Sec.3. Secondly, as to the duration of the office. Much of what has been said in relation to the term of office of senators, will apply to that of president. (Chap. XXX, Sec.4-6.) His term of office should not be so short as to induce him to act more with a view to his re-election than to the public good; yet it should be short enough to make him feel his responsibility. And it should be long enough to insure a due degree of independence, and to enable him to carry out his system of public policy. The term of four years was accordingly adopted.

Sec.4. Thirdly, the mode of election. Among the various modes proposed, the one adopted was that of electing the president by electors chosen in the several states for that purpose; the number of the electors chosen in each state to be equal to the number of its senators and representatives in congress. A material alteration in the mode of election has been made since the adoption of the constitution, as will be seen by examining the two modes. (Art. 2, Sec.1; and Art. 12 of Amendments.) This amendment does not change the manner of choosing the electors, but the manner of choosing the president by the electors.

Sec.5. The constitution does not prescribe the manner in which the electors shall be appointed or chosen; it only declares that each state shall appoint them "in such manner as the legislature thereof shall direct." No uniform mode was adopted by the different states. In some states the electors were appointed by the legislature; in others, by the people. At present the latter mode prevails in all the states except South Carolina, where presidential electors are still chosen by the legislature.

Sec.6. The electors are, by the laws of the several states, chosen by general ticket. The names of two men, corresponding to the number of senators to which a state is entitled in congress, together with the names of as many others as there are representatives of the state in the lower house of congress, one to reside in each congressional district, are all placed on the same ballot; so that every voter votes for the whole number of presidential electors to be chosen in the state. And, by a law of congress, the electors are required to be chosen in all the states on the same day, which is the Tuesday next after the first Monday of November.

Sec.7. The electors so chosen are required by a law of congress, to meet in their respective states on the first Wednesday of December, and vote for president and vice-president; and to make and sign three certificates of all the votes given by them, and seal up the same. One of these is to be sent by a person duly appointed by them, to the president of the senate at the seat of government, before the first of January next ensuing; another is to be forwarded by mail, also directed to the president of the senate; and the third is to be delivered to the United States judge of the district in which the electors are assembled.

Sec.8. On the second Wednesday of February, the president of the senate, in presence of all the senators and representatives, opens the certificates from all the states, and the votes are counted. The person having a majority of all the electoral votes for president is elected. If no person has a majority of all the electoral votes, the house of representatives must choose the president from those candidates, not exceeding three, who had the highest numbers of the electoral votes. But in so doing, the members do not all vote together; but those of each state vote by themselves; and the candidate who receives the votes of a majority of the representatives of a state, has but one presidential vote for such majority; and the person who receives the votes of a majority of the states, is elected. Thus in the election of president by the house of representatives, voting is done by states, as was done in passing laws by the old congress. (Chap. XXVIII, Sec.5.)

Sec.9. There have been two elections by the house of representatives. The second was 1825. The votes of the electoral colleges (assemblies) had in December, 1824, been divided upon four candidates. Andrew Jackson had received 99 electoral votes; John Quincy Adams, 84; William H. Crawford, 41; and Henry Clay, 37. Neither having received a majority of all the electoral votes, the election devolved upon the house of representatives. Of the three candidates who had received the highest numbers of the electoral votes, Mr. Adams received in the house of representatives the votes of thirteen states; Gen. Jackson, the votes of seven states; and Mr. Crawford, the votes of four states. Mr. Adams having received the votes of a majority of all the states, he was elected.

Sec.10. By the 12th article of amendments, if there is no election of vice-president by a majority of the electors, then, from the two highest numbers on the list, the senate shall choose the vice-president. Two-thirds of the whole number of senators shall constitute a quorum for such election; and a majority of the whole number shall be necessary to a choice.

Sec.11. To be eligible to the office of president or vice-president, a person must be a natural born citizen of the United States, thirty-five years of age, and must have been fourteen years a resident within the United States. The reasons for requiring long terms of citizenship and residence, and mature age and experience, in the case of senators, apply with equal force in the case of president.

Sec.12. In case of a vacancy in the office of president, the vice-president becomes the president. The power of making further provision for supplying vacancies is, by the constitution, given to congress. (Art. 2, Sec.1.) Congress has accordingly enacted, that, when there is neither president nor vice-president, the president pro tempore shall act as president; and if there should be none, the speaker of the house of representatives would assume the duties of the office.

Sec.13. The same section declares that the salary of the president shall neither be increased nor diminished during the time for which he shall have been elected. It would be improper to allow congress to reduce his salary at pleasure. This would make the executive dependent upon the legislature for his support. On the other hand, if his compensation could be increased during his official term, he might be tempted to use undue influence to procure a needless increase of his salary.

Sec.14. The presidential term commences the 4th of March next after the election, and ends the 3d day of March four years thereafter. Each successive congress also commences and ends its term every two years, on the same days of that month; and it is called a new congress, although only one-third of the senators go out of office when a congress is said to expire, and are succeeded by new ones when the next congress is said to commence its official term.



Chapter XL.

Powers and Duties of the President; Treaties; Public Ministers; Appointments and Removals.



Sec.1. The powers and duties of the president are next given. "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." (Art. 2, Sec.2.) Some of the reasons for giving to the executive the command of the public forces, have been given. (Chap. XXV, Sec.2, 5.) It has also been observed, that a prompt and effectual execution of the laws is best secured by intrusting this power to a single individual. (Chap. XXXVIII, Sec.2.) The constitution, (Art. I, Sec.8, clauses 12-16,) give congress power over the army, navy, and militia, and "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions." As this power is to be exercised upon sudden emergencies, congress has by law authorized the president to call out the militia for these purposes. And as the direction of the public forces is a power of an executive nature, it is intrusted to the executive.

Sec.2. The president has also "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The same power is exercised by the governors of the several states. (Chap. XII, Sec.4.) Through partial or false testimony, or the mistakes of judges or juries, an innocent person may be convicted of crime; or facts may subsequently come to light showing the offense to be one of less aggravation than appeared on the trial. There should therefore be somewhere a power to remit the punishment, or to mitigate the sentence, or postpone its execution, as the case may seem to require; and by no other person or persons, it is presumed, would this power be more judiciously exercised than by the executive.

Sec.3. The president has "power, by and with the advice and consent of the senate, to make treaties, to appoint embassadors, other public ministers and consuls, judges of the supreme court," and other officers, "provided two-thirds of the senators concur." A treaty is an agreement or contract between two or more nations, for regulating trade, or for restoring or preserving peace. This power ought therefore to be in the national government. In monarchical governments it belongs to the king. To confide so important a trust to the president alone, would be imprudent. To associate the house of representatives with the president and senate, as in making laws, would render it impossible to act with the decision, secrecy, and dispatch, which are sometimes necessary in making treaties.

Sec.4. As the treaty-making power appears to be in its nature neither wholly executive nor wholly legislative, but to partake of the nature of both, a part of the legislature is properly associated with the president. As the senate, being less numerous than the house, is capable of acting more promptly as well as more easily convened and at less expense, that body is more properly united with the executive in the exercise of this power. And it is equally proper that the power to appoint embassadors and others by whom treaties are negotiated, should be placed in the same hands.

Sec.5. Treaties are negotiated; that is, the provisions or terms are arranged and agreed upon, by the agents of the two governments; and a copy of the articles of agreement is sent to each government to be approved and confirmed, or, as it is usually expressed, to be ratified. Both governments must ratify, or the treaty fails. Treaties are ratified, on the part of our government, by the president and senate. This is what is meant by their making treaties. The persons by whom treaties are negotiated are sometimes appointed by their governments for that special purpose; but the business is perhaps more frequently done by the permanent representatives or ministers of the respective governments.

Sec.6. Each of the principal civilized nations has some officer at home who acts as agent in negotiating treaties and transacting business with foreign governments, and has also a representative at the seat of each foreign government for this purpose, and for keeping his government, apprised of what is done abroad. Our government has a minister in Great Britain, one in Russia, one in France, one in Spain, and one in each of the other principal commercial nations; and each of these nations has a minister residing at the city of Washington, the seat of government of the United States. The officer of our government who corresponds with foreign ministers here, and with our ministers abroad, is the secretary of state. The negotiation of treaties at home with the ministers of foreign governments residing here, is done by him.

Sec.7. Representatives at foreign courts have different names or titles: embassadors, envoys, ministers, and charges des affaires. An embassador who is intrusted with the ordinary business of a minister at a foreign court, is called an embassador in ordinary. An embassador extraordinary is a person sent on a particular occasion, who returns as soon as the business on which he was sent is done. He is sometimes called envoy; and when he has power to act as he may deem expedient, he is called envoy plenipotentiary; the latter word signifying full power. An ordinary embassador or minister resides abroad, and acts in obedience to instructions sent him from time to time.

Sec.8. Agents or representatives sent by our government to reside at foreign courts, are called ministers. Formerly those sent to the less important countries, were called charges des affaires, who are ministers of a lower grade. The name, usually written charges d'affaires, is French, and is pronounced shar-zha-daf-fair, accented on the first and last syllables. It means a person having charge of the affairs of his nation. It is not at present applied to any of our representatives abroad, all being called by the common name of minister.

Sec.9. Consuls are agents of inferior grade. They reside in foreign seaports. Their business is to aid their respective governments in their commercial transactions with the countries in which they reside, and to protect the rights, commerce, merchants, and seamen of their own nation. Hence much of their business is with masters of vessels, and with merchants. They also dispose of the personal estate of citizens of their own nation who die within their consulates, leaving no representative or partner in trade to take care of their effects.

Sec.10. The appointment of judges of the supreme court by the president and senate, seems to be proper. Their election by the people, most of whom could have little or no knowledge of the persons who should be chosen, would be injudicious. Besides, the mass of the voters are not so competent to judge of the qualifications necessary for so important a judicial office, as those to whom the constitution has given the power of appointment.

Sec.11. The power of appointing the head officers of the several executive departments, is with equal propriety given to the president and senate. As the president is in a measure responsible for the acts of his subordinates who conduct the business of these departments, and as, without their cooeperation, he could scarcely carry out his own measures, it is proper that he should have the right of selecting them; and by being required to submit his choice to the body of senators for their approval, a sufficient safeguard is provided against the appointment of unworthy or incompetent men.

Sec.12. "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 the next session." (Art. 2, sec. 2, clause 3.) Without such a power somewhere, the public interests would often suffer serious injury before the senate should again be in session to act upon a nomination by the president. As it is his duty to see that the business of the executive offices is faithfully done, he seems to be the proper person to make such temporary appointment.

Sec.13. The powers and duties of the president enumerated in the next section of the constitution, are all necessary to insure a successful administration of the government; and they are so clearly of an executive nature, that they could not with any degree of propriety have been devolved upon any other officer or department of the government.

Sec.14. The last section of this article of the constitution enumerates the persons liable to be removed from office by impeachment, and the offenses for which they are thus removable. As in the state governments, so in the general government, impeachments are made by the house of representatives, and tried by the senate. (Chap. XX, Sec.6-8; Cons. U.S., art. I, Sec.2, 3.)



Chapter XLI.

Auxiliary Executive Departments. Departments of State, of the Treasury, of the Interior, of War, of the Navy, of the Post-Office; Attorney-General.



Sec.1. The great amount and variety of the executive business of the nation, requires the division of this department into several subordinate departments, and the distribution among them of the different kinds of public business. At the head of each of these departments is a chief officer. These chief officers, sometimes called heads of departments, with the attorney general, being private advisors or counselors of the president, are called the cabinet. They are appointed by the president and senate.

Sec.2. By the first congress under the constitution, were established the state, treasury, and war departments, whose head officers, called secretaries, and the attorney-general, constituted the first cabinet. In 1798, the navy department was established. During president Jackson's term of office, the postmaster-general was made a cabinet officer. And the establishment, in 1849, of the department of the interior, added to the cabinet the seventh member.

Sec.3. The secretary of state performs such duties as are committed to him by the president relating to foreign intercourse. Some of these duties have been mentioned. (Chap. XXXIX, Sec.6.) He conducts all our diplomatic correspondence, being the official organ of communication with the ministers of foreign governments sent to this country, and with our ministers abroad. Diplomacy signifies the rules and customs which govern the intercourse of nations through their ministers or agents; also the management of the business of a nation by its minister at a foreign court. And such minister, especially if he manages with ability and skill, is called a diplomatist.

Sec.4. The secretary of state keeps the seal of the United States; and he makes out, records, and seals all civil commissions to officers appointed by the president and senate, or by the president. His duties in relation to the publishing and distributing the laws, and certain other matters, are similar to the duties of a secretary of state of a state government.

Sec.5. The secretary of the treasury has charge of the finances of the nation. He superintends the collection of the revenue, and performs certain other duties of the nature of the controller or auditor of a state. (Chap. XIII, Sec.3.) He lays before congress annually a report of the finances, containing a statement of the public revenue and expenditure during the past year, the value of the imports and exports, and estimates of the revenue and expenditures for succeeding years, and plans for improving the revenues. He also makes annually a statement of appropriations of money, and of sums remaining, in the treasury.

Sec.6. The vast amount of business in this department requires a great number of assistants; among whom are several controllers and auditors of accounts; a treasurer, a register, who keeps the accounts of goods imported and exported, and of the shipping employed in our foreign trade; a solicitor; a recorder; and numerous clerks.

Sec.7. The secretary of the interior superintends the business relating to the public lands, public buildings, the lead mines and other mines of the United States, Indian affairs, patents, and pensions. A pension is a yearly allowance to a person by the government for past services. In this country pensions are granted for services in war. They were at first allowed only to such as had been disabled in the war of the revolution and in the war of 1812; and subsequently to all who had served at least six months in the revolutionary war, and to their widows during their lives. Those disabled in the late war with Mexico have also been added to the pension list. And by recent acts of congress, bounties of lands were to be allowed to all the surviving soldiers of the war of 1812, who had served one month therein.

Sec.8. The secretary of war performs duties relating to military commissions, or to the land forces and warlike stores of the United States. The standing army of the nation consists at present of about 15,000 men, who are distributed among the several military stations, armed and ready for service. He reports annually a statement of the expenditure and application of moneys drawn from the treasury for his department, and makes such suggestions relative to its condition as he thinks proper. He is assisted by subordinate officers and clerks.

Sec.9. The secretary of the navy executes the orders of the president for procuring naval stores and materials, and for equipping and employing vessels of war, and performs such other duties pertaining to the naval establishment as are required of him. Three officers are appointed by the president and senate, who constitute a board of commissioners for the navy, and discharge the ministerial duties of the office of the secretary, and furnish estimates of the expenditures of the department.

Sec.10. The postmaster-general establishes post-offices, appoints postmasters and other persons employed in the general post-office, and provides for carrying the mails. He is assisted by three assistant post-masters-general, an auditor of the post-office treasury, to audit and settle the accounts of the department, and to superintend the collection of the debts due the department. The business of this department requires a large number of clerks. He reports annually all contracts made for the transportation of the mail, and a statement of the receipts and expenditures of the department.

Sec.11. Postmasters keep an account of all letters sent from and received at their respective offices, stating the names of the offices from which letters are received, and of those to which letters are sent, and whether they are post paid or sent free. Postmasters, at stated periods, (in most places quarterly,) advertise all letters remaining in their offices; and they send quarterly to the general post-office accounts of letters sent and received, and of moneys received for postage, and of those paid out on orders of the department. Letters also which have lain in their offices during the time for which they were required to be advertised, are sent as dead letters to the general post-office, where they are opened; and such as contain money or other valuable matter are returned by mail to the writers.

Sec.12. Postmasters are allowed for their services a commission on the amount of postage received by them quarterly. Those at whose offices the sums received are small, are allowed a greater per centage than those where the receipts are large. Thus, the commission at present (1859) is, on the first $100 received, sixty per cent.; on the next $300, fifty per cent.; on the next $2,000, forty per cent.; on all over 2,400, fifteen per cent. Stamped letters are considered as paid in cash. On newspaper postages, fifty per cent, on all sums, large or small. If a postmaster's commission exceeds $2,000 a year, besides the expenses of the office, the excess is paid to the general post office. Postmasters may also receive for pigeon-holes or boxes, not exceeding $2,000, the excess, if any, to be paid to the general post-office. Postmasters whose compensation amounts to $1,000 or more in a year, are appointed by the president and senate.

Sec.13. Postmasters whose commission on postages has been less than $200 during the preceding year, may receive and send, free of postage, letters on their own private business, weighing not more than half an ounce. And members of congress, during their term of office, and until the first of December after its expiration, may send and receive letters and packages weighing not more than two ounces, and all public documents free. A person to be entitled to send matter free, must write on the outside his name and the title of his office. This is called franking. Civil officers at the seat of government also may frank matter relating to the business of their offices, by marking it outside, "official business."

Sec.14. The attorney-general attends to all suits in the supreme court of the United States in which the United States is a party or is concerned, and gives his opinions on questions of law when requested by the president or heads of departments.



Chapter XLII.

Judicial Department.



Sec.1. We come now to the third article of the constitution. The first two sections provide for the organization, and prescribe the powers, of the courts of the United States. The want of a national judiciary was a material defect of the confederation. Dependence upon the state courts to enforce the laws of the union, subjected the government to great inconvenience and embarrassment. A government that has a legislature and an executive, should also have a judiciary to judge of and interpret the laws. The constitution declares that "the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may ordain and establish." Under the authority here given, congress passed the judiciary act of 1789, by which the several courts of the United States were established.

Sec.2. The same section declares, "The judges of both the supreme and inferior courts shall hold their offices during good behavior." In no other department of the general government are offices held for so long a term, which is virtually for life, unless removed on impeachment, or for inability. To insure a correct and impartial administration of justice, the judges should be independent. If they could be displaced at the pleasure of the appointing power, or by frequent elections, they might be tempted to conform their opinions and decisions to the wishes of those on whom they were dependent for continuance in office. The object of the framers was to remove them as far as possible from party influence.

Sec.3. It is further provided, with a view to the independence of the judges, that their "compensation shall not be diminished during their continuance in office." Salaries are fixed by congress. To give congress power over the purse of an officer, is to give it power over his will. Dependence upon the legislature would be as great an evil as dependence upon the appointing power. Besides, men generally selected for high judicial offices are eminent lawyers, pursuing a lucrative professional business; and, without a liberal salary, men of the greatest ability would not accept these offices; or if in office, an essential reduction of their compensation might induce them to resign their offices.

Sec.4. The next section enumerates the cases to be tried in these courts. It is evident from their nature that state courts are not the proper tribunals to try them. Also all violations of the laws of the United States are tried in the national courts. Thus, the counterfeiting of United States coin, murder and other crimes committed on the sea, beyond the jurisdiction of a state, smuggling goods, that is, secretly importing dutiable goods without paying the duties, infringements of patent rights, &c., are prosecuted in courts of the United States.

Sec.5. The third clause of this section declares, that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the same state where the said crimes shall have been committed." This is intended to secure the trial of the accused among his friends and acquaintances, and near the residence of his witnesses, whose attendance in a distant state could not be had without great inconvenience and expense, which might deprive him of the benefit of an important witness.

Sec.6. There are three kinds of national courts: the supreme court, circuit courts, and district courts. Every state constitutes at least one district. The larger states are divided into two or more districts. In each district is a district judge, who holds a court four times a year. There are also in each district, a district attorney, to conduct suits on the part of the United States, and a marshal, whose business is similar to that of a sheriff. This court tries the more common civil cases, arising under the laws of the United States, and the lower crimes against the laws of the United States, committed on land and sea. This court has in some cases a jury.

Sec.7. There are nine circuits, each embracing several states. In each circuit is a justice or a judge, who holds a court in his circuit twice a year. The district judge of the district in which a circuit court is held, sits with the circuit judge in holding a circuit court. This court tries causes between citizens of different states, between aliens and citizens, and those in which the United States are a party. It also tries some cases in appeal from the district courts. It tries matters relating to affairs on the high seas, and all felonies punishable with death. It has a grand and a petit jury.

Sec.8. The supreme court is composed of the nine judges of the circuit courts, one of whom is chief-justice, the others are called associate justices. It holds one session annually at the seat of government, commencing in January or February, and continuing about two months. It will be seen from this section of the constitution, that this court has original jurisdiction in but few cases. Its principal business is to rejudge cases brought up from the circuit courts.

Sec.9. An important object of a supreme court of the United States, is to secure a correct and uniform interpretation of the constitution and laws of the United States. State laws and decisions of state courts, are sometimes made which are supposed to be repugnant to the constitution and laws of the United States. What may be pronounced constitutional in one state, may be declared unconstitutional in another. Therefore it is provided that when an act or judgment in a case tried in the highest or last court in a state is deemed inconsistent with the constitution or laws of the United States, such case may be removed to the supreme court of the United States, whose decision governs the judgment of all inferior courts throughout the union.



Chapter XLIII.

Treason, defined; its Punishment.



Sec.1. The constitution defines treason, as follows: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Art. 3, sec. 3. A proneness to construe less aggravated crimes into acts of treason, made it proper that the constitution should define the crime. The term levying war has the sense here which it was understood to have in the English statute, from which it was adopted. An assemblage of men for a treasonable purpose, such as war against the government, or a revolution of any of its territories, and in a condition to make such war, constitutes a levying of war.

Sec.2. War can be levied only by the employment of force; troops must be embodied; men must be openly raised; but there may be treason without arms, or without the application of force to the object. When war is levied, all who perform a part, however remote from the scene of action, being leagued in the conspiracy, commit treason. But a mere conspiracy to levy war is not treason. A secret, unarmed meeting of conspirators, not in force, nor in warlike form, though met for a treasonable purpose, is not treason; but these offenses are high misdemeanors.

Sec.3. The constitution also prescribes the proof necessary for the conviction of treason. "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." No evidence less than this should be considered sufficient to convict a person of a crime for which he is to suffer death.

Sec.4. "Congress shall have power to declare the punishment of treason." Art. 3, sec. 3. By the common law, the punishment of treason was of a savage and disgraceful nature. The offender was drawn to the gallows on a hurdle; hanged by the neck and cut down alive; his entrails taken out and burned while he was yet alive; his head cut off; and his body quartered. Congress, in pursuance of the power here granted, has very properly abolished this barbarous practice, and confined the punishment to simple death by hanging.

Sec.5. But the same clause provides, that "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." Attainder literally signifies a staining, or rendering impure; but it here means a conviction and judgment in court against the offender. By the common law, the sentence of death for treason was made to affect the blood of the traitor; so that he could neither inherit property nor transmit it to heirs; but his estate was forfeited. This practice, so unjust to the innocent relatives of an offender, is properly abolished by the constitution; and congress has declared that "no conviction or judgment shall work corruption of blood, or any forfeiture of estate." So that while this law continues, there is no forfeiture, even during the life of the person attainted.



Chapter XLIV.

State Records; Privilege of Citizens; Fugitives; Admission of New States; Power over Territory; Guaranty of Republican Government.



Sec.1. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof." Art. 4, sec. 1. Without this provision, a person against whom a judgment has been obtained, might remove with his property into another state, where the property could not be taken on execution without a new trial and judgment; which, at so great a distance from the residence of the creditor and his witnesses, would be very difficult and expensive, and perhaps impossible. Now, the proceedings of the court in which a judgment is obtained, if sent to the place where the debtor resides, have the same effect as in the state in which such proceedings were taken.

Sec.2. There are several other cases which this provision is intended to meet. But, as is seen, the effect of these acts, records, and judicial proceedings, and the manner of proving them are to be prescribed by congress. In pursuance of the power here granted, congress has enacted, that a certificate under seal of the clerk of a court of record, transmitted to any state of the union, shall there be deemed evidence of the facts therein stated. But if the thing certified is a judicial proceeding, such sealed certificate must be accompanied by the certificate of the presiding judge or justice, that the attestation of the clerk is in due form. Acts of a state legislature, to be entitled to credit in another state, must have the seal of the state affixed to them.

Sec.3. The next section of this article provides, that "the citizens of each state shall be entitled to all the immunities and privileges of citizens in the several states." This means that the citizens of any state going into other states, shall not, by the laws of those states, be deprived of any of the privileges of citizens; but shall be entitled to the privileges which are enjoyed by persons of the same description in the states to which they remove. Without such a provision, any state might deny to citizens coming into it from other states, the right to buy and hold real estate, or to become voters, or to enjoy equal privileges in trade or business. A state may, however, prescribe a certain term of residence therein as a qualification for voting at elections.

Sec.4. The next clause of this section provides for apprehending "a person charged with crime, who shall flee from justice and be found in another state." The governor of the state from which such person has fled, sends a requisition to the governor of the state in which he is found, demanding his delivery to the proper officers, to be conveyed back for trial. Without such authority to apprehend criminals, they might escape justice by taking shelter in another state.

Sec.5. In the same section it is provided, that "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 intended for the benefit of the slaveholding states. By the common law, a slave escaping into a non-slaveholding state became free. As it was presumed that other northern states would follow Massachusetts in abolishing slavery, the southern states wanted some provision to enable them to reclaim their fugitive slaves.

Sec.6. The manner in which slaves are to be reclaimed, is prescribed by an act of congress. The owner of a runaway slave, finding him in a free state, arrests him and brings him before a magistrate; and if he proves his title to the slave to the satisfaction of the magistrate, the slave is delivered to the owner or claimant. Free colored persons have sometimes been arrested, and, on false testimony, delivered to claimants, taken to slave states and held as slaves. Hence the opinion prevails extensively that a person claimed as a slave should be entitled to trial by a jury; and that the fact of his being a slave should be proved to the satisfaction of a jury before his delivery to a claimant. Many persons, believing freedom to be the natural right of all men, hold that all laws for returning fugitive slaves are wrong, and ought not to be obeyed.

Sec.7. The first clause of the next section provides, that "new states may be admitted into this union," and requires the consent of congress and of the states concerned, to the formation of new states from old ones. A provision of this kind was deemed necessary in view of the large extent of vacant lands within the United States, and of the inconvenient size of some of the states then existing. The territory north-west of the Ohio river had been ceded to the general government by the states claiming the same; and a territorial government had already been established therein by the celebrated ordinance of 1787. From this territory have since been formed and admitted, the states of Ohio, Indiana, Illinois, Michigan and Wisconsin.

Sec.8. South of the Ohio river also was a large tract, principally unsettled, within the chartered limits of Virginia, North Carolina and Georgia, extending west to the Mississippi river, from which, it was presumed, new states would be formed. Justice, however, to these states, as well as to others in all future time, required the general provision above mentioned, that "no state should be divided without the consent of its legislature and of congress."

Sec.9. The next clause authorizes congress "to dispose of and make all needful rules and regulations respecting the territory and other property of the United States." If the general government has power to acquire territory, it must have the right to exercise authority over it. This express grant establishes beyond doubt a power which had been questioned under the confederation. In pursuance of the power here granted, congress has made rules and regulations for governing the people of different portions of such territory previously to their admission as states into the union.

Sec.10. The next section declares, that "the United States shall guaranty to every state in this union a republican form of government; and shall protect each of them against invasion, and on the application of the legislature, or of the executive (when the legislature cannot be convened,) against domestic violence." Art. 4, sec. 4. The propriety of a power to prevent a state from changing its government to any other than a republican form, is evident. It is equally proper that a state, when invaded by a foreign enemy, or in case of an insurrection within its own borders, should have protection and aid from the general government; especially as the states have surrendered to it the right to keep troops or ships of war in time of peace. (Art. 1, sec. 10.)



Chapter XLV.

Provision for Amendments; Assumption of Public Debts; Supremacy of the Constitution, &c.; Oaths and Tests; Ratification of the Constitution.



Sec.1. The 5th article provides for amending the constitution. It prescribes two different modes for proposing amendments, and two modes of ratifying them. Amendments may be proposed by two-thirds of both houses of congress; or, on the application or request of two-thirds of the states, congress shall call a convention for proposing amendments. Proposed in either of these modes, amendments, to become valid as parts of the constitution, must be ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths of them; the mode of ratification, whether by the legislatures or by conventions, to be proposed by congress.

Sec.2. As the best human government is imperfect, and as all the future wants and necessities of a people can not be foreseen and provided for, it is obvious that every constitution should contain some provision for its amendment. But if amendments could be made whenever desired by a bare majority of the states, the strength and efficiency of the constitution might be greatly impaired by frequent alterations. It is therefore wisely provided, that a mere proposition to amend cannot be made but by a majority of at least two-thirds of congress, or of the legislatures of at least of two-thirds of the states; and that such proposition must be ratified by a still larger majority (three-fourths) of the states. It was thought better to submit occasionally to some temporary inconvenience, than to indulge in frequent amendments of the constitution.

Sec.3. The 6th article acknowledges the obligation of the general government to pay "all debts contracted before the adoption of the constitution." As has been observed, congress had borrowed money for the payment of which it was unable to provide; and one object of a change of government was to make provision for fulfilling the engagements of the nation. This clause, it is said, was also intended to allay the fears of public creditors, who apprehended that a change in the government would release the nation from its obligations.

Sec.4. The next clause declares, "This constitution, and the laws made in pursuance thereof, and all treaties 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, any thing in the constitution or laws of any state to the contrary notwithstanding." If all state authorities were not bound by the constitution and laws of the United States, nothing would have been gained by the union. If the laws and treaties made by the general government could be disregarded or nullified by any power in a state, why was power to make them given to the general government?

Sec.5. The last clause of the 4th article requires certain officers, both of the United States and of the several states to be "bound by oath or affirmation to support this constitution." Binding the conscience of public officers by oath or solemn affirmation, has ever been considered necessary to secure a faithful performance of their duties. They are generally required to swear not only to support the constitution, but also to discharge the duties of their offices to the best of their ability.

Sec.6. The same clause declares that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Test here means an oath or a declaration in favor of or against certain religious opinions, as a qualification for office. In England, all officers, civil and military, were formerly obliged to make a declaration against transubstantiation, and to assent to the doctrines and conform to the rules of the established church. Desirous of securing to every citizen the full enjoyment of religious liberty, the introduction of tests was prohibited by the constitution.

Sec.7. The 7th and last article declares: "The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same." The immediate ratification of the constitution by all the states was hardly to be expected; a unanimous ratification, therefore, was not required. But a union of less than nine states was deemed inexpedient. The framers concluded their labors on the 17th of September, 1787; and in July, 1788, the ratification of New Hampshire, the ninth state, was received by congress.

Sec.8. The dates of the ratifications of the several states are as follows: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 26, 1788; New York, July 26, 1788; North Carolina, November 21, 1789; Rhode Island, May 29, 1790. The two last named states did not accede to the constitution until after proceedings under it had commenced. The ratification of North Carolina was received by congress in January, 1790; that of Rhode Island in June following.

Sec.9. The first Wednesday of January, 1789, was appointed by congress for choosing electors of president in the several states, and the first Wednesday of February for the electors to meet in their respective states to elect the president. Gen. Washington was unanimously elected, and on the 30th of April was inaugurated president. Proceedings under the constitution, however, had commenced on the 4th of March preceding.



Chapter XLVI.

Amendments to the Constitution.



Sec.1. It is remarkable that, during a period of seventy years, the constitution has received so few alterations. Although twelve articles of amendment, so called, have been adopted, only two, (the 11th and 12th,) have in any manner or degree changed any of its original provisions. Most of them, it will be seen, are merely declaratory and restrictive. As the principles which they declare were so generally acknowledged, and as the general government was a government of limited powers, having such only as were expressly authorized by the constitution, the framers deemed these declarations and restrictions unnecessary. But as several of the state conventions had, at the time of adopting the constitution, expressed a desire that declarations and guaranties of certain rights should be added, in order to prevent misconstruction and abuse, the first congress, at its first session, proposed twelve amendments, ten of which were ratified by the requisite number of states. Virginia, the last state necessary to make up such number, ratified December 15, 1791.

Sec.2. Freedom in matters of religion, freedom of speech and of the press, and the right to petition the government for the redress of grievances, guarantied in the first article, are rights so essential to civil liberty, and so evidently just, that it can hardly be presumed that congress would ever have passed laws directly violating these rights, even though such laws had not been prohibited.

Sec.3. The second article guaranties "the right of people to bear arms." Without this right, ambitious men might, by the aid of the regular army, overthrow the liberties of the people, and usurp the powers of government.

Sec.4. The third article declares, that "no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." It is a principle of the common law, that "a man's house is his own castle." Among the grievances enumerated in the Declaration of Independence, was one "for quartering large bodies of armed troops" among the people of the colonies. To secure the people against intrusions of this kind, is the object of this prohibition.

Sec.5. The fourth article guaranties "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But there could be no such security, if every man could, on mere pretense or suspicion of injury, obtain a warrant for arresting his neighbor or searching his premises and seizing his property. Innocent men would often be subjected to much trouble and perplexity; and unjust suspicions would be thrown upon their characters. It is proper, therefore, that a magistrate shall not issue a warrant, unless it shall be made to appear, by the oath of the applicant or of some other person that there is probable cause.

Sec.6. The rights guarantied by the fifth article are common law rights, and founded upon just principles. We have elsewhere stated the object of grand juries, and noticed the opinion of some, that this object is sufficiently secured by the examination before the magistrate; and, consequently, that grand juries are unnecessary. (See Chap. XIX, Sec.8-10.) But while this article continues to be a part of the constitution, grand juries in courts of the United States can not be dispensed with. It is quite proper, as is provided in this article, that, after a fair and impartial trial and an acquittal, a person should not be tried a second time. The provisions of the next article (6th) are also necessary to secure the same object—the rights of liberty and life to every citizen.

Sec.7. The seventh article of amendment secures, in courts of the United States, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury." By suits at common law are meant those tried in the ordinary courts, as distinguished from those tried in courts of equity and courts of admiralty. This article further declares, that "no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." That is, if a fact tried by a jury in a lower court, is carried up to a higher court for reexamination, such reexamination or new trial shall also be by jury.

Sec.8. "Excessive bail shall not be required, nor excessive fines imposed, nor unusual punishments inflicted." Amend. art. 8. The object of bail and the manner in which it is given, have been stated. (Chap. XVIII.) Without the above restriction, the sum might be fixed so high as to prevent persons accused of crime from procuring the necessary sureties; whereby innocent persons might be subjected to long imprisonment before the time of trial. It is therefore properly left to the court to fix the sum, which should correspond to the aggravation of the offense. Courts have the same discretion as to the measure of punishment to be inflicted in each particular case of crime.

Sec.9. The ninth amendment is, "The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people." There were persons who feared that, because the constitution mentioned certain rights as belonging to the people, those not mentioned might be considered as having been surrendered to the general government. This article was therefore inserted to prevent such a misconstruction of the constitution.

Sec.10. The tenth amendment is similar to the preceding. "The powers not delegated to the United States by the constitution, nor prohibited by it to the states are reserved to the states respectively, or to the people." In other words the powers which the constitution has not given to the general government, nor prohibited the states from exercising, the states or the people have reserved to themselves. So clear is it, that they retain all power which they have not in words parted with, that it seems strange to many that the insertion of such a provision should ever have been thought necessary.

Sec.11. The eleventh amendment was proposed at the first session of the third congress, March 5, 1794, and its ratification by the constitutional number of states was announced to congress by the president in a message dated January 8, 1798. This article prohibits a court of the United States from trying "any suit in law or equity commenced or prosecuted against one of the states by citizens of another state, or by citizens or subjects of any foreign state." This is intended to prevent a state from being sued in an original suit, by a private person, the citizen of another state.

Sec.12. The twelfth and last amendment effects a change in the mode of electing the president and vice-president, and has been considered. (Chap. XXXIX, Sec.4.) This amendment was proposed at the first session of the eighth congress, December 12, 1803, and was adopted by the requisite number of states in 1804, according to a public notice by the secretary of state, dated the 25th of September of the same year.



Common and Statutory Law.



Chapter XLVII.

Rights of Persons. Personal Security; Personal Liberty; Religious Liberty; Liberty of Speech, and of the Press; Right of Property.



Sec.1. Having taken a general view of the state governments and the government of the United States, and seen how wisely they are adapted to promote the general welfare and secure the blessings of liberty; we proceed to give a digest of the laws which more particularly define the rights and prescribe the duties of citizens, or by which their social and civil intercourse is to be regulated. These laws, it will be recollected, we have elsewhere called the municipal or civil laws, as distinguished from the political or fundamental law of the state. (Chap. III, Sec.6.)

Sec.2. These laws are of two kinds, the written or statute law, and the unwritten or common law. Statute laws are those which are enacted by the legislature, and recorded in writing, and are usually collected and published in books. The word statute is from the Latin statuo, to set, fix, or establish.

Sec.3. The common law is not a code of written laws enacted by a legislature, but consists of rules of action which have become binding from long usage and established custom. It is said to be founded in reason and the principles of justice. The common law of England was brought over by our ancestors, and established here before the revolution. Some of the states, in their constitutions, adopted after the revolution, declared it to be the law of their respective states; and it has continued to be law in all the states, and is still so considered, except such parts as have been altered or repealed by constitutional or legislative enactments, or by usage.

Sec.4. The most valuable rights protected by law are the rights of personal security and personal liberty. The right of personal security is the right to be secure from injury to our persons or good names. By personal liberty is meant the freedom of our bodies or persons from restraint or confinement. Provisions guarantying these rights have been incorporated into our national constitution, and the constitutions of the several states.

Sec.5. The right of personal security is also protected by the law, by which a man, on showing reasonable cause of danger of personal injury, may require his adversary to be bound with sureties to keep the peace. And for violence committed, the offender may be prosecuted in behalf of the state and punished, and is liable also to the party aggrieved in a civil suit for damages.

Sec.6. This right is further protected by the law which permits a man to exercise the natural right of self-defense. In defending his person in case of a felonious assault, he may lawfully take the life of his assailant. This is by law pronounced justifiable homicide, and is allowed also in defense of one's property against felonious and violent injury. But homicide (man-killing) is not justifiable in case of a private injury, nor upon the pretense of necessity when the party is not free from fault in bringing that necessity upon himself.

Sec.7. The right to be secure in our good names, which is included in the right of personal security, is protected by the law against slander and libel. A slander is a false and malicious report or statement tending to injure another in his reputation or business, and which, if true, would render him unworthy of confidence or employment; or it is the maliciously charging of another with anything by which he sustains special injury. The slander of a person by words spoken, is a civil injury, that is, an injury for which redress is to be obtained in a civil suit for damages.

Sec.8. A slander written or printed, is called libel. A libel is a malicious publication in print or writing, signs or pictures, tending to expose a person to public hatred, contempt, or ridicule. And it is considered in law a publication of such defamatory writing, though communicated to a single person. A slander written or printed is likely to have a wider circulation, to make a deeper impression, and to become more injurious. A person may therefore be liable in damages for words in print or writing, for which he would not be liable if merely spoken. In case of libel, a person is not only liable to a private suit for damages, but may be indicted and tried as for other public offenses.

Sec.9. It is a principle of English common law, that in a criminal action for libel it is immaterial whether the matter of it is true or false; and a person prosecuted for libel is not allowed, in justification, to prove to the jury the truth of his statement, since the provocation, not the falsity, is to be punished. And, whether true or false, the libelous publication is equally dangerous to the public peace, and is presumed to have been made with malicious intent.

Sec.10. It is held—and perhaps it is the prevailing opinion—that in a civil action for damages, a libel must be false as well as scandalous, and, consequently, that the truth may be pleaded in justification. This point, however, is not fully settled. The reason for this distinction between cases of public and private prosecution, it is not easy to perceive. If it is just to inquire into the good or bad intentions of the publisher in one case, it would seem to be equally so in the other.

Sec.11. But the common law has been materially modified and relaxed in this country. In most of the states it is provided by their constitutions or by law, that the truth may be given in evidence, and if it shall appear to the jury "that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." As it may sometimes be proper to speak or publish an unfavorable truth concerning others, the principle of the above provision would seem to be founded in justice. In the state of Vermont, and perhaps in a few other states, if the party prosecuted proves the truth of his statement in any case, he is acquitted.

Sec.12. The right of personal liberty is secured by express provision of the national constitution, which guaranties to every citizen "the privilege of the writ of habeas corpus." (Cons. U.S. art. 1, sec. 9.) The nature of this writ has been explained. (Chap. XXXVI, Sec.4.) The same provision has been inserted in the state constitutions. This was a common law privilege, independently of any constitutional enactment. The principal object of the provision seems to be to take from congress and the state legislatures the power to abolish this privilege, or even to suspend it for any time, or in any case, except the particular cases mentioned.

Sec.13. Freedom of religious opinion and worship, or liberty of conscience, is a valuable personal right, included in the term, personal liberty, and is effectually secured in this country. In England, the country of our ancestors, there is a church established and supported by the government. This is sometimes called "union of church and state." The American people, from their love of religious freedom, have, in their constitutions, expressly prohibited congress from making laws "respecting the establishment of religion, or prohibiting the free exercise thereof." (Amend. art. 1.) And the state constitutions have adopted similar provisions.

Sec.14. Another important personal right comprehended in the term personal liberty, and guarantied in the same article of the national constitution, and in the state constitutions, is the liberty of speech and of the press. Some of the monarchical governments of Europe prohibited the people from speaking against the sovereign or his government. Books and papers could not be published until they had been examined and approved. The persons authorized to examine the manuscripts, were called censors. Hence the expression sometimes heard, "censorship of the press." To secure the liberty of speaking and publishing their sentiments freely up on all subjects, the people of this country have made express provision in their constitutions; which, however, while they properly guaranty this right, leave men "responsible for its abuse," and liable to prosecution for slander or libel. (Sec.7, 8.)

Sec.15. The right of property is the right to acquire property, and to be free in the use and enjoyment of it. To protect men in the enjoyment of this right, is one of the principal objects of constitutions and laws. The rights of property will constitute the subject matter of several subsequent chapters of this digest of "common and statutory law." (Chap. L, and onward.)



Chapter XLVIII.

Domestic Relations. Husband and Wife.



Sec.1. To render a marriage contract lawful, the parties must be of sufficient age, called the age of consent; which, by the common law of the land, is fourteen years in males, and twelve in females. In some states the age of consent has been altered by statute. In Ohio, Indiana, and Michigan, it has been raised to eighteen years in males, and fourteen in females; in Illinois to seventeen and fourteen; in Wisconsin, to eighteen and fifteen.

Sec.2. The parties must also have sufficient understanding to transact the ordinary business of life. Idiots and lunatics cannot legally contract marriage. Persons must also act freely. If the consent of either party has been obtained by force or fraud, the marriage may be declared void. The parties must not be nearly related. The degrees of relationship at which they are forbidden to marry are in some states fixed by law; but the laws of these states on the subject are not uniform. Some states have forbidden marriages which come within what is called the Levitical degrees; but these degrees have received different interpretations. According to the interpretation of some, the relation of uncle and niece and aunt and nephew, come within this rule.

Sec.3. No person can lawfully remarry who has a wife or husband living. Such second marriage is, by the common law, null and void. In some of the states, perhaps in most of them, it is declared polygamy, and a state prison offense, except in certain cases; as when the husband or wife of the party who remarries has been long absent, and the party re-marrying does not know the other to have been living within the time; or when the former husband or wife of the party remarrying has been sentenced to imprisonment for life; or when the former marriage has been lawfully annulled or dissolved. If, however, a marriage has been annulled or dissolved for the cause of adultery, the criminal party is, in some states at least, not allowed to remarry.

Sec.4. In some of the cases excepted in the preceding section, the second marriage is merely excusable. Although the party to such marriage is exempt from the penalty, yet if the former wife or husband is living, though the fact is unknown, and no divorce has been duly announced, or the first marriage has not been duly annulled; the second marriage is void. Where there is no statute regulation, the common law governs, which is, that nothing but death, or a decree of a competent court, can dissolve the marriage tie.

Sec.5. The manner in which marriages are to be solemnized, and by whom, and the manner in which marriage licenses are to be obtained, or notices of marriage published, (which are required in some states,) are prescribed by the laws of the states in which such regulations exist. Marriages may usually be solemnized by ministers of the gospel, judges, justices of the peace, and certain other officers. But by the common law, a marriage is rendered valid by a simple consent of the parties declared before witnesses, or subsequently acknowledged; or such consent may be inferred from continual cohabitation and reputation as husband and wife.

Sec.6. In law, the husband and wife are regarded as one person. By the common law, the husband, by marriage, acquires a right to the property of the wife which she had before marriage, and which she may acquire after marriage. To her personal property, including debts due her by bond, note, or otherwise, he has an absolute right, and may use and dispose of the same as he pleases. Her chattels real, however, which are leases of land for years, though personal property, he can not dispose of by will; and if he makes no disposition of them during his life time, and she outlives him, she takes them in her own right. If he survives his wife, he acquires an absolute right to them.

Sec.7. But to the real estate of the wife, the husband does not acquire an absolute right. He has only a right to the use, rents, and profits thereof during his life, if he shall die before his wife; and in that event she takes the estate again in her own right. If the wife dies first, and there are no children, her heirs immediately take the estate. If there are children living, the husband holds the estate for life, and on his death it goes to the wife or her heirs.

Sec.8. But this rule of the common law which gives to the husband the possession and disposal of the property of the wife, has been repealed by special enactments in most of the states. By these state laws, the real and personal property of the wife owned by her before marriage, or conveyed to her by any other person than her husband after marriage, with the rents and profits of such property, is declared to be her own, and at her disposal, and not liable for the debts of her husband, except in a few cases specified in the law of each state. In some of these states, although the property of the wife is not liable for the husband's debts, he has the control and management, and the rents and profits of it.

Sec.9. As the husband, by common law, acquires, by marriage, an interest in the property of his wife, he becomes liable for her debts contracted before marriage; but if they are not recovered of him during coverture, he is discharged Coverture, in law, is the state of a married woman, considered as under cover, or under the power of her husband. Some of the states which have abolished the common law right of the husband to the property of the wife acquired before marriage, have also abolished the common law obligation of the husband to pay the debts of the wife contracted before marriage; her property alone being liable for such debts.

Sec.10. The husband is bound to maintain his wife, and is liable for debts which she may contract for necessaries, but for nothing more. If he refuses to provide for her wants, or if, through other ill treatment or fault on his part, they become separate, he is liable to fulfill her contracts for necessaries, even though he has forbidden persons to trust her. If they part by consent, and he secures to her a separate maintenance, and pays it according to agreement, he is not liable, even for necessaries.

Sec.11. The husband and wife can not be witnesses for or against each other; but any declarations made by a wife when acting as agent for her husband, may be admitted in evidence against him. In a few states, laws have been proposed, and, it is believed, in some they have been passed, removing, to some extent, this restriction upon the right of a husband or wife to the testimony of the other.



Chapter XLIX.

Domestic Relations, continued. Parent and Child; Guardian and Ward; Minors; Masters, Apprentices, and Servants.



Sec.1. Parents, as the natural guardians of their children, are obliged to provide for their support and education during their minority, or while they are under twenty-one years of age. At twenty-one they attain the age of majority, when they are said to be of age. Under this age they are, in law, infants, or minors. The father, if he is able, is bound to support his minor children, even if they have property of their own; but in such case the mother is not so bound. But a husband is not obliged to maintain the child of his wife by a former husband. If, however, he takes the child into his family, he is responsible for its maintenance and education while it lives with him.

Sec.2. A father may be liable for necessaries sold to a child. But to be so liable, it must be proved that the contract for the articles was made by his actual authority, or the circumstances must be sufficient to imply authority; or that neglect to provide for the child, or some other fault on the part of the father, rendered assistance to the child necessary. Being bound to provide for his children, the father has a right to their labor or service; and he may recover their wages from any person employing them without his consent.

Sec.3. In general, a minor cannot bind himself by contract. If he lives with his father or guardian, by whom he is properly supplied, he can not bind himself even for necessaries. But if, on contracting a debt, he agrees to pay it after he shall have become of age, he will then become liable. If a minor has no father or other guardian, his contracts for necessaries are binding upon him.

Sec.4. If a minor takes an estate and agrees to pay rent, he will be liable for its payment after he shall have become of age. If he receives rents, he can not demand them again when of age. If he pays money on a contract, and enjoys the benefit of the contract and then avoids it when he comes of age, he can not recover back the consideration paid. And if he avoids an executed contract when he comes of age, on the grounds of infancy, he must restore the consideration.

Sec.5. Minors are answerable for crimes, and may be indicted and tried, and, on conviction, be fined and imprisoned. They are responsible also for acts of fraud. Their age and the peculiar circumstances in which they were placed, might be such as to exempt them from liability; but in cases of gross and palpable fraud committed by minors who have arrived at the age of discretion, they would be bound by a contract.

Sec.6. In general, male infants and unmarried females under eighteen years, may, of their own free will, bind themselves, in writing, to serve as apprentices and servants, in any trade or employment; males until the age of twenty-one, and females until the age of eighteen years, or for a shorter time. But the minor must have the consent of the father; or if the father is dead, or disqualified by law, or neglects to provide for his family, consent must be had of the mother; or, if the mother is dead or disqualified, then of the guardian.

Sec.7. Pauper children may be bound out by the officers having charge of the poor. And the laws of many of the states, perhaps of most or all of them, very properly require, that a person, to whom a poor child is bound, shall agree to cause such child to be taught to read and write, and, if a male, to be also instructed in the general rules of arithmetic.

Sec.8. Masters have a right to correct their apprentices with moderation for negligence and misbehavior; and they may recover damage at law of their apprentices for willful absence. On the other hand, a master may be prosecuted for ill usage to his apprentice, and for a breach of his covenant. A master is liable to pay for necessaries for his apprentice, and for medical attendance, but he is not so liable in the case of a hired servant.

Sec.9. When an apprentice becomes immoral and disobedient, an investigation of the matter may be had by the proper authorities; and for good cause the indenture may be annulled, and the parties discharged from their obligations. Upon the death of a master, an apprenticeship is dissolved.

Sec.10. There is, it is believed, no statute law in any state, particularly defining the rights and obligations of hired servants and the persons employing them. Both are obliged to fulfill their agreement. If a hired servant leaves the service of his employer, without good cause, before he has worked out the time for which he was hired, he cannot recover his wages. And for immoral conduct, willful disobedience, or habitual neglect, he may be dismissed. On the other hand, ill usage, or any failure on the part of the employer to fulfill his engagement, releases the laborer from his service.

Sec.11. How far a master is answerable for the acts of his hired servant, is not clear. As a general rule, the master is bound for contracts made, and liable for injuries done, by a servant actually engaged in the business of his master, whether the injury proceeds from negligence or from want of skill. But for an injury done by a willful act of the servant, it is considered that the master is not liable. If the servant employs another to do his business, the master is liable for the injury done by the person so employed. But a servant is accountable to his master for a breach of trust, or for negligence in business, or for injuring another person in his master's business.



Chapter L.

Right of Property. How Title to property is acquired; Wills and Testaments Title to Property by Descent.



Sec.1. Every citizen of the United States is capable of holding lands, or real estate, and of taking them by devise, descent, or purchase, and of selling and conveying away such estate. Aliens, by common law, have not this power. In many of the states, however, this disability has been removed by statute. On declaring their intention to become citizens, and complying with certain regulations, aliens acquire the right to take and hold real estate to themselves and their heirs. But they may hold and dispose of personal property without any special enactment.

Sec.2. To devise property is to give or bequeath it by will. A will is a written instrument in which a person declares his will concerning the disposal of his property after his death. It is also called testament. This word is from the Latin testis, meaning witness. Hence the word has come to be applied to this instrument, which is the witness or proof of a person's will. A person making a will is called testator; one who dies without making a will or testament, is called intestate.

Sec.3. All persons of full age and sound mind, except married women, may give and bequeath real and personal estate by a last will and testament. In many of the states, personal estate may be willed at an earlier age. In a few states, females at eighteen may make a will of real and personal estate. In a few states, personal estate may be willed verbally, if the will is within a specified time reduced to writing, and subscribed by disinterested witnesses. In Ohio such will must be written within ten days after the speaking of the testamentary words. A will of this kind is called a nuncupative will.

Sec.4. In most of the states, laws have been enacted, allowing married women to hold, in their own exclusive right, all the property, real and personal, which they owned at the time of marriage, and which they may acquire after marriage. (Chap. XLVIII, Sec.8.) With the right of possession is also given, it is presumed, the power of disposing of the property by will.

Sec.5. A will devising real estate must be subscribed by at least two, in some slates three, attending witnesses, in whose presence the testator must subscribe the will, or acknowledge that he subscribed it, and declare it to be his last will and testament. If the testator is unable to sign his will, another person may write the testator's name by his direction; but he should sign his own name as witness to the will.

Sec.6. A testator may revoke or alter his will by a later will or writing, executed in the same manner. But the second will, to revoke the former, must contain words expressly revoking it, or directing a different disposal of the property. A will may also be revoked by a sale of the property. And any alteration of the estate or interest of the testator in lands devised, is held to be an implied revocation of the will. Lands purchased after a will has been made, are not conveyed by it. As a general rule, a will is also revoked by the subsequent marriage of the testator and birth of a child, unless the wife and child have been otherwise provided for. The will of an unmarried woman is revoked by her marriage.

Sec.7. By the statutes of some states, a child born after the death of the testator, or born in his lifetime and after the making of the will, inherits a share of the estate, as if the father had died intestate. In some other states, the statute goes further, and gives the same relief to all the children who are not provided for in the will, and who have not had their portion in the parent's lifetime.

Sec.8. A codicil is an addition or a supplement to a will, and must be executed with the same solemnity. It is no revocation of a will, except in the precise degree in which it is inconsistent with it.

Sec.9. After the death of a testator, the will is brought before the court of probate to be proved. (Chap. XX, Sec.5.) When a will has been duly proved and allowed, the court issues letters testamentary to the executor. An executor is a person named in the will of a testator to carry the will into effect. Letters testamentary give him the power to act in settling the estate of the deceased. If he refuses to act, or is not lawfully qualified, the court appoints a person, who, in that case, is called administrator; and the court issues letters of administration with the will annexed. Letters of administration are also issued in case of a person dying intestate. They give to the administrator the requisite authority to settle the estate.

Sec.10. Taking property by descent, is the receiving of it from an ancestor or other relative dying intestate. If a person dies without making a will, his property falls, or descends to his lawful heirs. The order or rule of descent is not uniform in this country, being determined, to a great extent, by the laws of the states. In general, however, the real estate of an intestate descends, first to his lineal descendants, that is, persons descending in a direct line, as from parents to children, and from children to grand-children. The lineal descendants most nearly related to the intestate, however distant the relation may be, takes the estate.

Sec.11. If any children of an intestate are dead, and any are living, the inheritance descends to the children living, and to the descendants of the children dead, so that each child living shall receive such share as he would receive if all were living, and the children of those who are dead such share as the parents would receive if living. Thus, suppose an intestate had three sons, one of whom is dead, but has left children. In this case, each of the sons living would share one-third of the property, and the children of the deceased son the remaining third.

Sec.12. But if the children are all dead, and there are grand-children living, the grand-children share equally, though not an equal number are children of each parent. If, for example, an intestate dies leaving no children, but having had two sons, one of whom had left three children, and the other two, the five share equally in the estate. The laws of Rhode Island, New Jersey, North Carolina, South Carolina, Tennessee, Louisiana, and Alabama, unless recently altered, are exceptions to this rule. In these states, and perhaps in a few others, though the children of the intestate are all dead, the grand-children do not share equally, but those of each stock, or family, take the portion which their parent would have taken if living.

Sec.13. The order of descent is so different in the states, especially when there are no lineal descendants of an intestate, that it can be ascertained only by reference to the laws of each state. As a general rule, real estate passes, (1.) to the lineal descendants; (2.) to the father; (3.) to the mother; (4.) to the collateral or side relatives, as brothers, sisters, nephews, nieces, &c. But even to this general rule there are exceptions in the laws of some states.

Sec.14. The rule of descent given in the preceding sections, it will be seen, relates to real, and not to personal estate. The rule in regard to real estate, and that relating to personal estate, are generally somewhat different in the same state.



Chapter LI.

Deeds and Mortgages.



Sec.1. In whatever manner a person acquires possession of real estate, whether by devise, descent, purchase, or gift, evidence of possession consists, usually, in a deed, which is a written instrument conveying real estate to an heir, a purchaser, or a donee. A deed of land sold, contains the names of the seller and the purchaser, the consideration, or sum paid for it, and a description of it; and in express words grants and conveys all the interest of the seller or grantor to the purchaser and his heirs forever: and the seller affixes his name and seal to the instrument, usually in the presence of one or more subscribing witnesses.

Sec.2. But a deed thus executed does not give to the purchaser sure possession of the land, until it has been duly recorded in the office of the proper recording officer of the county in which the land lies; or in the office of the town clerk, in those states in which conveyances are required to be there recorded. If the land should be conveyed by the seller to a subsequent purchaser who should get his deed first on record, such purchaser would hold the land, unless, before purchasing, he had had notice of a sale and deed to a prior purchaser.

Sec.3. In some states, a reasonable time is allowed a purchaser to get his deed recorded before he loses his right of possession by the earlier recording of another's deed. In some other states, the time is fixed by law, and varies in these different states from fifteen days to two years. But a deed, though not recorded in season to secure the title against a second purchaser, or though not recorded at all, is good against the sellor or grantor; and the dispossessed purchaser has a lawful claim against him for the value of the land.

Sec.4. A recorder or register may not record a conveyance of land without proof that it was executed by the person named in it as the maker or grantor. This proof consists, usually, in a certificate of a proper officer, on the back or margin of the deed, stating that the person so named appeared before him, and, being duly sworn, acknowledged that he was the person who had executed the deed. In every state, judges of courts and justices of the peace, mayors of cities and aldermen, notaries public, or some of these officers, and commissioners of deeds appointed for that special purpose may take acknowledgments. In New York and a few other states, the acknowledgment may be dispensed with, and the execution of the deed may be proved by the subscribing witnesses. Deeds duly acknowledged, are, with the acknowledgments, copied by the recorder, word for word, in books provided for that purpose.

Sec.5. As a person can not give a good title unless he has one himself, the seller or grantor covenants and agrees that he is seized of the premises in fee-simple, (meaning that he is the absolute owner,) and that he will warrant and defend the premises in the quiet and peaceable possession of the purchaser and his heirs forever. Hence such deed is called a warranty deed, [For definition of fee and fee-simple, see Chap. LIII, Sec.1.] A quit-claim deed merely conveys the interest or claim of the grantor. It contains no warranty of title against any other claimant.

Sec.6. A mortgage is a grant of land as security for the payment of money, on condition that, if the money shall be paid according to contract, the grant shall be void. When only a part of the purchase money is paid on receiving a deed, the purchaser usually executes a mortgage to the seller, pledging the land as security for the remainder of the purchase money. And if the money shall not be paid as agreed, the land may be sold; but if sold for more than the amount due, the overplus is to be paid to the mortgager.

Sec.7 To effect a full conveyance of real estate, a wife must join with her husband by signing the deed with him; or, in case of the husband's death in her lifetime, she would be entitled, for life, to the use of one-third of the estate. This interest of a widow in the estate of a deceased husband, is called dower. It is necessary also for the wife to acknowledge, before the officer taking the acknowledgment, and apart from her husband, that she signed the deed freely, and without compulsion of her husband. In some states, the acknowledgment of the wife out of the presence of her husband is not required.



Chapter LII.

Incorporeal Hereditaments. Right of Way; Aquatic Rights, &c.



Sec.1. The term incorporeal hereditaments may, to some readers, need explanation. A hereditament is a thing capable of being inherited. Land, and all things attached to it by the course of nature or the hands of men, as trees, herbage, water, buildings, &c., which are comprehended in the term real estate, are corporeal hereditaments. Incorporeal hereditaments are inheritable rights which grow out of corporeal inheritances, or which consist in their enjoyment; as the right of pasturing a common; a right of passage over the land of another; a right to the use of waters, sometimes called aquatic rights, &c.

Sec.2. A right of way is a right of private passage over another man's ground. This right is sometimes granted by the owner of the soil; and to make it a freehold right, it must be created by deed, though it be only an easement upon the land of another, and not an interest in the land itself. An easement is, in general, an accommodation. In law, it is any privilege or convenience which one has of another, by grant or otherwise, as a right of way, &c. By the grant of an easement, the grantee acquires no other right than what is necessary to the fair enjoyment of the privilege.

Sec.3. If it is a mere personal right, it can be enjoyed only by the owner of the right, and when he dies, the right dies with him. But a right of way belonging to an estate may be conveyed when the land is sold. Thus, if a man owns lot A and lot B, and he used a way from lot A, over lot B, to a mill, or to a river; and if he sells lot A with all ways and easements, the grantee will have the same privilege of passing over lot B as the grantor had.

Sec.4. A right of way may arise from necessity. If a man sells a part of his land, and there is no other way to the remaining part, he is entitled to a right of way to it over the land sold. And if a man sells land wholly surrounded by his own land, the purchaser is entitled to a right of way to it over the other's ground, even though no such right is reserved. The right of way passes to the purchaser, as necessarily incident to the grant, or included in it.

Sec.5. A man having license to conduct lead pipes through the land of another, may enter on the land, and dig therein, to mend the pipes. The general rule is, that when the use of a thing is granted, every thing is granted which is necessary to the enjoyment of its use.

Sec.6. A person has a temporary right of way over land adjoining a public highway, if the highway is out of repair, or is obstructed by snow, a flood, or otherwise. But the right of going upon adjoining lands does not apply to private ways. A person having a right to a private way over another's land, has no right to go upon adjoining land, even though the private way is impassable.

Sec.7. A right of way sometimes arises by prescription; which is the right or title to a thing derived from long use and enjoyment. Such is the right which, by common law, a man acquires to land which has been peaceably held by himself, or by himself and preceding owners, for twenty years. Although the first occupancy was obtained without grant, the long free use of the land is, in law, equivalent to a grant, and implies a valid title. In some states, shorter periods have been fixed by statute in which a right by prescription may be obtained. In Pennsylvania, and Ohio, the period is fixed at twenty-one years.

Sec.8. The owners of land adjoining highways, have a right to the soil to the centre of the road: the public have only a right of passage while the road is continued. The owners of the soil may maintain a suit against any person who encroaches upon the road, or digs up the soil, or cuts down trees growing on the side of the road. They may carry water in pipes under it, and have every use of it that does not interfere with the rights of the public.

Sec.9. Every proprietor of lands adjoining a stream, has naturally an equal right to the use of the water that flows in the stream adjacent to his lands, "as it was wont to run." Each may use the water while it runs upon his own land; but he can not unreasonably detain it, or give it another direction; and he must return it to its ordinary channel when it leaves his estate. He can not, by dams or any obstruction, cause the water injuriously to overflow the grounds of the neighbor above him, nor so use or apply it as materially to injure his neighbor below him.

Sec.10. But this right to the use of waters, as an easement to the land, may be acquired and lost, or enlarged and abridged, by prescription. A man may diminish the quantity of the water, or corrupt its quality, by the exercise of certain trades; and by such use of the water for a sufficient length of time, he is in law presumed to have acquired it by grant: and this presumption is the foundation of his right by prescription. The time of such use and enjoyment of water necessary to establish such right is twenty years, except in states in which a different period is fixed by statute. (Sec.7.)