Studies in Civics
by
James T. McCleary
Part 3 out of 8
ARTICLE III.--_The Judicial Department_.
Sec. 1. Vestment of authority, appointment, term, etc.
Sec. 2. Jurisdiction.
Sec. 3. Treason, definition, procedure.
ARTICLE IV.--_The States_.
Sec. 1. Mutual credit of official papers.
Sec. 2. Inter-state relations.
Sec. 3. New states and territories.
Sec. 4. Republican form of government guaranteed.
ARTICLE V.--_Mode of Amending the Constitution_
ARTICLE VI.--_Miscellaneous_
ARTICLE VII.--_Ratification_
AMENDMENTS.
1-10. Personal rights guaranteed.
11. Limitation on Jurisdiction of U.S. Courts.
12. Mode of electing the president and vice-president.
13-15. Fruits of the Civil War.
[Illustration: PRINCIPAL STORY (For Key see back of page.)]
[Illustration: THE PRINCIPAL STORY OF THE CAPITOL.]
CHAPTER XX.
THE CONSTITUTION OF THE UNITED STATES.
THE ENACTING CLAUSE [1] OR PREAMBLE.
_We, the people of the United States,[2] in order to form a more perfect
union,[3] establish justice,[4] insure domestic tranquillity,[5] provide
for the common defense,[6] promote the general welfare,[7] and secure the
blessings of liberty to ourselves and our posterity,[8] do ordain and
establish this constitution for the United States of America._
[1] The preamble or enacting clause is very important, because it states
the purposes for which the constitution was framed, and is, therefore, a
valuable aid in interpreting its provisions.
[2] These words are important, because: First, they recognize the people
as the source of power. Second, they show that the constitution is
different in nature from the articles of confederation. The latter was a
compact between states, adopted by state legislatures acting for the
states as such; the former was "ordained and established" by "the people
of the United States," _one_ people, acting as a unit. And the expression,
which was inserted in the preamble after due deliberation, is, therefore,
an argument in favor of the proposition that this is a _nation_ and not a
mere confederacy.
[3] "More perfect" than under the articles of confederation, in which the
states were declared sovereign and independent. The sovereignty is given
by the constitution to the general government, which is clothed with ample
power to maintain its independence. At the same time such limitations are
placed upon its power as will prevent its becoming despotic.
[4] To establish justice is one of the primary purposes of government.
Under the articles of confederation there had been no national judiciary,
and state courts often discriminated against foreigners and citizens of
other states. To remedy this, to establish fair-handed justice throughout
the land, the national judiciary was created by the constitution.
[5] "Domestic tranquillity" means here peace among the states and within
each state. The condition of affairs during the confederation period had
been woeful. A long war had impoverished the people, and unable to pay
their taxes they had in several places broken out in rebellion. Each state
by commercial regulations was trying to better its fortunes even at the
expense of the others. These regulations, and disputes about boundaries,
kept the states quarreling among themselves.
By transferring to the general government the power to regulate commerce
with foreign nations and among the states, by giving it power to enforce
treaties, and by creating a tribunal with authority to settle
controversies between states, the framers of the constitution removed in a
large measure the irritating causes of discord. But to _insure_ peace, the
general government was expressly given power to put down insurrections in
the states.
[6] To defend the country is another of the important duties of
government. The United States could do this better than each state could
defend itself. Several reasons are obvious. Therefore the general
government was empowered to raise and maintain an army and navy, and it
thus became "competent to inspire confidence at home and respect abroad."
[7] "To promote the general welfare" was the great object for which the
government was organized, and all the provisions of the constitution have
that in view. This expression was intended to cover all those things which
a government may properly do for the good of the people. It is very
elastic, as it was intended to be, and has covered acts as different as
the purchase of Louisiana, and the endowment of agricultural colleges, the
granting of a patent, and the establishment of post-offices.
[8] This is a worthy climax to the preamble. The great struggle, which
began in the mother country, continued through colonial times, and
culminated in the revolution, had been for liberty. The love of liberty
had illumined the pathway of the pilgrims crossing unknown seas; it had
glowed in the Declaration of Independence; it had warmed the hearts of the
half-clad soldiers at Valley Forge.
Liberty had now been won; the problem was how to render it secure. The
desired security was to be found only in the formation of a government
having all powers necessary for national sovereignty and independence,
while retaining in the states all powers necessary for local
self-government.
CHAPTER XXI.
ARTICLE I.--THE LEGISLATIVE BRANCH.[1]
SECTION I.--CONGRESS.
_All legislative powers herein granted, shall be vested in a congress of
the United States, which shall consist of a senate and house of
representatives._[2]
[1] The division of governmental functions among three branches has
already been discussed on page 79.
The legislative branch comes first and occupies most space in the
constitution because its framers regarded the legislative as the most
important branch. And laws must be _made_ before they can be interpreted
or executed.
[2] The _reason_ for the creation of two houses or chambers was that thus
only could the conflicting claims of the large and small states be
reconciled. It was, in fact, a _compromise_, the first of a series.
Only a few in the convention thought at first of having two houses, the
plan being to continue as under the articles of confederation with one
house. On the question of apportioning representatives, it was found that
there was a decided difference of opinion. The small states wished to
continue the principle of the articles of confederation, which gave the
several states equal power. But the large states insisted that the power
of a state should be _in proportion to its population_. The differences
were finally settled by the creation of two houses, in one of which the
states should have equal power, and in the other the representation should
be based upon population.
Connecticut has the honor of furnishing this valuable compromise. In her
legislature, representation in one house was based on population; in the
other, the towns had equal representation.
Among the _advantages_ of having two houses, aside from that mentioned on
page 80, are these: It tends to prevent a few popular leaders from
carrying through laws not designed for the common good; it secures a
review of any proposed measure by men elected in different ways and
looking at it from different standpoints. As our congress is organized,
the members of the house of representatives, being elected by popular vote
and for a short term, are likely to represent with considerable
faithfulness the wishes of the people. But the people may be for a time
wrong--as, for instance, in the persecution of the "witches"--and
senators, who by their mode of election and length of term are made
somewhat independent, can comparatively without fear do what seems right,
even if temporarily unsupported by public opinion.
SECTION II.--HOUSE OF REPRESENTATIVES.[1]
_Clause 1.--Composition and Term._
_The house of representatives shall be composed of members chosen every
second year[2] by the people[3] of the several states, and the electors[4]
in each state shall have the qualifications requisite for electors of the
most numerous branch of the state legislature.[5]_
[1] So called because it represents the people.
[2] The term under the confederation had been one year. This was too short
to permit any adequate study of the subjects to be legislated upon. This
longer term, two years, is still short enough to impose upon
representatives the feeling of responsibility.
The term begins March 4, at noon. The time covered by a representative's
term is called _a congress;_ thus we speak of the fortieth congress,
meaning the fortieth two years of our constitutional existence. The name
also applies to the body constituting our national legislative department
during that time. Thus we say that a certain person is a member of
congress.
"A congress" includes two regular sessions and any number of extra
sessions which the president may see fit to call or which may be provided
for by law. The first regular session is called "the long session,"
because congress may remain in session through the summer, if it choose.
The second is called "the short session," because it must end March 4, at
noon. Expiring thus by limitation, it lasts not more than about three
months.
[3] The word _people_ here means _voters_.
Each state is divided by its legislature into congressional districts
equal in number to the representatives to which it is entitled, and the
people of each district elect one representative. Sometimes when a state
has its representation increased after a new census, the old congressional
districts are left for a time undisturbed, and the added representatives
are elected "at large," while the others are chosen by districts as
before.
[4] Voters.
[5] The qualifications for voting in any state are fixed by the state
itself, and different states require different qualifications. When the
constitution was framed, but not now, some states required higher
qualifications in voters for the upper house of the state legislature than
in voters for the lower; so that more persons could vote for members of
the lower, which is always the "most numerous" branch, than for the
higher. Desiring to make the United States house of representatives as
"popular" as possible, the framers of the constitution determined that all
whom any state was willing to trust to vote for a member of the lower
house of the state legislature, the United States could trust to vote for
members of its lower house.
_Clause 2.--Qualifications_.
_No person shall be a representative who shall not have attained the age
of twenty-five years,[1] and been seven years a citizen of the United
States,[2] and who shall not, when elected, be an inhabitant of that state
in which he shall he chosen.[3]_
[1] For business and voting purposes a man "comes of age" at twenty-one
years. Four years of probation are considered the least amount of time
necessary to fit him for the responsibilities of a member of the house of
representatives.
[2] A born citizen will at twenty-five years of age have been a citizen
for twenty-five years. A naturalized citizen must have lived in the United
States for at least twelve years, [Footnote: Eight years in the case of an
honorably discharged soldier who may become a citizen on one year's
residence.] five years to become a citizen and seven years afterwards,
before being eligible to the house of representatives. These twelve years
will have given him time to become "Americanized."
[3] Residence in the state is required in order that the state may be
represented by persons interested in its welfare. No length of time is
specified, however. Residence in the district is not required by the
constitution, because the distribution of representatives within a state
is left to the state itself. A person _may_ be chosen to represent a
district in which he does not live, and this has been done in a few
instances. One does not lose his seat by moving from the district or even
from the state, but propriety would impel resignation.
WHO MAY NOT BE REPRESENTATIVES.
1. Persons holding any office under the United States. [I., 6, 2.]
2. Persons who by engaging in rebellion against the United States have
violated their oath to support the constitution, unless the disability be
removed. [Am. XIV., 3.]
_Clause 3.--Apportionment._
The parts of this clause enclosed in brackets are now obsolete.
_Representatives and direct taxes[1] shall be apportioned among the
several states which may be included within this Union, according to their
respective numbers,[2] [which shall he determined by adding to the whole
number of free persons[3] including those bound to service [4] for a
number of years, and] excluding Indians not taxed, [three-fifths of all
other persons.[5]] The actual enumeration[6] shall he made within three
years after the first meeting of the congress of the United States,[7] and
within every subsequent term of ten years, in such manner as they shall by
law direct. The number of representatives shall not exceed one for every
thirty thousand,[8] but each state shall have at least one
representative,[9] [and until such enumeration shall he made, the State of
New Hampshire, shall be entitled to choose three, Massachusetts eight,
Rhode Island and Providence Plantations one, Connecticut five, New York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia
three.]_
[1] These are like the usual local taxes; that is, "poll" taxes and taxes
on real and personal property. A tax on incomes derived from such property
was, in May, 1895, declared by the United States Supreme Court to be a
direct tax. United States direct taxes have been laid only in 1798, 1813,
1815, 1816, 1862.
[2] The revolutionary war had just been fought to maintain the principle,
"taxation and representation go hand in hand," and this provision was made
in harmony therewith. The including of direct taxes was a concession to
the slaveholding states.
[3] Men, women and children. [4] Apprentices.
[5] Slaves. The framers of the constitution did not like to use the word
"slave," and therefore used this expression. Most of them, even the
slaveholders, hoped that slavery would soon cease to be.
In determining the persons to be enumerated, much difficulty was
encountered. The slaveholding states wished the slaves counted as
individuals, claiming that they had as much right to be represented as had
women, children and other non-voters. The non-slaveholding [Footnote: In
all the states except Massachusetts slavery then existed. But in the
northern states the number of slaves was so small, that we may call them
"non-slaveholding."] states thought that being held as property they
should not be counted at all for purposes of representation. This
provision in the constitution was the outcome,--another compromise.
[6] Called the _Census_. The prime purpose in taking the census is to find
out the number of people in each state, so that representation may be
equalized. But the census takers collect at the same time a vast amount of
other useful information upon the agriculture, manufactures, commerce,
etc., of the country. Reports of the census are published by the
government for gratuitous distribution.
[7] The first meeting of congress was held in 1789, and the first census
was taken in 1790.
[8] To prevent the House from becoming too large. But the population of
the United States has constantly and rapidly increased, so that the "ratio
of representation," as it is called, has been made greater at each census.
It now takes 173,901 people to secure a representative. (For ratio in each
decade, see pages 312-13.)
[9] So that even the smallest states shall be represented.
_Clause 4.--Vacancies._
_When vacancies[1] happen in the representation from any state, the
executive authority[2] thereof shall issue writs of election[3] to fill
such vacancies.[4]_
[1] Vacancies usually happen through the death or resignation of the
incumbent. But a vacancy may be made by the expulsion of a member or by
the election of an ineligible person.
[2] The governor or acting governor.
[3] That is, he orders an election. The order is printed in the newspapers
of the district, and specifies the time the election is to be held. At the
time specified the electors vote as in regular elections. This is called a
"special election."
[4] The person elected serves for the unexpired term.
_Clause 5.--House Powers.
The House of Representatives shall choose their speaker[1] and other
officers;[2] and shall have the sole power of impeachment[3]._
[1] Called so in imitation of the title of the presiding officer of the
British House of Commons, who was originally called the speaker because he
acted as spokesman in communicating to the king the wishes of the House.
The speaker is chosen by ballot from among the members, and serves during
the pleasure of the House. At the beginning of each congress a new
election is held. A speaker may be re-elected. Henry Clay served as
speaker for ten years.
The duties of the speaker are prescribed by the rules of the House. So
far, he has always appointed the committees. As the work of legislation is
largely shaped by committees, it may be fairly asked whether any one else
can so affect the legislation of the country as can the speaker--whether,
indeed, he has not too much power.
[2] The most important "other officers" are the clerk and the
sergeant-at-arms.
The clerk, as his title would indicate, has charge of the records of the
House. He has a number of assistants.
The sergeant-at-arms acts under the orders of the speaker in keeping order
and in serving processes. His duties in the House resemble those of the
sheriff in court.
The doorkeeper, postmaster, and chaplain, have duties indicated by their
titles.
These officers are elected by the House and serve during its pleasure,
usually two years. Assistants are appointed by the officers whom they
assist.
None of these officers are members of the House.
[3] An impeachment is a solemn accusation in writing, formally charging a
public officer with crime. "The articles of impeachment are a sort of
indictment; and the House, in presenting them, acts as a grand jury, and
also as a public prosecutor." [Footnote: Story's Exposition of the
Constitution of the United States.]
For further discussion of impeachment, see pages 138, 203 and 331. A very
interesting account of the impeachment trial of Secretary Belknap is given
in Alton's _Among the Lawmakers_, pages 245-250. Mr. B. is hidden under a
fictitious name.
On impeachment, see also Wilson's _Congressional Government_, page 275.
WRITTEN EXERCISE.
Each member of the class should prepare a tabulation like this, filling
out the blanks briefly.
HOUSE OF REPRESENTATIVES.
I. NUMBER--
1. Based upon.
2. Limitations.
(a)
(b)
II. QUALIFICATIONS.
1.
2.
3.
4.
5.
III. ELECTION--
IV. TERM--
Y. VACANCY--
_Pertinent Questions._
What is a constitution? A law? A preamble? How many of the reasons
assigned in the preamble for establishing this government are general and
how many are special?
How many houses do most legislative bodies have? How many did the congress
under the confederation have? Why? Why has congress two houses?
How many representatives has this state in the U.S. congress? Give their
names by districts. In which district do you live? When was your
representative elected? By the census of 1880, Alabama had a population of
1,262,505; how many representatives should it have? Nevada had only 62,261
inhabitants, but has a representative; how do you account for the fact?
What proportion of U.S. officers are elected?
What is the "most numerous branch" of this state's legislature called?
What qualifications must electors to that house have? Whom else can such
persons therefore vote for? If this state desired higher qualifications in
electors for United States representatives, how could she require them?
Should not the United States designate the qualifications of voters for
members of congress? May one who is not a citizen of the United States
vote for a member of congress?
What is the number of the present congress? When did it begin? How many
members in the present House of Representatives? Just how was that number
determined? Name the speaker. What political party is in the majority in
the present House? Is congress now in session?
Must a representative reside in the _district_ from which he is chosen? If
your representative should move to another state, would he lose his seat?
If a person twenty-four years and ten months old at the time of election
should be chosen representative, would he be eligible?
How long must an alien live in the United States to be eligible to the
house? Is there any exception?
If $13,000,000 were to be raised for the use of the United States by
direct taxation, how much would this state have to pay? How much would
Alaska have to pay? How would this state raise the money?
Are there any people in this state who are not counted in making up the
representative population?
When was the first United States census taken? How many have since been
taken? When was the last taken? When will the next be taken?
How did members of congress vote under the confederation? How do they now
vote?
How is Utah represented in congress? The District of Columbia?
What five states had the largest representation in the first congress?
What five have now? Which two have fewer members now than in the first
congress? Which three have just the same number?
Name the present officers of the House of Representatives. Are any of them
from this state?
How does our House of Representatives compare with the British House of
Commons in the number of members? In the length of their terms? In the age
required for eligibility? What famous speech have you read in reply to one
in which a certain member of the House of Commons had been alluded to
contemptuously as "a young man?"
Could one who is not a voter be elected to the house? Is a woman eligible?
Could the state impose other qualifications than those mentioned in the
constitution?
SECTION III.--THE SENATE.[1]
_Clause 1.--Composition._
_The Senate of the United States shall be composed of two senators from
each state,[2] chosen by the legislature thereof,[3] for six years;[4] and
each senator shall have one vote.[5]_
[1] Latin _senatus_, from _senex_, an old man. This dignified term seems a
favorite, being used in many countries to designate the upper house. In
other countries a term is used having the same signification.
[2] This arrangement will be remembered as the concession made by the
large states to the small ones.
Had the number of senators been fixed at one from each state, equality of
power among the states would still have been secured; but sickness or
accident might then leave a state unrepresented. By having two, this
difficulty is obviated. The two can consult about the needs of their state;
and the Senate is large enough to "confer power and encourage firmness."
Three from each state would bring no advantages which are not now secured,
while the Senate would be unnecessarily large and expensive.
[3] This mode of election was fixed upon for two reasons: First, the
senators represent the state, as such, and hence it seemed proper that
they should be chosen by the body which acts for the state in its
corporate capacity; second, the members of the House of Representatives
being elected by the people, it was deemed advisable to elect the senators
in a different way, in order that, by representing different elements,
each house might act as a check upon the other. Incidentally, election by
the legislature was considered good, because it would serve as a
connecting link between the states and the United States.
[4] The long term gives dignity and independence to the position of
senator; it gives assurance of stability in the national councils, and
tends to secure for them confidence at home and respect abroad; it raises
senators "above the whims and caprices of their constituents, so that they
may consult their solid interests, rather than their immediate wishes."
[5] Under the confederation each state had from two to seven members of
congress, but only one vote. If the delegation was equally divided on any
question, or if only one member was present, the state lost its vote.
By the present arrangement a state need not go entirely unrepresented on
account of the absence of one of its senators.
_Clause 2.--Classification and Vacancies._
_Immediately after they shall be assembled in consequence of the first
election, they shall be divided, as equally as may be, into three
classes.[1] The seats of the senators of the first class shall be vacated
at the expiration of the second year; of the second class, at the
expiration of the fourth year; and of the third class, at the expiration
of the sixth year;[2] so that one-third may be chosen every second year;
and if vacancies happen by resignation, or otherwise, during the recess of
the legislature of any state, the executive thereof may make temporary
appointments until the next meeting of the legislature, which shall then
fill such vacancies.[3]_
[1] The object of this division is to secure for the Senate at all times a
large proportion of experienced members. By this arrangement, too, the
Senate becomes a permanent body, ready at any time to convene for the
consideration of treaties, for the trial of impeachments, or for
confirming executive appointments.
[2] Only ten states were represented when, on May 15, 1789, this
classification was first made. (North Carolina and Rhode Island had not
yet ratified the constitution, and New York's senators had not yet
presented their credentials.) The twenty senators had on the preceding day
been grouped by name into three classes, two of seven senators each, and
one of six. By the drawing of three numbered slips of paper, seven fell
into class 1, seven into class 2, and six into class 3, with terms ending
March 3, 1791, 1793, and 1795, respectively. After the classification had
been fixed, the two senators from New York appeared. One was placed, by
lot, in class 3 (thus filling the classes), and then the other, also by
lot, in class 1. The two senators from the next state, North Carolina,
were therefore placed in the unfilled classes 2 and 3. Since 1795, each
class holds for six years, and a senator's term expires with that of his
class.
[3] Senators represent the state, and are elected by the body which acts
for the state,--by the legislature if in session, temporarily by the
governor if it is not.
_Clause 3.--Qualifications_.
_No person shall be a senator, who shall not have attained to the age of
thirty years,[1] and been nine years a citizen of the United States,[2]
and who shall not, when elected, be an inhabitant of that state from which
he shall be chosen.[3]_
[1] This was also the age for eligibility to the Roman Senate. It is five
years more than the requirement for membership in the House.
[2] Two years of citizenship more than required of a representative. As
the Senate acts with the president in making treaties, this requirement
seems none too great.
[3] The propriety of this is self-evident. (I. 2: 2.)
_Clause 4.--Presiding Officer._
_The vice-president of the United States shall be president of the
Senate,[1] but shall have no vote,[2] unless they be equally divided.[3]_
[1] This arrangement was made for three reasons:
First. It would give the vice-president something to do.
Second. Partaking in the executive business of the Senate would give the
vice-president excellent training for the duties of the presidency, in
case he should be called thereto.
Third. The equality of power among the states would remain undisturbed.
Had it been arranged that the Senate should choose its own presiding
officer from among its members, one state might thereby gain (or lose)
power in the Senate.
[2] Because he is not a member of the Senate. For this reason, also, he
cannot take part in debates, nor can he appoint committees. These are
elected by the Senate itself.
[3] But for his casting vote; a "dead-lock" might occur on some important
question. This "might give rise to dangerous feuds, or intrigues, and
create state or national agitations."
_Clause 5.--Other Officers._
_The Senate shall choose their other officers,[1] and also a president pro
tempore,[2] in the absence of the vice-president, or when he shall
exercise the office of president of the United States._
[1] These are similar to those of the House. (See p. 131.)
[2] The president _pro tempore_ is chosen from among the senators. Being a
senator, he can debate and vote upon any question. He cannot, of course,
give a "casting vote," because that would virtually give him two votes.
The president _pro tempore_ serves during the pleasure of the Senate, or
until the expiration of his senatorial term.
It is the general practice for the vice-president to vacate his chair at
the beginning of the session, to permit the Senate to chose a president
_pro tempore_, so that if during vacation the vice-president should become
president, the Senate might not be without a presiding officer. Until
recently this was quite important, for the president _pro tempore_ of the
Senate was next to the vice-president in the succession to the presidency.
But the succession has been changed. (See p. 190.)
_Clause 6.--Impeachment._
_The Senate shall have the sole power to try all impeachments.[1] When
sitting for that purpose, they shall be on oath or affirmation.[2] When
the president of the United States is tried, the chief Justice shall
preside;[3] and no person shall be convicted without the concurrence of
two-thirds of the members present.[4] Judgement in cases of impeachment
shall not extend further than to removal from office, and disqualification
to hold and enjoy any office of honor, trust or profit, under the United
Sates;[5] but the party convicted shall, nevertheless, be liable and
subject to indictment, trial, judgment and punishment, according to
law.[6]_
[1] For the mode of conducting impeachments, see pages 131 and 331.
To have impeachments tried by a court of law would be unwise for several
reasons: In the first place, judges should be kept free from political
contests, in order that they may retain the proper judicial frame of mind.
In the second place, judges are appointed by the executive, who may be the
one impeached. Lastly, a judge is himself subject to impeachment.
[2] To enhance the solemnity of the occasion. The British House of Lords
when sitting as a high court of impeachment is not under oath. But courts
usually are.
[3] The vice-president, having interest in the result, would be
disqualified. The chief justice, from the dignity of his station and his
great experience in law, seems the fittest person to preside on such a
grave occasion. Except in this single instance, however, the
vice-president presides in trials on impeachment.
[4] In an ordinary court, the verdict of the jury must be unanimous. To
require similar agreement in this case would be to make it next to
impossible ever to convict. To allow a bare majority to convict would be
to place too little protection over a public officer.
[5] But for this provision abuses of power might occur in times of
political excitement and strife. The question which the Senate settles is
simply whether, in view of the evidence, the accused is or is not worthy
to hold public office.
[6] This provision was inserted to prevent an official who had been
deposed for crime from pleading the principle that "No one can be twice
tried and punished for the same offense."
WRITTEN EXERCISE.
COMPARATIVE TABULATION.
POINTS CONSIDERED. HOUSE OF R. SENATE
Number...............................................
Age
Qualifications......Citizenship......................
Inhabitancy
Election.............................................
Term.................................................
Vacancy..............................................
Presiding Officer Title.............................
How Chosen........................
Sole Powers..........................................
_Debate._
Resolved, That United States Senators should be elected by the people.
_Pertinent Questions._
Name the present senators from this state. When were they elected? Were
they elected to fill a vacancy or for a full term? How many times has each
been elected?
How many more senators has New York that Rhode Island? How many members in
the present Senate? How many in each class? When the next state is
admitted, in what classes will its senators be placed? How will the class
of each be decided?
Why not have senators chosen for life?
If one of our senators should resign today, to whom would the resignation
be addressed? How would the vacancy be filled? How long would the
appointee serve? Could the governor appoint himself?
How long at least must an alien live in the United States before being
eligible to the Senate? Has anyone ever been refused admission, after
being duly elected, on account of shortness of citizenship?
Who is now vice-president? Who is president _pro tempore_ of the Senate?
Why is it not correct under any circumstances to speak of the president
_pro tempore_ as vice-president?
Has the vice-president's vote ever helped to carry any measures of great
importance?
If every senator be "present," what number of senators would it take to
convict? Does the accused continue to perform his official duties during
the trial? Was President Johnson impeached? Is there any appeal from the
Senate's verdict? How do senators vote in cases of impeachment? How is
judgment pronounced?
What punishments follow conviction on impeachment in other countries?
What is treason? Bribery? What are crimes? High crimes? Misdemeanors?
How is an impeachment trial conducted? (See appendix.)
SECTION IV.--ELECTIONS AND MEETINGS.
_Clause 1.--Elections to Congress._
_The times, places and manner of holding elections for senators and
representatives, shall be prescribed in each state by the legislature
thereof: but the congress may at any time, by law, make or alter such
regulations,[1] except as to the place of choosing senators.[2]_
[1] Until 1842 these matters were left entirely with the several states.
Congress then provided that representatives should be elected by districts
of contiguous territory, equal to the number of representatives. It has
since provided that elections for representatives shall be by ballot, and
that the election shall be on the first Tuesday after the first Monday of
November in the even numbered years.
The time and mode of electing senators are given on page 333.
[2] This would in effect be giving congress power to locate the capital of
a state.
_Clause 2.--Meetings._
_The congress shall assemble at least once in every year, and such meeting
shall be on the first Monday in December, unless they shall by law appoint
a different day._
They have _not_ by law appointed a different day.
"Annual meetings of the legislature have long been deemed, both in England
and America, a great security to liberty and justice." By making provision
in the constitution for annual meetings, the duty could not be evaded.
Extra sessions of congress may be called at any time by the president or
be provided by law. There used to be three sessions, one beginning March
4.
The _place_ of meeting is not named, because the capital had not been
located, and in some cases it might be desirable to hold the session
elsewhere.
SECTION V. SEPARATE POWERS AND DUTIES.
_Clause 1. Membership: Quorum._
_Each house shall be the judge of the elections, returns and
qualifications of its own members,[1] and a majority of each shall
constitute a quorum to do business;[2] but a smaller number may adjourn
from day to day, and may be authorized to compel the attendance of absent
members, in such manner, and under such penalties, as each house may
provide.[3]_
[1] This means simply that each house has the power to determine who are
entitled to membership in it. This has long been recognized in free
countries as a right belonging to a legislative body, necessary to the
maintenance of its independence and purity--even its existence. But when
the parties are nearly balanced, the majority is tempted to seat its
fellow-partizan.
[1] This is the number usually established as a quorum for a deliberative
body. Certainly no smaller number should have a right to transact
business, for that would give too much power to an active minority. And to
require more than a majority, would make it possible for a minority to
prevent legislation.
[3] Under the rules no member has a right to be absent from a session
unless excused or sick. Unexcused absentees, unless sick, may be arrested
and brought to the capitol by the sergeant-at-arms or a special messenger.
When fewer than fifteen members are present, they usually adjourn.
_Clause 2.--Discipline._
_Each house may determine the rules of its proceedings,[1] punish its
members for disorderly behavior, and with the concurrence of two-thirds,
expel a member.[2]_
[1] The rules are intended to facilitate business, by preventing confusion
and unnecessary delay. They are designed also to check undue haste.
The rules of each house are based upon the English parliamentary practice,
as are the rules of all legislative or deliberative bodies wherever the
English language is spoken. (See "Manuals" of Senate and House.)
[2] It seems unlikely that even in times of great excitement two-thirds of
either house would favor expulsion unless it were deserved. This is also,
it will be observed, the number necessary to convict in case of
impeachment.
_Clause 3.--Publicity._
_Each house shall keep a journal of its proceedings, and, from time to
time, publish the same,[1] excepting such parts as may, in their judgment,
require secrecy;[2] and the yeas and nays[3] of the members of either
house, shall at the desire of one-fifth of those present, be entered on
the journal.[4]_
[1] This is to give publicity to the proceedings of congress, for the
benefit of both legislators and constituents. This provision is a valuable
one, in spite of the fact that demagogues are sometimes able thereby to
gain cheap glory.
To give still further publicity to the proceedings, spectators and
newspaper reporters are admitted to the gallery of each house, and members
may have their speeches printed and distributed.
[2] The House of Representatives rarely has a secret session. But the
Senate still keeps its executive sessions secret.
[3] For methods of voting see page 314.
[4] The purpose of this provision is to make members careful how they
vote, for the record is preserved. It will be noticed that the number
necessary to secure the record is small.
While this provision is intended to protect the minority, by enabling them
to impose responsibility upon the majority, it is open to abuse. It is
sometimes used by a minority to delay unnecessarily the proper transaction
of business. (For a graphic account of "filibustering," see Among the Law
Makers, 165-173.)
_Clause 4--Adjournment._
_Neither house, during the session of congress, shall without the consent
of the other, adjourn for more than three days, nor to any other place
than that in which the two houses shall be sitting._
The purpose of this provision is evident.
The sessions of congress may end in any one of three ways:
1. The terms of representatives may end.
2. The houses may agree to adjourn.
[Illustration: SENATE CHAMBER]
[Illustration: HOUSE OF REPRESENTATIVES]
[Illustration: STATE, WAR AND NAVY DEPARTMENTS.]
[Illustration: INTERIOR DEPARTMENT]
3. In case of disagreement between the houses as to the time of
adjournment, the president may adjourn them. (This contingency has never
yet arisen, however.)
SECTION VI. MEMBERS.
_Clause 1.--Privileges._
_The senators and representatives shall receive a compensation for the
services,[1] to be ascertained by law,[2] and paid out of the treasury of
the United States.[3] They shall in all cases except treason,[4]
felony,[4] and breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses, and in going to and
returning from the same;[5] and for any speech or debate in either house,
they shall not be questioned in any other place.[6]_
[1] See discussion in connection with state legislature, p. 85.
[2] The salary of congressmen is, therefore, fixed by themselves, subject
only to the approval of the president. It is now $5000 a year, and
mileage. The speaker receives $8000 a year and mileage. The president _pro
tempore_ of the Senate receives the same while serving as president of the
Senate.
[3] They are serving the United States.
[4] Defined on pages 158 and 211.
[5] So that their constituents may not for frivolous or sinister reasons
be deprived of representation.
[6] That is, he cannot be sued for slander in a court of justice, but he
can be checked by his house, if necessary, and the offensive matter
omitted from the Record.
The purpose of this provision is not to shield cowards in speaking ill of
persons who do not deserve reproach, but to protect right-minded members
in exposing iniquity, no matter how the doers of it may be intrenched in
wealth or power.
_Clause 2.--Restrictions._
_No senator or representative shall, during the time for which he was
elected, be appointed to any civil office under the authority of the
United States, which shall have been created, or the emoluments whereof
shall have been increased during such time;[1] and no person holding any
office under the United States shall be a member of either house during
his continuance in office.[2]_
[1] The obvious purpose of this provision is to remove from members of
congress the temptation to create offices with large salaries for their
own benefit, or to increase for a similar reason the salaries of offices
already existing. It was designed also to secure congress from undue
influence on the part of the president.
The wisdom of the provision has, however, been seriously questioned. "As
there is a degree of depravity in mankind, which requires a certain degree
of circumspection and distrust, so there are other qualities in human
nature, which justify a certain portion of esteem and confidence.
Republican government presupposes the existence of these qualities in a
higher form, than any other. It might well be deemed harsh to disqualify
an individual from any office, clearly required by the exigencies of the
country, simply because he had done his duty.... The chances of receiving
an appointment to a new office are not so many, or so enticing, as to
bewilder many minds; and if they are, the aberrations from duty are so
easily traced, that they rarely, if ever, escape the public reproaches.
And if influence is to be exerted by the executive, for improper purposes,
it will be quite as easy, and its operation less seen, and less suspected,
to give the stipulated patronage in another form." [Footnote: Judge
Story.]
[2] This was to obviate state jealousy, to allay the fears entertained by
some that the general government would obtain undue influence in the
national councils.
TABULAR VIEW.
Each pupil may make out a tabulation, giving briefly the facts called for
in this outline:
I. CONGRESSIONAL ELECTIONS, HOW REGULATED.
II. SESSIONS OF CONGRESS--
1. Frequency.
2. Time of beginning.
III. POWERS AND DUTIES OF EACH HOUSE--
1. Membership.
2. Quorum.
3. Discipline.
4. Publicity.
5. Adjournment.
IV. MEMBERS OF CONGRESS--
1. Privileges.
2. Restrictions.
_Debate._
Resolved, That members of the cabinet should have seats in congress _ex
officio._
_Pertinent Questions._
Why not leave the power to regulate congressional elections unreservedly
with the states? Where are the United States senators from this state
elected?
How are United States senators elected? See appendix.
Is congress now in session? Will the next session be the long or the short
one? When, within your recollection, was there an "extra session" of
congress? Could the president convene one house without the other? Which
is the longest session of congress on record? Does congress meet too
often?
Where does congress now meet? Is that the best place? At what different
places has congress met since the adoption of the constitution?
If two persons should claim the same seat in the House of Representatives,
who would decide between them? How would the contest be carried on? (See
page 330.) Has there ever been a "contested" election from this state?
What number of representatives is the least that could transact business?
The least number of senators? The least number of representatives that
could possibly pass a bill? Of senators? What is done if at any time
during the proceedings it is found that there is "no quorum present?"
Has a member ever been expelled from either house? May either house punish
for disorder persons who are not members? Can either house temporarily set
aside all of its rules?
Did you ever see a copy of the Congressional Record? If congress be now in
session, make a weekly report of its proceedings. How could you see
congress in session? Could you be a spectator at a committee meeting? How
could you witness an "executive session" of the Senate?
Can a member be punished for an offense committed before he was elected?
How is voting usually done in a deliberative assembly? How in Congress?
How are territories represented in congress?
Distinguish between the "capital" and the "capitol" of the United States.
Who has power to locate the capital of the United States?
Has the salary of congressmen ever been more than $5000 a year? How were
congressmen paid under the confederation?
What is meant by the House resolving itself into a _committee of the
whole?_
When does the freedom from arrest of a member of congress begin? When does
it end? Could a summons be served upon him during that time?
What is slander? Libel? Is a member of congress liable for the publication
of his speech in the Congressional Record? Would he be responsible if he
should have it published in any other than the official way?
Can a member of congress resign to accept an office already in existence,
and whose emoluments have not been increased during his term? Give
examples. If a United States officer be elected to congress, how long can
he retain his office? Could a member of congress be appointed to a
_military_ office created during his term? Can a member be appointed
_after his term is out_ to an office created during his term?
Is a member of congress an officer of the United States?
SECTION VII.--LAW MAKING.
_Clause 1.--Revenue Bills._
_All bills for raising revenue[1] shall originate in the House of
Representatives;[2] but the Senate may propose or concur with amendments,
as on other bills.[3]_
[1] That is, bills in relation to the levying of taxes or for bringing
money into the treasury in any other way.
[2] Because the representatives are nearer to the people, who must pay the
taxes, and can therefore be more readily held to account.
[3] Such bills in England originate in the House of Commons, and the House
of Lords has no power of amendment.
The purpose of giving the Senate power to amend is to preserve the due
influence of the small states in this important matter.
_Clause 2.--Mode of Making Laws._
_Every bill which shall have passed the House of Representatives and the
Senate,[1] shall, before it becomes a law, be presented to the president
of the United States;[2] if he approve, he shall sign it; but if not, he
shall return it, with his objections, to that house in which it shall have
originated, who shall enter the objections at large on their journal, and
proceed to reconsider it. If, after such reconsideration, two-thirds of
that house shall agree to pass the bill, it shall be sent, together with
the objections, to the other house, by which it shall likewise be
considered, and, if approved by two-thirds of that house, it shall become
a law.[3] But in all such cases the votes of both houses shall be
determined by yeas and nays, and the names of the persons voting for and
against the bill shall be entered on the journal of each house,
respectively.[4] If any bill shall not he returned by the president within
ten days (Sundays excepted) after it shall have been presented to him, the
same shall he a law, in like manner as if he had signed it,[5] unless the
congress, by their adjournment, prevent its return, in which case it shall
not be a law.[6] [1] Or the Senate and House of Representatives, since any
bills except those for raising revenue may originate in either house.
[2] The two great purposes of giving the president a negative upon
legislative acts, are to protect the proper authority of the executive
from the encroachments of the congress, and to interpose a stay on hasty
legislation.
[3] The veto of the Roman Tribune was final, as is that of almost every
European sovereign today. _But no British king or queen has vetoed an act
of Parliament in the last hundred and eighty years._ In Norway, if a bill,
vetoed by the king, passes three successive Storthings, it becomes a law.
[4] To secure a permanent record for future reference. This helps to
render members careful how they vote.
[5] This gives due time for consideration, but prevents the president's
killing a bill by ignoring or neglecting it.
[6] Thus congress (which has the very human failing of "putting off" or
postponing) cannot break down the veto power of the president, by pouring
an avalanche of bills upon him within the last few days of the session.
But the president can easily kill any bill which he does not like, if it
is presented within ten days of the adjournment of congress, simply by
keeping it. This is called "pocketing" a bill, or "the pocket veto."
_Clause 3.--Joint Resolutions._
_Every order, resolution, or vote to which the concurrence of the Senate
and House of Representatives may be necessary (except on a question of
adjournment), shall be presented to the president of the United States;
and before the same shall take effect, shall be approved by him, or, being
disapproved by him, shall be repassed by two-thirds of the Senate and
House of Representatives, according to the rules and limitations
prescribed in the case of a bill._
The purpose of this provision is to prevent congress from passing a law
under some other name.
The resolution to adjourn is excepted, because, as we have seen, the time
for adjournment is generally a matter of agreement between the houses.
A resolution passed by the two houses, but not intended to have the force
of law, such as an agreement to do something, is called a concurrent
resolution, and does not require the president's signature.
_Pertinent Questions._
What is a "bill?" What is meant by entering the objections "at large?" Why
is there no committee of ways and means in the Senate?
How many members in each house does it take for the first passage of a
bill? How many after the president's veto? Does the expression two-thirds
refer to the entire number in a house, or to the number voting?
State three ways in which a bill may become a law. Five ways in which it
may fail.
During what time has the president the equivalent of an absolute veto?
Does a resolution merely expressing an _opinion_ of either or both houses
need the president's signature? Does a resolution proposing an amendment
to the constitution?
Is the president bound to enforce a law passed over his veto?
_A Summary._
"We have now completed the review of the structure and organization of the
legislative department; and it has been shown that it is admirably adapted
for a wholesome and upright exercise of the powers confided to it. All the
checks which human ingenuity has been able to devise, or at least all
which, with reference to our habits, our institutions, and our diversities
of local interests, to give perfect operation to the machinery, to adjust
its movements, to prevent its eccentricities, and to balance its forces:
all these have been introduced, with singular skill, ingenuity and wisdom,
into the arrangements. Yet, after all, the fabric may fall; for the work
of man is perishable. Nay, it must fall, if there be not that vital spirit
in the people, which alone can nourish, sustain and direct all its
movements. If ever the day shall arrive, in which the best talents and the
best virtues, shall be driven from office by intrigue or corruption, by
the denunciations of the press or by the persecution of party factions,
legislation will cease to be national. It will be wise by accident, and
bad by system." [Footnote: Story's Exposition of the Constitution of the
United States.]
_Review._
Compare the organization of congress under the constitution with that of
congress under the confederation. Show the superiority of our present
organization. Specify some of the "checks" referred to by Judge Story.
Read Woodrow Wilson's Congressional Government, pp. 40, 41, 52, 219, 228,
283-5, 311. Also, Among the Lawmakers, Chapter 33.
CHAPTER XXII.
SECTION VIII.--POWERS VESTED IN CONGRESS.
_Clause 1.--Taxation._
_Congress shall have power:_
_To lay and collect taxes[1], duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare of the United
States;[2] but all duties, imposts and excises shall be uniform throughout
the United States.[3]_
For discussion of methods of taxation, see page 316.
[1] The want of power in congress to impose taxes was, perhaps, the
greatest defect of the articles of confederation; therefore in the
constitution this was the first power granted to congress.
[2] As usually interpreted, the phrase beginning, "to pay the debts," is
intended to state the purposes for which taxes may be levied. But this
limitation is merely theoretical, for taxes are levied before being
expended.
[3] This is to prevent legislation in favor of any state or section, as
against other states or sections.
_Clause 2.--Borrowing._
_To borrow money on the credit of the United States._
It should not be necessary, ordinarily, for congress to exercise this
power. But in times of war the regular sources of income may not be
sufficient, hence the necessity of this power to provide for extraordinary
expenses. It is one of the prerogatives of sovereignty; it is
indispensable to the existence of a nation.
For more about national borrowing, see page 317.
_Clause 3.--Regulation of Commerce._
_To regulate commerce[1] with foreign nations, and among the several
states,[2] and with the Indian tribes.[3]_
[1] The power to regulate commerce implies the power to prescribe rules
for traffic and navigation, and to do such things as are necessary to
render them safe. It has been interpreted to cover, among other things,
the imposition of duties, the designation of ports of entry, the removal
of obstructions in bays and rivers, the establishment and maintenance of
buoys and lighthouses, and legislation governing pilotage, salvage from
wrecks, maritime insurance, and the privileges of American and foreign
ships.
[2] The power to regulate commerce with foreign nations should go hand in
hand with that of regulating commerce among the states. This power had,
under the confederation, been in the hands of the several states. Their
jealousies and rivalries had led to retaliatory measures upon each other.
This condition of affairs was encouraged by other nations, because they
profited by it. At the time of the adoption of the constitution, business
was terribly depressed, and the bitterness of feeling among the states
would probably soon have disrupted the Union. Therefore, "to insure
domestic tranquility," and "to promote the general welfare," the power to
regulate commerce was delegated to the general government.
[3] This control is exercised even when the Indians live within the
boundaries of a state.
By placing the power to regulate commerce with Indians in the hands of the
general government it was hoped that uniformity of regulations and the
strength of the government would secure peace and safety to the frontier
states.
_Clause 4.--Naturalization and Bankruptcy._
_To establish a uniform rule of naturalization[1] and uniform laws on the
subject of bankruptcies[2] throughout the United States._
[1] Naturalization is the process by which an alien becomes a citizen. The
mode is given on page 319.
[2] A bankrupt is one who has been declared by a court to be owing more
than he can pay.
The purposes of a bankrupt law are:
1. To secure an equitable distribution of all the debtor's property among
the creditors.
2. To secure to the debtor a complete discharge from the indebtedness.
_Clause 5.--Coinage and Measures._
_To coin money,[1] regulate the value thereof[2] and of foreign coin,[3]
and fix the standard of weights and measures.[4]_
[1] This is another "sovereign power," and cannot be exercised by states,
counties or cities. Coinage by the United States secures uniformity in
value, and thereby facilitates business.
To "coin money" is simply to stamp upon a precious metal the value of the
given piece. [Footnote: When metals were first used as money, they were
weighed and their purity was determined by testing. This invited fraud.]
For convenience in business transactions, these are coined of certain
sizes. To discourage the mutilation of coins for sinister purposes, they
are "milled" on the edges, and the stamp covers each face so that the
metal could hardly be cut off without the coin showing defacement.
[2] The value is shown by the stamp.
[3] Otherwise, foreign coin would become an article of commerce, and it
would be more difficult to regulate the value of domestic coin.
[4] This power congress has never exercised. But see Johnson's Cyclopedia,
article Gallon.
_Clause 6.--Punishment of Counterfeiting._
_To provide for the punishment of counterfeiting the securities and
current coin of the United States._
This is "an indispensable appendage" of the power granted in the preceding
clause, that of coining money.
To discourage counterfeiting, the "securities" are engraved with rare
skill and upon peculiar paper. The penalties for counterfeiting are
printed on the back of some of the "greenbacks."
Under "securities" are included bonds, coupons, national currency,
"greenbacks," revenue and postage stamps, and all other representatives of
value issued under any act of congress.
_Clause 7.--Postoffices._
_To establish postoffices[1] and post roads.[2]_
[1] The beneficence and usefulness of the postoffice every one can
appreciate; it ministers to the comfort of all, rich and poor.
Placing the management of the postoffices with the general government
secures greater efficiency and economy than would be possible if it were
vested in the states.
[2] Congress generally uses roads already in existence. These are
regularly selected, however, and declared to be post roads before they are
used as such. The "road" may be a waterway.
But under authority of this clause congress has established some post
roads. The principal highway thus established was the Cumberland road from
the Potomac to the Ohio. The Union Pacific and Central Pacific railways
were built under the authority and with the assistance of the United
States as post and military roads.
_Clause 8.--Copyrights and Patents._
_To promote the progress of science and useful arts, by securing, for
limited times, to authors and inventors, the exclusive right to their
respective writings and discoveries._
No one denies that an author or inventor is entitled to a fair reward for
what he has done. But if every one were at liberty to print the book or to
make the article invented, the due reward might not be received.
The wisdom of granting this power to the general government becomes
apparent when we consider how poorly the end might be secured if the
matter were left to the states. A person might secure a patent in one
state and be entirely unprotected in the rest.
For further information upon this subject, see pages 318-19.
_Clause 9.--United States Courts._
_To constitute tribunals inferior to the Supreme Court._
Under this provision, congress has thus far constituted the following:
1. United States Circuit Courts of Appeal, one in each of the nine
judicial circuits of the United States.
2. United States Circuit Courts, holding at least one session annually in
each state.
3. United States District Courts, from one to three in each state. See
pages 307-9.
4. A United States Court of Claims, to hear claims against the government.
Such claims were formerly examined by congress.
Although not strictly United States Courts, the following may also be
mentioned here, because they were established under authority of this
clause:
1. The Supreme Court of the District of Columbia.
2. A Supreme Court and District Courts in each territory.
"Constituting" these courts involves establishing them, designating the
number, appointment, and salaries of the judges, and the powers of each
court. The term of United States judges is "during good behavior." This is
fixed by the constitution (Art. III., section 1). The term of a
territorial judge is four years.
_Clause 10.--Crimes at Sea._
_To define and punish piracies[1] and felonies[2] committed on the high
seas[3] and offenses against the law of nations.[4]_
[1] Piracy is robbery at sea, performed not by an individual but by a
ship's crew. Pirates are outlaws, and may be put to death by any nation
capturing them.
[2] A felony is any crime punishable by death or state prison. Felony
covers murder, arson, larceny, burglary, etc. But congress may define
piracy and felony to cover more or fewer crimes.
[3] The "high seas" are the waters of the ocean beyond low water mark. Low
water mark is the limit of jurisdiction of a state, but the jurisdiction
of the United States extends three miles further into the ocean, and
includes all bays and gulfs.
Beyond the three-mile limit, the ocean is "common ground," belonging not
to one nation but to all. Each nation has jurisdiction, however, over its
merchant ships on the high seas, but not in a foreign port, and over its
war ships everywhere.
[4] For an outline of the Law of Nations, see page 346.
Cases arising under this clause have been placed in the jurisdiction of
the United States District Courts.
_Clause 11.--Declaration of War._
_To declare war,[1] grant letters of marque and reprisal[2] and make rules
concerning captures on land and water.[3]_
[1]: A declaration of war is a solemn notice to the world that hostilities
actually exist or are about to commence.
The power to declare war is one of the attributes of sovereignty. If this
power were in the hands of the several states, any one of them could at
any time involve the whole country in the calamities of war, against the
wishes of all the other states. With all their fear of the general
government, shown in the character of the articles of confederation, the
people in framing that instrument saw the necessity of vesting this power
in the general government.
In monarchies, the power to declare war is generally vested in the
executive. But in a republic, it would be dangerous to the interests and
even the liberties of the people, to entrust this power to the president.
To put the thought in other words, the power to declare war belongs to the
sovereign: in this country, the people are sovereign, therefore the power
to declare war belongs to the people, and they act through their
representative body, congress. (See pages 351-4.)
[2] These are commissions granted to private persons usually in time of
war, authorizing the bearer to pass beyond the boundaries of his own
country for the purpose of seizing the property of an enemy.
Sometimes such a letter is granted in times of peace, "to redress a
grievance to a private citizen, which the offending nation refuses to
redress." By authority of such a commission, the injured individual may
seize property to the value of his injury from the subjects of the nation
so refusing. But this practice is properly becoming rare.
[3] Vessels acting under letters of marque and reprisal are called
_privateers_, and the captured vessels are called _prizes_.
Prizes are usually sold under authority of the United States District
Court, and the proceeds divided among the crew of the ship making the
capture.
The proceeds of captures on land belong to the government.
_Clause 12.--Maintenance of Armies._
To raise and support armies;[1] but no appropriation of money to that use
shall be for a longer term than two years.[2]_
[1] This is another sovereign power, and would seem the necessary
accompaniment of the power to declare war. Under the confederation,
however, congress could only designate the quota of men which each state
ought to raise, and the actual enlistment of men was done by the several
states. Their experience in carrying on the Revolutionary War on that
basis satisfied them that efficiency and economy would both be secured by
vesting this power in the general government.
[2] But to prevent misuse of the power, this proviso was inserted. As
representatives are elected every two years, the people can promptly check
any attempt to maintain an unnecessarily large army in times of peace.
A standing army is dangerous to liberty, because it is commanded by the
executive, to whom it yields unquestioning obedience. Armies obey
_commands_, while citizens comply with _laws_. And thus a large standing
army creates a _caste_, out of sympathy with the lives of citizens. More
than one republic has been overthrown by a successful military leader,
supported by a devoted army.
As a matter of fact, congress makes the appropriation annually.
_Clause 13.--The Navy._
_To provide and maintain a navy._
The navy is necessary to protect fisheries and commerce. And in times of
war the navy is needed to protect our sea coast, to transport soldiers, to
cripple the enemy's resources, and to render blockades effectual.
It will be noticed that there is no limitation upon appropriations for the
navy. This is for two general reasons: First, there is nothing to fear
from a navy. "No nation was ever deprived of its liberty by its navy."
Second, it takes time to provide a navy, and it should therefore be kept
at all times in a state of efficiency.
For further information about the army and navy, see page 309.
_Clause 14.--Army and Navy Regulations._
_To make rules for the government and regulation of the land and naval
forces._
This is an incident to the preceding powers.
The army and navy regulations prescribe duties of officers, soldiers and
seamen, and provide for the organization and management of courts martial.
Disobedience to orders and insubordination are crimes in a soldier or
sailor; and refusal to pay just debts or any other conduct "unbecoming to
a gentleman," are punishable offenses in an officer. Thus it is seen that
military law takes cognizance of offenses not usually noticed by civil
law.
_Clause 15.--The Militia._
_To provide for calling forth the militia[1] to execute the laws of the
Union, suppress insurrections and repel invasions.[2]_
[1] Congress has declared the militia to be "all citizens and those who
have declared their intention to become such, between the ages of eighteen
and forty-five." These constitute what is called the unorganized militia.
The military companies and regiments formed by authority of United States
and state laws constitute the organized militia.
One of two policies we must pursue, either to maintain a large standing
army or to depend upon the citizen-soldiers to meet emergencies. For
several reasons, we prefer the latter. That our citizen-soldier may be
depended upon has been demonstrated on many a battlefield.
[2] The clause specifies the purposes for which the militia may be called
out. These are three in number. Each state may for similar purposes call
forth its own militia.
Under the laws of congress, the president is authorized in certain
emergencies to issue the call. This he directs to the governors of states,
and those called on are bound to furnish the troops required.
On three occasions only have the militia been called out under this clause:
In the Whisky Rebellion of 1794, to enforce the laws; in the war of 1812,
to repel invasion; and in the Civil War, to suppress insurrection.
_Clause 16.--Organization of the Militia._
_To provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the
United States,[1] reserving to the states respectively, the appointment of
the officers, and the authority of training the militia according to the
discipline prescribed by congress.[2]_
[1] Thus only can the uniformity so essential to efficiency be secured.
[2] This is designed as a proper recognition of the right of each state to
have militia companies and to control them, subject only to the necessary
limitation mentioned.
The militia of a state consists of one or more regiments, with the proper
regimental and company officers appointed by state authority. When these
are mustered into the service of the United States and are formed into
brigades and divisions, the appointment of the general officers is vested
in the president.
_Clause 17.--Exclusive Legislation._
_To exercise exclusive legislation in all cases whatsoever, over such
district (not exceeding ten miles square) as may, by the cession of
particular states, and the acceptance of congress, become the seat of
government of the United States,[1] and to exercise like authority over
all places purchased by the consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals,
dock yards, and other needful buildings.[2]_
[1] This refers to the territory afterwards selected, and now known as the
District of Columbia.
The purpose of this provision is to free the general government from
having to depend upon the protection of any state, and to enable it to
secure the public buildings and archives from injury and itself from
insult. [Footnote: The Continental Congress, while the capital was at
Philadelphia, had to adjourn to Princeton to escape the violence of some
dissatisfied soldiers. See Fiske's Critical Period of American History,
page 112.]
Congress governed the District of Columbia directly until 1871, when for
three years the experiment was tried of governing it as a territory. The
territorial government in that time ran in debt over $20,000,000 for
"public improvements," and congress abolished it.
The supervision of the district is now in the hands of three
commissioners, appointed by the president, but controlled by congressional
legislation.
[2] The propriety of the general government having exclusive authority
over such places is too obvious to need comment. Crimes committed there
are tried in the United States District Courts, but according to the laws
of the state or territory.
The state in making the cession usually reserves the right to serve civil
and criminal writs upon persons found within the ceded territory, in order
that such places may not become asylums for fugitives from justice.
_Clause 18.--Implied Powers._
_To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
constitution in the government of the United States, or in any department
or officer thereof._
This clause does not grant any new power. "It is merely a declaration, to
remove all uncertainty, that every power is to be so interpreted, as to
include suitable means to carry it into execution." [Footnote: Story.]
It will be noticed that the powers of congress are enumerated, not
defined, in the constitution; and the above clause has given rise to the
doctrine of "implied powers," the basis of many political controversies.
Following are samples of "implied powers:"
By clause 2, congress has power "to borrow money on the credit of the
United States." Implied in this, is the power to issue securities or
evidences of debt, such as treasury notes. "To increase the credit of the
United States, congress may make such evidences of debt a legal tender for
debts, public and private." [Footnote: Lalor's Cylopedia of Political
Science.]
Congress has power (clause 11) "to declare war." By implication it has
power to prosecute the war "by all the legitimate methods known to
international law." To that end, it may confiscate the property of public
enemies, foreign or domestic; it may confiscate, therefore, their slaves.
(See Emancipation Proclamation, page 362. For a hint of what congress
_might_ do, see Among the Lawmakers, p. 296.)
_Pertinent Questions._
1. In what two ways may the first part of the first clause be interpreted?
In what ways does the government levy taxes? How much of the money paid to
the local treasurer goes to the United States? Have you ever paid a U.S.
tax? Did you ever buy a pound of nails? Do you remember the "stamps" that
used to be on match boxes? How came they there? Was that a direct or an
indirect tax? A man who pays for a glass of beer or whisky pays a U.S.
tax. How? Every time a person buys a cigar he pays a U.S. tax. If there be
a cigar factory within reach, talk with the proprietor about this matter.
Look at a cigar box and a beer keg to find some evidence of the tax paid.
Name some things which were taxed a few years ago but are not now. What is
a custom house? A port of entry? What are they for? Name the port of entry
nearest to you. What is the present income of the United States from all
kinds of taxation? What is done with the money? Look up the derivation of
the word _tariff_.
2. _How_ does the government "borrow?" Does the government owe you any
money? If you have a "greenback," read its face. If the government is
unable or unwilling to pay a creditor, what can he do? What is the
"credit" of the United States? How much does the United States government
owe, and in what form is the debt? How came it to be so large? Is the
government paying it up? How much has been paid this fiscal year? What
rate of interest has the government to pay? What is the current rate for
private borrowers? How is it that the government can borrow at so low a
rate? What is a "bond-call," and how is it made?
3. Has congress power to _prohibit_ commerce with one or more foreign
nations? Has it power to regulate commerce carried on wholly within a
state? Can you buy lands from the Indians? Can the state? Has congress
imposed a tariff to be paid in going from one state to another? What has
requiring the engineer of a steamboat to secure a government license to do
with "regulating commerce?" When did congress under this clause prohibit
American merchant ships from leaving port? Under what provision of the
constitution does congress impose restrictions upon the railroads? Does
congress exercise any control over railroads lying wholly within one
state? Why?
4. How can an alien become naturalized? Who are citizens of the United
States? (See Amend. XIV.) Is a child of American parents, born during a
temporary absence from this country, a citizen or an alien? An alien
living in this country has children born here; are they citizens or
aliens? A child is born on the ocean, while its parents are on the way
here to found a new home and intending to become citizens; what is the
status of the child? Are you a citizen? How may female aliens become
citizens? Why should they desire to do so? How did citizens of Texas at
the time of its admission become citizens of the United States?
What is an insolvent law? Has this state such a law? Can this state pass a
bankrupt law? Can any state? Why? Is there any United States bankrupt law?
Has congress ever passed such a law?
5. What is money? Is a bank bill money? Read one and see whether it
pretends to be. What gold coins have you ever seen? What others have you
heard of? What silver coins have you ever seen? What others have you heard
of? What other coins have you seen or heard of? How are coins made? Where
is the United States mint located? Where are the branch mints? How much
value does the stamp of the government add to a piece of gold? Is there a
dollar's worth of silver in a silver dollar? Why? (See Jevons' Money and
the Mechanism of Exchange.)
How are national banks organized? (See appendix.) Under what
constitutional provision does congress exercise this power? Are any banks
organized under state authority? What is meant by "legal tender?"
Are foreign coins "legal tender" at the rate fixed by congress? For the
value of the principal foreign coins, see appendix. Can congress punish
counterfeiting of these coins?
Is there a standard pound in this state? A standard bushel?
6. Look on the back of a greenback for the law about counterfeiting. Is
there any law against _passing_ counterfeits?
7. When was our postoffice department established? Who was placed at the
head of it? Who is the postmaster general? What is meant by "presidential
offices" in speaking of postoffices? What are the present rates of postage
in the United States? How much does it cost to send a letter to England?
To Prussia? To Australia? When were postage stamps introduced? Stamped
envelopes? Postal cards? In what four ways may money be sent by mail?
Explain the workings and advantages of each method. What is the dead
letter office?
What is meant by the franking privilege? Find the rates of postage in the
United States, in 1795, 1815, 1845, 1850, 1860. Does the power to
establish post roads, authorize congress to make internal improvements?
What is meant by "star route?"
8. Is this book copyrighted? Name some book that is not copyrighted. What
things besides books are copyrighted? Can a copyright be sold? How is a
copyright secured? How long do copyrights continue in force? How may they
be renewed? Must new editions be copyrighted?
What is a patent? How are "letters patent" secured? How may an inventor
secure time to perfect his invention? How can a patent be sold? May a
person, not the patentee, make a patented article for his own use? Name
ten important patented inventions. What is the purpose of the government
in granting patents? Is this always secured? How does the expiration of a
patent affect the price of an invention? If a person invents an article
which proves helpful to millions of people, is it unfair that he should
make a fortune out of it?
9. By what authority does congress organize courts in the territories?
Could congress establish more than _one_ Supreme Court? Name the United
States District Judge for this state. The United States Attorney. The
United States Marshal. If you had a claim against the United States how
would you get your money?
10. Who may punish a pirate? Can a pirate claim the protection of the
American flag?
11. Has the United States ever formally declared war? May war begin
without a formal declaration? Does the president act with congress in
declaring war, as in case of a law?
What protection is afforded by letters of marque and reprisal? Name some
well known privateers. Tell about the "Alabama Claims," and their
settlement. Upon what principle of international law did the decision
hinge? See page 353.
12. With what other power is that of _raising an army_ intimately
connected? That of maintaining an army? How large is the United States
army at the present time? Give arguments in favor of the _militia_ system,
as against that of a large standing army. What circumstances favor us in
adopting the militia system? What country in Europe is most like us in
this respect? Why is this possible in that country? Where are most of the
officers of the U.S. army educated? How are appointments to the
institution made? By what authority has congress established it? What is a
military "draft?"
Who has charge of this department of the government? Name the four highest
officers in the U. S. army. For the organization of the army, see page
309.
13. Name the present secretary of the navy; the two highest naval
officers. Where are most of the naval officers educated? How does the navy
of the United States compare with the navies of other great powers? Why?
For organization of navy, see appendix.
14. What is the difference between military law and martial law? How are
these "rules" made known? What is the source of authority in a military
court? In a civil court? Is there any liability of a conflict of
jurisdiction between these courts? When was flogging abolished in the
army? In the navy? What punishments are inflicted by courts martial?
15. Distinguish between the militia and the regular army. Between militia
and "volunteers."
16. How many regiments of organized militia in this state? Name the
principal regimental officers. By whose authority were these appointed? Is
there any "company" near you? Have you seen them drilling? Who prescribed
the "tactics?"
17. Over what portions of this state has congress this "exclusive
jurisdiction?" Give a brief sketch of the District of Columbia. When and
by whom was slavery abolished therein?
18. Why should this be spoken of as "the sweeping clause?"
_Debate._
Resolved, That free trade should be the ultimate policy for any country.
_References._
PROTECTION.--Articles in Cyclopedias; Casey's Social Science, McKean's
Abridgment; Greeley's Political Economy; Byle's Sophisms of Free Trade;
Elder's Questions of the Day; Bowen's Political Economy.
FREE TRADE.--Articles in Cyclopedias; Grosvenor's Does Protection Protect?
Sumner's History of Protection in U.S.; Fawcett's Free Trade and
Protection; David A. Wells' Essays; Pamphlets published by the Free Trade
Club, N.Y.
A very fair statement of both views may be found in Macvane's Political
Economy.
SECTION IX.--PROHIBITIONS ON CONGRESS.
_Clause 1.--The Slave Trade._
_The migration or importation of such persons[1] as any of the states now
existing shall think proper to admit, shall not be prohibited by congress
prior to the year one thousand eight hundred and eight, but a tax or duty
may he imposed on such importation,[2] not exceeding ten dollars for each
person.[1]_
[1] The framers of the constitution disliked to tarnish the instrument by
using the word slave, and adopted this euphemism.
At that time there was a general desire, not ripened into a purpose
however, that slavery might soon cease to exist in the United States.
This clause, which permitted the continuance for a time of the slave
_trade_, was a concession to North Carolina, South Carolina and Georgia.
The other states had already prohibited the slave trade, and it was hoped
by all that before the time specified the abolition of slavery would be
gradually accomplished.
[2] No such tax was imposed.
This provision is now obsolete, and is of interest only historically. (For
further discussion of slavery, see page 343.)
_Clause 2.--The Writ of Habeas Corpus._
_The privileges of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may
require it._
"It has been judicially decided that the right to suspend the privilege of
the writ rests in congress, but that congress may by act give the power to
the president." [Footnote: Lalor's Cyclopedia of Political Economy]
The privilege of the writ never was suspended by the general government
until 1861. Questionable suspensions of the writ, covering a very limited
territory, had been made in two or three instances by generals.
So valuable as a "bulwark of liberty" is this writ considered to be, that
the courts of the United States have decided that, even in time of war,
the privilege of the writ can be suspended only in that part of the
country actually invaded, or in such a state of war as to obstruct the
action of the federal courts.
_Clause 3.--Certain Laws Forbidden._
_No bill of attainder[1] or ex post facto law[2] shall be passed._
[1] A bill of attainder was a legislative conviction for alleged crime,
with judgment of death. Those legislative convictions which imposed
punishments less than that of death were called bills of pains and
penalties. [Footnote: Cooley's Constitutional Limitations] The term is
here used in its generic sense, so as to include bills of pains and
penalties.
The great objection to _bills_ of attainder is that they are purely
_judicial_ acts performed by a _legislative_ body. A legislative body may
and should try a _political_ offense, and render a verdict as to the
worthiness of the accused to hold public office. But to try him when
conviction would deprive him of any of his personal rights--life, liberty,
or property,--should be the work of a duly organized _judicial_ body.
This provision, then is directed not so much against the penalty (for
limitations upon penalties are found elsewhere in the constitution,) as
against the mode of trial. Or we may say that it is intended to prevent
conviction _without_ a trial; for in previous times legislative bodies had
frequently punished political enemies without even the form of a trial, or
without giving them an opportunity to be heard in their own defense, by
passing against them bills of attainder.
[2] An _ex post facto_ law is, literally, one which acts back upon a deed
previously performed. But as here intended, it means a law making _worse_
such an act, either by declaring criminal that which was not so regarded
in law when committed, or by increasing the penalty and applying it to the
act previously performed.
But a law may be passed making _better_, in a sense, some previous act.
That is, an unforseen but imperative necessity may call for the doing of
something which is not unlawful, but which needs, yet has not received,
the sanction of law. This act may _afterwards_ be _legalized_ by the
legislature.
The things forbidden by this clause would, if permitted, render unsafe all
those personal rights for the security of which the constitution was
framed and the government founded.
_Clause 4.--Direct Taxes_
_No capitation or other direct tax shall be laid, unless in proportion to
the census or enumeration hereinbefore directed to be taken._
This clause emphasizes the first sentence of clause three, section two, of
this article. It was _intended_ to prevent the taxation of the _two-fifths
of the slaves_ not enumerated for representation, and was evidently
inserted as a concession to the slave states. But the abolition of slavery
takes from the clause all force except that mentioned at the beginning of
this paragraph.
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.
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