No capitation tax (that is, so much per head) has ever been levied by the general government.

Clause 5.—Duties on Exports.

No tax or duty shall be laid on articles exported from any state.

This was designed to prevent discrimination against any state or section.

Though the question has never been judicially determined, it is generally understood that since anything exported must be exported from some state (or territory), this clause prohibits all export duties.

Clause 6.—Commercial Restrictions.

No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state, be obliged to enter, clear or pay duties in another.

This provision has the same object in view as that which requires duties to be uniform—the impartial treatment of the several states. It shows, too, the fear felt by many that the general government might show partiality.

The latter part of the clause virtually establishes free trade among the states.

Clause 7.—Care of Public Funds.

No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall he published from time to time.

There are two great purposes to be subserved by this provision: First, to impose upon those handling the money a feeling of responsibility, and thus to increase the probability of carefulness; second, to prevent the use of public funds for any purpose except those authorized by the representatives of the people. This is in harmony with the provision which gives to congress the power to raise money.

Incidentally, too, this is a protector of our liberties. Those who have charge of the public purse are appointees of the president. But for this provision he might, as rulers in arbitrary governments do, use the public treasury to accomplish his own private purposes; and one of these purposes might be the overthrow of our liberties. This thought undoubtedly was a prominent one in the minds of the framers of the constitution.

The account of receipts and expenditures is reported to congress annually by the secretary of the treasury.

Clause 8.—Titles of Nobility.

No title of nobility shall be granted by the United States;[1] and no person holding an office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state[2]_.

[1] This is in harmony with the principle "All men are created equal." And, while in society there are classes and grades based upon learning, wealth, etc., we intend that all shall be equal before the law, that there shall be no "privileged classes."

[2] The purpose of this is evident—to free public officers from blandishments, which are many times the precursors of temptations to treason.

An amendment to the constitution was proposed in 1811, prohibiting any citizen from receiving any kind of office or present from a foreign power, but it was not ratified.

SECTION X.—PROHIBITIONS ON THE STATES.

Clause 1.—Unconditional Prohibitions.

No state shall enter into any treaty, alliance, or confederation;[1] grant letters of marque and reprisal;[2] coin money;[3] emit bills of credit;[4] make anything but gold and silver coin a tender in payment of debts;[5] pass any bill of attainder,[6] ex post facto law,[6] or law impairing the obligation of contracts,[7] or grant any title of nobility.[6]

[1] Otherwise the intrigues of foreign nations would soon break up the Union.

[2] Had the states this power, it would be possible for any one of them to involve the whole country in war.

[3] This provision secures the uniformity and reliability of our coinage.

[4] A state may borrow money and may issue bonds for the purpose. But these bonds are not bills of credit, because they are not designed to circulate as money.

The evils of state issuance of bills of credit we cannot appreciate, but the framers of the constitution had experienced them, and based this provision on that bitter experience.

[5] This has the same general purpose as the preceding.

It will be observed that there is no such prohibition on the United States, and the implied power to emit bills of credit and to make things other than gold and silver legal tender, has been exercised.

[6] Forbidden to the states for the same reason that they are forbidden to the United States.

[7] The purpose is to preserve the legal obligation of contracts. "The spirit of the provision is this: A contract which is legally binding upon the parties at the time and place it is entered into by them, shall remain so, any law of the states to the contrary notwithstanding." [Footnote: Tiffany quoted by Andrews.]

Under this provision many questions have arisen. One of them is this: May a state pass insolvent or bankrupt laws? It has been decided by the United States Supreme Court that a state may pass insolvent laws upon future contracts, but not upon past contracts. But no state can pass a bankrupt law.

Clause 2.—Conditional Prohibitions.

No state shall, without the consent of the congress,[1] lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;[2] and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States;[3] and all such laws shall be subject to the revision of the congress.[4] No state shall, without the consent of congress, lay any duty of tonnage,[5] keep troops or ships of war in time of peace,[6] enter into any agreement or compact with another state,[7] or with a foreign power,[7] or engage in war, unless actually invaded, or in such imminent danger as not to admit of delay.[8]_

[1] By implication, congress may give the states permission to do the things enumerated in this paragraph. But it never has.

[2] The inspection laws are designed to secure to consumers quality and quantity in commodities purchased. Thus, in some states there is a dairy commissioner whose duty it is to see that no substance is offered for sale as butter which is not butter. And officers may be appointed to inspect the weights and measures in stores. Such officers may be provided for without the consent of congress. But no fees can be charged for this service more than are necessary to pay the officers. In other words, the offices cannot be made a source of revenue to the state.

[3] This is to free the states from any temptation to use the power which might be conferred under this clause for their own gain, to the detriment of a sister state.

[4] This secures to congress the control of the matter.

[5] That is, a tax upon the carrying power of a ship. This is in harmony with the provision which forbids the states to levy duties on imports.

[6] This prohibits the keeping of a standing army, but each state may have its organized militia.

[7] In the preceding clause, the states are forbidden to enter into treaties, etc.,—that is, into political compacts; and the prohibition is absolute. Here they are prohibited from entering into business compacts, unless permitted by congress.

[8] For a state to engage in war would be to embroil the country in war. But the militia might be sent to repel invasion. They would, however, be defending not the state simply, but also the United States.

"We have thus passed through the positive prohibitions introduced upon the powers of the states. It will be observed that they divide themselves into two classes: those which are political in their character, as an exercise of sovereignty, and those which more especially regard the private rights of individuals. In the latter the prohibition is absolute and universal. In the former it is sometimes absolute and sometimes subjected to the consent of congress. It will at once be perceived how full of difficulty and delicacy the task was, to reconcile the jealous tenacity of the states over their own sovereignty, with the permanent security of the national government, and the inviolability of private rights. The task has been accomplished with eminent success." [Footnote: Story.]

Pertinent Questions.

When was slavery introduced into the United States? Give an account of the steps taken to abolish it.

What is the use of the writ of habeas corpus? If a sane person were confined in an asylum, how could he be got out? Could a person who had taken religious vows imposing seclusion from the world, be released by means of this writ? Show the necessity of power to suspend the writ in cases of rebellion or invasion.

Could the thing forbidden in a bill of attainder be done by a court? Give an example of an ex post facto law.

What is meant by "entering" and "clearing" a port?

How could the president get hold of any United States money other than that received in payment of his salary?

Could you receive a present from a foreign government? Name any American who has received a title or a present from a foreign government. Must a titled foreigner renounce his title on becoming an American citizen?

What are "greenbacks?" Did you ever see a state "greenback?" When do you expect to see one?

What is a contract? Could a legislature pass a law doing away with imprisonment for debt? What argument did Daniel Webster make in the famous Dartmouth College Case?

Name the various state inspectors in this state. How are they paid? May a state impose taxes to defray its own expenses? What prohibitions apply to both the general and the state governments. Arrange all the prohibitions in tabular form, classifying as indicated by Judge Story in the paragraph quoted.



CHAPTER XXIII.

ARTICLE II.—THE EXECUTIVE BRANCH.

It seems to us a matter of course that after the laws are made there should be some person or persons whose duty it should be to carry them into execution. But it will be remembered that under the confederation there was no executive department. The colonists had suffered from kingly rule, and in forming their first government after independence, they naturally avoided anything having the appearance of kingliness. After trying their experiment for some years, however, their "sober second sense" told them that the executive branch is a necessity, and when the convention assembled to "revise the articles of confederation" (as they at first intended to do) one of the things upon which there was practical unanimity of opinion was the necessity of having the government organized into three branches, or, as they are sometimes called, departments.

The question in regard to the executive branch was how to organize it, so as to secure two chief qualities; namely, energy of execution and safety to the people. The former was fully appreciated, for the weakness of execution during the confederation period, or the lack of execution, had impressed upon all thinking persons the necessity of more vigor in carrying out the laws. The experience during colonial days emphasized the necessity of surrounding the office with proper safeguards. And among those intrusted with the organization of a scheme of government, were many who were well versed in history—men who knew that the executive branch is the one in which lies the menace to human liberty. Under these two main divisions of the problem, arose such questions as: How many persons shall constitute the executive? What shall the term be? How shall the executive be chosen? What powers, other than those which are purely executive, shall be vested in this branch? How shall this branch be held responsible, without crippling its efficiency?

How well the problem was solved, we shall find out in our study of the provisions of the constitution pertaining to this branch.

SECTION I.—ELECTION AND SERVICE.

Clause 1.—Vestment of Power.

The executive power shall be vested in a president of the United States of America.[1] He shall hold his office during the term of four years,[2] and together with the vice-president,[3] chosen for the same term, shall be elected as follows:

[1] This sentence answers the question, "How many persons shall constitute the executive?" and gives the official title thereof.

The executive authority is vested in one person for two chief reasons: To secure energy in execution, and to impose upon the executive a sense of responsibility. If the executive power were vested in a number of persons, the differences and jealousies sure to arise, and the absence of responsibility, would result in a feeble administration, which is but another name for a bad administration.

[2] The term first reported by the committee of the whole was seven years, with the provision forbidding re-election. Some of the delegates were in favor of annual elections, while others thought that the executive should be elected for life or good behavior. And other terms, varying from two to ten years, had their advocates. After much discussion, the term of four years was agreed upon as a compromise, and no limitation was put upon the number of terms for which a person might be elected.

In another place it is made the duty of the president to recommended to congress such measures as he deems necessary for the good of the country. He should, therefore, have a term long enough to fairly test his "policy" and to stimulate him to personal firmness in the execution of his duties, yet not so long as to free him from a sense of responsibility. It was thought that a term of four years would cover both of the conditions mentioned.

[3] The purpose of having a vice-president is to provide a successor for the president in case of his disability or death.

CHOOSING THE PRESIDENT AND VICE-PRESIDENT.

Clause 2.—Number and Appointment of Electors.

Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

Three plans for the election of president and vice-president were proposed: First, election by congress; second, election by the people; third, election by persons chosen by the people for that special purpose.

The objection to the first plan was, that it would rob the executive branch of that independence which in our plan of government it is designed to possess—it would render the executive branch in a measure subordinate to the legislative.

The objections to the second plan came from two sources. Some of the delegates feared that, inexperienced as they were, the people could not be trusted to act wisely in the choice of a president—that they would be swayed by partizan feeling, instead of acting with cool deliberation. And the small states feared that in a popular election their power would count for little.

Then the compromise in the organization of the congress was remembered, and it was resolved that the election of the president and vice-president should be placed in the hands of persons chosen for that special purpose, and that the number of the electors from each state should be that of its representation in congress. This satisfied both parties. Those who thought that the people could not be intrusted with so important a matter as the choice of the president, hoped that this mode would place the election in the hands of the wise men of the several states. And the delegates from the small states secured in this all the concession which they could fairly ask.

This matter being settled, the next question was: How shall the electors be chosen? There being much difference of opinion on the subject, it was thought best to let each state choose its electors in the way which it might prefer.

Naturally the modes of choosing electors varied. In some states the legislature chose them, but this mode soon became unpopular. [Footnote: South Carolina, however, retained this mode until very recently.] In some states they were chosen by the people on a general ticket, and in others, by the people by congressional districts. The last is the fairest way, because it most nearly represents the wishes of the people. By electing on a general ticket, the party which is in the majority in any state can elect all of the electors. But, for this very reason, the majority in each state has finally arranged the matter so that this is now the practice in nearly all the states.

The present system of nominations and pledged electors was undreamed of by the framers of the constitution. They intended that in the selection of the president each elector should be free to vote according to his own best judgment. But it has come to pass that the electors simply register a verdict already rendered. Briefly the history of the change is this: During the administration of Washington (who had been elected unanimously) differences of opinion on questions of policy gave rise to political parties. To secure the unity of action so essential to success, the leaders of the respective parties, by agreement among themselves, designated, as each election approached, persons whom they recommended for support by electors of their party. Gradually the recommendation came to be looked upon as binding. In 1828 the Anti-Masonic party, having no members of congress to act as leaders, held a "people's convention." Its nominees received a surprisingly large vote. The popularity of this mode of nomination thus appearing, the other parties gradually adopted it, and since 1840 it has remained a recognized part of our political machinery.

Clause 3.—Election of President and Vice-President.

The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and the number of votes for each; which list they shall sign and certify, and transmit, sealed, to the seat of the government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be president, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such a majority, and have an equal number of votes, then the house of representatives shall immediately choose by ballot one of them president, and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the president, the vote shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president, the person having the greatest number of votes of the electors, shall be vice-president. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the vice-president.

Under this provision Washington was elected president twice and Adams once. In the disputed election of 1800, it was found that this mode would not do. The faulty feature in the plan is found in the first sentence, which requires the electors to vote for two persons for president. In this election, Jefferson and Burr, candidates of the same party, received the same number of votes and each had a majority. The power to choose then devolved upon the house of representatives. There were at that time sixteen states, and consequently sixteen votes. Of these Jefferson received eight, Burr six, and the remaining two were "scattering." As it required nine votes to make a majority, no one was elected. The balloting was continued for seven days, thirty-six ballots being taken. On the thirty-sixth ballot Jefferson received ten votes to four for Burr. Jefferson thus became president and Burr vice-president. But the consequent bitterness of feeling was much regretted, and it was determined to change, slightly, the mode of election. The changes consisted in having the electors vote for one person for president and for a different person for vice-president; and when the election is thrown into the house of representatives, the selection is to be made from the three highest instead of the five highest as originally. The change was made by the twelfth amendment, passed in 1804, which is here given in full.

The Twelfth Amendment.

The electors shall meet in their respective states and vote by ballot for president and vice-president, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as president, and in distinct ballots the person voted for as vice-president, and they shall make distinct lists of all persons voted for as president, and of all persons voted for as vice-president, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the president of the senate. The president of the senate shall, in the presence of the senate and house of representatives, open all the certificates, and the votes shall then be counted; the person having the greatest number of votes for president shall be president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as president, the house of representatives shall choose immediately by ballot, the president. But in choosing the president, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the house of representatives shall not choose a president whenever the right of choice shall devolve upon them, before the fourth day of March, next following, then the vice-president shall act as president, as in the case of the death or other constitutional disability of the president.

The person having the greatest number of votes as vice-president, shall be the vice-president, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list the senate shall choose the vice-president; a quorum for the purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to office of president shall be eligible to that of vice-president of the United States.

Thus we see that the president may be elected in one of two ways—by electors or by the house of representatives; and that the vice-president may also be elected in one of two ways—by electors or by the senate.

The mode of choosing the president is regarded by many as difficult to remember. Perhaps making an outline like the following will aid the memory:

First Mode or Process.

I. The electors, after they are chosen: 1. MEET in their respective states. 2. VOTE by ballot, for president and vice-president. 3. MAKE LISTS of the persons voted for and the number of votes for each. 4. SIGN, CERTIFY and SEAL those lists. 5. TRANSMIT them to the seat of government, addressed to the president of the senate.

II. The president of the senate: 1. OPENS the certificates, in presence of both houses. 2. DECLARES THE RESULT, after the votes have been counted.

Second Mode or Process.

Points— President— Vice-President— Chosen by.......... House of Representatives The Senate. From............... Three highest. Two highest. Voting............. By ballot. By ballot. State power........ Each one vote. Each two votes. Quorum............. Representatives from Two-thirds of senators. two-thirds of the states. Necessary to choice Majority of states. Majority of senators

The place of meeting is usually the capital of the state.

Three "lists" of the vote for president and three for vice-president are prepared, and "signed, certified and sealed." One pair of these lists is sent by mail and another by special messenger. The third is deposited with the judge of the United States District Court in whose district the electors meet, to be called for if necessary. The purpose of these precautions is to make sure that the vote of the state may not be lost, but shall without fail reach the president of the senate.

Clause 4.—Times of These Elections.

The congress may determine the time of choosing the electors,[1] and the day on which they shall give their votes;[2] which day shall be the same throughout the United States.[3]

[1] The day designated by congress is the first Tuesday after the first Monday in November. The election always comes in "leap year."

[2] The electors meet and vote on the second Monday in January.

[3] This provision was designed, first, to prevent fraud in voting; and second to leave each state free to act as it thought best in the matter of persons for the offices, unbiased by the probability of success or failure which would be shown if the elections occurred on different days in different states.

It may be desirable to know in this connection that:

The president of the senate sends for missing votes, if there be any, on the fourth Monday in January.

The counting of votes is begun on the second Wednesday in February and continued until the count is finished. (See page 334.)

In case the electors have not given any one a majority for the presidency, the house proceeds at once to elect. In a similar case the senate proceeds at once to choose a vice-president.

The provisions of the continental congress for the first election were:

1. Electors to be chosen, first Wednesday in January, 1789.

2. Electors to vote, first Wednesday in February.

3. The presidential term to commence first Wednesday in March. The first Wednesday in March in 1789 was the fourth day of the month, and on that day the presidential terms have continued to begin.

_Clause 5.—Qualifications of President and Vice-President.

No person except a natural born citizen,[1] or a citizen of the United States at the time of the adoption of this constitution,[2] shall be eligible to the office of president; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years,[3] and been fourteen years a resident within the United States.[4]_

[1] The importance of the office is such as, in the opinion of the framers of the constitution, to necessitate this requirement. And it does not seem unjust to make this limitation.

[2] This exception was made from a sense of gratitude to many distinguished persons, who, though not native citizens, had placed their lives and fortunes at the service of this country during the revolution, and who had already become citizens of the young republic. This provision is now, of course, obsolete.

[3] Age should bring wisdom. The age specified is great enough to permit the passions of youth to become moderated and the judgment matured. As a matter of fact, the youngest president yet elected was much older than this minimum. In monarchies the rulers are sometimes children. It cannot be so with us.

[4] But a "natural born citizen," even, may live so long in a foreign country as to lose his interest in his native land. This provision is intended to preclude the election of such persons to the presidency. They might seek it at the instance of a foreign government, for sinister purposes.

Will residence during any fourteen years satisfy the requirement? Commentators generally have expressed an affirmative opinion, based upon the fact that James Buchanan and others were elected president on their return from diplomatic service abroad. It must be remembered, however, that a person sent abroad to represent this government does not lose his residence in this country. Therefore the fact of Mr. Buchanan being elected after acting as our minister to England, has no bearing upon the question. On the other hand, the evident purpose of the provision could hardly be satisfied if a boy, a native of this country, should live here until fourteen years of age and then spend the rest of his years in a foreign country. And when the matter is carefully considered, it will be seen that the only fourteen years which will secure that state of mind in the candidate which is sought by the provision, are the fourteen years immediately preceding election. Again, twenty-one and fourteen equal thirty-five. A person "comes of age" at twenty-one. The fourteen years of manhood added would just make thirty-five years, the minimum age required. This coincidence could hardly have been accidental, and justifies the view expressed.

According to the twelfth amendment, the qualifications of the vice-president are the same as those of the president.

Clause 6.—Vacancies.

In case of the removal of the president from office, or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or a president shall be elected.

If no regular succession were established, there would be danger of anarchy.

By an act passed March 1, 1792, congress provided that in case of the disability of both president and vice-president, the duties of the office of president should devolve upon the president pro tempore of the senate; and in case of a vacancy in that office, that they should then devolve upon the speaker of the house of representatives.

But when president Garfield died there was no president pro tempore of the senate and no speaker of the house; so that when vice-president Arthur became president, there was no one to succeed him in case of his disability. It was then expected that congress would devise another plan of succession; but it did not. When vice-president Hendricks died, there was again no president pro tempore of the senate or speaker of the house. This recurrence of the danger within four years prompted congress to provide an order of succession less liable to accident than the one so long in use. The succession was placed in the cabinet in the following order: Secretary of state, secretary of the treasury, secretary of war, attorney-general, postmaster-general, secretary of the navy, and secretary of the interior.

When the vice-president or secretary becomes president, he serves for the remainder of the term.

One very important item in this connection the constitution leaves unprovided for, namely, who shall determine when "disability," other than death, occurs or ceases? Certainly the decision should not be left to those interested in the succession. No official answer to this question has yet been given.

Clause 7.—President's Salary.

The president shall, at stated times, receive for his services a compensation[1] which shall be neither increased nor diminished during the period for which he shall have been elected,[2] and he shall not receive within that period any other emolument from the United States or any of them.[3]

[1] Otherwise a person of moderate means would be debarred from accepting the position, and the country might thereby be deprived of the services of some man of lofty character.

[2] Thus congress can neither bribe nor drive the president into doing anything which he may regard as unwise or wrong. And on the other hand, the president has no temptation to try to "undermine the virtue" of congress for his own pecuniary benefit.

[3] This provision has the same purpose in view as the last. "He is thus secured, in a great measure, against all sinister foreign influences. And he must be lost to all just sense of high duties of his station, if he does not conduct himself with an exclusive devotion to the good of the whole people, unmindful at once of the blandishments of courtiers, who seek to deceive him, and of partizans, who aim to govern him, and thus accomplish their own selfish purposes." [Footnote: Story]

Till 1873 the salary of the president was $25,000 a year. It was then raised to $50,000 a year. He also has the use of the White House, which is furnished at national expense; and special appropriations are frequently made to cover special expenses. And yet few presidents have been able to save anything out of their salaries.

The vice-president receives $8000 a year.

Clause 8.—Oath of Office.

Before he enter upon the execution of his office, he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States."

This oath is usually administered by the chief justice of the Supreme Court. It is very simple, pledging the president to two things only; but they are the essential things.

"Taking the oath" is a part of the inauguration ceremonies which occur, usually, on the fourth of March.

Pertinent Questions.

Was there any president under the confederation? Why? When does the president's term begin? Suppose that day comes on Sunday? How does a presidential term compare with that of senator? Of representative? The first proposition in the constitutional convention was to make the presidential term seven years, and limit a person to one term. Is the present plan better or not as good? For how many terms may a person be elected president? What presidents have been elected for a second term?

How many presidential electors is this state entitled to? New York? Illinois? Wisconsin? Delaware? How many are there altogether? Show how the present mode is an advantage to the small states. Who were the electors of this state in the last presidential election? Get a "ticket" or ballot and study it. Tear off, beginning at the top, all that you can without affecting the vote. How could a person have voted for one of the republican candidates without voting for the other? Where did the electors of this state meet? When? Did you preserve the newspaper report of their proceedings?

Could the president and vice-president be chosen from the same state? How many electoral votes were necessary to a choice last time? How many did each candidate receive? In case of election by the house of representatives, what is the smallest possible number that could elect? In case the house should fail to choose a president before the fourth of March, who would be president? Have we ever been threatened with a case of this kind? Which presidents have been elected by the house? Has a vice-president ever been chosen by the senate?

Specify four differences between the old and the new way of electing president and vice-president. Which was the most important change? What statement in the twelfth amendment was unnecessary in the original provision? If "two-thirds of the senators" are present, are two-thirds of the states necessarily represented? What is the smallest number of senators that could elect a vice-president? How many times has the vice-president succeeded to the presidency? What caused the vacancies? Is the result of the election known before the meeting of the electors?

Who is our present minister to England? Would a son of his born in England today be eligible in due time to the presidency? Make a comparative table, giving the qualifications, mode of election (general), and term of representatives, senators and president.

Who is now vice-president of the United States? Have we ever had more than one vice-president at the same time? Name the persons, in their order, who would succeed to the presidency if the president should be unable to perform his duties. If the president should become insane, who would decide that such is the fact? How long would the person thus succeeding to the position of acting president serve? State four ways in which a vacancy in the office of president may occur. If the president leaves Washington, is a vacancy created? If he leaves the country? If he is impeached? In case of the non-election of either president or vice-president, who would serve? How long? How is a vacancy in the office of vice-president filled?

At what "stated times" is the salary of the president paid? In November, 1872, President Grant was re-elected. His new term began March, 1873. In the meantime the salary of the president was increased to $50,000. Did President Grant get the increase? Explain.

Does the vice-president take an "oath of office?" If he succeeds to the presidency must he take the oath prescribed in the constitution? What constitutional provision for the salary of the vice president? Compare the duties of a governor of a state with those of the president.

Debate.

Resolved, That the president should be elected by a direct vote of the people.

Resolved, That the presidential term should be lengthened, and a second term forbidden.

SECTION II.—POWERS OF THE PRESIDENT.

Clause 1.—Some Sole Powers.

The president shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States;[1] he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices,[2] and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.[3]

[1] Elsewhere it is made the duty of the president to see "that the laws are faithfully executed." The execution of the law may sometimes require force, hence it seems proper that the command of the army should be vested in him. Again, an army may be necessary to defend the country. In order that it may act promptly and efficiently, it must be directed by one person; and the person whom we instinctively designate for the purpose is the president.

The possession of this power by the president is fraught with danger, however. Unless surrounded by proper checks, it might be used to overturn our system of government. But the president can hardly, as now situated, misuse this power. In the first place, the general rules for the management and government of the army are made by congress. In the second place, the army is supported by appropriations made by congress, and these are made for short periods. In the third place, congress could reduce or even abolish the army, if that step seemed necessary in defense of our liberties. In brief, the support and control of the army are in the hands of congress; the president merely directs its movements.

Thus far the president has never actually taken the field in command of the army; he has appointed military commanders, and has simply given them general directions, which they have carried out as best they could. At any time, however, if dissatisfied with the results, he may change the commander.

[2] The president cannot personally see to the carrying out of all the laws, and yet he is the one responsible for their execution. To assist him, the work is divided up into parts, and each part is placed in the hands of an officer appointed by the president (with the consent of the senate) and responsible to him. These persons constitute what is known as the cabinet, and all but two have the title secretary.

The one who keeps the originals of the public documents, the great seal, and the public records, is called the secretary of state. He is to the United States somewhat as the clerk is to the district or town, or the auditor to the county. But in addition, he is the one who has charge of our relations with foreign countries. He is the one to whom you would apply for a passport, if you were going to travel in foreign lands. He has an assistant and many subordinate officers. In this department are three bureaus, as they are called—the diplomatic, the consular, and the domestic. (For further information, see pages 321, 349, 350.)

The officer who has general charge of the receiving and paying out of money is called the secretary of the treasury. He has two assistants and thousands of subordinates, some in Washington and others throughout the country. Under his direction money is coined, "greenbacks" and other tokens of indebtedness are issued and redeemed. He also has general charge of all government provisions for making navigation safe along the coast, such as lighthouses, etc.

All that pertains to executive control of the army is in charge of the secretary of war. The chiefs of bureaus in this department are army officers. The secretary may or may not be. The military academy at West Point is also, as we might expect, in charge of this department. (See p. 311.)

The control of the navy is exercised by the secretary of the navy. The chiefs of bureaus here are navy officers. The secretary may or may not be. This department has charge of the construction of war ships and the equipment of them; and, as we would expect it has charge of the naval academy at Annapolis (p. 311).

The department which has the greatest diversity of duties is that of the interior. This department has charge of patents and trade-marks, of pensions, of United States lands, of the Indians, of the census, and of education. Its chief officer is called the secretary of the interior. The chiefs of bureaus in this department, except that of the census, are called commissioners.

The chief officer of the postoffice department is called the postmaster general. Here there are five bureaus, in charge respectively of appointments, contracts, finances, money orders, and foreign mail.

The officer who has charge of prosecution or defense of suits for or against the United States is called the attorney general. He is to the United States what the county attorney is to the county. He has, of necessity, many assistants. All United States district attorneys and marshals act under direction of this department. He is also legal adviser of the government.

By an act approved February 11, 1889, the department of agriculture was established with appropriate duties assigned to it.

The practice of holding regular cabinet meetings was begun by Jefferson, and has continued as a matter of custom and expediency ever since. The meetings are attended only by the president, his private secretary, and the cabinet. They are held for the purpose of consultation. The president may act upon the advice of his cabinet or not as he chooses.

The reports or opinions referred to in the provision of the constitution now under consideration, are called for at least once a year and are transmitted to congress with the president's message. But they may be called for at any time.

Cabinet officers are not directly authorized by the constitution, but provisions of this section seem to take it for granted that the president would have such assistants.

[3] This power extends to military offenses as well as to the criminal offenses of civilians.

The Supreme Court has decided that the president has power also to commute sentences; and that he may act in the matter at any time after the offense is committed, even before the trial. He may also stop proceedings in any criminal case prosecuted in the name of the United States.

The exception in case of impeachment was first made in England, to prevent the king from shielding his ministers. It is in our constitution as a similar check upon the president.

Clause 2.—Powers shared by the Senate.

He shall have power, by and with the advice and consent of the senate, to make treaties, provided that two-thirds of the senators present concur;[1] and he shall nominate and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise herein provided for, and which shall be established by law;[2] but congress may by law vest the appointment for such inferior officers as they may think proper, in the president alone, in the courts of law, or in the heads of departments.[3]

[1] The "advice" of the senate is rarely, if ever, asked; but its "consent" must be had in order to make the treaties lawful.

For the mode of making treaties, see pp. 320, 350, 360.

The power to make treaties was confided to the president originally because it had been the custom for the executive to possess the treaty-making power. But it is defensible on other grounds. Some treaties need to be considered secretly. This could hardly be done if congress were the treaty-making power. But the president and the cabinet can consider the matter in secret. Then promptness is sometimes needed, as in case of a treaty to close a war. Promptness may prevent useless loss of life. If congress had to be summoned, valuable time would be taken. As two-thirds of the senators present must agree to the provisions of the treaty, the president cannot misuse the power granted in this provision.

When the treaty necessitates the raising of money, the house of representatives is generally consulted, also. In fact, if the house opposed such a treaty it is questionable whether it could be carried out. In each of the three great purchases of territory the president consulted congress before making the purchase.

[2] The nominations are made in writing, and the senate may either confirm or reject the nominees. The person or persons confirmed are then appointed by the president. When a nominee is rejected, the president generally sends in a new nomination.

This mode of appointment is thus defended by Alexander Hamilton, in the Federalist: "The blame of a bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of their having counteracted the good intentions of the executive. If an ill appointment should be made, the executive for nominating, and the senate for approving would participate, though in different degrees, in the opprobrium and disgrace."

It will be noted in this connection that, while in the state most of the officers are elected, in the general government all officers except the president and vice-president are appointed.

In Washington's administration the question was raised, can the president remove officers without the consent of congress? And it was decided that the president can remove all officers whom he can appoint. Judges, who hold for life, are of course excepted. During Johnson's administration, the power of the president in this direction was declared to be exactly equal to his power of appointment,—that is, if the consent of the senate be necessary to an appointment, it would also be necessary for removal. But afterwards the law was amended, so that now the president may suspend an officer until the end of the next session of the senate, and make a temporary appointment. If the senate does not at its next session confirm the nomination to fill the vacancy, the old officer is re-instated. But if the president is determined to carry his point, he may immediately suspend the old officer again, and re-appoint the rejected candidate, and continue so to do.

During the early administrations comparatively few removals were made, except where it seemed necessary for the improvement of the public service. But Andrew Jackson introduced into our politics the proposition, "To the victors belong the spoils;" which means that the party electing the president should have all the offices. This view of the case presents to every public officer the temptation to secure himself in place, not by meritorious service in the line of his duty, but by activity in the service of his party; the tendency is, to displace love of country and devotion to duty, and to substitute therefor subserviency to strong party leaders. So crying has the evil become, that many of the wisest and most patriotic men in the country are seeking to so far reform the public service that an officer may feel reasonably secure in his position so long as he performs his duties faithfully, and that vacancies shall be filled by the promotion of worthy subordinates.

[3] This is to secure two objects: first, to relieve the president of the burden of appointing thousands of such officers; and second, to place the appointment in the hands of the officers responsible for the work of these subordinates.

The principal officers thus appointed are:

1. Postmasters having salaries less than $1000 a year, appointed by the postmaster general.

2. Clerks, messengers, janitors, etc., in the several departments, appointed by the respective secretaries. The chiefs of bureaus and some of the more important officers in each department are appointed by the president with the consent of the senate.

3. The subordinates in each custom house, appointed by the collector thereof.

4. Clerks of United States courts, appointed by the judges. The United States district attorneys and marshals are appointed by the president, with the consent of the senate.

The term of appointees is four years, unless sooner removed. They may be and are removed, however, as before said, not only for unfitness, but also for political reasons.

Clause 3.—Temporary Appointments.

The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.

This provision is necessary because the senate is not always in session, and it would not pay to convene it for the purpose of acting upon nominations every time a vacancy occurs. The president may wait, however, if the case will permit, until the next session of congress before making an appointment.

SECTION III.—DUTIES OF THE PRESIDENT.

_He shall from time to time give to congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient;[1] he may on extraordinary occasions, convene both houses or either of them,[2] and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;[3] he shall receive ambassadors and other public ministers;[4] he shall take care that the laws be faithfully executed,[5] and shall commission all officers of the United States.[6]

[1] The president complies with this provision by sending to congress at the beginning of each regular session his annual message. And at other times, as occasion demands, he sends special messages.

[2] Congress has been convened in extra session by presidential proclamation only twelve times in all. The senate is frequently convened in extra session at the close of the regular session to consider appointments. This usually happens on the accession of a new president.

[3] No occasion has ever arisen for the exercise of this power.

[4] In all governments, diplomatic intercourse with other governments is carried on through the executive department. (See pages 347 and 349.)

By "receiving" an ambassador, the country from which he comes is "recognized" as an independent sovereignty, a nation. Ambassadors may be rejected or dismissed, if personally objectionable to this country, if the countries from which they come are not recognized as belonging to the sisterhood of nations, or if the relations between their country and this become unfriendly. Nations at war with each other do not exchange ambassadors; each recalls its representative at the time of declaring war. Our ambassadors or other public ministers may be rejected by other nations for the reasons given above.

It will readily be seen that this power or duty may impose upon the president at times, grave responsibility. The nature of this responsibility may be understood when we remember the efforts made by the confederate states to secure recognition of their agents at the courts of London and Paris, during the civil war. For either country to have recognized them would have been to interrupt our friendly relations with that country, and might have led to war between it and us. (See page 347.)

[5] This is the president's most important duty; and it is his duty to enforce the law whether he believes in its wisdom or not. He acts through the executive officers previously referred to.

[6] The commission bears the signature of the president and the great seal of the United States, the latter affixed by the secretary of state.

SECTION IV.—RESPONSIBILITY OF OFFICERS.

The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The word "civil" in the provision is used here in distinction from military and naval. It is generally understood that members of congress are not "civil officers" within the meaning of this provision. Military and naval officers are tried by courts-martial, and members of congress are subject to trial by the house to which they belong.

The definition of "high crimes and misdemeanors" rests with the senate. Treason is defined in the constitution, and bribery has a meaning understood by all.

There have been seven cases of impeachment before the United States Senate. (See pages 131, 138 and 333.)

Pertinent Questions.

When, near the close of the late war, General Grant commanded all the armies of the Union, had he any superior officer? (That is, was there any officer higher in rank than he?) Who is commander-in-chief of the United States army today? Who is the highest purely military officer, and what is his rank?

Name the members of the present cabinet. If you wanted to trade with the Indians, to whom would you make application for permission?

Can the president pardon before trial? What cases can he not pardon? Name some one pardoned by the president. Could he pardon prisoners confined for breach of state law? Where does the general government confine its prisoners?

What is the smallest number of senators that could confirm or reject a treaty? What is meant by the executive session of the senate? How could you witness the proceedings at such a session? How large a vote is necessary to confirm a nomination of the president?

What is an ambassador? A minister? A consul? What is meant by "inferior" officers? By "civil service reform?"

State the principle which seems to cover the matter of removals.

Have you read the president's last annual message? What "information" did he give to congress? What "recommendations" did he make? How was the message delivered to congress? What "extra sessions" of congress do you remember? What ones have you read about in books? When were the different extra sessions called?

Give the number of bills vetoed by each president.

Has the president ever had to adjourn congress? For how long could he do it? How is the British parliament prorogued?

Where do impeachments originate? By whom are they tried? Who may be impeached? What for? Can persons who have ceased to be officers be impeached? What is the extent of sentence? Was President Johnson impeached? How is an impeachment trial conducted? What persons have been impeached?

Prepare a tabulation telling:

1. Mode of election of president (general statement only) 2. Qualifications. 3. Term. 4. Vacancy. 5. Salary—constitutional provision; law. 6. Powers. 7. Duties.



CHAPTER XXIV.

ARTICLE III.—THE JUDICIAL BRANCH.

In the two articles so far considered, we have studied about the law-making and the law-enforcing branches of the government. We shall next examine the third great branch, the one which interprets and applies the laws.

SECTION I.—ORGANIZATION.

The judicial power of the United States shall be vested in one Supreme Court,[1] and in such inferior courts as the congress may from time to time ordain and establish.[2] The judges both of the Supreme and inferior courts, shall hold their offices during good behavior,[3] and shall at stated times receive for their services a compensation[4] which shall not be diminished during their continuance in office.[5]

[1] The creation of the Supreme Court, a distinct coordinate branch for the final interpretation of law, was the master-stroke of the constitution. "The Supreme Court has no prototype in history."

While the existence of the Supreme Court is thus provided for in the constitution, the number of judges to constitute it was wisely left with congress. Thus the organization may be changed as circumstances change. The Supreme Court at first consisted of six justices, as they are called; but owing to the growth of the country and the consequent increase of labor to be performed, the number of justices has been increased to nine.

[2] Under this provision congress has established three grades of "inferior" United States courts, the Circuit Courts of Appeal, Circuit Courts, and the District Courts. The United States is divided into nine judicial circuits, to each of which are assigned one justice of the Supreme Court and two circuit judges. (See page 307.) These constitute what is called the Circuit Court of Appeals, having appellate jurisdiction in their respective circuits and holding annual sessions for that purpose. (See page 210.)

The United States is further subdivided into more than sixty judicial districts. In each of these districts, at least one session of the circuit court and one of the district court is held each year. (See pages 210 and 307-9.) A full circuit court bench consists of a supreme court justice, a circuit judge, and a district judge; but court may be held by any one or two of them. The district court consists of the district judge.

[3] This virtually means during life. The purpose of this provision is to raise the judges above temptation, to put them in a position where they may feel safe in doing their exact duty, unawed by any outside power. If with this opportunity they prove unjust, they may be impeached. But so far, almost without exception, those who have been honored with a place on a United States court have proved worthy of their high calling.

[4] The purpose of this also is to remove temptation from the judges. The salary of the chief justice is $10,500 a year, and that of each associate justice, $10,000. This seems like a generous amount. But several times a place on the supreme bench has been declined, on the plea that the nominee could not afford to serve for the salary attached.

[5] This is to prevent the other two branches from occupying a threatening attitude toward the judiciary. But the salary may be increased. And the salary may be reduced, to take effect with appointments made after the passage of the law.

SECTION II.—JURISDICTION OF THE COURTS.

Clause 1.—Extent.

The judicial power shall extend to all cases,[1] in law and equity,[2] arising under this constitution, the laws of the United States, and treaties made or which shall be made, under their authority;[3] to all cases affecting ambassadors, other public ministers, and consuls;[4] to all cases of admiralty jurisdiction;[5] to controversies to which the United States shall be a party;[6] to controversies between two or more states;[7] between a state and citizens of another state;[8] between citizens of different states;[9] between citizens of the same state claiming lands under grants of different states;[10] and between a state or the citizens thereof, and foreign states, citizens or subjects.[11]_

[1] The courts decide what the law is, whether a specified law is constitutional or not, and what the meaning of constitutional provisions is, but only as these questions arise in cases brought before them for trial. They do not advise congress or the president as to the constitutionality or unconstitutionally of a law. They do not directly make law. But in determining the meaning of certain laws and of constitutional provisions they may determine what the law is, and thus they may be said to make law indirectly. But sometimes a legal question or a question as to the meaning of a constitutional provision remains for a long time unanswered, because no case involving the question comes before the courts.

[2] Sometimes the law provides no adequate remedy for a wrong. Here is the necessity for a court of equity. For instance, A sells his business to B, agreeing not to become a rival, but immediately reopens in the next block. B's only remedy in law is to secure damages. If this remedy is shown to be inadequate, a court of equity will close A's store. Or if C, having contracted to do a certain act for D, fails or declines to perform his part, the law can only award D damages; equity will compel the fulfillment of the contract. Law is curative, equity is preventive. (See Dole, 502.)

In some states there are separate courts of law and of equity. But the provision under discussion gives the United States courts jurisdiction in cases both of law and of equity. "There are no juries in equity cases, and no criminal trials."

[3] These pertain to the whole United States, so cases arising under them should be tried by a national, not by a state, court.

[4] Thus showing respect for the governments represented by them.

[5] That is, to cases arising on the high seas or on navigable waters. These matters, according also to I. 8: 10, 11, are under the jurisdiction of the United States, and therefore this provision is simply a consequence of the two referred to.

[6] Because then the interests of the whole country are at stake, and should not be left to any state.

[7] Because the United States was organized to "insure domestic tranquility."

[8] This provision has been modified by the eleventh amendment, which reads as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." That is, if the state is the plaintiff, the suit may be tried by the United States Supreme Court (compare clause 2). Claims of individuals against a state, if denied by the auditor, may be referred by them to the legislature. A state cannot be sued by an individual or corporation.

When a citizen is sued he must be sued either in the courts of the United States or in those of his own state. It would be a source of irritation to compel a state to sue a citizen of another state in the courts of his own state, hence this provision that such suits shall be in the United States court.

[9] To remove temptation to injustice through local prejudice. But the suit is tried in, and in accordance with the laws of, the state of which the defendant is a citizen.

[10] Because the states are involved in the suit, and it would be unfair to let either decide the controversy.

This provision is not of much importance now, because state boundaries are clearly defined. But when the constitution was framed, this kind of question meant a good deal. The charters given during colonial times were very loosely drawn, and claims of different colonies and proprietors overlapped each other. The question of ownership had not been settled at the time of the revolution. During the formative or confederation period, these disputes had been a source of much ill-feeling.

[11] Because the general government, and not the individual states, has charge of our foreign relations. A foreign country holds the United States responsible for the acts of its citizens; and only the United States can be looked to, to secure justice to its citizens on the part of foreign countries or citizens.

Clause 2.—Jurisdiction of the Supreme Court.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.[1] In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction,[2] both as to law and fact, with such exceptions and under such regulations as the congress shall make.[3]

[1] That is, such a suit must commence in the Supreme Court, and so cannot be tried elsewhere.

[2] That is, the action must commence in some lower court, but it may be appealed to the Supreme Court.

The U.S. District Court has jurisdiction over crimes committed on the high seas, and over admiralty cases in general; over crimes cognizable by the authority of the United States (not capital) committed within the district, and over cases in bankruptcy.

The U.S. Circuit Court has original jurisdiction in civil suits involving $2000 or more, over equity cases, and over cases arising under patent and copyright laws.

[3] To relieve the Supreme Court, which was years behind with its work, congress recently provided for a U.S. Circuit Court of Appeals in each of the nine circuits, which has final appellate jurisdiction in nearly all cases except those involving the constitutionality of a law.

Clause 3.—The Trial of Crimes.

The trial of all crimes, except in cases of impeachment, shall be by jury,[1] and such trial shall be held in the state where said crimes shall have been committed;[4] but when not committed within any state,[3] the trial shall be at such place or places as congress may by law have directed.[4]

[1] A trial by jury is a trial by twelve men impartially selected. This is regarded as one of the great bulwarks of liberty.

Civil cases may, at the desire of both parties, be tried by the court only. But for criminal trials a jury is guaranteed by this provision. In a criminal trial, the state or the nation is the prosecutor, and state or national judges might be tempted to decide unjustly, if the matter were left to them.

[2] This leaves the accused in better condition to defend himself, than if he could be taken away far from home. He is thus able at the least expense to bring witnesses in his own behalf. In harmony with this, each state has at least one U. S. District Court for the trial of crimes against the general government. (See Declaration of Independence.)

This provision is probably binding also upon the states.

[3] That is, in the District of Columbia, in one of the territories, in the Indian country, in the forts or arsenals of the United States, or upon the high seas.

[4] Congress has specified courts for the trial of such crimes. Those committed on the high seas are tried in the state where the vessel arrives. (See pages 230-4.)

SECTION III.—TREASON.

Clause 1.—Definition and Trial.

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.[1] No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.[2]

[1] Treason is, in essence, a deliberate and violent breach of the allegiance due from a citizen or subject to his government. Being directed against the powers that be, the government in self defense is tempted to punish it severely. The more tyrannical a government is the more likely it is to be plotted against, and the more suspicious it becomes. If treason were undefined, the government might declare acts to be treasonable which the people never suspected to be so. This had occurred so many times, and good men had so often been sent on this charge to an ignominious death, that the framers of the constitution deemed it prudent to define treason carefully in the fundamental law itself.

These provisions are taken from the famous statute of Edward III which first defined treason in England. This statute declared five things to be treasonable, only the third and fourth of which are held by our constitution to be so.

[2] An overt act is an open act, not one that is simply meditated or talked about, but one actually performed.

The Supreme Court has decided that there must be an actual levying of war; that plotting to overthrow the government is not treason. But if hostilities have actually begun, if war has commenced, "all those who perform any part, however minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are to be considered traitors."

Two witnesses, at least, "to the same overt act," are required, because thus only can a "preponderance of testimony" be secured.

Clause 2.—Punishment.

The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted.

As has been hinted, the punishment of treason had been very severe in European countries. Not only was the person convicted of treason put to death in the most horrible ways, but his property was forfeited, and no one could inherit property from him or through him. Thus not only the person himself, but also his children and his children's children, were punished. The purpose of this provision is, in the words of Mr. Madison, to restrain congress "from extending the consequences of guilt beyond the person of its author."

Pertinent Questions.

By what authority was the Supreme Court established? By whom is it organized? Why is such a court necessary? How many judges or justices constitute the Supreme Court? Name them. Tell what president appointed each.

How many and what "inferior courts" has congress established? Name the Supreme Court justice assigned to this circuit. How many other states in this circuit? Name our two United States circuit judges. Name the United States district judge. How are these officers appointed? How long do they serve? State the salary of each class of judges. What legal provision is there in regard to retiring United States judges?

If a person should rob the mail, in what court would he be tried? Tell about the Dartmouth College case. If any one should be caught making cigars without a license, before what court would he be tried? If an American owed money to an ambassador from a foreign country, and declined to pay it, how could the ambassador get his pay? If the ambassador owed an American, how could the American get his pay? Would you, if the United States government asked you to represent it in a foreign country, like to be tried by a court of that country?

If a murder be committed in the District of Columbia, in what court is the trial had? If committed in Minnesota? In Wyoming? If a sailor should steal from a passenger, when out on the ocean, where would the case be tried and in what court?

If a state other than the one in which you live should sue you where could the case be tried? How can the United States be a party to a suit?

Have you knowledge of any case in which one state sued another? If a merchant in your town should buy goods from a wholesale house in Chicago or New York, and should fail or refuse to pay for them, how could the house get its pay? What laws would apply to the case? What principle seems to be involved in these answers?

How many acts of congress have been declared unconstitutional by the Supreme Court?

Can a citizen of Wyoming bring a suit in a United States court? If you lived in Montana, how could you recover money owed you in Minnesota? Can a United States official be sued for acts performed in the discharge of his duties?

What famous case of treason was tried in 1807? Was Jefferson Davis ever tried for treason?

If the property of a traitor is taken by the government, must it be restored to his heirs at his death? Can you commit treason against this state? What do you know about the John Brown case?

Compare III. 2, 3, with amendments 5 and 6, and state the rights of a person accused of crime, which are guaranteed by the constitution.

Debate.

Resolved, That all judicial officers should be appointed.

Tabular View.

Prepare a tabular view comparing the three departments of the United States government.



CHAPTER XXV.

ARTICLE IV.—THE RELATIONS OF THE STATES.

SECTION I.—STATE RECORDS.

Full faith and credit[1] shall be given in each state to the public acts,[2] records,[3] and judicial proceedings[4]of every other state. And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved,[5] and the effect thereof.

[1] That is, such faith and credit as would be given to such acts, etc., in the state in which they originated.

[2] That is, the legislative acts,—the statutes and the constitutions.

[3] Such as the registration of deeds, wills, marriages, journals of the legislature, etc.

[4] The proceedings, judgments, orders, etc., of the courts.

[5] The records of a court are "proved" (that is, shown to be authentic) by the attestation of the clerk, with the seal of the court affixed, and the certificate of the judge. The acts of the legislature are authenticated by the state seal.

SECTION II.—RELATIONS TO INHABITANTS OF OTHER STATES.

Clause 1.—Citizens.

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

That is, no state can give its citizens any privileges which it denies to citizens of other states. For instance, a citizen of Wisconsin, New York or California, coming to Minnesota has all the privileges of a citizen of Minnesota. To be sure he cannot vote in Minnesota until he has resided here for a time. This is simply a police regulation, to prevent fraud in voting. But he is entitled to the protection of the laws of Minnesota, may hold property here, and may engage in any business in which a citizen of Minnesota may engage.

He cannot, however, carry with him any special privileges which he may have enjoyed in the state from which he came. Thus, if one state permits a person to vote upon declaring his intention to become a citizen while another requires that a voter shall be a full citizen, a person coming from the first state cannot claim the right to vote in the second until he becomes a full citizen.

Study in this connection the first clause of the fourteenth amendment.

Clause 2.—Fugitives from Justice.

A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

The necessity for this provision will readily be understood, when it is remembered that each state has jurisdiction only within its own limits. But for this provision, criminals would be comparatively free from restraint, because they could in most cases get into another state. And this would of course tend to increase the number of criminals. (See pp. 337, 349.)

As civilization advances, countries independent of each other politically agree, for their mutual protection, to surrender to each other fugitives from justice. Treaties made for this purpose are called extradition treaties.

Clause 3.—Fugitives from Service.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

This clause was inserted as a concession to the slave-holding states, and had special reference to slaves, though it also applied to apprentices and any other persons who for any reason might be "bound to service." But as slavery no longer exists, and apprenticeship and other binding to service are almost things of the past, this provision is practically obsolete.

SECTION III.—NEW STATES AND TERRITORIES.

Clause 1.—The Admission of New States.

New states may be admitted by the congress into this Union;[1] but no new state shall be formed or erected within the jurisdiction of any other state;[2] nor shall any state be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned as well as of the congress.[3]

[1] These few words mark an era in political history. Heretofore nations had acquired new territory merely to enlarge the extent of their provinces or subject states, never with a view of uniting the acquired territory with the original system, allowing it equal political privileges. But when we look at the matter carefully, we shall see that our government could not consistently do otherwise than it did. The proposition involved in the revolution was that new territory should either be permitted to enjoy equal privileges with the parent state, or it should become independent.

But it was not simply to carry out a political theory that this provision was made; it was to solve a practical difficulty. At the close of the Revolutionary War, the United States extended west to the Mississippi river. The territory west of the Alleghany mountains contained almost no inhabitants, and was of course unorganized. This territory became the object of contention. Some of the states claimed jurisdiction over it, while others maintained that it was not within the limits of any states, and that, as it had been secured by a war waged by the general government, this territory should be considered common property, to be managed by the general government. The states having claims upon the territory expressed a willingness to relinquish them upon the condition that the territory should be formed into states as soon as the population would warrant. Accordingly, before the constitution was framed all these states except North Carolina and Georgia had relinquished their claims, and all but a small portion of the territory was under the jurisdiction of the general government. And July 13, 1787, that portion of the country west of Pennsylvania and north of the Ohio, had been organized into the Northwest Territory. This act of congress is generally known as The Ordinance of 1787. It was for a long time the model upon which other territories were organized.

[2] This shows the fear entertained lest the general government should try to control a state by threatening its existence.

[3] Vermont was claimed by both New York and New Hampshire. Both consented to her admission.

Kentucky was a part of Virginia, and became a state with her consent.

Maine became a state with the consent of Massachusetts, of which it had been a part.

West Virginia was admitted during the war, the consent of Virginia being obtained afterwards.

Clause 2.—The Territories.

The congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;[1] and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.[2]

[1] The power to acquire territory is not expressly granted in the constitution, but it is implied as an act of sovereignty. Territory was acquired by the general government before the constitution by cession from states, and since the adoption of the constitution it has been acquired by purchase, by discovery, by conquest, and by annexation.

The power to dispose of territory is also an attribute of sovereignty, and would have belonged to the general government without this provision. But this provision places the power in the hands of congress; otherwise land could be sold by the treaty-making power. Under this provision congress receded to Virginia that portion of the District of Columbia south of the Potomac.

The power to govern any territory which it possesses is also an attribute of sovereignty. This clause gives the power to congress; but any law for the regulation of territories needs the president's signature, the same as any other law.

[2] It will be remembered that North Carolina and Georgia had not at the time of the adoption of the constitution relinquished their claims to certain territory lying outside of their state limits. This provision was made as a concession to them. But they afterwards, North Carolina in 1790 and Georgia in 1802, ceded the disputed territory to the United States.

SECTION IV.—GUARANTIES TO THE STATES.

The United States shall guarantee to every state in this Union a republican form of government,[1] and shall protect each of them against invasion,[2] and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.[3]

[1] That is, the United States will protect each state against one man or a few men who may try to usurp the functions of the state government. By inference, the United States could insist upon a republican form of government even if the people of the state desired some other. Happily, no necessity for the exercise of this power has yet arisen.

[2] This would have been the duty of the general government, even if this provision had not been made. To defend the country against invasion is one of the principal duties of government. The government was organized "to provide for the common defense."

[3] To "insure domestic tranquillity" was another reason given for the establishment of the constitution. But lest the general government should make every little disturbance a pretext for interfering with the local affairs of a state, it was provided that no interference should occur until asked for by state authority.

Pertinent Questions.

If a judgment is secured against a resident of New York and he moves to Minnesota without paying it, could he be held responsible in Minnesota without another suit? Is a marriage ceremony performed in Illinois binding in Kansas?

Define citizen. Can a person be a citizen of the United States without being a citizen of any state? Could he be a citizen of a state and not be a citizen of the United States? A certain southern state imposed a tax upon commercial travelers not residents of that state; was the act constitutional? What is the Civil Rights bill, and why was it passed? Can a citizen of any state claim in another state any privileges peculiar to the state from which he removed?

How is a "fugitive from justice" secured when he has escaped into another state? Is a governor obliged to surrender an escaped criminal upon demand of the authorities of the state from which he escaped? How is a criminal secured if he escapes into another country? Name countries with which we have extradition treaties. Have we any with Canada?

What were the provisions of the fugitive slave law?

Did the articles of confederation provide for the admission of new states into the union? Name the first state admitted into the Union. The last. What territories are now seeking admission into the sisterhood of states? How does a territory become a state? What advantages are gained by becoming a state? Is congress bound to admit new states? Can congress compel a territory to become a state? Can it compel a state to remain a state? Is there such a thing in our system as a state out of the Union?

What does a citizen of the United States lose by moving into a territory?

Does the constitution define a republican government? Is any particular department charged with the duty of guaranteeing to each state a republican form of government?

When did the United States protect a state against invasion? Against domestic violence? Have any states been admitted into the Union more than once?



CHAPTER XXVI.

ARTICLE V.—AMENDMENTS TO THE CONSTITUTION.

The congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as a part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the congress;[1] provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall, in any manner, affect the first and fourth clauses in the ninth section of the first article;[2] and that no state, without its consent, shall be deprived of its equal suffrage in the senate.[3]

[1] No one realized more fully than the framers of the constitution that, with the best thought which they could give to it, the constitution might need amending, and therefore they provided ways for proposing and ratifying amendments.

It is purposely made difficult to amend the constitution because the fundamental law should not be changed except for weighty reasons. If these exist, the amendments may be made; the difficulty is not so great as to be insurmountable.

[2] By reading the clauses referred to, the student will readily see whom this was a concession to.

[3] This was to protect the small states, in whose interest the senate was organized.

The first ten amendments were proposed by congress at its first session in 1789, and they were ratified in 1791.

Two other amendments were proposed at the same time, but they were not ratified. One of them was to regulate the number of representatives; the other, to prevent congressmen from increasing their own salaries.

The eleventh amendment was proposed in 1796, and ratified in 1798.

The twelfth amendment, a consequence of the disputed election of 1801, was proposed in 1803, and ratified in 1804.

An amendment prohibiting citizens of the United States from accepting any titles, pensions, presents, or other emoluments from any foreign power, on pain of loss of citizenship, was proposed in 1811, but it was not ratified.

An amendment making slavery perpetual was proposed in 1861, in the hope that this might avert the war, but it was not ratified.

The thirteenth and fourteenth amendments were proposed in 1865 and 1868 respectively, and they were ratified the same years.

The fifteenth amendment was proposed in 1869, and ratified in 1870.

The propositions of amendments have thus far been made by congress, and all ratifications have been made by the state legislatures.

Pertinent Questions.

State four ways in which the constitution may be amended. What temporary limitation was placed upon the power to amend the constitution? What permanent prohibition? How is the English constitution amended? In what case must congress call a convention to propose amendments? Must the convention thus called propose any amendments? Which is the better of the two ways of proposing amendments? When an amendment is proposed by two-thirds of both houses of congress, is it necessary to secure the approval of the president? Can a state withdraw its ratification of an amendment? When is an amendment, once proposed, dead? Did it take three-fourths of all the states or only three-fourths of the loyal states to ratify the thirteenth amendment? How many of the disloyal states finally ratified it? How is the ratification and consequent validity of any proposed amendment made known?



CHAPTER XXVII.

ARTICLE VI.—MISCELLANEOUS.

Clause 1.—Prior Debts and Engagements.

All debts contracted and engagements entered into before the adoption of this constitution, shall be as valid against the United States under this constitution as under the confederation.

The debts were incurred and the engagements were entered into by the United States, and changing the form of government would not release the country from its obligations. The insertion of this provision however, served as an explicit statement of the purpose of the government to live up to its engagements.

Clause 2.—National Supremacy.

This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

This provision settles definitely, and in what would seem to be unmistakable terms, the question of supremacy, about which so much discussion has been carried on. Within its sphere, within the limitations placed upon it by the constitution itself, the national government has the supremacy over any and all state governments.

Clause 3.—Oath of Office.

_The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this constitution;[1] but no religious test shall ever be required as a qualification to any office or public trust under the United States.[2]

[1] The first law passed by congress under the constitution was an act prescribing the form of the oath required by the provision above. It is as follows: "I, A. B., do solemnly swear, or affirm (as the case may be), that I will support the constitution of the United States."

[2] In all other countries at the time of the adoption of this constitution eligibility to public office was limited to members of the established church of the country. This constitution set the example of abolishing religious tests for public office, and the wisdom of this is so apparent that it has been followed entirely or in part by many of the civilized nations.



CHAPTER XXVIII.

ARTICLE VII.—RATIFICATION OF THIS CONSTITUTION.

The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same.

Nine states made two-thirds of the entire number. Eleven states ratified the constitution within nine months of the time of its submission to them. As soon as nine states had ratified, congress made arrangements for putting the new form of government into operation.

The mode of ratification herein specified ignored the existence of the articles of confederation, and in specifying this mode the convention disregarded the instructions of the congress which called it. The congress had expressly provided that the work of the convention should be submitted to the congress and the state legislatures for approval. But this provision places the power to ratify in the hands of conventions elected by the people in the several states, which arrangement is in harmony with the opening words of the preamble.

Pertinent Questions.

What is the recognized law of nations in regard to the payment of the debts of a nation when it changes its form of government? If England should become a republic would this rule apply? Does it apply when a territory becomes a state? Were the debts of the confederation paid? How? What was the amount of the debt of the United States at the time of the adoption of the constitution? What is the value of the notes and bonds of the "Confederate States of America"? Why?

Which is sovereign, the nation or the individual states? Where else are there any provisions which teach the same thing? Why should judges be specially mentioned in VI. 2? What department of the government makes treaties? Are they binding upon the other departments? Upon the several states? Can a state nullify an act of congress? Has any state ever tried to do so?

Why are state officers bound to support the constitution of the United States? Is the requirement to take the "oath of office" a religious test? Why is the choice of oath or affirmation given? What was the iron-clad oath?

Would the ratification of the constitution by nine states have made it binding upon the other four? The articles of confederation required the consent of all the states to any amendment to them; by what right was this constitution adopted against the wishes of Rhode Island and North Carolina? If those two states had persisted in their refusal to ratify the constitution, what would have been their relations to the United States? Justify your answer.



CHAPTER XXIX.

THE AMENDMENTS.

We have now considered the constitution about as it was presented to the states for ratification. Judging by our own affection for the noble instrument we would expect to learn that it was ratified promptly and unanimously. But, as a matter of fact, much hard work was required on the part of its friends to secure its ratification. Its every provision had to be explained and justified. Probably the most able exposition was made by Hamilton, Madison and Jay, in a series of papers entitled, "The Federalist."

One of the greatest objections urged against the constitution was that it did not guarantee sufficiently the rights of individuals. It will be remembered in this connection that the principal grievance against England, as expressed in the Declaration of Independence, was that personal rights had not been respected; and that, in consequence, the first form of government organized after independence, The Articles of Confederation, gave the general government no power to reach individuals. Experience showed this to have been a mistake, and the constitution authorizes the general government to execute its laws directly, enabling it to hold individuals responsible. On account of this re-enlargement of power, many people honestly feared that the new government might trespass upon personal rights as England had done. And several states at the time of ratifying suggested the propriety of so amending the constitution as to remove these fears.

In accordance with these recommendations, amendments were proposed at the first session of congress. The house of representatives proposed seventeen, to twelve of which the senate agreed. Only ten, however, were ratified by the legislatures of three-fourths of the states. They are, of course, the first ten among those that follow. It was decided by the same congress that the amendments should not be incorporated into the main body of the constitution, but should be appended to it as distinct articles. They have, however, the same force as the original constitution.

ARTICLE I.

FREEDOM OF RELIGION, OF SPEECH, AND OF ASSEMBLY.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;[1] or abridging the freedom of speech or of the press;[2] or the right of the people peaceably to assemble and to petition the government for a redress or grievances.[3]

[1] The chief purpose for which many of the early settlers came to America was that they might "worship God according to the dictates of their own conscience." Hence their descendants put first among the individual rights to be protected, this freedom of religion. But this provision does not authorize any one to commit crime in the name of religion.

[2] The only limitation upon speech in this country is that the rights of others be respected. Any one may think as he pleases upon any subject, and may freely express his opinion, provided that in doing so he does not trespass upon the rights of others.