The consequences.—"The history of the confederation during the twelve years beyond which it was not able to maintain itself, is the history of the utter prostration, throughout the whole country, of every public and private interest,—of that which was, beyond all comparison, the most trying period of our national and social life. For it was the extreme weakness of the confederate government, if such it could be called, which caused the war of independence to drag its slow length along through seven dreary years, and which, but for a providential concurrence of circumstances in Europe, must have prevented it from reaching any other than a disastrous conclusion. When, at last, peace was proclaimed, the confederate congress had dwindled down to a feeble junto of about twenty persons, and was so degraded and demoralized, that its decisions were hardly more respected than those of any voluntary and irresponsible association. The treaties which the confederation had made with foreign powers, it was forced to see violated, and treated with contempt by its own members; which brought upon it distrust from its friends, and scorn from its enemies. It had no standing among the nations of the world, because it had no power to secure the faith of its national obligations. For want of an uniform system of duties and imposts, [Footnote: Each state regulated its own commerce.] and by conflicting commercial regulations in the different states, the commerce of the whole country was prostrated and well-nigh ruined.... Bankruptcy and distress were the rule rather than the exception.... The currency of the country had hardly a nominal value. The states themselves were the objects of jealous hostility to each other.... In some of the states rebellion was already raising its horrid front, threatening the overthrow of all regular government and the inauguration or universal anarchy." [Footnote: Dr. J. H. McIlvaine in Princeton Review, October, 1861. Read also Fiske's Critical Period of American History, chapter IV.]



CHAPTER XIX.

THE ORIGIN OF THE CONSTITUTION.

"For several years efforts were made by some of our wisest and best patriots to procure an enlargement of the powers of the continental congress, but from the predominance of state jealousies, and the supposed incompatibility of state interests with each other, they all failed. At length, however, it became apparent, that the confederation, being left without resources and without powers, must soon expire of its own debility. It had not only lost all vigor, but it had ceased even to be respected. It had approached the last stages of its decline; and the only question which remained was whether it should be left to a silent dissolution, or an attempt should be made to form a more efficient government before the great interests of the Union were buried beneath its ruins." [Footnote: Story]

Preliminary Movements.—In 1785 a resolution was passed by the legislature of Massachusetts declaring the articles of confederation inadequate, and suggesting a convention of delegates from all the states to amend them. No action, however, was taken. In the same year commissioners from Virginia and Maryland met at Alexandria, Va., to arrange differences relative to the navigation of the Potomac, the Roanoke, and Chesapeake Bay. The deliberations showed the necessity of having other states participate in the arrangement of a compact. In 1786 the legislature of Virginia appointed commissioners "to meet such as might be appointed by the other states of the Union, ... to take into consideration the trade of the United States." Only four states accepted the invitation. Commissioners from the five states met at Annapolis, and framed a report advising that the states appoint commissioners "to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union." [Footnote: Elliot's Debates] In accordance with this suggestion, congress passed a resolution, February 21, 1787, recommending that a convention of delegates, "who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation." [Footnote: Elliott's Debates]

The Constitutional Convention.—In response to the call of congress, delegates from all the states except Rhode Island met in Philadelphia. By May 25, a quorum had assembled, the convention organized, with George Washington as chairman, and began its momentous work.

It was soon discovered that it would be useless to attempt to amend the articles of confederation. They were radically defective, and a new plan of government was seen to be necessary. The national idea must be re-established as the basis of the political organization.

"It was objected by some members that they had no power, no authority, to construct a new government. They certainly had no authority, if their decisions were to be final; and no authority whatever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption.... The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen." [Pomeroy's Constitutional Law, p. 55]

The labors of the convention lasted four months. The constitution was agreed to September 15, 1787.

Some of the difficulties encountered.—Of these perhaps the most formidable was the adjustment of power so as to satisfy both the large and the small states. So long as the idea of having the congress consist of one house remained, this difficulty seemed insurmountable. But the proposal of the bicameral congress proved a happy solution of the question. [Footnote: See discussion of section 1, Article I., Constitution, page 124.]

Although so much distress had followed state regulation of commerce, and although most of the delegates from the commercial states were in favor of vesting this power in the federal government, it was only after much deliberation, and after making the concession that no export duties should be levied, that the power to regulate commerce was vested in congress.

Another perplexing question was the regulation of the slave trade. For two days there was a stormy debate on this question. By a compromise congress was forbidden to prohibit the importation of slaves prior to 1808, but the imposition of a tax of ten dollars a head was permitted.

The men who constituted the convention.—The convention included such men as George Washington, Alexander Hamilton, Benjamin Franklin, James Madison, Roger Sherman, Gouverneur Morris, Edmund Randolph, and the Pinckneys. "Of the destructive element, that which can point out defects but cannot remedy them, which is eager to tear down but inapt to build up, it would be difficult to name a representative in the convention." [Footnote: Cyclopedia of Political Science, vol. I., article "Compromises."]

The constitution a growth.—The constitution was not an entirely new invention. The men who prepared it were wise enough not to theorize very much, but rather to avail themselves of the experience of the ages. Almost every state furnished some feature. For instance: The title President had been used in Pennsylvania, New Hampshire, Delaware, and South Carolina; The term Senate had been used in eight states; the appointment and confirmation of judicial officers had been practiced in all the states; the practice of New York suggested the president's message, and that of Massachusetts his veto; each power of the president had its analogy in some state; the office of vice-president came from that of lieutenant governor in several of the states.

Some of its peculiarities.—And yet the instrument is one of the most remarkable ever penned by man.

1. It is short. It would not occupy more than about two columns of a newspaper.

2. It covers the right ground. It deals with things permanent, and leaves transient matters to legislation. Its adaptation to our needs is seen in the fact that it has remained substantially unchanged, although in territory and population our country has grown immensely.

3. It is a model in arrangement and language. The lucidity and perspicuity of the language of the constitution have called forth expressions of admiration from all who have studied it carefully.

Probably its master-stroke is the creation of the national judiciary.

Let us now proceed to a study of the instrument itself, prepared to weigh carefully every sentence.

Some Pertinent Questions.

Group all the defects of the government under the articles of confederation using these two heads: 1. Defects in organization. 2. Defects in essential powers.

In the constitutional convention there were several "plans" proposing forms of government. State the provisions of the Virginia plan; of the New Jersey plan; of the Hamilton plan; the Connecticut plan. Watch for traces of each as you proceed in your study of the constitution.

Memorize the following outline of the constitution:

GENERAL OUTLINE OF THE CONSTITUTION.

PREAMBLE, giving reasons for the formation of the constitution.

ARTICLE I.—The Legislative Department.

Sec. 1. Vestment of power in a congress of two houses.

Sec. 2. House of representatives: apportionment, qualifications, election, term, sole powers.

Sec. 3. Senate: apportionment, qualifications, election, term, sole powers.

Sec. 4. Congress: time and place of election, time of meeting.

Sec. 5. Houses respectively: relations to members.

Sec. 6. Provisions common: privileges and disabilities.

Sec. 7. Mode of passing laws.

Sec. 8. Powers of congress.

Sec. 9. Prohibitions on congress.

Sec. 10. Prohibitions on the states.

ARTICLE II.—The Executive Department.

Sec. 1. Vestment of power, term, qualifications, election, etc.

Sec. 2. Powers.

Sec. 3. Duties.

Sec. 4. Responsibility.

ARTICLE III.—The Judicial Department.

Sec. 1. Vestment of authority, appointment, term, etc.

Sec. 2. Jurisdiction.

Sec. 3. Treason, definition, procedure.

ARTICLE IV.—The States.

Sec. 1. Mutual credit of official papers.

Sec. 2. Inter-state relations.

Sec. 3. New states and territories.

Sec. 4. Republican form of government guaranteed.

ARTICLE V.—Mode of Amending the Constitution

ARTICLE VI.—Miscellaneous

ARTICLE VII.—Ratification

AMENDMENTS.

1-10. Personal rights guaranteed.

11. Limitation on Jurisdiction of U.S. Courts.

12. Mode of electing the president and vice-president.

13-15. Fruits of the Civil War.



CHAPTER XX.

THE CONSTITUTION OF THE UNITED STATES.

THE ENACTING CLAUSE [1] OR PREAMBLE.

We, the people of the United States,[2] in order to form a more perfect union,[3] establish justice,[4] insure domestic tranquillity,[5] provide for the common defense,[6] promote the general welfare,[7] and secure the blessings of liberty to ourselves and our posterity,[8] do ordain and establish this constitution for the United States of America.

[1] The preamble or enacting clause is very important, because it states the purposes for which the constitution was framed, and is, therefore, a valuable aid in interpreting its provisions.

[2] These words are important, because: First, they recognize the people as the source of power. Second, they show that the constitution is different in nature from the articles of confederation. The latter was a compact between states, adopted by state legislatures acting for the states as such; the former was "ordained and established" by "the people of the United States," one people, acting as a unit. And the expression, which was inserted in the preamble after due deliberation, is, therefore, an argument in favor of the proposition that this is a nation and not a mere confederacy.

[3] "More perfect" than under the articles of confederation, in which the states were declared sovereign and independent. The sovereignty is given by the constitution to the general government, which is clothed with ample power to maintain its independence. At the same time such limitations are placed upon its power as will prevent its becoming despotic.

[4] To establish justice is one of the primary purposes of government. Under the articles of confederation there had been no national judiciary, and state courts often discriminated against foreigners and citizens of other states. To remedy this, to establish fair-handed justice throughout the land, the national judiciary was created by the constitution.

[5] "Domestic tranquillity" means here peace among the states and within each state. The condition of affairs during the confederation period had been woeful. A long war had impoverished the people, and unable to pay their taxes they had in several places broken out in rebellion. Each state by commercial regulations was trying to better its fortunes even at the expense of the others. These regulations, and disputes about boundaries, kept the states quarreling among themselves.

By transferring to the general government the power to regulate commerce with foreign nations and among the states, by giving it power to enforce treaties, and by creating a tribunal with authority to settle controversies between states, the framers of the constitution removed in a large measure the irritating causes of discord. But to insure peace, the general government was expressly given power to put down insurrections in the states.

[6] To defend the country is another of the important duties of government. The United States could do this better than each state could defend itself. Several reasons are obvious. Therefore the general government was empowered to raise and maintain an army and navy, and it thus became "competent to inspire confidence at home and respect abroad."

[7] "To promote the general welfare" was the great object for which the government was organized, and all the provisions of the constitution have that in view. This expression was intended to cover all those things which a government may properly do for the good of the people. It is very elastic, as it was intended to be, and has covered acts as different as the purchase of Louisiana, and the endowment of agricultural colleges, the granting of a patent, and the establishment of post-offices.

[8] This is a worthy climax to the preamble. The great struggle, which began in the mother country, continued through colonial times, and culminated in the revolution, had been for liberty. The love of liberty had illumined the pathway of the pilgrims crossing unknown seas; it had glowed in the Declaration of Independence; it had warmed the hearts of the half-clad soldiers at Valley Forge.

Liberty had now been won; the problem was how to render it secure. The desired security was to be found only in the formation of a government having all powers necessary for national sovereignty and independence, while retaining in the states all powers necessary for local self-government.



CHAPTER XXI.

ARTICLE I.—THE LEGISLATIVE BRANCH.[1]

SECTION I.—CONGRESS.

All legislative powers herein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.[2]

[1] The division of governmental functions among three branches has already been discussed on page 79.

The legislative branch comes first and occupies most space in the constitution because its framers regarded the legislative as the most important branch. And laws must be made before they can be interpreted or executed.

[2] The reason for the creation of two houses or chambers was that thus only could the conflicting claims of the large and small states be reconciled. It was, in fact, a compromise, the first of a series.

Only a few in the convention thought at first of having two houses, the plan being to continue as under the articles of confederation with one house. On the question of apportioning representatives, it was found that there was a decided difference of opinion. The small states wished to continue the principle of the articles of confederation, which gave the several states equal power. But the large states insisted that the power of a state should be in proportion to its population. The differences were finally settled by the creation of two houses, in one of which the states should have equal power, and in the other the representation should be based upon population.

Connecticut has the honor of furnishing this valuable compromise. In her legislature, representation in one house was based on population; in the other, the towns had equal representation.

Among the advantages of having two houses, aside from that mentioned on page 80, are these: It tends to prevent a few popular leaders from carrying through laws not designed for the common good; it secures a review of any proposed measure by men elected in different ways and looking at it from different standpoints. As our congress is organized, the members of the house of representatives, being elected by popular vote and for a short term, are likely to represent with considerable faithfulness the wishes of the people. But the people may be for a time wrong—as, for instance, in the persecution of the "witches"—and senators, who by their mode of election and length of term are made somewhat independent, can comparatively without fear do what seems right, even if temporarily unsupported by public opinion.

SECTION II.—HOUSE OF REPRESENTATIVES.[1]

Clause 1.—Composition and Term.

The house of representatives shall be composed of members chosen every second year[2] by the people[3] of the several states, and the electors[4] in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.[5]

[1] So called because it represents the people.

[2] The term under the confederation had been one year. This was too short to permit any adequate study of the subjects to be legislated upon. This longer term, two years, is still short enough to impose upon representatives the feeling of responsibility.

The term begins March 4, at noon. The time covered by a representative's term is called a congress; thus we speak of the fortieth congress, meaning the fortieth two years of our constitutional existence. The name also applies to the body constituting our national legislative department during that time. Thus we say that a certain person is a member of congress.

"A congress" includes two regular sessions and any number of extra sessions which the president may see fit to call or which may be provided for by law. The first regular session is called "the long session," because congress may remain in session through the summer, if it choose. The second is called "the short session," because it must end March 4, at noon. Expiring thus by limitation, it lasts not more than about three months.

[3] The word people here means voters.

Each state is divided by its legislature into congressional districts equal in number to the representatives to which it is entitled, and the people of each district elect one representative. Sometimes when a state has its representation increased after a new census, the old congressional districts are left for a time undisturbed, and the added representatives are elected "at large," while the others are chosen by districts as before.

[4] Voters.

[5] The qualifications for voting in any state are fixed by the state itself, and different states require different qualifications. When the constitution was framed, but not now, some states required higher qualifications in voters for the upper house of the state legislature than in voters for the lower; so that more persons could vote for members of the lower, which is always the "most numerous" branch, than for the higher. Desiring to make the United States house of representatives as "popular" as possible, the framers of the constitution determined that all whom any state was willing to trust to vote for a member of the lower house of the state legislature, the United States could trust to vote for members of its lower house.

Clause 2.—Qualifications.

No person shall be a representative who shall not have attained the age of twenty-five years,[1] and been seven years a citizen of the United States,[2] and who shall not, when elected, be an inhabitant of that state in which he shall he chosen.[3]

[1] For business and voting purposes a man "comes of age" at twenty-one years. Four years of probation are considered the least amount of time necessary to fit him for the responsibilities of a member of the house of representatives.

[2] A born citizen will at twenty-five years of age have been a citizen for twenty-five years. A naturalized citizen must have lived in the United States for at least twelve years, [Footnote: Eight years in the case of an honorably discharged soldier who may become a citizen on one year's residence.] five years to become a citizen and seven years afterwards, before being eligible to the house of representatives. These twelve years will have given him time to become "Americanized."

[3] Residence in the state is required in order that the state may be represented by persons interested in its welfare. No length of time is specified, however. Residence in the district is not required by the constitution, because the distribution of representatives within a state is left to the state itself. A person may be chosen to represent a district in which he does not live, and this has been done in a few instances. One does not lose his seat by moving from the district or even from the state, but propriety would impel resignation.

WHO MAY NOT BE REPRESENTATIVES.

1. Persons holding any office under the United States. [I., 6, 2.]

2. Persons who by engaging in rebellion against the United States have violated their oath to support the constitution, unless the disability be removed. [Am. XIV., 3.]

Clause 3.—Apportionment.

The parts of this clause enclosed in brackets are now obsolete.

Representatives and direct taxes[1] shall be apportioned among the several states which may be included within this Union, according to their respective numbers,[2] [which shall he determined by adding to the whole number of free persons[3] including those bound to service [4] for a number of years, and] excluding Indians not taxed, [three-fifths of all other persons.[5]] The actual enumeration[6] shall he made within three years after the first meeting of the congress of the United States,[7] and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand,[8] but each state shall have at least one representative,[9] [and until such enumeration shall he made, the State of New Hampshire, shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.]

[1] These are like the usual local taxes; that is, "poll" taxes and taxes on real and personal property. A tax on incomes derived from such property was, in May, 1895, declared by the United States Supreme Court to be a direct tax. United States direct taxes have been laid only in 1798, 1813, 1815, 1816, 1862.

[2] The revolutionary war had just been fought to maintain the principle, "taxation and representation go hand in hand," and this provision was made in harmony therewith. The including of direct taxes was a concession to the slaveholding states.

[3] Men, women and children. [4] Apprentices.

[5] Slaves. The framers of the constitution did not like to use the word "slave," and therefore used this expression. Most of them, even the slaveholders, hoped that slavery would soon cease to be.

In determining the persons to be enumerated, much difficulty was encountered. The slaveholding states wished the slaves counted as individuals, claiming that they had as much right to be represented as had women, children and other non-voters. The non-slaveholding [Footnote: In all the states except Massachusetts slavery then existed. But in the northern states the number of slaves was so small, that we may call them "non-slaveholding."] states thought that being held as property they should not be counted at all for purposes of representation. This provision in the constitution was the outcome,—another compromise.

[6] Called the Census. The prime purpose in taking the census is to find out the number of people in each state, so that representation may be equalized. But the census takers collect at the same time a vast amount of other useful information upon the agriculture, manufactures, commerce, etc., of the country. Reports of the census are published by the government for gratuitous distribution.

[7] The first meeting of congress was held in 1789, and the first census was taken in 1790.

[8] To prevent the House from becoming too large. But the population of the United States has constantly and rapidly increased, so that the "ratio of representation," as it is called, has been made greater at each census. It now takes 173,901 people to secure a representative. (For ratio in each decade, see pages 312-13.)

[9] So that even the smallest states shall be represented.

Clause 4.—Vacancies.

When vacancies[1] happen in the representation from any state, the executive authority[2] thereof shall issue writs of election[3] to fill such vacancies.[4]

[1] Vacancies usually happen through the death or resignation of the incumbent. But a vacancy may be made by the expulsion of a member or by the election of an ineligible person.

[2] The governor or acting governor.

[3] That is, he orders an election. The order is printed in the newspapers of the district, and specifies the time the election is to be held. At the time specified the electors vote as in regular elections. This is called a "special election."

[4] The person elected serves for the unexpired term.

_Clause 5.—House Powers.

The House of Representatives shall choose their speaker[1] and other officers;[2] and shall have the sole power of impeachment[3]._

[1] Called so in imitation of the title of the presiding officer of the British House of Commons, who was originally called the speaker because he acted as spokesman in communicating to the king the wishes of the House.

The speaker is chosen by ballot from among the members, and serves during the pleasure of the House. At the beginning of each congress a new election is held. A speaker may be re-elected. Henry Clay served as speaker for ten years.

The duties of the speaker are prescribed by the rules of the House. So far, he has always appointed the committees. As the work of legislation is largely shaped by committees, it may be fairly asked whether any one else can so affect the legislation of the country as can the speaker—whether, indeed, he has not too much power.

[2] The most important "other officers" are the clerk and the sergeant-at-arms.

The clerk, as his title would indicate, has charge of the records of the House. He has a number of assistants.

The sergeant-at-arms acts under the orders of the speaker in keeping order and in serving processes. His duties in the House resemble those of the sheriff in court.

The doorkeeper, postmaster, and chaplain, have duties indicated by their titles.

These officers are elected by the House and serve during its pleasure, usually two years. Assistants are appointed by the officers whom they assist.

None of these officers are members of the House.

[3] An impeachment is a solemn accusation in writing, formally charging a public officer with crime. "The articles of impeachment are a sort of indictment; and the House, in presenting them, acts as a grand jury, and also as a public prosecutor." [Footnote: Story's Exposition of the Constitution of the United States.]

For further discussion of impeachment, see pages 138, 203 and 331. A very interesting account of the impeachment trial of Secretary Belknap is given in Alton's Among the Lawmakers, pages 245-250. Mr. B. is hidden under a fictitious name.

On impeachment, see also Wilson's Congressional Government, page 275.

WRITTEN EXERCISE.

Each member of the class should prepare a tabulation like this, filling out the blanks briefly.

HOUSE OF REPRESENTATIVES.

I. NUMBER— 1. Based upon. 2. Limitations. (a) (b) II. QUALIFICATIONS. 1. 2. 3. 4. 5. III. ELECTION— IV. TERM— Y. VACANCY—

Pertinent Questions.

What is a constitution? A law? A preamble? How many of the reasons assigned in the preamble for establishing this government are general and how many are special?

How many houses do most legislative bodies have? How many did the congress under the confederation have? Why? Why has congress two houses?

How many representatives has this state in the U.S. congress? Give their names by districts. In which district do you live? When was your representative elected? By the census of 1880, Alabama had a population of 1,262,505; how many representatives should it have? Nevada had only 62,261 inhabitants, but has a representative; how do you account for the fact? What proportion of U.S. officers are elected?

What is the "most numerous branch" of this state's legislature called? What qualifications must electors to that house have? Whom else can such persons therefore vote for? If this state desired higher qualifications in electors for United States representatives, how could she require them? Should not the United States designate the qualifications of voters for members of congress? May one who is not a citizen of the United States vote for a member of congress?

What is the number of the present congress? When did it begin? How many members in the present House of Representatives? Just how was that number determined? Name the speaker. What political party is in the majority in the present House? Is congress now in session?

Must a representative reside in the district from which he is chosen? If your representative should move to another state, would he lose his seat? If a person twenty-four years and ten months old at the time of election should be chosen representative, would he be eligible?

How long must an alien live in the United States to be eligible to the house? Is there any exception?

If $13,000,000 were to be raised for the use of the United States by direct taxation, how much would this state have to pay? How much would Alaska have to pay? How would this state raise the money?

Are there any people in this state who are not counted in making up the representative population?

When was the first United States census taken? How many have since been taken? When was the last taken? When will the next be taken?

How did members of congress vote under the confederation? How do they now vote?

How is Utah represented in congress? The District of Columbia?

What five states had the largest representation in the first congress? What five have now? Which two have fewer members now than in the first congress? Which three have just the same number?

Name the present officers of the House of Representatives. Are any of them from this state?

How does our House of Representatives compare with the British House of Commons in the number of members? In the length of their terms? In the age required for eligibility? What famous speech have you read in reply to one in which a certain member of the House of Commons had been alluded to contemptuously as "a young man?"

Could one who is not a voter be elected to the house? Is a woman eligible? Could the state impose other qualifications than those mentioned in the constitution?

SECTION III.—THE SENATE.[1]

Clause 1.—Composition.

The Senate of the United States shall be composed of two senators from each state,[2] chosen by the legislature thereof,[3] for six years;[4] and each senator shall have one vote.[5]

[1] Latin senatus, from senex, an old man. This dignified term seems a favorite, being used in many countries to designate the upper house. In other countries a term is used having the same signification.

[2] This arrangement will be remembered as the concession made by the large states to the small ones.

Had the number of senators been fixed at one from each state, equality of power among the states would still have been secured; but sickness or accident might then leave a state unrepresented. By having two, this difficulty is obviated. The two can consult about the needs of their state; and the Senate is large enough to "confer power and encourage firmness." Three from each state would bring no advantages which are not now secured, while the Senate would be unnecessarily large and expensive.

[3] This mode of election was fixed upon for two reasons: First, the senators represent the state, as such, and hence it seemed proper that they should be chosen by the body which acts for the state in its corporate capacity; second, the members of the House of Representatives being elected by the people, it was deemed advisable to elect the senators in a different way, in order that, by representing different elements, each house might act as a check upon the other. Incidentally, election by the legislature was considered good, because it would serve as a connecting link between the states and the United States.

[4] The long term gives dignity and independence to the position of senator; it gives assurance of stability in the national councils, and tends to secure for them confidence at home and respect abroad; it raises senators "above the whims and caprices of their constituents, so that they may consult their solid interests, rather than their immediate wishes."

[5] Under the confederation each state had from two to seven members of congress, but only one vote. If the delegation was equally divided on any question, or if only one member was present, the state lost its vote.

By the present arrangement a state need not go entirely unrepresented on account of the absence of one of its senators.

Clause 2.—Classification and Vacancies.

Immediately after they shall be assembled in consequence of the first election, they shall be divided, as equally as may be, into three classes.[1] The seats of the senators of the first class shall be vacated at the expiration of the second year; of the second class, at the expiration of the fourth year; and of the third class, at the expiration of the sixth year;[2] so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.[3]

[1] The object of this division is to secure for the Senate at all times a large proportion of experienced members. By this arrangement, too, the Senate becomes a permanent body, ready at any time to convene for the consideration of treaties, for the trial of impeachments, or for confirming executive appointments.

[2] Only ten states were represented when, on May 15, 1789, this classification was first made. (North Carolina and Rhode Island had not yet ratified the constitution, and New York's senators had not yet presented their credentials.) The twenty senators had on the preceding day been grouped by name into three classes, two of seven senators each, and one of six. By the drawing of three numbered slips of paper, seven fell into class 1, seven into class 2, and six into class 3, with terms ending March 3, 1791, 1793, and 1795, respectively. After the classification had been fixed, the two senators from New York appeared. One was placed, by lot, in class 3 (thus filling the classes), and then the other, also by lot, in class 1. The two senators from the next state, North Carolina, were therefore placed in the unfilled classes 2 and 3. Since 1795, each class holds for six years, and a senator's term expires with that of his class.

[3] Senators represent the state, and are elected by the body which acts for the state,—by the legislature if in session, temporarily by the governor if it is not.

Clause 3.—Qualifications.

No person shall be a senator, who shall not have attained to the age of thirty years,[1] and been nine years a citizen of the United States,[2] and who shall not, when elected, be an inhabitant of that state from which he shall be chosen.[3]

[1] This was also the age for eligibility to the Roman Senate. It is five years more than the requirement for membership in the House.

[2] Two years of citizenship more than required of a representative. As the Senate acts with the president in making treaties, this requirement seems none too great.

[3] The propriety of this is self-evident. (I. 2: 2.)

Clause 4.—Presiding Officer.

The vice-president of the United States shall be president of the Senate,[1] but shall have no vote,[2] unless they be equally divided.[3]

[1] This arrangement was made for three reasons:

First. It would give the vice-president something to do.

Second. Partaking in the executive business of the Senate would give the vice-president excellent training for the duties of the presidency, in case he should be called thereto.

Third. The equality of power among the states would remain undisturbed. Had it been arranged that the Senate should choose its own presiding officer from among its members, one state might thereby gain (or lose) power in the Senate.

[2] Because he is not a member of the Senate. For this reason, also, he cannot take part in debates, nor can he appoint committees. These are elected by the Senate itself.

[3] But for his casting vote; a "dead-lock" might occur on some important question. This "might give rise to dangerous feuds, or intrigues, and create state or national agitations."

Clause 5.—Other Officers.

The Senate shall choose their other officers,[1] and also a president pro tempore,[2] in the absence of the vice-president, or when he shall exercise the office of president of the United States.

[1] These are similar to those of the House. (See p. 131.)

[2] The president pro tempore is chosen from among the senators. Being a senator, he can debate and vote upon any question. He cannot, of course, give a "casting vote," because that would virtually give him two votes.

The president pro tempore serves during the pleasure of the Senate, or until the expiration of his senatorial term.

It is the general practice for the vice-president to vacate his chair at the beginning of the session, to permit the Senate to chose a president pro tempore, so that if during vacation the vice-president should become president, the Senate might not be without a presiding officer. Until recently this was quite important, for the president pro tempore of the Senate was next to the vice-president in the succession to the presidency. But the succession has been changed. (See p. 190.)

Clause 6.—Impeachment.

The Senate shall have the sole power to try all impeachments.[1] When sitting for that purpose, they shall be on oath or affirmation.[2] When the president of the United States is tried, the chief Justice shall preside;[3] and no person shall be convicted without the concurrence of two-thirds of the members present.[4] Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United Sates;[5] but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment, according to law.[6]

[1] For the mode of conducting impeachments, see pages 131 and 331.

To have impeachments tried by a court of law would be unwise for several reasons: In the first place, judges should be kept free from political contests, in order that they may retain the proper judicial frame of mind. In the second place, judges are appointed by the executive, who may be the one impeached. Lastly, a judge is himself subject to impeachment.

[2] To enhance the solemnity of the occasion. The British House of Lords when sitting as a high court of impeachment is not under oath. But courts usually are.

[3] The vice-president, having interest in the result, would be disqualified. The chief justice, from the dignity of his station and his great experience in law, seems the fittest person to preside on such a grave occasion. Except in this single instance, however, the vice-president presides in trials on impeachment.

[4] In an ordinary court, the verdict of the jury must be unanimous. To require similar agreement in this case would be to make it next to impossible ever to convict. To allow a bare majority to convict would be to place too little protection over a public officer.

[5] But for this provision abuses of power might occur in times of political excitement and strife. The question which the Senate settles is simply whether, in view of the evidence, the accused is or is not worthy to hold public office.

[6] This provision was inserted to prevent an official who had been deposed for crime from pleading the principle that "No one can be twice tried and punished for the same offense."

WRITTEN EXERCISE.

COMPARATIVE TABULATION.

POINTS CONSIDERED. HOUSE OF R. SENATE

Number............................................... Age Qualifications......Citizenship...................... Inhabitancy Election............................................. Term................................................. Vacancy.............................................. Presiding Officer Title............................. How Chosen........................ Sole Powers.......................................... Debate.

Resolved, That United States Senators should be elected by the people.

Pertinent Questions.

Name the present senators from this state. When were they elected? Were they elected to fill a vacancy or for a full term? How many times has each been elected?

How many more senators has New York that Rhode Island? How many members in the present Senate? How many in each class? When the next state is admitted, in what classes will its senators be placed? How will the class of each be decided?

Why not have senators chosen for life?

If one of our senators should resign today, to whom would the resignation be addressed? How would the vacancy be filled? How long would the appointee serve? Could the governor appoint himself?

How long at least must an alien live in the United States before being eligible to the Senate? Has anyone ever been refused admission, after being duly elected, on account of shortness of citizenship?

Who is now vice-president? Who is president pro tempore of the Senate? Why is it not correct under any circumstances to speak of the president pro tempore as vice-president?

Has the vice-president's vote ever helped to carry any measures of great importance?

If every senator be "present," what number of senators would it take to convict? Does the accused continue to perform his official duties during the trial? Was President Johnson impeached? Is there any appeal from the Senate's verdict? How do senators vote in cases of impeachment? How is judgment pronounced?

What punishments follow conviction on impeachment in other countries?

What is treason? Bribery? What are crimes? High crimes? Misdemeanors?

How is an impeachment trial conducted? (See appendix.)

SECTION IV.—ELECTIONS AND MEETINGS.

Clause 1.—Elections to Congress.

The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof: but the congress may at any time, by law, make or alter such regulations,[1] except as to the place of choosing senators.[2]

[1] Until 1842 these matters were left entirely with the several states. Congress then provided that representatives should be elected by districts of contiguous territory, equal to the number of representatives. It has since provided that elections for representatives shall be by ballot, and that the election shall be on the first Tuesday after the first Monday of November in the even numbered years.

The time and mode of electing senators are given on page 333.

[2] This would in effect be giving congress power to locate the capital of a state.

Clause 2.—Meetings.

The congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

They have not by law appointed a different day.

"Annual meetings of the legislature have long been deemed, both in England and America, a great security to liberty and justice." By making provision in the constitution for annual meetings, the duty could not be evaded.

Extra sessions of congress may be called at any time by the president or be provided by law. There used to be three sessions, one beginning March 4.

The place of meeting is not named, because the capital had not been located, and in some cases it might be desirable to hold the session elsewhere.

SECTION V. SEPARATE POWERS AND DUTIES.

Clause 1. Membership: Quorum.

Each house shall be the judge of the elections, returns and qualifications of its own members,[1] and a majority of each shall constitute a quorum to do business;[2] but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.[3]

[1] This means simply that each house has the power to determine who are entitled to membership in it. This has long been recognized in free countries as a right belonging to a legislative body, necessary to the maintenance of its independence and purity—even its existence. But when the parties are nearly balanced, the majority is tempted to seat its fellow-partizan.

[1] This is the number usually established as a quorum for a deliberative body. Certainly no smaller number should have a right to transact business, for that would give too much power to an active minority. And to require more than a majority, would make it possible for a minority to prevent legislation.

[3] Under the rules no member has a right to be absent from a session unless excused or sick. Unexcused absentees, unless sick, may be arrested and brought to the capitol by the sergeant-at-arms or a special messenger.

When fewer than fifteen members are present, they usually adjourn.

Clause 2.—Discipline.

Each house may determine the rules of its proceedings,[1] punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member.[2]

[1] The rules are intended to facilitate business, by preventing confusion and unnecessary delay. They are designed also to check undue haste.

The rules of each house are based upon the English parliamentary practice, as are the rules of all legislative or deliberative bodies wherever the English language is spoken. (See "Manuals" of Senate and House.)

[2] It seems unlikely that even in times of great excitement two-thirds of either house would favor expulsion unless it were deserved. This is also, it will be observed, the number necessary to convict in case of impeachment.

Clause 3.—Publicity.

Each house shall keep a journal of its proceedings, and, from time to time, publish the same,[1] excepting such parts as may, in their judgment, require secrecy;[2] and the yeas and nays[3] of the members of either house, shall at the desire of one-fifth of those present, be entered on the journal.[4]

[1] This is to give publicity to the proceedings of congress, for the benefit of both legislators and constituents. This provision is a valuable one, in spite of the fact that demagogues are sometimes able thereby to gain cheap glory.

To give still further publicity to the proceedings, spectators and newspaper reporters are admitted to the gallery of each house, and members may have their speeches printed and distributed.

[2] The House of Representatives rarely has a secret session. But the Senate still keeps its executive sessions secret.

[3] For methods of voting see page 314.

[4] The purpose of this provision is to make members careful how they vote, for the record is preserved. It will be noticed that the number necessary to secure the record is small.

While this provision is intended to protect the minority, by enabling them to impose responsibility upon the majority, it is open to abuse. It is sometimes used by a minority to delay unnecessarily the proper transaction of business. (For a graphic account of "filibustering," see Among the Law Makers, 165-173.)

Clause 4—Adjournment.

Neither house, during the session of congress, shall without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.

The purpose of this provision is evident.

The sessions of congress may end in any one of three ways:

1. The terms of representatives may end.

2. The houses may agree to adjourn.



3. In case of disagreement between the houses as to the time of adjournment, the president may adjourn them. (This contingency has never yet arisen, however.)

SECTION VI. MEMBERS.

Clause 1.—Privileges.

The senators and representatives shall receive a compensation for the services,[1] to be ascertained by law,[2] and paid out of the treasury of the United States.[3] They shall in all cases except treason,[4] felony,[4] and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same;[5] and for any speech or debate in either house, they shall not be questioned in any other place.[6]

[1] See discussion in connection with state legislature, p. 85.

[2] The salary of congressmen is, therefore, fixed by themselves, subject only to the approval of the president. It is now $5000 a year, and mileage. The speaker receives $8000 a year and mileage. The president pro tempore of the Senate receives the same while serving as president of the Senate.

[3] They are serving the United States.

[4] Defined on pages 158 and 211.

[5] So that their constituents may not for frivolous or sinister reasons be deprived of representation.

[6] That is, he cannot be sued for slander in a court of justice, but he can be checked by his house, if necessary, and the offensive matter omitted from the Record.

The purpose of this provision is not to shield cowards in speaking ill of persons who do not deserve reproach, but to protect right-minded members in exposing iniquity, no matter how the doers of it may be intrenched in wealth or power.

Clause 2.—Restrictions.

No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time;[1] and no person holding any office under the United States shall be a member of either house during his continuance in office.[2]

[1] The obvious purpose of this provision is to remove from members of congress the temptation to create offices with large salaries for their own benefit, or to increase for a similar reason the salaries of offices already existing. It was designed also to secure congress from undue influence on the part of the president.

The wisdom of the provision has, however, been seriously questioned. "As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust, so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher form, than any other. It might well be deemed harsh to disqualify an individual from any office, clearly required by the exigencies of the country, simply because he had done his duty.... The chances of receiving an appointment to a new office are not so many, or so enticing, as to bewilder many minds; and if they are, the aberrations from duty are so easily traced, that they rarely, if ever, escape the public reproaches. And if influence is to be exerted by the executive, for improper purposes, it will be quite as easy, and its operation less seen, and less suspected, to give the stipulated patronage in another form." [Footnote: Judge Story.]

[2] This was to obviate state jealousy, to allay the fears entertained by some that the general government would obtain undue influence in the national councils.

TABULAR VIEW.

Each pupil may make out a tabulation, giving briefly the facts called for in this outline:

I. CONGRESSIONAL ELECTIONS, HOW REGULATED. II. SESSIONS OF CONGRESS— 1. Frequency. 2. Time of beginning. III. POWERS AND DUTIES OF EACH HOUSE— 1. Membership. 2. Quorum. 3. Discipline. 4. Publicity. 5. Adjournment. IV. MEMBERS OF CONGRESS— 1. Privileges. 2. Restrictions.

Debate.

Resolved, That members of the cabinet should have seats in congress ex officio.

Pertinent Questions.

Why not leave the power to regulate congressional elections unreservedly with the states? Where are the United States senators from this state elected?

How are United States senators elected? See appendix.

Is congress now in session? Will the next session be the long or the short one? When, within your recollection, was there an "extra session" of congress? Could the president convene one house without the other? Which is the longest session of congress on record? Does congress meet too often?

Where does congress now meet? Is that the best place? At what different places has congress met since the adoption of the constitution?

If two persons should claim the same seat in the House of Representatives, who would decide between them? How would the contest be carried on? (See page 330.) Has there ever been a "contested" election from this state?

What number of representatives is the least that could transact business? The least number of senators? The least number of representatives that could possibly pass a bill? Of senators? What is done if at any time during the proceedings it is found that there is "no quorum present?"

Has a member ever been expelled from either house? May either house punish for disorder persons who are not members? Can either house temporarily set aside all of its rules?

Did you ever see a copy of the Congressional Record? If congress be now in session, make a weekly report of its proceedings. How could you see congress in session? Could you be a spectator at a committee meeting? How could you witness an "executive session" of the Senate?

Can a member be punished for an offense committed before he was elected?

How is voting usually done in a deliberative assembly? How in Congress? How are territories represented in congress?

Distinguish between the "capital" and the "capitol" of the United States. Who has power to locate the capital of the United States?

Has the salary of congressmen ever been more than $5000 a year? How were congressmen paid under the confederation?

What is meant by the House resolving itself into a committee of the whole?

When does the freedom from arrest of a member of congress begin? When does it end? Could a summons be served upon him during that time?

What is slander? Libel? Is a member of congress liable for the publication of his speech in the Congressional Record? Would he be responsible if he should have it published in any other than the official way?

Can a member of congress resign to accept an office already in existence, and whose emoluments have not been increased during his term? Give examples. If a United States officer be elected to congress, how long can he retain his office? Could a member of congress be appointed to a military office created during his term? Can a member be appointed after his term is out to an office created during his term?

Is a member of congress an officer of the United States?

SECTION VII.—LAW MAKING.

Clause 1.—Revenue Bills.

All bills for raising revenue[1] shall originate in the House of Representatives;[2] but the Senate may propose or concur with amendments, as on other bills.[3]

[1] That is, bills in relation to the levying of taxes or for bringing money into the treasury in any other way.

[2] Because the representatives are nearer to the people, who must pay the taxes, and can therefore be more readily held to account.

[3] Such bills in England originate in the House of Commons, and the House of Lords has no power of amendment.

The purpose of giving the Senate power to amend is to preserve the due influence of the small states in this important matter.

Clause 2.—Mode of Making Laws.

_Every bill which shall have passed the House of Representatives and the Senate,[1] shall, before it becomes a law, be presented to the president of the United States;[2] if he approve, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be considered, and, if approved by two-thirds of that house, it shall become a law.[3] But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house, respectively.[4] If any bill shall not he returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall he a law, in like manner as if he had signed it,[5] unless the congress, by their adjournment, prevent its return, in which case it shall not be a law.[6] [1] Or the Senate and House of Representatives, since any bills except those for raising revenue may originate in either house.

[2] The two great purposes of giving the president a negative upon legislative acts, are to protect the proper authority of the executive from the encroachments of the congress, and to interpose a stay on hasty legislation.

[3] The veto of the Roman Tribune was final, as is that of almost every European sovereign today. But no British king or queen has vetoed an act of Parliament in the last hundred and eighty years. In Norway, if a bill, vetoed by the king, passes three successive Storthings, it becomes a law.

[4] To secure a permanent record for future reference. This helps to render members careful how they vote.

[5] This gives due time for consideration, but prevents the president's killing a bill by ignoring or neglecting it.

[6] Thus congress (which has the very human failing of "putting off" or postponing) cannot break down the veto power of the president, by pouring an avalanche of bills upon him within the last few days of the session.

But the president can easily kill any bill which he does not like, if it is presented within ten days of the adjournment of congress, simply by keeping it. This is called "pocketing" a bill, or "the pocket veto."

Clause 3.—Joint Resolutions.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the president of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

The purpose of this provision is to prevent congress from passing a law under some other name.

The resolution to adjourn is excepted, because, as we have seen, the time for adjournment is generally a matter of agreement between the houses.

A resolution passed by the two houses, but not intended to have the force of law, such as an agreement to do something, is called a concurrent resolution, and does not require the president's signature.

Pertinent Questions.

What is a "bill?" What is meant by entering the objections "at large?" Why is there no committee of ways and means in the Senate?

How many members in each house does it take for the first passage of a bill? How many after the president's veto? Does the expression two-thirds refer to the entire number in a house, or to the number voting?

State three ways in which a bill may become a law. Five ways in which it may fail.

During what time has the president the equivalent of an absolute veto?

Does a resolution merely expressing an opinion of either or both houses need the president's signature? Does a resolution proposing an amendment to the constitution?

Is the president bound to enforce a law passed over his veto?

A Summary.

"We have now completed the review of the structure and organization of the legislative department; and it has been shown that it is admirably adapted for a wholesome and upright exercise of the powers confided to it. All the checks which human ingenuity has been able to devise, or at least all which, with reference to our habits, our institutions, and our diversities of local interests, to give perfect operation to the machinery, to adjust its movements, to prevent its eccentricities, and to balance its forces: all these have been introduced, with singular skill, ingenuity and wisdom, into the arrangements. Yet, after all, the fabric may fall; for the work of man is perishable. Nay, it must fall, if there be not that vital spirit in the people, which alone can nourish, sustain and direct all its movements. If ever the day shall arrive, in which the best talents and the best virtues, shall be driven from office by intrigue or corruption, by the denunciations of the press or by the persecution of party factions, legislation will cease to be national. It will be wise by accident, and bad by system." [Footnote: Story's Exposition of the Constitution of the United States.]

Review.

Compare the organization of congress under the constitution with that of congress under the confederation. Show the superiority of our present organization. Specify some of the "checks" referred to by Judge Story.

Read Woodrow Wilson's Congressional Government, pp. 40, 41, 52, 219, 228, 283-5, 311. Also, Among the Lawmakers, Chapter 33.



CHAPTER XXII.

SECTION VIII.—POWERS VESTED IN CONGRESS.

Clause 1.—Taxation.

Congress shall have power:

To lay and collect taxes[1], duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;[2] but all duties, imposts and excises shall be uniform throughout the United States.[3]

For discussion of methods of taxation, see page 316.

[1] The want of power in congress to impose taxes was, perhaps, the greatest defect of the articles of confederation; therefore in the constitution this was the first power granted to congress.

[2] As usually interpreted, the phrase beginning, "to pay the debts," is intended to state the purposes for which taxes may be levied. But this limitation is merely theoretical, for taxes are levied before being expended.

[3] This is to prevent legislation in favor of any state or section, as against other states or sections.

Clause 2.—Borrowing.

To borrow money on the credit of the United States.

It should not be necessary, ordinarily, for congress to exercise this power. But in times of war the regular sources of income may not be sufficient, hence the necessity of this power to provide for extraordinary expenses. It is one of the prerogatives of sovereignty; it is indispensable to the existence of a nation.

For more about national borrowing, see page 317.

Clause 3.—Regulation of Commerce.

To regulate commerce[1] with foreign nations, and among the several states,[2] and with the Indian tribes.[3]

[1] The power to regulate commerce implies the power to prescribe rules for traffic and navigation, and to do such things as are necessary to render them safe. It has been interpreted to cover, among other things, the imposition of duties, the designation of ports of entry, the removal of obstructions in bays and rivers, the establishment and maintenance of buoys and lighthouses, and legislation governing pilotage, salvage from wrecks, maritime insurance, and the privileges of American and foreign ships.

[2] The power to regulate commerce with foreign nations should go hand in hand with that of regulating commerce among the states. This power had, under the confederation, been in the hands of the several states. Their jealousies and rivalries had led to retaliatory measures upon each other. This condition of affairs was encouraged by other nations, because they profited by it. At the time of the adoption of the constitution, business was terribly depressed, and the bitterness of feeling among the states would probably soon have disrupted the Union. Therefore, "to insure domestic tranquility," and "to promote the general welfare," the power to regulate commerce was delegated to the general government.

[3] This control is exercised even when the Indians live within the boundaries of a state.

By placing the power to regulate commerce with Indians in the hands of the general government it was hoped that uniformity of regulations and the strength of the government would secure peace and safety to the frontier states.

Clause 4.—Naturalization and Bankruptcy.

To establish a uniform rule of naturalization[1] and uniform laws on the subject of bankruptcies[2] throughout the United States.

[1] Naturalization is the process by which an alien becomes a citizen. The mode is given on page 319.

[2] A bankrupt is one who has been declared by a court to be owing more than he can pay.

The purposes of a bankrupt law are:

1. To secure an equitable distribution of all the debtor's property among the creditors.

2. To secure to the debtor a complete discharge from the indebtedness.

Clause 5.—Coinage and Measures.

To coin money,[1] regulate the value thereof[2] and of foreign coin,[3] and fix the standard of weights and measures.[4]

[1] This is another "sovereign power," and cannot be exercised by states, counties or cities. Coinage by the United States secures uniformity in value, and thereby facilitates business.

To "coin money" is simply to stamp upon a precious metal the value of the given piece. [Footnote: When metals were first used as money, they were weighed and their purity was determined by testing. This invited fraud.] For convenience in business transactions, these are coined of certain sizes. To discourage the mutilation of coins for sinister purposes, they are "milled" on the edges, and the stamp covers each face so that the metal could hardly be cut off without the coin showing defacement.

[2] The value is shown by the stamp.

[3] Otherwise, foreign coin would become an article of commerce, and it would be more difficult to regulate the value of domestic coin.

[4] This power congress has never exercised. But see Johnson's Cyclopedia, article Gallon.

Clause 6.—Punishment of Counterfeiting.

To provide for the punishment of counterfeiting the securities and current coin of the United States.

This is "an indispensable appendage" of the power granted in the preceding clause, that of coining money.

To discourage counterfeiting, the "securities" are engraved with rare skill and upon peculiar paper. The penalties for counterfeiting are printed on the back of some of the "greenbacks."

Under "securities" are included bonds, coupons, national currency, "greenbacks," revenue and postage stamps, and all other representatives of value issued under any act of congress.

Clause 7.—Postoffices.

To establish postoffices[1] and post roads.[2]

[1] The beneficence and usefulness of the postoffice every one can appreciate; it ministers to the comfort of all, rich and poor.

Placing the management of the postoffices with the general government secures greater efficiency and economy than would be possible if it were vested in the states.

[2] Congress generally uses roads already in existence. These are regularly selected, however, and declared to be post roads before they are used as such. The "road" may be a waterway.

But under authority of this clause congress has established some post roads. The principal highway thus established was the Cumberland road from the Potomac to the Ohio. The Union Pacific and Central Pacific railways were built under the authority and with the assistance of the United States as post and military roads.

Clause 8.—Copyrights and Patents.

To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

No one denies that an author or inventor is entitled to a fair reward for what he has done. But if every one were at liberty to print the book or to make the article invented, the due reward might not be received.

The wisdom of granting this power to the general government becomes apparent when we consider how poorly the end might be secured if the matter were left to the states. A person might secure a patent in one state and be entirely unprotected in the rest.

For further information upon this subject, see pages 318-19.

Clause 9.—United States Courts.

To constitute tribunals inferior to the Supreme Court.

Under this provision, congress has thus far constituted the following:

1. United States Circuit Courts of Appeal, one in each of the nine judicial circuits of the United States.

2. United States Circuit Courts, holding at least one session annually in each state.

3. United States District Courts, from one to three in each state. See pages 307-9.

4. A United States Court of Claims, to hear claims against the government. Such claims were formerly examined by congress.

Although not strictly United States Courts, the following may also be mentioned here, because they were established under authority of this clause:

1. The Supreme Court of the District of Columbia.

2. A Supreme Court and District Courts in each territory.

"Constituting" these courts involves establishing them, designating the number, appointment, and salaries of the judges, and the powers of each court. The term of United States judges is "during good behavior." This is fixed by the constitution (Art. III., section 1). The term of a territorial judge is four years.

Clause 10.—Crimes at Sea.

To define and punish piracies[1] and felonies[2] committed on the high seas[3] and offenses against the law of nations.[4]

[1] Piracy is robbery at sea, performed not by an individual but by a ship's crew. Pirates are outlaws, and may be put to death by any nation capturing them.

[2] A felony is any crime punishable by death or state prison. Felony covers murder, arson, larceny, burglary, etc. But congress may define piracy and felony to cover more or fewer crimes.

[3] The "high seas" are the waters of the ocean beyond low water mark. Low water mark is the limit of jurisdiction of a state, but the jurisdiction of the United States extends three miles further into the ocean, and includes all bays and gulfs.

Beyond the three-mile limit, the ocean is "common ground," belonging not to one nation but to all. Each nation has jurisdiction, however, over its merchant ships on the high seas, but not in a foreign port, and over its war ships everywhere.

[4] For an outline of the Law of Nations, see page 346.

Cases arising under this clause have been placed in the jurisdiction of the United States District Courts.

Clause 11.—Declaration of War.

To declare war,[1] grant letters of marque and reprisal[2] and make rules concerning captures on land and water.[3]

[1]: A declaration of war is a solemn notice to the world that hostilities actually exist or are about to commence.

The power to declare war is one of the attributes of sovereignty. If this power were in the hands of the several states, any one of them could at any time involve the whole country in the calamities of war, against the wishes of all the other states. With all their fear of the general government, shown in the character of the articles of confederation, the people in framing that instrument saw the necessity of vesting this power in the general government.

In monarchies, the power to declare war is generally vested in the executive. But in a republic, it would be dangerous to the interests and even the liberties of the people, to entrust this power to the president.

To put the thought in other words, the power to declare war belongs to the sovereign: in this country, the people are sovereign, therefore the power to declare war belongs to the people, and they act through their representative body, congress. (See pages 351-4.)

[2] These are commissions granted to private persons usually in time of war, authorizing the bearer to pass beyond the boundaries of his own country for the purpose of seizing the property of an enemy.

Sometimes such a letter is granted in times of peace, "to redress a grievance to a private citizen, which the offending nation refuses to redress." By authority of such a commission, the injured individual may seize property to the value of his injury from the subjects of the nation so refusing. But this practice is properly becoming rare.

[3] Vessels acting under letters of marque and reprisal are called privateers, and the captured vessels are called prizes.

Prizes are usually sold under authority of the United States District Court, and the proceeds divided among the crew of the ship making the capture.

The proceeds of captures on land belong to the government.

Clause 12.—Maintenance of Armies.

To raise and support armies;[1] but no appropriation of money to that use shall be for a longer term than two years.[2]_

[1] This is another sovereign power, and would seem the necessary accompaniment of the power to declare war. Under the confederation, however, congress could only designate the quota of men which each state ought to raise, and the actual enlistment of men was done by the several states. Their experience in carrying on the Revolutionary War on that basis satisfied them that efficiency and economy would both be secured by vesting this power in the general government.

[2] But to prevent misuse of the power, this proviso was inserted. As representatives are elected every two years, the people can promptly check any attempt to maintain an unnecessarily large army in times of peace.

A standing army is dangerous to liberty, because it is commanded by the executive, to whom it yields unquestioning obedience. Armies obey commands, while citizens comply with laws. And thus a large standing army creates a caste, out of sympathy with the lives of citizens. More than one republic has been overthrown by a successful military leader, supported by a devoted army.

As a matter of fact, congress makes the appropriation annually.

Clause 13.—The Navy.

To provide and maintain a navy.

The navy is necessary to protect fisheries and commerce. And in times of war the navy is needed to protect our sea coast, to transport soldiers, to cripple the enemy's resources, and to render blockades effectual.

It will be noticed that there is no limitation upon appropriations for the navy. This is for two general reasons: First, there is nothing to fear from a navy. "No nation was ever deprived of its liberty by its navy." Second, it takes time to provide a navy, and it should therefore be kept at all times in a state of efficiency.

For further information about the army and navy, see page 309.

Clause 14.—Army and Navy Regulations.

To make rules for the government and regulation of the land and naval forces.

This is an incident to the preceding powers.

The army and navy regulations prescribe duties of officers, soldiers and seamen, and provide for the organization and management of courts martial. Disobedience to orders and insubordination are crimes in a soldier or sailor; and refusal to pay just debts or any other conduct "unbecoming to a gentleman," are punishable offenses in an officer. Thus it is seen that military law takes cognizance of offenses not usually noticed by civil law.

Clause 15.—The Militia.

To provide for calling forth the militia[1] to execute the laws of the Union, suppress insurrections and repel invasions.[2]

[1] Congress has declared the militia to be "all citizens and those who have declared their intention to become such, between the ages of eighteen and forty-five." These constitute what is called the unorganized militia. The military companies and regiments formed by authority of United States and state laws constitute the organized militia.

One of two policies we must pursue, either to maintain a large standing army or to depend upon the citizen-soldiers to meet emergencies. For several reasons, we prefer the latter. That our citizen-soldier may be depended upon has been demonstrated on many a battlefield.

[2] The clause specifies the purposes for which the militia may be called out. These are three in number. Each state may for similar purposes call forth its own militia.

Under the laws of congress, the president is authorized in certain emergencies to issue the call. This he directs to the governors of states, and those called on are bound to furnish the troops required.

On three occasions only have the militia been called out under this clause: In the Whisky Rebellion of 1794, to enforce the laws; in the war of 1812, to repel invasion; and in the Civil War, to suppress insurrection.

Clause 16.—Organization of the Militia.

To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States,[1] reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.[2]

[1] Thus only can the uniformity so essential to efficiency be secured.

[2] This is designed as a proper recognition of the right of each state to have militia companies and to control them, subject only to the necessary limitation mentioned.

The militia of a state consists of one or more regiments, with the proper regimental and company officers appointed by state authority. When these are mustered into the service of the United States and are formed into brigades and divisions, the appointment of the general officers is vested in the president.

Clause 17.—Exclusive Legislation.

To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by the cession of particular states, and the acceptance of congress, become the seat of government of the United States,[1] and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.[2]

[1] This refers to the territory afterwards selected, and now known as the District of Columbia.

The purpose of this provision is to free the general government from having to depend upon the protection of any state, and to enable it to secure the public buildings and archives from injury and itself from insult. [Footnote: The Continental Congress, while the capital was at Philadelphia, had to adjourn to Princeton to escape the violence of some dissatisfied soldiers. See Fiske's Critical Period of American History, page 112.]

Congress governed the District of Columbia directly until 1871, when for three years the experiment was tried of governing it as a territory. The territorial government in that time ran in debt over $20,000,000 for "public improvements," and congress abolished it.

The supervision of the district is now in the hands of three commissioners, appointed by the president, but controlled by congressional legislation.

[2] The propriety of the general government having exclusive authority over such places is too obvious to need comment. Crimes committed there are tried in the United States District Courts, but according to the laws of the state or territory.

The state in making the cession usually reserves the right to serve civil and criminal writs upon persons found within the ceded territory, in order that such places may not become asylums for fugitives from justice.

Clause 18.—Implied Powers.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

This clause does not grant any new power. "It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution." [Footnote: Story.]

It will be noticed that the powers of congress are enumerated, not defined, in the constitution; and the above clause has given rise to the doctrine of "implied powers," the basis of many political controversies.

Following are samples of "implied powers:"

By clause 2, congress has power "to borrow money on the credit of the United States." Implied in this, is the power to issue securities or evidences of debt, such as treasury notes. "To increase the credit of the United States, congress may make such evidences of debt a legal tender for debts, public and private." [Footnote: Lalor's Cylopedia of Political Science.]

Congress has power (clause 11) "to declare war." By implication it has power to prosecute the war "by all the legitimate methods known to international law." To that end, it may confiscate the property of public enemies, foreign or domestic; it may confiscate, therefore, their slaves. (See Emancipation Proclamation, page 362. For a hint of what congress might do, see Among the Lawmakers, p. 296.)

Pertinent Questions.

1. In what two ways may the first part of the first clause be interpreted? In what ways does the government levy taxes? How much of the money paid to the local treasurer goes to the United States? Have you ever paid a U.S. tax? Did you ever buy a pound of nails? Do you remember the "stamps" that used to be on match boxes? How came they there? Was that a direct or an indirect tax? A man who pays for a glass of beer or whisky pays a U.S. tax. How? Every time a person buys a cigar he pays a U.S. tax. If there be a cigar factory within reach, talk with the proprietor about this matter. Look at a cigar box and a beer keg to find some evidence of the tax paid. Name some things which were taxed a few years ago but are not now. What is a custom house? A port of entry? What are they for? Name the port of entry nearest to you. What is the present income of the United States from all kinds of taxation? What is done with the money? Look up the derivation of the word tariff.

2. How does the government "borrow?" Does the government owe you any money? If you have a "greenback," read its face. If the government is unable or unwilling to pay a creditor, what can he do? What is the "credit" of the United States? How much does the United States government owe, and in what form is the debt? How came it to be so large? Is the government paying it up? How much has been paid this fiscal year? What rate of interest has the government to pay? What is the current rate for private borrowers? How is it that the government can borrow at so low a rate? What is a "bond-call," and how is it made?

3. Has congress power to prohibit commerce with one or more foreign nations? Has it power to regulate commerce carried on wholly within a state? Can you buy lands from the Indians? Can the state? Has congress imposed a tariff to be paid in going from one state to another? What has requiring the engineer of a steamboat to secure a government license to do with "regulating commerce?" When did congress under this clause prohibit American merchant ships from leaving port? Under what provision of the constitution does congress impose restrictions upon the railroads? Does congress exercise any control over railroads lying wholly within one state? Why?

4. How can an alien become naturalized? Who are citizens of the United States? (See Amend. XIV.) Is a child of American parents, born during a temporary absence from this country, a citizen or an alien? An alien living in this country has children born here; are they citizens or aliens? A child is born on the ocean, while its parents are on the way here to found a new home and intending to become citizens; what is the status of the child? Are you a citizen? How may female aliens become citizens? Why should they desire to do so? How did citizens of Texas at the time of its admission become citizens of the United States?

What is an insolvent law? Has this state such a law? Can this state pass a bankrupt law? Can any state? Why? Is there any United States bankrupt law? Has congress ever passed such a law?

5. What is money? Is a bank bill money? Read one and see whether it pretends to be. What gold coins have you ever seen? What others have you heard of? What silver coins have you ever seen? What others have you heard of? What other coins have you seen or heard of? How are coins made? Where is the United States mint located? Where are the branch mints? How much value does the stamp of the government add to a piece of gold? Is there a dollar's worth of silver in a silver dollar? Why? (See Jevons' Money and the Mechanism of Exchange.)

How are national banks organized? (See appendix.) Under what constitutional provision does congress exercise this power? Are any banks organized under state authority? What is meant by "legal tender?"

Are foreign coins "legal tender" at the rate fixed by congress? For the value of the principal foreign coins, see appendix. Can congress punish counterfeiting of these coins?

Is there a standard pound in this state? A standard bushel?

6. Look on the back of a greenback for the law about counterfeiting. Is there any law against passing counterfeits?

7. When was our postoffice department established? Who was placed at the head of it? Who is the postmaster general? What is meant by "presidential offices" in speaking of postoffices? What are the present rates of postage in the United States? How much does it cost to send a letter to England? To Prussia? To Australia? When were postage stamps introduced? Stamped envelopes? Postal cards? In what four ways may money be sent by mail? Explain the workings and advantages of each method. What is the dead letter office?

What is meant by the franking privilege? Find the rates of postage in the United States, in 1795, 1815, 1845, 1850, 1860. Does the power to establish post roads, authorize congress to make internal improvements? What is meant by "star route?"

8. Is this book copyrighted? Name some book that is not copyrighted. What things besides books are copyrighted? Can a copyright be sold? How is a copyright secured? How long do copyrights continue in force? How may they be renewed? Must new editions be copyrighted?

What is a patent? How are "letters patent" secured? How may an inventor secure time to perfect his invention? How can a patent be sold? May a person, not the patentee, make a patented article for his own use? Name ten important patented inventions. What is the purpose of the government in granting patents? Is this always secured? How does the expiration of a patent affect the price of an invention? If a person invents an article which proves helpful to millions of people, is it unfair that he should make a fortune out of it?

9. By what authority does congress organize courts in the territories? Could congress establish more than one Supreme Court? Name the United States District Judge for this state. The United States Attorney. The United States Marshal. If you had a claim against the United States how would you get your money?

10. Who may punish a pirate? Can a pirate claim the protection of the American flag?

11. Has the United States ever formally declared war? May war begin without a formal declaration? Does the president act with congress in declaring war, as in case of a law?

What protection is afforded by letters of marque and reprisal? Name some well known privateers. Tell about the "Alabama Claims," and their settlement. Upon what principle of international law did the decision hinge? See page 353.

12. With what other power is that of raising an army intimately connected? That of maintaining an army? How large is the United States army at the present time? Give arguments in favor of the militia system, as against that of a large standing army. What circumstances favor us in adopting the militia system? What country in Europe is most like us in this respect? Why is this possible in that country? Where are most of the officers of the U.S. army educated? How are appointments to the institution made? By what authority has congress established it? What is a military "draft?"

Who has charge of this department of the government? Name the four highest officers in the U. S. army. For the organization of the army, see page 309.

13. Name the present secretary of the navy; the two highest naval officers. Where are most of the naval officers educated? How does the navy of the United States compare with the navies of other great powers? Why? For organization of navy, see appendix.

14. What is the difference between military law and martial law? How are these "rules" made known? What is the source of authority in a military court? In a civil court? Is there any liability of a conflict of jurisdiction between these courts? When was flogging abolished in the army? In the navy? What punishments are inflicted by courts martial?

15. Distinguish between the militia and the regular army. Between militia and "volunteers."

16. How many regiments of organized militia in this state? Name the principal regimental officers. By whose authority were these appointed? Is there any "company" near you? Have you seen them drilling? Who prescribed the "tactics?"

17. Over what portions of this state has congress this "exclusive jurisdiction?" Give a brief sketch of the District of Columbia. When and by whom was slavery abolished therein?

18. Why should this be spoken of as "the sweeping clause?"

Debate.

Resolved, That free trade should be the ultimate policy for any country.

References.

PROTECTION.—Articles in Cyclopedias; Casey's Social Science, McKean's Abridgment; Greeley's Political Economy; Byle's Sophisms of Free Trade; Elder's Questions of the Day; Bowen's Political Economy.

FREE TRADE.—Articles in Cyclopedias; Grosvenor's Does Protection Protect? Sumner's History of Protection in U.S.; Fawcett's Free Trade and Protection; David A. Wells' Essays; Pamphlets published by the Free Trade Club, N.Y.

A very fair statement of both views may be found in Macvane's Political Economy.

SECTION IX.—PROHIBITIONS ON CONGRESS.

Clause 1.—The Slave Trade.

The migration or importation of such persons[1] as any of the states now existing shall think proper to admit, shall not be prohibited by congress prior to the year one thousand eight hundred and eight, but a tax or duty may he imposed on such importation,[2] not exceeding ten dollars for each person.[1]

[1] The framers of the constitution disliked to tarnish the instrument by using the word slave, and adopted this euphemism.

At that time there was a general desire, not ripened into a purpose however, that slavery might soon cease to exist in the United States.

This clause, which permitted the continuance for a time of the slave trade, was a concession to North Carolina, South Carolina and Georgia. The other states had already prohibited the slave trade, and it was hoped by all that before the time specified the abolition of slavery would be gradually accomplished.

[2] No such tax was imposed.

This provision is now obsolete, and is of interest only historically. (For further discussion of slavery, see page 343.)

Clause 2.—The Writ of Habeas Corpus.

The privileges of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

"It has been judicially decided that the right to suspend the privilege of the writ rests in congress, but that congress may by act give the power to the president." [Footnote: Lalor's Cyclopedia of Political Economy]

The privilege of the writ never was suspended by the general government until 1861. Questionable suspensions of the writ, covering a very limited territory, had been made in two or three instances by generals.

So valuable as a "bulwark of liberty" is this writ considered to be, that the courts of the United States have decided that, even in time of war, the privilege of the writ can be suspended only in that part of the country actually invaded, or in such a state of war as to obstruct the action of the federal courts.

Clause 3.—Certain Laws Forbidden.

No bill of attainder[1] or ex post facto law[2] shall be passed.

[1] A bill of attainder was a legislative conviction for alleged crime, with judgment of death. Those legislative convictions which imposed punishments less than that of death were called bills of pains and penalties. [Footnote: Cooley's Constitutional Limitations] The term is here used in its generic sense, so as to include bills of pains and penalties.

The great objection to bills of attainder is that they are purely judicial acts performed by a legislative body. A legislative body may and should try a political offense, and render a verdict as to the worthiness of the accused to hold public office. But to try him when conviction would deprive him of any of his personal rights—life, liberty, or property,—should be the work of a duly organized judicial body.

This provision, then is directed not so much against the penalty (for limitations upon penalties are found elsewhere in the constitution,) as against the mode of trial. Or we may say that it is intended to prevent conviction without a trial; for in previous times legislative bodies had frequently punished political enemies without even the form of a trial, or without giving them an opportunity to be heard in their own defense, by passing against them bills of attainder.

[2] An ex post facto law is, literally, one which acts back upon a deed previously performed. But as here intended, it means a law making worse such an act, either by declaring criminal that which was not so regarded in law when committed, or by increasing the penalty and applying it to the act previously performed.

But a law may be passed making better, in a sense, some previous act. That is, an unforseen but imperative necessity may call for the doing of something which is not unlawful, but which needs, yet has not received, the sanction of law. This act may afterwards be legalized by the legislature.

The things forbidden by this clause would, if permitted, render unsafe all those personal rights for the security of which the constitution was framed and the government founded.

Clause 4.—Direct Taxes

No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

This clause emphasizes the first sentence of clause three, section two, of this article. It was intended to prevent the taxation of the two-fifths of the slaves not enumerated for representation, and was evidently inserted as a concession to the slave states. But the abolition of slavery takes from the clause all force except that mentioned at the beginning of this paragraph.