Studies in Civics
by
James T. McCleary
Part 4 out of 8
_Clause 8.--Titles of Nobility._
No title of nobility shall be granted by the United States;[1] and no
person holding an office of profit or trust under them, shall, without the
consent of the congress, accept of any present, emolument, office, or
title of any kind whatever, from any king, prince, or foreign state[2]_.
[1] This is in harmony with the principle "All men are created equal."
And, while in society there are classes and grades based upon learning,
wealth, etc., we intend that all shall be equal before the law, that there
shall be no "privileged classes."
[2] The purpose of this is evident--to free public officers from
blandishments, which are many times the precursors of temptations to
treason.
An amendment to the constitution was proposed in 1811, prohibiting any
citizen from receiving any kind of office or present from a foreign power,
but it was not ratified.
SECTION X.--PROHIBITIONS ON THE STATES.
_Clause 1.--Unconditional Prohibitions._
_No state shall enter into any treaty, alliance, or confederation;[1]
grant letters of marque and reprisal;[2] coin money;[3] emit bills of
credit;[4] make anything but gold and silver coin a tender in payment of
debts;[5] pass any bill of attainder,[6] ex post facto law,[6] or law
impairing the obligation of contracts,[7] or grant any title of
nobility.[6]_
[1] Otherwise the intrigues of foreign nations would soon break up the
Union.
[2] Had the states this power, it would be possible for any one of them to
involve the whole country in war.
[3] This provision secures the uniformity and reliability of our coinage.
[4] A state may borrow money and may issue bonds for the purpose. But
these bonds are not bills of credit, because they are not designed to
circulate as money.
The evils of state issuance of bills of credit we cannot appreciate, but
the framers of the constitution had experienced them, and based this
provision on that bitter experience.
[5] This has the same general purpose as the preceding.
It will be observed that there is no such prohibition on the United
States, and the implied power to emit bills of credit and to make things
other than gold and silver legal tender, has been exercised.
[6] Forbidden to the states for the same reason that they are forbidden to
the United States.
[7] The purpose is to preserve the legal obligation of contracts. "The
spirit of the provision is this: A contract which is legally binding upon
the parties at the time and place it is entered into by them, shall remain
so, any law of the states to the contrary notwithstanding." [Footnote:
Tiffany quoted by Andrews.]
Under this provision many questions have arisen. One of them is this: May
a state pass insolvent or bankrupt laws? It has been decided by the United
States Supreme Court that a state may pass insolvent laws upon _future_
contracts, but not upon _past_ contracts. But no state can pass a bankrupt
law.
_Clause 2.--Conditional Prohibitions._
No state shall, without the consent of the congress,[1] lay any imposts or
duties on imports or exports, except what may be absolutely necessary for
executing its inspection laws;[2] and the net produce of all duties and
imposts, laid by any state on imports or exports, shall be for the use of
the treasury of the United States;[3] and all such laws shall be subject
to the revision of the congress.[4] No state shall, without the consent of
congress, lay any duty of tonnage,[5] keep troops or ships of war in time
of peace,[6] enter into any agreement or compact with another state,[7] or
with a foreign power,[7] or engage in war, unless actually invaded, or in
such imminent danger as not to admit of delay.[8]_
[1] By implication, congress may give the states permission to do the
things enumerated in this paragraph. But it never has.
[2] The inspection laws are designed to secure to consumers quality and
quantity in commodities purchased. Thus, in some states there is a dairy
commissioner whose duty it is to see that no substance is offered for sale
as butter which is not butter. And officers may be appointed to inspect
the weights and measures in stores. Such officers may be provided for
without the consent of congress. But no fees can be charged for this
service more than are necessary to pay the officers. In other words, the
offices cannot be made a source of revenue to the state.
[3] This is to free the states from any temptation to use the power which
might be conferred under this clause for their own gain, to the detriment
of a sister state.
[4] This secures to congress the control of the matter.
[5] That is, a tax upon the carrying power of a ship. This is in harmony
with the provision which forbids the states to levy duties on imports.
[6] This prohibits the keeping of a standing army, but each state may have
its organized militia.
[7] In the preceding clause, the states are forbidden to enter into
treaties, etc.,--that is, into _political_ compacts; and the prohibition
is absolute. Here they are prohibited from entering into _business_
compacts, unless permitted by congress.
[8] For a state to engage in war would be to embroil the country in war.
But the militia might be sent to repel invasion. They would, however, be
defending not the state simply, but also the United States.
"We have thus passed through the positive prohibitions introduced upon the
powers of the states. It will be observed that they divide themselves into
two classes: those which are political in their character, as an exercise
of sovereignty, and those which more especially regard the private rights
of individuals. In the latter the prohibition is absolute and universal.
In the former it is sometimes absolute and sometimes subjected to the
consent of congress. It will at once be perceived how full of difficulty
and delicacy the task was, to reconcile the jealous tenacity of the states
over their own sovereignty, with the permanent security of the national
government, and the inviolability of private rights. The task has been
accomplished with eminent success." [Footnote: Story.]
_Pertinent Questions._
When was slavery introduced into the United States? Give an account of the
steps taken to abolish it.
What is the use of the writ of habeas corpus? If a sane person were
confined in an asylum, how could he be got out? Could a person who had
taken religious vows imposing seclusion from the world, be released by
means of this writ? Show the necessity of power to suspend the writ in
cases of rebellion or invasion.
Could the thing forbidden in a _bill_ of attainder be done by a court?
Give an example of an _ex post facto_ law.
What is meant by "entering" and "clearing" a port?
How could the president get hold of any United States money other than
that received in payment of his salary?
Could you receive a present from a foreign government? Name any American
who has received a title or a present from a foreign government. Must a
titled foreigner renounce his title on becoming an American citizen?
What are "greenbacks?" Did you ever see a state "greenback?" When do you
expect to see one?
What is a contract? Could a legislature pass a law doing away with
imprisonment for debt? What argument did Daniel Webster make in the famous
Dartmouth College Case?
Name the various state inspectors in this state. How are they paid? May a
state impose taxes to defray its own expenses? What prohibitions apply to
both the general and the state governments. Arrange all the prohibitions
in tabular form, classifying as indicated by Judge Story in the paragraph
quoted.
CHAPTER XXIII.
ARTICLE II.--THE EXECUTIVE BRANCH.
It seems to us a matter of course that after the laws are made there
should be some person or persons whose duty it should be to carry them
into execution. But it will be remembered that under the confederation
there was no executive department. The colonists had suffered from kingly
rule, and in forming their first government after independence, they
naturally avoided anything having the appearance of kingliness. After
trying their experiment for some years, however, their "sober second
sense" told them that the executive branch is a necessity, and when the
convention assembled to "revise the articles of confederation" (as they at
first intended to do) one of the things upon which there was practical
unanimity of opinion was the necessity of having the government organized
into three branches, or, as they are sometimes called, departments.
The question in regard to the executive branch was how to organize it, so
as to secure two chief qualities; namely, energy of execution and safety
to the people. The former was fully appreciated, for the weakness of
execution during the confederation period, or the lack of execution, had
impressed upon all thinking persons the necessity of more vigor in
carrying out the laws. The experience during colonial days emphasized the
necessity of surrounding the office with proper safeguards. And among
those intrusted with the organization of a scheme of government, were many
who were well versed in history--men who knew that the executive branch is
the one in which lies the menace to human liberty. Under these two main
divisions of the problem, arose such questions as: How many persons shall
constitute the executive? What shall the term be? How shall the executive
be chosen? What powers, other than those which are purely executive, shall
be vested in this branch? How shall this branch be held responsible,
without crippling its efficiency?
How well the problem was solved, we shall find out in our study of the
provisions of the constitution pertaining to this branch.
SECTION I.--ELECTION AND SERVICE.
_Clause 1.--Vestment of Power._
_The executive power shall be vested in a president of the United States
of America.[1] He shall hold his office during the term of four years,[2]
and together with the vice-president,[3] chosen for the same term, shall
be elected as follows:_
[1] This sentence answers the question, "How many persons shall constitute
the executive?" and gives the official title thereof.
The executive authority is vested in one person for two chief reasons: To
secure energy in execution, and to impose upon the executive a sense of
responsibility. If the executive power were vested in a number of persons,
the differences and jealousies sure to arise, and the absence of
responsibility, would result in a feeble administration, which is but
another name for a bad administration.
[2] The term first reported by the committee of the whole was seven years,
with the provision forbidding re-election. Some of the delegates were in
favor of annual elections, while others thought that the executive should
be elected for life or good behavior. And other terms, varying from two to
ten years, had their advocates. After much discussion, the term of four
years was agreed upon as a compromise, and no limitation was put upon the
number of terms for which a person might be elected.
In another place it is made the duty of the president to recommended to
congress such measures as he deems necessary for the good of the country.
He should, therefore, have a term long enough to fairly test his "policy"
and to stimulate him to personal firmness in the execution of his duties,
yet not so long as to free him from a sense of responsibility. It was
thought that a term of four years would cover both of the conditions
mentioned.
[3] The purpose of having a vice-president is to provide a successor for
the president in case of his disability or death.
CHOOSING THE PRESIDENT AND VICE-PRESIDENT.
_Clause 2.--Number and Appointment of Electors._
_Each state shall appoint, in such manner as the legislature thereof may
direct, a number of electors equal to the whole number of senators and
representatives to which the state may be entitled in the congress; but no
senator or representative, or person holding an office of trust or profit
under the United States, shall be appointed an elector._
Three plans for the election of president and vice-president were proposed:
First, election by congress; second, election by the people; third,
election by persons chosen by the people for that special purpose.
The objection to the first plan was, that it would rob the executive
branch of that independence which in our plan of government it is designed
to possess--it would render the executive branch in a measure subordinate
to the legislative.
The objections to the second plan came from two sources. Some of the
delegates feared that, inexperienced as they were, the people could not be
trusted to act wisely in the choice of a president--that they would be
swayed by partizan feeling, instead of acting with cool deliberation. And
the small states feared that in a popular election their power would count
for little.
Then the compromise in the organization of the congress was remembered,
and it was resolved that the election of the president and vice-president
should be placed in the hands of persons chosen for that special purpose,
and that the number of the electors from each state should be that of its
representation in congress. This satisfied both parties. Those who thought
that the people could not be intrusted with so important a matter as the
choice of the president, hoped that this mode would place the election in
the hands of the wise men of the several states. And the delegates from
the small states secured in this all the concession which they could
fairly ask.
This matter being settled, the next question was: How shall the electors
be chosen? There being much difference of opinion on the subject, it was
thought best to let each state choose its electors in the way which it
might prefer.
Naturally the modes of choosing electors varied. In some states the
legislature chose them, but this mode soon became unpopular. [Footnote:
South Carolina, however, retained this mode until very recently.] In some
states they were chosen by the people on a general ticket, and in others,
by the people by congressional districts. The last is the fairest way,
because it most nearly represents the wishes of the people. By electing on
a general ticket, the party which is in the majority in any state can
elect _all_ of the electors. But, for this very reason, the majority in
each state has finally arranged the matter so that this is now the
practice in nearly all the states.
The present system of nominations and pledged electors was undreamed of by
the framers of the constitution. They intended that in the selection of
the president each elector should be free to vote according to his own
best judgment. But it has come to pass that the electors simply register a
verdict already rendered. Briefly the history of the change is this:
During the administration of Washington (who had been elected unanimously)
differences of opinion on questions of policy gave rise to political
parties. To secure the unity of action so essential to success, the
leaders of the respective parties, by agreement among themselves,
designated, as each election approached, persons whom they recommended for
support by electors of their party. Gradually the recommendation came to
be looked upon as binding. In 1828 the Anti-Masonic party, having no
members of congress to act as leaders, held a "people's convention." Its
nominees received a surprisingly large vote. The popularity of this mode
of nomination thus appearing, the other parties gradually adopted it, and
since 1840 it has remained a recognized part of our political machinery.
_Clause 3.--Election of President and Vice-President._
_The electors shall meet in their respective states, and vote by ballot
for two persons, of whom one at least shall not be an inhabitant of the
same state with themselves. And they shall make a list of all the persons
voted for, and the number of votes for each; which list they shall sign
and certify, and transmit, sealed, to the seat of the government of the
United States, directed to the president of the senate. The president of
the senate shall, in the presence of the senate and house of
representatives, open all the certificates, and the votes shall then be
counted. The person having the greatest number of votes shall be
president, if such number be a majority of the whole number of electors
appointed; and if there be more than one who have such a majority, and
have an equal number of votes, then the house of representatives shall
immediately choose by ballot one of them president, and if no person have
a majority, then from the five highest on the list the said house shall in
like manner choose the president. But in choosing the president, the vote
shall be taken by states, the representation from each state having one
vote; a quorum for this purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the states shall be
necessary to a choice. In every case, after the choice of the president,
the person having the greatest number of votes of the electors, shall be
vice-president. But if there should remain two or more who have equal
votes, the senate shall choose from them by ballot the vice-president._
Under this provision Washington was elected president twice and Adams
once. In the disputed election of 1800, it was found that this mode would
not do. The faulty feature in the plan is found in the first sentence,
which requires the electors to vote for two persons for president. In this
election, Jefferson and Burr, candidates of the same party, received the
same number of votes and each had a majority. The power to choose then
devolved upon the house of representatives. There were at that time
sixteen states, and consequently sixteen votes. Of these Jefferson
received eight, Burr six, and the remaining two were "scattering." As it
required nine votes to make a majority, no one was elected. The balloting
was continued for seven days, thirty-six ballots being taken. On the
thirty-sixth ballot Jefferson received ten votes to four for Burr.
Jefferson thus became president and Burr vice-president. But the
consequent bitterness of feeling was much regretted, and it was determined
to change, slightly, the mode of election. The changes consisted in having
the electors vote for one person for president and for a different person
for vice-president; and when the election is thrown into the house of
representatives, the selection is to be made from the _three_ highest
instead of the _five_ highest as originally. The change was made by the
twelfth amendment, passed in 1804, which is here given in full.
_The Twelfth Amendment._
_The electors shall meet in their respective states and vote by ballot for
president and vice-president, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as president, and in distinct ballots the
person voted for as vice-president, and they shall make distinct lists of
all persons voted for as president, and of all persons voted for as
vice-president, and of the number of votes for each; which lists they
shall sign and certify, and transmit sealed to the seat of government of
the United States, directed to the president of the senate. The president
of the senate shall, in the presence of the senate and house of
representatives, open all the certificates, and the votes shall then be
counted; the person having the greatest number of votes for president
shall be president, if such number be a majority of the whole number of
electors appointed; and if no person have such majority, then from the
persons having the highest numbers not exceeding three on the list of
those voted for as president, the house of representatives shall choose
immediately by ballot, the president. But in choosing the president, the
votes shall be taken by states, the representation from each state having
one vote; a quorum for this purpose shall consist of a member or members
from two-thirds of the states, and a majority of all the states shall be
necessary to a choice. And if the house of representatives shall not
choose a president whenever the right of choice shall devolve upon them,
before the fourth day of March, next following, then the vice-president
shall act as president, as in the case of the death or other
constitutional disability of the president._
_The person having the greatest number of votes as vice-president, shall
be the vice-president, if such number be a majority of the whole number of
electors appointed, and if no person have a majority, then from the two
highest numbers on the list the senate shall choose the vice-president; a
quorum for the purpose shall consist of two-thirds of the whole number of
senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to office of president
shall be eligible to that of vice-president of the United States._
Thus we see that the president may be elected in one of two ways--by
electors or by the house of representatives; and that the vice-president
may also be elected in one of two ways--by electors or by the senate.
The mode of choosing the president is regarded by many as difficult to
remember. Perhaps making an outline like the following will aid the memory:
_First Mode or Process._
I. The electors, after they are chosen:
1. MEET in their respective states.
2. VOTE by ballot, for president and vice-president.
3. MAKE LISTS of the persons voted for and the number
of votes for each.
4. SIGN, CERTIFY and SEAL those lists.
5. TRANSMIT them to the seat of government, addressed
to the president of the senate.
II. The president of the senate:
1. OPENS the certificates, in presence of both houses.
2. DECLARES THE RESULT, after the votes have been
counted.
_Second Mode or Process._
Points-- President-- Vice-President--
Chosen by.......... House of Representatives The Senate.
From............... Three highest. Two highest.
Voting............. By ballot. By ballot.
State power........ Each one vote. Each two votes.
Quorum............. Representatives from Two-thirds of senators.
two-thirds of the states.
Necessary to choice Majority of states. Majority of senators
The place of meeting is usually the capital of the state.
Three "lists" of the vote for president and three for vice-president are
prepared, and "signed, certified and sealed." One pair of these lists is
sent by mail and another by special messenger. The third is deposited with
the judge of the United States District Court in whose district the
electors meet, to be called for if necessary. The purpose of these
precautions is to make sure that the vote of the state may not be lost,
but shall without fail reach the president of the senate.
_Clause 4.--Times of These Elections._
_The congress may determine the time of choosing the electors,[1] and the
day on which they shall give their votes;[2] which day shall be the same
throughout the United States.[3]_
[1] The day designated by congress is the first Tuesday after the first
Monday in November. The election always comes in "leap year."
[2] The electors meet and vote on the second Monday in January.
[3] This provision was designed, first, to prevent fraud in voting; and
second to leave each state free to act as it thought best in the matter of
persons for the offices, unbiased by the probability of success or failure
which would be shown if the elections occurred on different days in
different states.
It may be desirable to know in this connection that:
The president of the senate sends for missing votes, if there be any, on
the fourth Monday in January.
The counting of votes is begun on the second Wednesday in February and
continued until the count is finished. (See page 334.)
In case the electors have not given any one a majority for the presidency,
the house proceeds at once to elect. In a similar case the senate proceeds
at once to choose a vice-president.
The provisions of the continental congress for the first election were:
1. Electors to be chosen, first Wednesday in January, 1789.
2. Electors to vote, first Wednesday in February.
3. The presidential term to commence first Wednesday in March. The first
Wednesday in March in 1789 was the fourth day of the month, and on that
day the presidential terms have continued to begin.
_Clause 5.--Qualifications of President and Vice-President.
No person except a natural born citizen,[1] or a citizen of the United
States at the time of the adoption of this constitution,[2] shall be
eligible to the office of president; neither shall any person be eligible
to that office, who shall not have attained to the age of thirty-five
years,[3] and been fourteen years a resident within the United States.[4]_
[1] The importance of the office is such as, in the opinion of the framers
of the constitution, to necessitate this requirement. And it does not seem
unjust to make this limitation.
[2] This exception was made from a sense of gratitude to many
distinguished persons, who, though not native citizens, had placed their
lives and fortunes at the service of this country during the revolution,
and who had already become citizens of the young republic. This provision
is now, of course, obsolete.
[3] Age should bring wisdom. The age specified is great enough to permit
the passions of youth to become moderated and the judgment matured. As a
matter of fact, the youngest president yet elected was much older than
this minimum. In monarchies the rulers are sometimes children. It cannot
be so with us.
[4] But a "natural born citizen," even, may live so long in a foreign
country as to lose his interest in his native land. This provision is
intended to preclude the election of such persons to the presidency. They
might seek it at the instance of a foreign government, for sinister
purposes.
Will residence during _any_ fourteen years satisfy the requirement?
Commentators generally have expressed an affirmative opinion, based upon
the fact that James Buchanan and others were elected president on their
return from diplomatic service abroad. It must be remembered, however,
that a person sent abroad to represent this government _does not lose his
residence in this country_. Therefore the fact of Mr. Buchanan being
elected after acting as our minister to England, has no bearing upon the
question. On the other hand, the evident purpose of the provision could
hardly be satisfied if a boy, a native of this country, should live here
until fourteen years of age and then spend the rest of his years in a
foreign country. And when the matter is carefully considered, it will be
seen that the only fourteen years which will secure that state of mind in
the candidate which is sought by the provision, are the fourteen years
_immediately preceding election_. Again, twenty-one and fourteen equal
thirty-five. A person "comes of age" at twenty-one. The fourteen years of
_manhood_ added would just make thirty-five years, the minimum age
required. This coincidence could hardly have been accidental, and
justifies the view expressed.
According to the twelfth amendment, the qualifications of the
vice-president are the same as those of the president.
_Clause 6.--Vacancies._
_In case of the removal of the president from office, or of his death,
resignation or inability to discharge the powers and duties of the said
office, the same shall devolve on the vice-president, and the congress may
by law provide for the case of removal, death, resignation or inability,
both of the president and vice-president, declaring what officer shall
then act as president, and such officer shall act accordingly, until the
disability be removed, or a president shall be elected._
If no regular succession were established, there would be danger of
anarchy.
By an act passed March 1, 1792, congress provided that in case of the
disability of both president and vice-president, the duties of the office
of president should devolve upon the president _pro tempore_ of the senate;
and in case of a vacancy in that office, that they should then devolve
upon the speaker of the house of representatives.
But when president Garfield died there was no president _pro tempore_ of
the senate and no speaker of the house; so that when vice-president Arthur
became president, there was no one to succeed him in case of his
disability. It was then expected that congress would devise another plan
of succession; but it did not. When vice-president Hendricks died, there
was again no president _pro tempore_ of the senate or speaker of the
house. This recurrence of the danger within four years prompted congress
to provide an order of succession less liable to accident than the one so
long in use. The succession was placed in the cabinet in the following
order: Secretary of state, secretary of the treasury, secretary of war,
attorney-general, postmaster-general, secretary of the navy, and secretary
of the interior.
When the vice-president or secretary becomes president, he serves for the
remainder of the term.
One very important item in this connection the constitution leaves
unprovided for, namely, who shall determine when "disability," other than
death, occurs or ceases? Certainly the decision should not be left to
those interested in the succession. No official answer to this question
has yet been given.
_Clause 7.--President's Salary._
_The president shall, at stated times, receive for his services a
compensation[1] which shall be neither increased nor diminished during the
period for which he shall have been elected,[2] and he shall not receive
within that period any other emolument from the United States or any of
them.[3]_
[1] Otherwise a person of moderate means would be debarred from accepting
the position, and the country might thereby be deprived of the services of
some man of lofty character.
[2] Thus congress can neither bribe nor drive the president into doing
anything which he may regard as unwise or wrong. And on the other hand,
the president has no temptation to try to "undermine the virtue" of
congress for his own pecuniary benefit.
[3] This provision has the same purpose in view as the last. "He is thus
secured, in a great measure, against all sinister foreign influences. And
he must be lost to all just sense of high duties of his station, if he
does not conduct himself with an exclusive devotion to the good of the
whole people, unmindful at once of the blandishments of courtiers, who
seek to deceive him, and of partizans, who aim to govern him, and thus
accomplish their own selfish purposes." [Footnote: Story]
Till 1873 the salary of the president was $25,000 a year. It was then
raised to $50,000 a year. He also has the use of the White House, which is
furnished at national expense; and special appropriations are frequently
made to cover special expenses. And yet few presidents have been able to
save anything out of their salaries.
The vice-president receives $8000 a year.
_Clause 8.--Oath of Office._
_Before he enter upon the execution of his office, he shall take the
following oath or affirmation: "I do solemnly swear (or affirm) that I
will faithfully execute the office of president of the United States, and
will to the best of my ability, preserve, protect and defend the
constitution of the United States."_
This oath is usually administered by the chief justice of the Supreme
Court. It is very simple, pledging the president to two things only; but
they are the essential things.
"Taking the oath" is a part of the inauguration ceremonies which occur,
usually, on the fourth of March.
_Pertinent Questions._
Was there any president under the confederation? Why? When does the
president's term begin? Suppose that day comes on Sunday? How does a
presidential term compare with that of senator? Of representative? The
first proposition in the constitutional convention was to make the
presidential term seven years, and limit a person to one term. Is the
present plan better or not as good? For how many terms may a person be
elected president? What presidents have been elected for a second term?
How many presidential electors is this state entitled to? New York?
Illinois? Wisconsin? Delaware? How many are there altogether? Show how the
present mode is an advantage to the small states. Who were the electors of
this state in the last presidential election? Get a "ticket" or ballot and
study it. Tear off, beginning at the top, all that you can without
affecting the vote. How could a person have voted for one of the
republican candidates without voting for the other? Where did the electors
of this state meet? When? Did you preserve the newspaper report of their
proceedings?
Could the president and vice-president be chosen from the same state? How
many electoral votes were necessary to a choice last time? How many did
each candidate receive? In case of election by the house of
representatives, what is the smallest possible number that could elect? In
case the house should fail to choose a president before the fourth of
March, who would be president? Have we ever been threatened with a case of
this kind? Which presidents have been elected by the house? Has a
vice-president ever been chosen by the senate?
Specify four differences between the old and the new way of electing
president and vice-president. Which was the most important change? What
statement in the twelfth amendment was unnecessary in the original
provision? If "two-thirds of the senators" are present, are two-thirds of
the states necessarily represented? What is the smallest number of
senators that could elect a vice-president? How many times has the
vice-president succeeded to the presidency? What caused the vacancies? Is
the result of the election known before the meeting of the electors?
Who is our present minister to England? Would a son of his born in England
today be eligible in due time to the presidency? Make a comparative table,
giving the qualifications, mode of election (general), and term of
representatives, senators and president.
Who is now vice-president of the United States? Have we ever had more than
one vice-president at the same time? Name the persons, in their order, who
would succeed to the presidency if the president should be unable to
perform his duties. If the president should become insane, who would
decide that such is the fact? How long would the person thus succeeding to
the position of acting president serve? State four ways in which a vacancy
in the office of president may occur. If the president leaves Washington,
is a vacancy created? If he leaves the country? If he is impeached? In
case of the non-election of either president or vice-president, who would
serve? How long? How is a vacancy in the office of vice-president filled?
At what "stated times" is the salary of the president paid? In November,
1872, President Grant was re-elected. His new term began March, 1873. In
the meantime the salary of the president was increased to $50,000. Did
President Grant get the increase? Explain.
Does the vice-president take an "oath of office?" If he succeeds to the
presidency must he take the oath prescribed in the constitution? What
constitutional provision for the salary of the vice president? Compare the
duties of a governor of a state with those of the president.
_Debate._
Resolved, That the president should be elected by a direct vote of the
people.
Resolved, That the presidential term should be lengthened, and a second
term forbidden.
SECTION II.--POWERS OF THE PRESIDENT.
_Clause 1.--Some Sole Powers._
_The president shall be commander-in-chief of the army and navy of the
United States, and of the militia of the several states, when called into
the actual service of the United States;[1] he may require the opinion, in
writing, of the principal officer in each of the executive departments,
upon any subject relating to the duties of their respective offices,[2]
and he shall have power to grant reprieves and pardons for offenses
against the United States, except in cases of impeachment.[3]_
[1] Elsewhere it is made the duty of the president to see "that the laws
are faithfully executed." The execution of the law may sometimes require
force, hence it seems proper that the command of the army should be vested
in him. Again, an army may be necessary to defend the country. In order
that it may act promptly and efficiently, it must be directed by one
person; and the person whom we instinctively designate for the purpose is
the president.
The possession of this power by the president is fraught with danger,
however. Unless surrounded by proper checks, it might be used to overturn
our system of government. But the president can hardly, as now situated,
misuse this power. In the first place, the general rules for the
management and government of the army are made by congress. In the second
place, the army is supported by appropriations made by congress, and these
are made for short periods. In the third place, congress could reduce or
even abolish the army, if that step seemed necessary in defense of our
liberties. In brief, the support and control of the army are in the hands
of congress; the president merely directs its movements.
Thus far the president has never actually taken the field in command of
the army; he has appointed military commanders, and has simply given them
general directions, which they have carried out as best they could. At any
time, however, if dissatisfied with the results, he may change the
commander.
[2] The president cannot personally see to the carrying out of all the
laws, and yet he is the one responsible for their execution. To assist
him, the work is divided up into parts, and each part is placed in the
hands of an officer appointed by the president (with the consent of the
senate) and responsible to him. These persons constitute what is known as
the cabinet, and all but two have the title secretary.
The one who keeps the originals of the public documents, the great seal,
and the public records, is called the secretary of state. He is to the
United States somewhat as the clerk is to the district or town, or the
auditor to the county. But in addition, he is the one who has charge of
our relations with foreign countries. He is the one to whom you would
apply for a passport, if you were going to travel in foreign lands. He has
an assistant and many subordinate officers. In this department are three
bureaus, as they are called--the diplomatic, the consular, and the
domestic. (For further information, see pages 321, 349, 350.)
The officer who has general charge of the receiving and paying out of
money is called the secretary of the treasury. He has two assistants and
thousands of subordinates, some in Washington and others throughout the
country. Under his direction money is coined, "greenbacks" and other
tokens of indebtedness are issued and redeemed. He also has general charge
of all government provisions for making navigation safe along the coast,
such as lighthouses, etc.
All that pertains to executive control of the army is in charge of the
secretary of war. The chiefs of bureaus in this department are army
officers. The secretary may or may not be. The military academy at West
Point is also, as we might expect, in charge of this department. (See p.
311.)
The control of the navy is exercised by the secretary of the navy. The
chiefs of bureaus here are navy officers. The secretary may or may not be.
This department has charge of the construction of war ships and the
equipment of them; and, as we would expect it has charge of the naval
academy at Annapolis (p. 311).
The department which has the greatest diversity of duties is that of the
interior. This department has charge of patents and trade-marks, of
pensions, of United States lands, of the Indians, of the census, and of
education. Its chief officer is called the secretary of the interior. The
chiefs of bureaus in this department, except that of the census, are
called commissioners.
The chief officer of the postoffice department is called the postmaster
general. Here there are five bureaus, in charge respectively of
appointments, contracts, finances, money orders, and foreign mail.
The officer who has charge of prosecution or defense of suits for or
against the United States is called the attorney general. He is to the
United States what the county attorney is to the county. He has, of
necessity, many assistants. All United States district attorneys and
marshals act under direction of this department. He is also legal adviser
of the government.
By an act approved February 11, 1889, the department of agriculture was
established with appropriate duties assigned to it.
The practice of holding regular cabinet meetings was begun by Jefferson,
and has continued as a matter of custom and expediency ever since. The
meetings are attended only by the president, his private secretary, and
the cabinet. They are held for the purpose of consultation. The president
may act upon the advice of his cabinet or not as he chooses.
The reports or opinions referred to in the provision of the constitution
now under consideration, are called for at least once a year and are
transmitted to congress with the president's message. But they may be
called for at any time.
Cabinet officers are not directly authorized by the constitution, but
provisions of this section seem to take it for granted that the president
would have such assistants.
[3] This power extends to military offenses as well as to the criminal
offenses of civilians.
The Supreme Court has decided that the president has power also to commute
sentences; and that he may act in the matter at any time after the offense
is committed, even before the trial. He may also stop proceedings in any
criminal case prosecuted in the name of the United States.
The exception in case of impeachment was first made in England, to prevent
the king from shielding his ministers. It is in our constitution as a
similar check upon the president.
_Clause 2.--Powers shared by the Senate._
_He shall have power, by and with the advice and consent of the senate, to
make treaties, provided that two-thirds of the senators present concur;[1]
and he shall nominate and by and with the advice and consent of the
senate, shall appoint ambassadors, other public ministers and consuls,
judges of the Supreme Court, and all other officers of the United States,
whose appointments are not otherwise herein provided for, and which shall
be established by law;[2] but congress may by law vest the appointment for
such inferior officers as they may think proper, in the president alone,
in the courts of law, or in the heads of departments.[3]_
[1] The "advice" of the senate is rarely, if ever, asked; but its
"consent" must be had in order to make the treaties lawful.
For the mode of making treaties, see pp. 320, 350, 360.
The power to make treaties was confided to the president originally
because it had been the custom for the executive to possess the
treaty-making power. But it is defensible on other grounds. Some treaties
need to be considered secretly. This could hardly be done if congress were
the treaty-making power. But the president and the cabinet can consider
the matter in secret. Then promptness is sometimes needed, as in case of a
treaty to close a war. Promptness may prevent useless loss of life. If
congress had to be summoned, valuable time would be taken. As two-thirds
of the senators present must agree to the provisions of the treaty, the
president cannot misuse the power granted in this provision.
When the treaty necessitates the raising of money, the house of
representatives is generally consulted, also. In fact, if the house
opposed such a treaty it is questionable whether it could be carried out.
In each of the three great purchases of territory the president consulted
congress before making the purchase.
[2] The nominations are made in writing, and the senate may either confirm
or reject the nominees. The person or persons confirmed are then appointed
by the president. When a nominee is rejected, the president generally
sends in a new nomination.
This mode of appointment is thus defended by Alexander Hamilton, in the
_Federalist:_ "The blame of a bad nomination would fall upon the president
singly and absolutely. The censure of rejecting a good one would lie
entirely at the door of the senate; aggravated by the consideration of
their having counteracted the good intentions of the executive. If an ill
appointment should be made, the executive for nominating, and the senate
for approving would participate, though in different degrees, in the
opprobrium and disgrace."
It will be noted in this connection that, while in the state most of the
officers are elected, in the general government all officers except the
president and vice-president are appointed.
In Washington's administration the question was raised, can the president
remove officers without the consent of congress? And it was decided that
the president can remove all officers whom he can appoint. Judges, who
hold for life, are of course excepted. During Johnson's administration,
the power of the president in this direction was declared to be exactly
equal to his power of appointment,--that is, if the consent of the senate
be necessary to an appointment, it would also be necessary for removal.
But afterwards the law was amended, so that now the president may suspend
an officer until the end of the next session of the senate, and make a
temporary appointment. If the senate does not at its next session confirm
the nomination to fill the vacancy, the old officer is re-instated. But if
the president is determined to carry his point, he may immediately suspend
the old officer again, and re-appoint the rejected candidate, and continue
so to do.
During the early administrations comparatively few removals were made,
except where it seemed necessary for the improvement of the public
service. But Andrew Jackson introduced into our politics the proposition,
"To the victors belong the spoils;" which means that the party electing
the president should have all the offices. This view of the case presents
to every public officer the temptation to secure himself in place, not by
meritorious service in the line of his duty, but by activity in the
service of his party; the tendency is, to displace love of country and
devotion to duty, and to substitute therefor subserviency to strong party
leaders. So crying has the evil become, that many of the wisest and most
patriotic men in the country are seeking to so far reform the public
service that an officer may feel reasonably secure in his position so long
as he performs his duties faithfully, and that vacancies shall be filled
by the promotion of worthy subordinates.
[3] This is to secure two objects: first, to relieve the president of the
burden of appointing thousands of such officers; and second, to place the
appointment in the hands of the officers responsible for the work of these
subordinates.
The principal officers thus appointed are:
1. Postmasters having salaries less than $1000 a year, appointed by the
postmaster general.
2. Clerks, messengers, janitors, etc., in the several departments,
appointed by the respective secretaries. The chiefs of bureaus and some of
the more important officers in each department are appointed by the
president with the consent of the senate.
3. The subordinates in each custom house, appointed by the collector
thereof.
4. Clerks of United States courts, appointed by the judges. The United
States district attorneys and marshals are appointed by the president,
with the consent of the senate.
The term of appointees is four years, unless sooner removed. They may be
and are removed, however, as before said, not only for unfitness, but also
for political reasons.
_Clause 3.--Temporary Appointments._
_The president shall have power to fill up all vacancies that may happen
during the recess of the senate, by granting commissions which shall
expire at the end of their next session._
This provision is necessary because the senate is not always in session,
and it would not pay to convene it for the purpose of acting upon
nominations every time a vacancy occurs. The president may wait, however,
if the case will permit, until the next session of congress before making
an appointment.
SECTION III.--DUTIES OF THE PRESIDENT.
_He shall from time to time give to congress information of the state of
the Union, and recommend to their consideration such measures as he shall
judge necessary and expedient;[1] he may on extraordinary occasions,
convene both houses or either of them,[2] and in case of disagreement
between them, with respect to the time of adjournment, he may adjourn them
to such time as he shall think proper;[3] he shall receive ambassadors and
other public ministers;[4] he shall take care that the laws be faithfully
executed,[5] and shall commission all officers of the United States.[6]
[1] The president complies with this provision by sending to congress at
the beginning of each regular session his annual message. And at other
times, as occasion demands, he sends special messages.
[2] Congress has been convened in extra session by presidential
proclamation only twelve times in all. The senate is frequently convened
in extra session at the close of the regular session to consider
appointments. This usually happens on the accession of a new president.
[3] No occasion has ever arisen for the exercise of this power.
[4] In all governments, diplomatic intercourse with other governments is
carried on through the executive department. (See pages 347 and 349.)
By "receiving" an ambassador, the country from which he comes is
"recognized" as an independent sovereignty, a nation. Ambassadors may be
rejected or dismissed, if personally objectionable to this country, if the
countries from which they come are not recognized as belonging to the
sisterhood of nations, or if the relations between their country and this
become unfriendly. Nations at war with each other do not exchange
ambassadors; each recalls its representative at the time of declaring war.
Our ambassadors or other public ministers may be rejected by other nations
for the reasons given above.
It will readily be seen that this power or duty may impose upon the
president at times, grave responsibility. The nature of this
responsibility may be understood when we remember the efforts made by the
confederate states to secure recognition of their agents at the courts of
London and Paris, during the civil war. For either country to have
recognized them would have been to interrupt our friendly relations with
that country, and might have led to war between it and us. (See page 347.)
[5] This is the president's most important duty; and it is his duty to
enforce the law whether he believes in its wisdom or not. He acts through
the executive officers previously referred to.
[6] The commission bears the signature of the president and the great seal
of the United States, the latter affixed by the secretary of state.
SECTION IV.--RESPONSIBILITY OF OFFICERS.
_The president, vice-president, and all civil officers of the United
States, shall be removed from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and misdemeanors._
The word "civil" in the provision is used here in distinction from
_military_ and _naval_. It is generally understood that members of
congress are not "civil officers" within the meaning of this provision.
Military and naval officers are tried by courts-martial, and members of
congress are subject to trial by the house to which they belong.
The definition of "high crimes and misdemeanors" rests with the senate.
Treason is defined in the constitution, and bribery has a meaning
understood by all.
There have been seven cases of impeachment before the United States
Senate. (See pages 131, 138 and 333.)
_Pertinent Questions._
When, near the close of the late war, General Grant commanded all the
armies of the Union, had he any superior officer? (That is, was there any
officer higher in rank than he?) Who is commander-in-chief of the United
States army today? Who is the highest purely military officer, and what is
his rank?
Name the members of the present cabinet. If you wanted to trade with the
Indians, to whom would you make application for permission?
Can the president pardon before trial? What cases can he not pardon? Name
some one pardoned by the president. Could he pardon prisoners confined for
breach of state law? Where does the general government confine its
prisoners?
What is the smallest number of senators that could confirm or reject a
treaty? What is meant by the executive session of the senate? How could
you witness the proceedings at such a session? How large a vote is
necessary to confirm a nomination of the president?
What is an ambassador? A minister? A consul? What is meant by "inferior"
officers? By "civil service reform?"
State the principle which seems to cover the matter of removals.
Have you read the president's last annual message? What "information" did
he give to congress? What "recommendations" did he make? How was the
message delivered to congress? What "extra sessions" of congress do you
remember? What ones have you read about in books? When were the different
extra sessions called?
Give the number of bills vetoed by each president.
Has the president ever had to adjourn congress? For how long could he do
it? How is the British parliament prorogued?
Where do impeachments originate? By whom are they tried? Who may be
impeached? What for? Can persons who have ceased to be officers be
impeached? What is the extent of sentence? Was President Johnson
impeached? How is an impeachment trial conducted? What persons have been
impeached?
Prepare a tabulation telling:
1. Mode of election of president (general statement only)
2. Qualifications.
3. Term.
4. Vacancy.
5. Salary--constitutional provision; law.
6. Powers.
7. Duties.
CHAPTER XXIV.
ARTICLE III.--THE JUDICIAL BRANCH.
In the two articles so far considered, we have studied about the
law-_making_ and the law-_enforcing_ branches of the government. We shall
next examine the third great branch, the one which _interprets_ and
_applies_ the laws.
SECTION I.--ORGANIZATION.
_The judicial power of the United States shall be vested in one Supreme
Court,[1] and in such inferior courts as the congress may from time to
time ordain and establish.[2] The judges both of the Supreme and inferior
courts, shall hold their offices during good behavior,[3] and shall at
stated times receive for their services a compensation[4] which shall not
be diminished during their continuance in office.[5]_
[1] The creation of the Supreme Court, a distinct coordinate branch for
the final interpretation of law, was the master-stroke of the
constitution. "The Supreme Court has no prototype in history."
While the _existence_ of the Supreme Court is thus provided for in the
constitution, the _number of judges_ to constitute it was wisely left with
congress. Thus the organization may be changed as circumstances change.
The Supreme Court at first consisted of six justices, as they are called;
but owing to the growth of the country and the consequent increase of
labor to be performed, the number of justices has been increased to nine.
[2] Under this provision congress has established three grades of
"inferior" United States courts, the Circuit Courts of Appeal, Circuit
Courts, and the District Courts. The United States is divided into nine
judicial _circuits_, to each of which are assigned one justice of the
Supreme Court and two circuit judges. (See page 307.) These constitute
what is called the Circuit Court of Appeals, having appellate jurisdiction
in their respective circuits and holding annual sessions for that purpose.
(See page 210.)
The United States is further subdivided into more than sixty judicial
_districts_. In each of these districts, at least one session of the
circuit court and one of the district court is held each year. (See pages
210 and 307-9.) A full circuit court bench consists of a supreme court
justice, a circuit judge, and a district judge; but court may be held by
any one or two of them. The district court consists of the district judge.
[3] This virtually means during life. The purpose of this provision is to
raise the judges above temptation, to put them in a position where they
may feel safe in doing their exact duty, unawed by any outside power. If
with this opportunity they prove unjust, they may be impeached. But so
far, almost without exception, those who have been honored with a place on
a United States court have proved worthy of their high calling.
[4] The purpose of this also is to remove temptation from the judges. The
salary of the chief justice is $10,500 a year, and that of each associate
justice, $10,000. This seems like a generous amount. But several times a
place on the supreme bench has been declined, on the plea that the nominee
could not afford to serve for the salary attached.
[5] This is to prevent the other two branches from occupying a threatening
attitude toward the judiciary. But the salary may be increased. And the
salary may be reduced, to take effect with appointments made after the
passage of the law.
SECTION II.--JURISDICTION OF THE COURTS.
_Clause 1.--Extent._
The judicial power shall extend to all cases,[1] in law and equity,[2]
arising under this constitution, the laws of the United States, and
treaties made or which shall be made, under their authority;[3] to all
cases affecting ambassadors, other public ministers, and consuls;[4] to
all cases of admiralty jurisdiction;[5] to controversies to which the
United States shall be a party;[6] to controversies between two or more
states;[7] between a state and citizens of another state;[8] between
citizens of different states;[9] between citizens of the same state
claiming lands under grants of different states;[10] and between a state
or the citizens thereof, and foreign states, citizens or subjects.[11]_
[1] The courts decide what the law is, whether a specified law is
constitutional or not, and what the meaning of constitutional provisions
is, but only as these questions arise in _cases_ brought before them for
trial. They do not advise congress or the president as to the
constitutionality or unconstitutionally of a law. They do not directly
make law. But in determining the meaning of certain laws and of
constitutional provisions they may determine what the law is, and thus
they may be said to make law indirectly. But sometimes a legal question or
a question as to the meaning of a constitutional provision remains for a
long time unanswered, because no _case_ involving the question comes
before the courts.
[2] Sometimes the law provides no adequate remedy for a wrong. Here is the
necessity for a court of equity. For instance, A sells his business to B,
agreeing not to become a rival, but immediately reopens in the next block.
B's only remedy in law is to secure damages. If this remedy is shown to be
inadequate, a court of equity will close A's store. Or if C, having
contracted to do a certain act for D, fails or declines to perform his
part, the law can only award D damages; equity will compel the fulfillment
of the contract. Law is curative, equity is preventive. (See Dole, 502.)
In some states there are separate courts of law and of equity. But the
provision under discussion gives the United States courts jurisdiction in
cases both of law and of equity. "There are no juries in equity cases, and
no criminal trials."
[3] These pertain to the whole United States, so cases arising under them
should be tried by a national, not by a state, court.
[4] Thus showing respect for the governments represented by them.
[5] That is, to cases arising on the high seas or on navigable waters.
These matters, according also to I. 8: 10, 11, are under the jurisdiction
of the United States, and therefore this provision is simply a consequence
of the two referred to.
[6] Because then the interests of the whole country are at stake, and
should not be left to any state.
[7] Because the United States was organized to "insure domestic
tranquility."
[8] This provision has been modified by the eleventh amendment, which
reads as follows: "The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state." That is, if the state is the
_plaintiff_, the suit may be tried by the United States Supreme Court
(compare clause 2). Claims of individuals against a state, if denied by
the auditor, may be referred by them to the legislature. A state cannot be
sued by an individual or corporation.
When a citizen is sued he must be sued either in the courts of the United
States or in those of his own state. It would be a source of irritation to
compel a state to sue a citizen of another state in the courts of his own
state, hence this provision that such suits shall be in the United States
court.
[9] To remove temptation to injustice through local prejudice. But the
suit is tried in, and in accordance with the laws of, the state of which
the defendant is a citizen.
[10] Because the states are involved in the suit, and it would be unfair
to let either decide the controversy.
This provision is not of much importance now, because state boundaries are
clearly defined. But when the constitution was framed, this kind of
question meant a good deal. The charters given during colonial times were
very loosely drawn, and claims of different colonies and proprietors
overlapped each other. The question of ownership had not been settled at
the time of the revolution. During the formative or confederation period,
these disputes had been a source of much ill-feeling.
[11] Because the general government, and not the individual states, has
charge of our foreign relations. A foreign country holds the United States
responsible for the acts of its citizens; and only the United States can
be looked to, to secure justice to its citizens on the part of foreign
countries or citizens.
_Clause 2.--Jurisdiction of the Supreme Court._
_In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a party, the Supreme Court shall have
original jurisdiction.[1] In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction,[2] both as to law and
fact, with such exceptions and under such regulations as the congress
shall make.[3]_
[1] That is, such a suit must _commence_ in the Supreme Court, and so
cannot be tried elsewhere.
[2] That is, the action must commence in some lower court, but it may be
appealed to the Supreme Court.
The U.S. District Court has jurisdiction over crimes committed on the high
seas, and over admiralty cases in general; over crimes cognizable by the
authority of the United States (not capital) committed within the
district, and over cases in bankruptcy.
The U.S. Circuit Court has original jurisdiction in civil suits involving
$2000 or more, over equity cases, and over cases arising under patent and
copyright laws.
[3] To relieve the Supreme Court, which was years behind with its work,
congress recently provided for a U.S. Circuit Court of Appeals in each of
the nine circuits, which has final appellate jurisdiction in nearly all
cases except those involving the constitutionality of a law.
_Clause_ 3.--_The Trial of Crimes._
_The trial of all crimes, except in cases of impeachment, shall be by
jury,[1] and such trial shall be held in the state where said crimes shall
have been committed;[4] but when not committed within any state,[3] the
trial shall be at such place or places as congress may by law have
directed.[4]_
[1] A trial by jury is a trial by twelve men impartially selected. This is
regarded as one of the great bulwarks of liberty.
Civil cases may, at the desire of both parties, be tried by the court
only. But for criminal trials a jury is guaranteed by this provision. In a
criminal trial, the state or the nation is the prosecutor, and state or
national judges _might_ be tempted to decide unjustly, if the matter were
left to them.
[2] This leaves the accused in better condition to defend himself, than if
he could be taken away far from home. He is thus able at the least expense
to bring witnesses in his own behalf. In harmony with this, each state has
at least one U. S. District Court for the trial of crimes against the
general government. (See Declaration of Independence.)
This provision is probably binding also upon the states.
[3] That is, in the District of Columbia, in one of the territories, in
the Indian country, in the forts or arsenals of the United States, or upon
the high seas.
[4] Congress has specified courts for the trial of such crimes. Those
committed on the high seas are tried in the state where the vessel
arrives. (See pages 230-4.)
SECTION III.--TREASON.
_Clause 1.--Definition and Trial._
_Treason against the United States shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort.[1] No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in open
court.[2]_
[1] Treason is, in essence, a deliberate and violent breach of the
allegiance due from a citizen or subject to his government. Being directed
against the powers that be, the government in self defense is tempted to
punish it severely. The more tyrannical a government is the more likely it
is to be plotted against, and the more suspicious it becomes. If treason
were undefined, the government might declare acts to be treasonable which
the people never suspected to be so. This had occurred so many times, and
good men had so often been sent on this charge to an ignominious death,
that the framers of the constitution deemed it prudent to define treason
carefully in the fundamental law itself.
These provisions are taken from the famous statute of Edward III which
first defined treason in England. This statute declared five things to be
treasonable, only the third and fourth of which are held by our
constitution to be so.
[2] An overt act is an open act, not one that is simply meditated or
talked about, but one actually performed.
The Supreme Court has decided that there must be an actual levying of war;
that plotting to overthrow the government is not treason. But if
hostilities have actually begun, if war has commenced, "all those who
perform any part, however minute, or however remote from the scene of
action, and who are leagued in the general conspiracy, are to be
considered traitors."
Two witnesses, at least, "to the _same_ overt act," are required, because
thus only can a "preponderance of testimony" be secured.
_Clause 2.--Punishment._
_The congress shall have power to declare the punishment of treason, but
no attainder of treason shall work corruption of blood or forfeiture
except during the life of the person attainted._
As has been hinted, the punishment of treason had been very severe in
European countries. Not only was the person convicted of treason put to
death in the most horrible ways, but his property was forfeited, and no
one could inherit property from him or through him. Thus not only the
person himself, but also his children and his children's children, were
punished. The purpose of this provision is, in the words of Mr. Madison,
to restrain congress "from extending the consequences of guilt beyond the
person of its author."
_Pertinent Questions._
By what authority was the Supreme Court established? By whom is it
organized? Why is such a court necessary? How many judges or justices
constitute the Supreme Court? Name them. Tell what president appointed
each.
How many and what "inferior courts" has congress established? Name the
Supreme Court justice assigned to this circuit. How many other states in
this circuit? Name our two United States circuit judges. Name the United
States district judge. How are these officers appointed? How long do they
serve? State the salary of each class of judges. What legal provision is
there in regard to retiring United States judges?
If a person should rob the mail, in what court would he be tried? Tell
about the Dartmouth College case. If any one should be caught making
cigars without a license, before what court would he be tried? If an
American owed money to an ambassador from a foreign country, and declined
to pay it, how could the ambassador get his pay? If the ambassador owed an
American, how could the American get his pay? Would you, if the United
States government asked you to represent it in a foreign country, like to
be tried by a court of that country?
If a murder be committed in the District of Columbia, in what court is the
trial had? If committed in Minnesota? In Wyoming? If a sailor should steal
from a passenger, when out on the ocean, where would the case be tried and
in what court?
If a state other than the one in which you live should sue you where could
the case be tried? How can the United States be a party to a suit?
Have you knowledge of any case in which one state sued another? If a
merchant in your town should buy goods from a wholesale house in Chicago
or New York, and should fail or refuse to pay for them, how could the
house get its pay? What laws would apply to the case? What principle seems
to be involved in these answers?
How many acts of congress have been declared unconstitutional by the
Supreme Court?
Can a citizen of Wyoming bring a suit in a United States court? If you
lived in Montana, how could you recover money owed you in Minnesota? Can a
United States official be sued for acts performed in the discharge of his
duties?
What famous case of treason was tried in 1807? Was Jefferson Davis ever
tried for treason?
If the property of a traitor is taken by the government, must it be
restored to his heirs at his death? Can you commit treason against this
state? What do you know about the John Brown case?
Compare III. 2, 3, with amendments 5 and 6, and state the rights of a
person accused of crime, which are guaranteed by the constitution.
_Debate._
Resolved, That all judicial officers should be appointed.
_Tabular View._
Prepare a tabular view comparing the three departments of the United
States government.
CHAPTER XXV.
ARTICLE IV.--THE RELATIONS OF THE STATES.
SECTION I.--STATE RECORDS.
_Full faith and credit[1] shall be given in each state to the public
acts,[2] records,[3] and judicial proceedings[4]of every other state. And
the congress may by general laws prescribe the manner in which such acts,
records and proceedings shall be proved,[5] and the effect thereof._
[1] That is, such faith and credit as would be given to such acts, etc.,
in the state in which they originated.
[2] That is, the legislative acts,--the statutes and the constitutions.
[3] Such as the registration of deeds, wills, marriages, journals of the
legislature, etc.
[4] The proceedings, judgments, orders, etc., of the courts.
[5] The records of a court are "proved" (that is, shown to be authentic)
by the attestation of the clerk, with the seal of the court affixed, and
the certificate of the judge. The acts of the legislature are
authenticated by the state seal.
SECTION II.--RELATIONS TO INHABITANTS OF OTHER STATES.
_Clause 1.--Citizens._
_The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states._
That is, no state can give its citizens any privileges which it denies to
citizens of other states. For instance, a citizen of Wisconsin, New York
or California, coming to Minnesota has all the privileges of a citizen of
Minnesota. To be sure he cannot vote in Minnesota until he has resided
here for a time. This is simply a police regulation, to prevent fraud in
voting. But he is entitled to the protection of the laws of Minnesota, may
hold property here, and may engage in any business in which a citizen of
Minnesota may engage.
He cannot, however, carry with him any special privileges which he may
have enjoyed in the state from which he came. Thus, if one state permits a
person to vote upon declaring his intention to become a citizen while
another requires that a voter shall be a full citizen, a person coming
from the first state cannot claim the right to vote in the second until he
becomes a full citizen.
Study in this connection the first clause of the fourteenth amendment.
_Clause 2.--Fugitives from Justice._
_A person charged in any state with treason, felony or other crime, who
shall flee from justice, and be found in another state, shall, on demand
of the executive authority of the state from which he fled, be delivered
up, to be removed to the state having jurisdiction of the crime._
The necessity for this provision will readily be understood, when it is
remembered that each state has jurisdiction only within its own limits.
But for this provision, criminals would be comparatively free from
restraint, because they could in most cases get into another state. And
this would of course tend to increase the number of criminals. (See pp.
337, 349.)
As civilization advances, countries independent of each other politically
agree, for their mutual protection, to surrender to each other fugitives
from justice. Treaties made for this purpose are called _extradition_
treaties.
_Clause 3.--Fugitives from Service._
_No person held to service or labor in one state, under the laws thereof,
escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered
up on claim of the party to whom such service or labor may be due._
This clause was inserted as a concession to the slave-holding states, and
had special reference to slaves, though it also applied to apprentices and
any other persons who for any reason might be "bound to service." But as
slavery no longer exists, and apprenticeship and other binding to service
are almost things of the past, this provision is practically obsolete.
SECTION III.--NEW STATES AND TERRITORIES.
_Clause 1.--The Admission of New States._
_New states may be admitted by the congress into this Union;[1] but no new
state shall be formed or erected within the jurisdiction of any other
state;[2] nor shall any state be formed by the junction of two or more
states or parts of states, without the consent of the legislatures of the
states concerned as well as of the congress.[3]_
[1] These few words mark an era in political history. Heretofore nations
had acquired new territory merely to enlarge the extent of their
_provinces_ or subject states, never with a view of uniting the acquired
territory with the original system, allowing it equal political
privileges. But when we look at the matter carefully, we shall see that
our government could not consistently do otherwise than it did. The
proposition involved in the revolution was that new territory should
either be permitted to enjoy equal privileges with the parent state, or it
should become independent.
But it was not simply to carry out a political theory that this provision
was made; it was to solve a practical difficulty. At the close of the
Revolutionary War, the United States extended west to the Mississippi
river. The territory west of the Alleghany mountains contained almost no
inhabitants, and was of course unorganized. This territory became the
object of contention. Some of the states claimed jurisdiction over it,
while others maintained that it was not within the limits of any states,
and that, as it had been secured by a war waged by the general government,
this territory should be considered common property, to be managed by the
general government. The states having claims upon the territory expressed
a willingness to relinquish them upon the condition that the territory
should be formed into states as soon as the population would warrant.
Accordingly, before the constitution was framed all these states except
North Carolina and Georgia had relinquished their claims, and all but a
small portion of the territory was under the jurisdiction of the general
government. And July 13, 1787, that portion of the country west of
Pennsylvania and north of the Ohio, had been organized into the Northwest
Territory. This act of congress is generally known as The Ordinance of
1787. It was for a long time the model upon which other territories were
organized.
[2] This shows the fear entertained lest the general government should try
to control a state by threatening its existence.
[3] Vermont was claimed by both New York and New Hampshire. Both consented
to her admission.
Kentucky was a part of Virginia, and became a state with her consent.
Maine became a state with the consent of Massachusetts, of which it had
been a part.
West Virginia was admitted during the war, the consent of Virginia being
obtained afterwards.
_Clause 2.--The Territories._
_The congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging to
the United States;[1] and nothing in this constitution shall be so
construed as to prejudice any claims of the United States, or of any
particular state.[2]_
[1] The power to _acquire_ territory is not expressly granted in the
constitution, but it is implied as an act of sovereignty. Territory was
acquired by the general government before the constitution by cession from
states, and since the adoption of the constitution it has been acquired by
purchase, by discovery, by conquest, and by annexation.
The power to _dispose_ of territory is also an attribute of sovereignty,
and would have belonged to the general government without this provision.
But this provision places the power in the hands of _congress_; otherwise
land could be sold by the treaty-making power. Under this provision
congress receded to Virginia that portion of the District of Columbia
south of the Potomac.
The power to govern any territory which it possesses is also an attribute
of sovereignty. This clause gives the power to congress; but any law for
the regulation of territories needs the president's signature, the same as
any other law.
[2] It will be remembered that North Carolina and Georgia had not at the
time of the adoption of the constitution relinquished their claims to
certain territory lying outside of their state limits. This provision was
made as a concession to them. But they afterwards, North Carolina in 1790
and Georgia in 1802, ceded the disputed territory to the United States.
SECTION IV.--GUARANTIES TO THE STATES.
_The United States shall guarantee to every state in this Union a
republican form of government,[1] and shall protect each of them against
invasion,[2] and on application of the legislature, or of the executive
(when the legislature cannot be convened), against domestic violence.[3]_
[1] That is, the United States will protect each state against one man or
a few men who may try to usurp the functions of the state government. By
inference, the United States could insist upon a republican form of
government even if the people of the state desired some other. Happily, no
necessity for the exercise of this power has yet arisen.
[2] This would have been the duty of the general government, even if this
provision had not been made. To defend the country against invasion is one
of the principal duties of government. The government was organized "to
provide for the common defense."
[3] To "insure domestic tranquillity" was another reason given for the
establishment of the constitution. But lest the general government should
make every little disturbance a pretext for interfering with the local
affairs of a state, it was provided that no interference should occur
until asked for by state authority.
_Pertinent Questions_.
If a judgment is secured against a resident of New York and he moves to
Minnesota without paying it, could he be held responsible in Minnesota
without another suit? Is a marriage ceremony performed in Illinois binding
in Kansas?
Define citizen. Can a person be a citizen of the United States without
being a citizen of any state? Could he be a citizen of a state and not be
a citizen of the United States? A certain southern state imposed a tax
upon commercial travelers not residents of that state; was the act
constitutional? What is the Civil Rights bill, and why was it passed? Can
a citizen of any state claim in another state any privileges peculiar to
the state from which he removed?
How is a "fugitive from justice" secured when he has escaped into another
state? Is a governor obliged to surrender an escaped criminal upon demand
of the authorities of the state from which he escaped? How is a criminal
secured if he escapes into another country? Name countries with which we
have _extradition_ treaties. Have we any with Canada?
What were the provisions of the fugitive slave law?
Did the articles of confederation provide for the admission of new states
into the union? Name the first state admitted into the Union. The last.
What territories are now seeking admission into the sisterhood of states?
How does a territory become a state? What advantages are gained by
becoming a state? Is congress bound to admit new states? Can congress
compel a territory to become a state? Can it compel a state to remain a
state? Is there such a thing in our system as _a state out of the Union?_
What does a citizen of the United States lose by moving into a territory?
Does the constitution define a _republican_ government? Is any particular
department charged with the duty of guaranteeing to each state a
republican form of government?
When did the United States protect a state against invasion? Against
domestic violence? Have any states been admitted into the Union more than
once?
CHAPTER XXVI.
ARTICLE V.--AMENDMENTS TO THE CONSTITUTION.
_The congress, whenever two-thirds of both houses shall deem it necessary,
shall propose amendments to this constitution, or, on the application of
the legislatures of two-thirds of the several states, shall call a
convention for proposing amendments, which, in either case, shall be valid
to all intents and purposes, as a part of this constitution, when ratified
by the legislatures of three-fourths of the several states, or by
conventions in three-fourths thereof, as the one or the other mode of
ratification may be proposed by the congress;[1] provided, that no
amendment, which may be made prior to the year one thousand eight hundred
and eight, shall, in any manner, affect the first and fourth clauses in
the ninth section of the first article;[2] and that no state, without its
consent, shall be deprived of its equal suffrage in the senate.[3]_
[1] No one realized more fully than the framers of the constitution that,
with the best thought which they could give to it, the constitution might
need amending, and therefore they provided ways for proposing and
ratifying amendments.
It is purposely made difficult to amend the constitution because the
fundamental law should not be changed except for weighty reasons. If these
exist, the amendments may be made; the difficulty is not so great as to be
insurmountable.
[2] By reading the clauses referred to, the student will readily see whom
this was a concession to.
[3] This was to protect the small states, in whose interest the senate was
organized.
The first ten amendments were proposed by congress at its first session in
1789, and they were ratified in 1791.
Two other amendments were proposed at the same time, but they were not
ratified. One of them was to regulate the number of representatives; the
other, to prevent congressmen from increasing their own salaries.
The eleventh amendment was proposed in 1796, and ratified in 1798.
The twelfth amendment, a consequence of the disputed election of 1801, was
proposed in 1803, and ratified in 1804.
An amendment prohibiting citizens of the United States from accepting any
titles, pensions, presents, or other emoluments from any foreign power, on
pain of loss of citizenship, was proposed in 1811, but it was not
ratified.
An amendment making slavery perpetual was proposed in 1861, in the hope
that this might avert the war, but it was not ratified.
The thirteenth and fourteenth amendments were proposed in 1865 and 1868
respectively, and they were ratified the same years.
The fifteenth amendment was proposed in 1869, and ratified in 1870.
The propositions of amendments have thus far been made by congress, and
all ratifications have been made by the state legislatures.
_Pertinent Questions._
State four ways in which the constitution may be amended. What _temporary_
limitation was placed upon the power to amend the constitution? What
_permanent_ prohibition? How is the English constitution amended? In what
case _must_ congress call a convention to propose amendments? Must the
convention thus called propose any amendments? Which is the better of the
two ways of proposing amendments? When an amendment is proposed by
two-thirds of both houses of congress, is it necessary to secure the
approval of the president? Can a state withdraw its ratification of an
amendment? When is an amendment, once proposed, dead? Did it take
three-fourths of _all_ the states or only three-fourths of the loyal
states to ratify the thirteenth amendment? How many of the disloyal states
finally ratified it? How is the ratification and consequent validity of
any proposed amendment made known?
CHAPTER XXVII.
ARTICLE VI.--MISCELLANEOUS.
_Clause 1.--Prior Debts and Engagements._
_All debts contracted and engagements entered into before the adoption of
this constitution, shall be as valid against the United States under this
constitution as under the confederation._
The debts were incurred and the engagements were entered into by the
United States, and changing the _form of government_ would not release the
country from its obligations. The insertion of this provision however,
served as an explicit statement of the purpose of the government to live
up to its engagements.
_Clause 2.--National Supremacy._
_This constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding._
This provision settles definitely, and in what would seem to be
unmistakable terms, the question of supremacy, about which so much
discussion has been carried on. Within its sphere, within the limitations
placed upon it by the constitution itself, the national government has the
supremacy over any and all state governments.
_Clause 3.--Oath of Office._
_The senators and representatives before mentioned, and the members of the
several state legislatures, and all executive and judicial officers, both
of the United States and of the several states, shall be bound by oath or
affirmation, to support this constitution;[1] but no religious test shall
ever be required as a qualification to any office or public trust under
the United States.[2]
[1] The first law passed by congress under the constitution was an act
prescribing the form of the oath required by the provision above. It is as
follows: "I, A. B., do solemnly swear, or affirm (as the case may be),
that I will support the constitution of the United States."
[2] In all other countries at the time of the adoption of this
constitution eligibility to public office was limited to members of the
established church of the country. This constitution set the example of
abolishing religious tests for public office, and the wisdom of this is so
apparent that it has been followed entirely or in part by many of the
civilized nations.
CHAPTER XXVIII.
ARTICLE VII.--RATIFICATION OF THIS CONSTITUTION.
_The ratification of the conventions of nine states shall be sufficient
for the establishment of this constitution between the states so ratifying
the same._
Nine states made two-thirds of the entire number. Eleven states ratified
the constitution within nine months of the time of its submission to them.
As soon as nine states had ratified, congress made arrangements for
putting the new form of government into operation.
The mode of ratification herein specified ignored the existence of the
articles of confederation, and in specifying this mode the convention
disregarded the instructions of the congress which called it. The congress
had expressly provided that the work of the convention should be submitted
to the congress and the state legislatures for approval. But this
provision places the power to ratify in the hands of conventions elected
by the people in the several states, which arrangement is in harmony with
the opening words of the preamble.
_Pertinent Questions._
What is the recognized law of nations in regard to the payment of the
debts of a nation when it changes its form of government? If England
should become a republic would this rule apply? Does it apply when a
territory becomes a state? Were the debts of the confederation paid? How?
What was the amount of the debt of the United States at the time of the
adoption of the constitution? What is the value of the notes and bonds of
the "Confederate States of America"? Why?
Which is sovereign, the nation or the individual states? Where else are
there any provisions which teach the same thing? Why should _judges_ be
specially mentioned in VI. 2? What department of the government makes
treaties? Are they binding upon the other departments? Upon the several
states? Can a state nullify an act of congress? Has any state ever tried
to do so?
Why are _state_ officers bound to support the constitution of the _United
States_? Is the requirement to take the "oath of office" a religious test?
Why is the choice of oath or affirmation given? What was the iron-clad
oath?
Would the ratification of the constitution by nine states have made it
binding upon the other four? The articles of confederation required the
consent of all the states to any amendment to them; by what right was this
constitution adopted against the wishes of Rhode Island and North
Carolina? If those two states had persisted in their refusal to ratify the
constitution, what would have been their relations to the United States?
Justify your answer.
CHAPTER XXIX.
THE AMENDMENTS.
We have now considered the constitution about as it was presented to the
states for ratification. Judging by our own affection for the noble
instrument we would expect to learn that it was ratified promptly and
unanimously. But, as a matter of fact, much hard work was required on the
part of its friends to secure its ratification. Its every provision had to
be explained and justified. Probably the most able exposition was made by
Hamilton, Madison and Jay, in a series of papers entitled, "The
Federalist."
One of the greatest objections urged against the constitution was that it
did not guarantee sufficiently the rights of individuals. It will be
remembered in this connection that the principal grievance against
England, as expressed in the Declaration of Independence, was that
personal rights had not been respected; and that, in consequence, the
first form of government organized after independence, The Articles of
Confederation, gave the general government no power to reach individuals.
Experience showed this to have been a mistake, and the constitution
authorizes the general government to execute its laws directly, enabling
it to hold individuals responsible. On account of this re-enlargement of
power, many people honestly feared that the new government might trespass
upon personal rights as England had done. And several states at the time
of ratifying suggested the propriety of so amending the constitution as to
remove these fears.
In accordance with these recommendations, amendments were proposed at the
first session of congress. The house of representatives proposed
seventeen, to twelve of which the senate agreed. Only ten, however, were
ratified by the legislatures of three-fourths of the states. They are, of
course, the first ten among those that follow. It was decided by the same
congress that the amendments should not be incorporated into the main body
of the constitution, but should be appended to it as distinct articles.
They have, however, the same force as the original constitution.
ARTICLE I.
FREEDOM OF RELIGION, OF SPEECH, AND OF ASSEMBLY.
_Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof;[1] or abridging the freedom of
speech or of the press;[2] or the right of the people peaceably to
assemble and to petition the government for a redress or grievances.[3]_
[1] The chief purpose for which many of the early settlers came to America
was that they might "worship God according to the dictates of their own
conscience." Hence their descendants put _first_ among the individual
rights to be protected, this freedom of religion. But this provision does
not authorize any one to commit crime in the name of religion.
[2] The only limitation upon speech in this country is that the rights of
others be respected. Any one may think as he pleases upon any subject, and
may freely express his opinion, provided that in doing so he does not
trespass upon the rights of others.
[3] It would seem that under a republican form of government this right
might be assumed to be secure. The provision is meant to "make assurance
doubly sure." History had shown the necessity of such precaution.
ARTICLE II.
RIGHT TO BEAR ARMS.
_A well-regulated militia being necessary to the security of a free state,
the right of the people to keep and bear arms shall not be infringed._
It should not be the policy of a republic to keep a large standing army.
An army is expensive, it takes so many men from productive industries, and
it is dangerous to liberty--it may from its training become the instrument
of tyranny.
But a republic must have defenders against foes foreign or domestic. A
well-trained militia may be depended upon to fight with valor against a
foreign foe, and may at the same time serve as a check upon usurpation.
For definition of _militia_, see page 162.
ARTICLE III.
QUARTERING SOLDIERS.
_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 described
by law._
To "quarter" soldiers in any house is to allot them to it for food and
shelter.
This, it will be remembered, was one of the grievances of the colonies.
This quartering of soldiers had been, and indeed is in some countries to
this day, a mode of watching and worrying persons for whom officers of the
government entertained suspicion or ill will.
ARTICLE IV.
SECURITY AGAINST UNWARRANTED SEARCHES.
_The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches, and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized._
This, as well as the preceding provision, recognizes the maxim, "A man's
house is his castle." It prevents the issuance of general warrants.
ARTICLE V.
SECURITY TO LIFE, LIBERTY AND PROPERTY.
_No person shall be held to answer for a capital or otherwise infamous
crime unless on a presentment or indictment of a grand jury,[1] except in
cases arising in the land or naval forces, or in the militia when in
actual service in time of war, or public danger;[2] nor shall any person
be subject for the same offense to be twice put in jeopardy of life or
limb;[3] nor shall be compelled in any criminal case to be a witness
against himself,[4] nor be deprived of life, liberty, or property, without
due process of law;[5] nor shall private property be taken for public use
without just compensation.[6]
[1] For information in regard to the method of conducting criminal trials,
see Division I.
[2] The necessity here for prompt and exact obedience to orders is so
urgent, that summary methods of trial must be permitted.
For information regarding trial by court martial, see appendix, page 338.
[3] That is, when a jury has rendered its verdict and judgment has been
pronounced, the accused cannot be compelled to submit to another trial on
the same charge. But if the jury disagrees and fails to bring in a
verdict, he may be tried again.
[4] Accused persons used to be tortured for the purpose of extorting from
them a confession of guilt.
[5] In a despotism, the lives, liberty and property of the people are at
the command of the ruler, subject to his whim. [6] For an illustration
of the method of securing private property for public use, see page 18.
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