dorn^U ICam i>rljooI ICihtarg Cornell University Library KF 4550.B93 Review of the Constitution of tlie United 3 1924 019 962 442 \B Cornell University M Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019962442 RKVIKW OF THB Constitution of the United States INCr,TJDING CHANGES BY INTERPRETATION AND AMENDMENT FOR Lawyers and Those Not Learned in the Law W; or BULLITT Of the Frankfort, Ky., Bar CINCINNATI THE ROBERT CLARKE COMPANY 1899 Jh6/. Copyright, 1899, by W. G. Bulwtt. 8^3 PREFACE. The tendency of the officials of every nation is to aug- ment their own importance and powers by grasping ad- ditional powers for the government they represent. The accomplishment of this augmentation of powers to the government must take place by periodic steps, each step appearing innocent at the time, or of too little importance to attract attention. Every additional power seized for the government must be taken from the reserved powers, or from powers lodged elsewhere by the organization of the govern- ment. In the United States, certain powers are retained in the states, and all powers not granted to the United States, nor prohibited to the states, are reserved to the states respectively or the people. This division of powers between the United States and the several states, makes each, in guarding its own powers, necessarily guard the reserved powers of the people ; so that, whether the powers so seized for the United States be taken from the people, or the states, the people will be the sufferers ; hence, we must not only be watchful of the reserved powers of the people, but must be mindful of the powers of the states. (iii) IV PRBFACB. " It is very uncommon to see the laws and constitution, of a state openly and boldly opposed ; it is against silent and gradual attacks that a nation ought to be particularly on its guard. Sudden revolutions strike the imagina- tions of men ; they are detailed in history ; their secret springs are developed. But we overlook the changes that insensibly happen by a long train of steps that are but slightly marked. It would be rendering nations an important service to show from history how many states have thus entirely changed their nature, and lost their original constitution. " This would awaken the attention of mankind — im- pressed thenceforward with this excellent maxim (no less- essential in politics than in morals) principiis obsta — they would no longer shut their eyes against innovations which, though inconsiderable in themselves, may serve- as steps to mount to higher and more pernicious enter- prises." * Powers not granted by the letter of the constitution, have been adjudged to the United States by the supreme court on the alleged theory that they were incidental to the sovereign government thereof. Sovereignty, being supreme, absolute, uncontrollable au- thority, it can neither be divided nor put in the custody of two separate jurisdictions. Therefore, if it was re- served to the people (as is contended for by all) it must be wholly in the people ; and, if it is in the government, it must be wholly in the government. * Vattel's Law of Nations, Chap. 3, p. 9. PREKACB. V Nor can it be divided between the United States and the respective states, as held by the supreme court in the McCuUoch case ; so that, unless that authority resides exclusively in the people, it must be exclusively in the the United States (as its authority must be paramount to that of the states) , and the United States must be an empire, with the states as its provinces, instead of the federal republic the American people boast of. The executive has also assumed powers not granted to it by the letter of the constitution, and in some instances has encroached on the powers expressly delegated to the legislative department by the constitution. The congress has also assumed powers not granted to it by the letter of the constitution, or by the spirit of that instrument. The assumptions of ungranted powers by each of said departments has been accomplished by the ex- ercise of some apparently unimportant authority at periodic steps, or an authority claimed to be necessary for the time, and not to be repeated, though they have been invariably used as precedents to excuse the exercise, not only of the same powers, but to go further in their encroachments on the reserved powers of the people. Sometimes their assumptions of powers have been claimed as necessary to keep up with advan- cing civilization ; but this plea is a mere apology to quiet the people while the construction of a new form of gov- ernment, to be builded on interpretation alone, is being constructed step by step, to take the place of the repub- lican form of government ordained by the constitution. vi PREFACE. The constitution itself furnishes incontrovertible evi- dence of the bad faith of this plea. That instrument provides ample facilities for its own amendment when- ever the advance in civilization shall require an amend- ment ; and every substantial advance in civilization is encouraged by the constitution, by authorizing congress to protect inventions, writings, and developments in the fine arts, by patent rights and copyrights. However, no amendment can be made to the constitu- tion without the sanction of the people, and their sanc- tion thereto can not be secured without informing them of the character of the desired change, and this informa- tion would likely divulge the secret object of the ad- visers of the change, and check their revolutionary schemes. This Review is written in plain Knglish, avoiding all unnecessary technicalities ; and the provisions of the con- stitution are explained according to the general use and meaning of the words and phrases by which they are expressed, as used at the time the constitution was ordained. I have endeavored to give to each provi- sion the meaning and functions it was intended to per- form by the convention that made the constitution, and the construction given by the several departments of the United States, and the interpretation as advo- cated by each of the two great political parties, so that the reader may have the benefit of each interpreta- tion. Of course, I have used the strongest arguments in my PREFACE. VU power to sustain my understanding of the provisions of that great instrument, and the office each is to perform, and wherever a different interpretation than the letter thereof is indicated, whether by the supreme court, the ex- ecutive, or legislative departments, or by either of the two great political parties, I have argued in favor of the in- terpretation that sustains the letter thereof. Instead of relying on the statements of any one as to what was meant by the several provisions thereof (except the letters of Messrs. Madison, Hamilton and Jay pub- lished while the constitution was before the people of the states for adoption, and compiled in a volume known as the Federalist), I have relied on the organization and lodgment of the powers and duties under the constitu- tion ; the manner they are required to be executed by the officials intrusted with them ; the retention of the sovereign authority in the people as shown by the great Declaration of Independence, and the provision of the constitution authorizing the people of the states to amend or alter the constitution without the sanction of the United States, or any department thereof, by demanding a federal convention to propose amendments to be rati- fied by conventions of the states, as was done in making the constitution of 1787 ; the language used to express the several provisions, particularly that used in the preamble delating the objects for ordaining the constitution ; the language used in proposing the several provisions of the constitution by the delegates in the convention, and the action of the convention thereon, before adopting the viii PRKFACB. same as provisions of tlie constitution to ascertain tlie intent and meaning the delegates in the convention ascribed to each provision of the constitution ; and the functions the convention intended each provision to per- form in the government of the United States and in the: several states of the more perfect union. While every provision of the constitution is to some extent considered in this Review, that class of powers, relating to the civil rights and business interests of the people more properly belong to a commentary on the constitution, which is beyond the purpose of this work ; they are therefore but briefly explained. But that class of powers that relate to the form and character of the government of the United States, and its relations to the states and the people, are extensively and minutely shown, together with the conflicting inter- pretations by either of the three departments, and by the two great poUtical parties, with each of which the inter- pretation given by this Review is carefully compared. The interpretation adhered to in this Review conforms to the Declaration of Independence and the great Ameri- can principles introduced into the science of government by our colonial ancestors, which are shown to have been incorporated into the constitution of 1787, and to form the guiding principle of that great charter, so that by those guides every power granted by the constitution, should be construed. TABLE OF CONTENTS. CHAPTER I. Relates to charters and settlements, under English authority, of what constitutes the United States. — The first permanent set- tlement was made in 1607, the second in 1620. — Brief reference to the origin and growth of the principles taken from the- English constitution. — Of the three great American principles, (viz) : how to retain the sovereignty in the people with gov- ernments as municipal agents incorporated by themselves. — The ordaining conventions as the only organs through which to express the sovereign will of the people. — ^The separation of the two grand objects of government from each other and committing each to a separate jurisdiction. — The organization of the states and confederation as respective parts of a com- plete municipality. — ^The date the states constructed their re- spective state corporations, and the date each state ratified the articles of confederation, i CHAPTER II. Relates to calling and holding the convention of 1787, to amend the articles of confederation. — The resolution offered and dis- cussed. — ^The division of the delegates on the character of gov- ernment, whether it should be " a federal republic " or a strong empire. — ^The compromise on the plan of the report of the grand committee, giving the corporations of the states repre- sentation through the senate, and the people of the states rep- resentation through the house of representatives. — ^The adop- tion and report of the constitution, . . . . 33, (ix) TABLE OF CONTENTS. CHAPTER III. Relates to the various interpretations as to the character of gov- ernment ordained by the constitution. — The interpretation of the supreme court and anti-slavery party ; that by the pro- slavery party and others ; and that which appears to be the only logical interpretation consistent with the compromise of the convention, .82 CHAPTER IV. Relates to the organization of the two houses of congress, so as to make the senate represent the union of the municipal corpora- tions of the states, and the house of representatives to repre- sent the union of the people of the states. — The functions of each house separately, and of both combined, . . 109 CHAPTER V. Relates to the authority of congress. — To lay and collect taxes. — To borrow money. — ^To coin money and regulate the value thereof and of foreign coin.— To regulate commerce with foreign nations, and among the several states, and with the Indian tribes, 131 CHAPTER VI. Relates to powers appertaining to the political laws, such as au- thority to establish naturalization laws. — Bankrupt laws. Prescribe punishment for counterfeiting the coin or secimties of the United States. — ^To establish post-offices and post- roads. — ^To promote the progress of science and by protecting inventors by patent-rights and copy-rights. — ^To constitute tribunals inferior to the supreme court. — ^To define punishment for piracies. — ^To declare war. — ^Raise and support armies. Provide and maintain a navy. — Make rules for the government TABLE OF CONTENTS. XI of the land and naval forces. — Provide for calling forth the militia. — Provide for organizing, arming and disciplining the militia. — To exercise legislation over the district set apart for the capitol. — ^To make laws to carry the powers granted. — ^To limitations on the powers of congress. — ^And to limitations on the powers of the states, 174 CHAPTER VII. Relates to the organization of the executive. — The mode of electing the president and vice-president. — ^The term of office of each. — The powers vested in each. — And the mode the office of presi- dent shall be filled in absence or inability of the president to serve 205 CHAPTER VIII. Relates to the organization of the judiciary department.^-The change made therein by the committee on style. — ^The powers and jurisdiction as changed by said committee. — Which powers and jurisdiction are disputed by able statesmen, and were dis- puted by Presidents Jefferson, Jackson and Lincoln, and said powers and jurisdiction are in conflict with the sixth article of the constitution, 236 CHAPTER IX. Relates to the cohesive principles upon which the union rests. — Such as requiring full faith and credit to be given in each state to the public acts of all of the states ; each state being required to extend equal privileges and immunities to the citizens of all of the states. — ^The requiring of each state to capture fugitives from justice and upon requisition turn them over to the au- thorities of the state in which the crime was committed.— Each of which provisions constitute the supreme law of the land. -XU TABLE OF CONTENTS. notwithstanding any law of congress or any state to the con- trary. — ^The mode provided by the constitution for amending the same. — Defining what shall constitute the supreme law of the land. — Requiring all officers of the several states and of the United States to be bound by oath or affirmation to support the constitution ; and when nine states ratify the constitution it shall be binding between the states ratifying it, . 268 CHAPTER X. Relates to the several amendments of the constitution. — ^The first ten amendments, frequently spoken of as the bill of rights, are extensively considered. — The eleventh amendment restrains and limits the jurisdiction of the courts of the United States. — ^The twelfth changes the plan of electing president and vice- president. — ^The thirteenth abolishes the institution of slavery in the United States. — ^The fourteenth purports to declare the native born of African descent citizens of the United States and of the state wherein they reside ; but it concedes on its face that the states have the right and ability to defeat the declaration of citizenship, or the right to vote of said native. — But the fifteenth amendment proposes to force the states to per mit them to vote, . . 316 REVIKW Constitution of the United States. CHAPTER I. Organization of thb Statbs and Confederation. The first permanent settlement under English author- ity in this country, was made under a grant to two companies by the sovereign kingdom of Great Britain, in 1606, in the name of Sir Thomas Gates and others. The first company consisted of citizens of I^ondon and else- where, and the second company consisted of citizens of Bristol, Exeter, Plymouth and elsewhere. The grant to both companies comprise4 all the terri- tory between north latitude 34° and 45°, extending from the Atlantic ocean one hundred miles inland. The part thereof granted to the first company comprised all the territory between latitude 34° and 41° ; and the part thereof granted to the second company comprised the territory between north latitude 38° and 45°. It will be observed that a conflict appears in the boundaries granted to these two companies, but an amendment of the charter of the first company, in 1609, changed the boundary of the territory granted to that company, so as to extend two hundred miles northwardly, and two hundred miles southwardly from Point Comfort, in Vir- 2 CONSTITUTION OF THE UNITED STATES. ginia, on the Atlantic coast, and to extend from sea to- sea.* The purpose of England in planting her colonies in this country was to acquire vacant territory, and the amendment of the charters of these two companies was to extend the actual possession of that kingdom to the- Pacific ocean, with a view of appropriating the territory between Canada and Florida from sea to sea.f The first company sent over three ships laden with emigrants to aid in settling the country (under said grant to said first company), to be known as Virginia. But the emigrants that came over in 1606 made no permanent settlement, until another colony arrived in the spring of. 1607, whose ships landed at James City (afterward called Jamestown), on the James river. The charter of that company was again amended in 1611-12, which amend- ment provided for a treasurer, and a I^ondon board or committee, to manage the financial affairs, all of whom were required to reside in England and hold their meet- ings in Ivondon, and a governor, to be appointed by the- king, to preside over the colony. The I in Disqualification of 332 Reprieves and pardons 219 Power of president to grant 219 Reprisals (see LETTERS of Marqtje) 183 Reserved rights and power of the people 295, 324 Retrospective laws 189 Revenue, bills to raise 189, 131 Rights reserved to states and people 324 Roads and canals, power of congress 159 to 173 Seat of government 184 Sedition and alien acts, not constitutional 148 Senate, organization of 112 How chosen 112 t o 120 Number of senators 112 Term of senators 112 Vacancies in, how supplied 122 Qualifications of 112 Vice-president, president of 112 Authorized to try impeachments 113 Disqualification of members 321 Slavery abolished 319 Soldiers, quartering of 316 INDEX. 359 'South Carolina, first constitution 27 to 28 Speaker of house of representatives ui Speech, liberty of 314 Speech of Mr. Bedford in the convention 47 .•States, admission of new 271 Condition upon which they may be admitted 271 First and second condition 271 Third condition 271 to 274 Fourth condition 274 to 292 Prohibitions of — No state to make treaties, form alliances or compacts 192 Nor grant letters of marque 192 coin money 192 emit bills of credit 292 Nor make any thing but gold and silver coin a tender 192 Nor make laws impairing the obligations of contract 192 Nor pass bills of attainder or of nobility 192 Nor without the consent of Congress 192 Keep an army or navy 193 Lay any duty or imposts 192 Shall not tax obligations of the United States 86 Nor tax imports 192 Nor lay tonnage 193 Nor engage in war, imless, etc 193 ^uits by and against states (see Judiciary) 240 At common law 321, 322 Supremacy of constitution, etc 303 "Taxes, power of congress to lay 131 Must be to pay debts or provide for common defense or gen- eral welfare 131 Direct what 138 Power not exclusive 131 Restriction of power in 136-138 Tender laws, states limited in passing 192 Territories of United States, congress has control of 171 Tests, religious, prohibited 314 Testimony, criminals not bound to give against themselves 318 Tonnage duties by the United States 193 -Treason, definition of 237 Evidence of 237 Effect of conviction of 237 Punishment of 237 360 INDBX. Treaties, states prohibited from making 192 Power of president and senate to make 219 Trial of crimes, in what place 70, 318 Must be by jury 70, 31& Certain civil cases must be by jury 321 Troops, quartering of prohibited unless, etc 216 United States (see Constitution of) 57-8o Supremacy of laws of 303 Right to sue 236- Right to contract 131, 142, 219 No right to purchase foreign territory except for common defense or naval stations 271-292 May acquire domestic territory for certain uses 184 Unity of the executive 205 Vacancies in office (see President) 205 Senators in congress 120 Representatives in congress iir President may appoint to fill certain vacancies during recess of congress 219 In office of president 206-216 Vice-president, how chosen , 208 Shall be president of senate 112 Vacancy in office of 113 Impeachment of 220 Duration of term of 205 Resignation of 206 Virginia, origin and settlement of i Warrants, general, prohibition of 317 War, congress sole power to declare 183 Weights and measures, congress to regulate 142 Witnesses, criminals not required to be against themselves 318 Criminals entitled to compulsory process for in their behalf. 319 Wreck at sea, congress may regulate 182