government. We find in the earlier period of the history of that people, that their village assemblies or motes, consisted of males capable of bearing arms, or who had families ; and those village motes selected representatives to a higher assembly known as the township or hundred mote. These motes not only made laws but decided controversies between adverse parties ; the township mote having appellate or revisory jurisdiction over the decisions and acts of the village mote.*

There was still another assembly, variously styled Michel-gemote or great meeting, but better known by the name Wittena-gemote, or the meeting of the wise men. When this council first began is not known, though it was familiar to the different kingdoms of the Heptarchy, and after the union it was ordered by Alfred that this council should meet twice a year or oftener, perpetually.f

The Angles, or English invaders, brought with them another assembly known as the war host, or folk mote, which was supposed to be an assembly of the whole people, and all freemen and soldiers, as well as the leaders, were entitled to seats in this mote. The villagers generally selected the representatives to this assembly, which was not, however, a regular provision of the government, but was called into existence only in cases of

* Green, ch. i (larger ed. ).

f Blackstone, vol. i, pp. 147-149.

emergency, to regulate wars, and was authorized to decide whether to engage in conquest of other countries ; and it had jurisdiction to change the government so as to make it adequate to the exigencies of the wars, or movements in making new conquests. But as the management of armies in the contest with the Britons required a compact government and rulers, this assemblywas permitted to fall into disuse, which brought about the establishment of kings to rule over that country.*

It is claimed that the sovereignty of that people resided in the village motes. But when we recall the fact that sovereignty is supreme, irresistible, absolute, uncontrolled authority, as said by Mr. Blackstone,f it must be above all law, and authorized to change the form of the government or its constitution at will ; and that the actions of the village mote being subject to revision by the township mote, that arbitrary, uncontrolled authority could not reside in the village mote. The war host, or folk mote, alone was authorized to change the government, though this mote had no permanent existence, and whenever it should adjourn it ceased to exist ; but another war host could be called into existence by the villagers at any time.

Exactly what steps were necessary to be taken to authorize calling into existence the war host, is not given with certainty. But when the villagers called into existence the war host, and selected the representatives to the same, there was no appeal from that action of the villagers to the hundred mote. It therefore follows that, whenever the village mote acted within its jurisdiction as a part of the organized government, an appeal would lie to the hundred mote ; but as the folk mote, or war

* Green's English People, ch. i (larger edition). f Blackstone, vol. i, p. 49.

host, was outside of the government, the villages had no authority as a part of the government to institute it, or to select the representatives thereto. Therefore, whenever the folk mote, or war host, was instituted, it must have been by the action of the villagers individually, and not as representatives of the village mote. Consequently the sovereignty resided not in the village mote, but in the villagers, or the heads of the families residing within the boundary thereof. The only mode by which the villagers could give expression to their sovereign will was through the folk mote, or war host.

At that time it was thought that a government could not exist without possessing sovereignty within its organization ; hence the authority of the villagers to change or modify the government through the folk mote must have been a reversionary right to regain the sovereign authority.

Mr. Blackstone says : "It must be owned that Mr. Locke and other theoretical writers have held that ' there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them ; for, when such trust is abused, it is thereby forfeited, and devolves to those who gave it.' But, however just this conclusion may be, in theory, we can not practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing. For this devolution of power to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and, by annihilating the sovereign power, repeals all positive laws whatsoever before enacted. No human laws will, therefore, suppose a case, which at once must destroy all law, and compel men to build afresh upon a