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A TREATISE 
 
 i^ 
 
 OK 
 
 GOYEE^^TMENT 
 
 AND CONSTITUTIONAL LAW 
 
 BEING AN INatJIRY INTO THE 
 
 SOURCE AND LIMITATION OF GOVERNMENTAL AUTHORITY, 
 
 ACX;OKDINQ TO THE 
 
 AMERICAN THEORY 
 
 By JOEL TIFFANY 
 
 y 
 
 ALBANY N. Y. : 
 
 W. C. lilTTLE, LAW BOOKSELLER, 
 
 4«> BROADWAY 
 186T. 
 
Entered according to act of Congress, in the year eighteen hundred and 
 
 sixty-seven, 
 
 By JOEL TIFFANY, 
 
 in the Clerk's office of the District Court of the United States for the Northern 
 District of New York. 
 
/ 
 
 ^-t c 
 
 PREFACE. 
 
 There are two theories respecting the source of 
 governmental authority, which may be denominated 
 the Monarchical and the Democratic. The first, is that 
 of the monarch, who claims authority to govern by 
 ^^ divine rigliV The second, is that of the people, 
 who claim that all governmental authority proceeds 
 from them ; that governments derive their authority 
 from the consent of the governed, and are amen- 
 able to them. This latter theory is denominated 
 the American Theory ; and the following treatise has 
 been constructed upon such hypothesis. 
 
 The fundamental principles adhered to in this treatise 
 are : That the people are the source of all gov- 
 ernmental authority in the state or nation ; — that they 
 are the authors and proprietors of government, 
 which, at most, is an institution created for the spe- 
 cific purpose of exercising such public authority 
 as the people instituting the government see fit to 
 confer; — that the public authority is the authority 
 of society taken as a whole j — that the largest orga- 
 nized civil society is that of the nation; — that the 
 nation, as an organized body, is absolutely sovereign 
 in its authority to institute and endow its government ; 
 and, is independent of all other governments in its 
 
 /o 
 
iv PREFACE. 
 
 organic structure, and self-governing authority; — that 
 national sovereignty must necessarily extend over every 
 inch of its territory, and over all the inhabitants 
 thereof; and must include every iota of governmental 
 authority Tvithin its limits; — that the nation has sove- 
 reign authority to institute as many, and such gov- 
 ernments to administer its authority as it deems wise 
 and good; — and that none can administer within its 
 territorial limits, except by its expressed or implied 
 authority. This theory is applied to the general and 
 
 state governments in the United States. 
 
 Joel Tipfant. 
 Albany, 1867. 
 
TABLE OF CONTENTS. 
 
 PART I. Inthodtjctort. 
 
 CHAPTER L 
 Of the civil equality of all men, 11 
 
 CHAPTER II. 
 Of the natural and inalienable rights of man, 16 
 
 CHAPTER III. 
 Of the origin of government, 22 
 
 CHAPTER IV. 
 Of the nature of governments and their natural rights, 29 
 
 PART n. 
 
 CHAPTER I. 
 
 Of the United States as a nation, 41 
 
 CHAPTER ir. 
 Of the United States as a government, 53 
 
 CHAPTER III. 
 Of the government of the United States, 58 
 
 CHAPTER IV. 
 Of the constitution of the United States — Principles of interpre- 
 tation, " 65 
 
 CHAPTER V. 
 Of the constitutional structure of the national or general govern- 
 ment, '76 
 
 CHAPTER VI. 
 Of the constitution of the United States — Its preamble, 83 
 
 CHAPTER VII. 
 Of the congress as the national legislature — The house, 105 
 
 CHAPTER VIII. 
 Of the legislature — The senate, 138 
 
 CHAPTER IX. 
 Of legislative powers and duties, 155 
 
 CHAPTER X. 
 Of express powers of congress — Taxes, duties, imposts and ex- 
 cises, 1*71 
 
vi _ CONTENTS. 
 
 CHAPTER XL 
 Express powers — On the subject of naturalization and brankruptcy, 204 
 
 CHAPTER Xn. 
 Express powers — On the subject of coining money, etc., fixing standard of 
 weights and measures, estabUshing p6st-ofSces and post-roads, encour- 
 aging science and the useful arts, punishing piracies and felonies, etc., 
 committed on the high seas, and offenses against laws of nations, 220 
 
 CHAPTER Xni. 
 Express powers — On the subject of the war powers of the general gov- 
 ernment, 244 
 
 CHAPTER XIY. 
 Prohibitions and restrictions of the constitution, 266 
 
 CHAPTER XY. 
 Of the states as political organizations — Their office, duties and powers, . . 298 
 
 CHAPTER XVI. 
 Of the office of president and of vice-president — Their duties and powers, 326 
 
 CHAPTER XVII. 
 Of the judicial powers of the general government, 356 
 
 CHAPTER XVIII. 
 Of inter-state administration, 369 
 
 CHAPTER XIX. 
 Of amendments to the -constitution, 387 
 
CONTENTS OF APPENDIX. 
 
 No. 
 
 1. 
 
 No. 
 
 2. 
 
 No. 
 
 3. 
 
 No. 
 
 4. 
 
 No. 
 
 5. 
 
 The first step of the colonies toward an independent nationality, . 3 
 The commission of George Washington from the congress of the 
 
 colonies, 4 
 
 Declaration of independence of the thirteen colonies, 5 
 
 Articles of confederation, and the ratification of the same, 10 
 
 Eecommendation by the congress, to the states, of a tariff of 
 
 duties for purpose of a revenue, 20 
 
 No. 6. An address by the congress to the states accompanying their 
 
 recommendation, 23 
 
 No. 7. A second or further recommendation upon the subject, 30 
 
 No. 8. Report of commissioners of the states of Virginia, Delaware, 
 Pennsylvania, New Jersey and New York, assembled at 
 Annapolis, Md., September 14, 1786, to the several legisla- 
 tures of their respective states, upon the subject of a system 
 of commercial regulations, and other important matters, .... 32 
 No. 9. Resolution of congress calling a convention of delegates, to be 
 appointed by the several states, to meet at Philadelphia on 
 the second Monday of May, 1787, for the prupose of revising 
 the articles of confederation — and the list of members 
 
 appointed, 35 
 
 The credentials of the several delegates, 37 
 
 The assembling of the convention, 62 
 
 The organization of the convention, and their report of a draft of 
 
 a constitution of government 63, 64 
 
 The ratification of the constitution by the several states, 77 
 
 Amendments to the constitution submitted by congress to the 
 
 several states, , 112 
 
 The ratification of the same by the several states, 114 
 
 Further amendment submitted by congress to the states, 117 
 
 Notice of ratification by the president, 119 
 
 Mode of changing territory to states — Louisiana, 120 
 
 Dissenting opinion of Justice Miller in case In re Garland of 
 Arkansas, on motion for leave to practice as an attorney in 
 
 supreme court of United States, 123 
 
 No. 20. Constitution of United States (with all amendments), 134 
 
 No. 
 
 10. 
 
 No. 
 
 11. 
 
 No. 
 
 12. 
 
 No. 
 
 13. 
 
 No. 
 
 14. 
 
 No. 
 
 15. 
 
 No. 
 
 16. 
 
 No. 
 
 17. 
 
 No. 
 
 18. 
 
 No. 
 
 19. 
 
INTRODUCTORY. 
 
 OF GOYEENMENT. 
 
 The American Theory. 
 
 SECTioiJf 1. When the people of the American colonies 
 had determined to sever the political ties that bound 
 them to the British government, and to establish for 
 themselves an independent political existence, they 
 asserted certain fundamental principles as the basis of 
 their right to do so ; and they specified certain violations 
 of those principles by the British crown as a justifica- 
 tion of their conduct in throwing ofi" their allegiance to 
 that government. 
 
 g 2. In their Declaration of Independence, the repre- 
 sentatives of the colonies, in Congress assembled, in 
 the name and by the authority of the good people of 
 the colonies, put forth, among others, ' the following 
 principles, as fundamental to the establishment and 
 maintenance of just governments: 
 
 " We hold these truths to be self-evident : That all 
 men are created equal ; that they are endowed by their 
 Creator with certain unalienable rights; that among 
 these, are life, liberty, and the pursuit of happiness ; that 
 to secure these rights governments are instituted among 
 men, deriving their just powers from the consent of the 
 governed ; that whenever any form of government be- 
 comes destructive of these ends, it is the right of the 
 people to alter or abolish it, and to institute a new gov- 
 2 
 
10 INTRODUCTORY. 
 
 ernment, laying its foundations on sucli principles, and 
 organizing its powers in sucli forms, as to tbem sliall 
 seem most likely to effect their safety and happiness ; 
 that when a long train of abuses and usurpations, pursu- 
 ing invariably the same object, evinces a design to reduce 
 them under an absolute despotism, it is their right and 
 their duty to throw off such government, and to provide 
 new guards for their future security." (See Dec. Am. 
 Ind.) 
 
 2 3. The principles thus promulgated by that Declara- 
 tion were accepted by the American people, after mature 
 deliberation and full discussion ; and to maintain them 
 they pledged life, fortune and sacred honor, and fought 
 the battles of the revolution. 
 
 § 4. The grounds upon which they based their right to 
 dissolve the political bands that bound them to Great 
 Britain were embraced in the following affirmations of 
 principles and rights : 
 
 1. The civil equality of all men. 
 
 2. Life, liberty, and the pursuit of happiness are 
 gifts from God to man, and, therefore, the natural and 
 unalienable right of all. 
 
 3. Governments derive their just powers from the 
 consent of the governed, and are established for the pro- 
 tection of these rights. 
 
 4. When these governments become destructive of 
 the ends for which they are established, they act without 
 authority, and the people may resist and overthrow them. 
 
 5. When a government evinces a design to disregard 
 the ends of justice, and seeks to reduce its subjects under 
 an absolute despotism, it is the duty of the people to 
 overthrow it, and establish new guards for their future 
 secmity. 
 
OF GOVERNMENT. H 
 
 CHAPTER I. 
 
 THE CIVIL EQUALITY OF ALL MEN. 
 
 " We liold these truths to he self-evident, that all men are 
 
 created equals 
 
 g 5. This puoposition separates man from acquire- 
 ments, and considers him as possessed only of natural 
 endowments ; deriving them, with his existence, from 
 God ; as having God's warrant for that which he gave 
 to him, and made indispensable to the accomplishment 
 of a perfect destiny. It aflBrms in simple language, 
 man's natural right to the natural means of supplying 
 liis natural necessities. That in these respects, all men 
 are created equal. 
 
 g 6. Man's creation under the divine goTernment as a 
 physical, social, moral, intellectual and religious being, 
 is to be deemed conclusive evidence of his right to 
 exist ; and, hence, of his right to all those beneficent 
 provisions which have been made indispensably neces- 
 sary to the maintenance of such existence, as a 
 physical, social, moral, intellectual and religious being. 
 
 § 7. Man's natural rights are indicated by his natural 
 necessities. As a physical being he is so constituted 
 that he must have the power of locomotion, to maintain 
 himself properly and perfect his physical and other facul- 
 ties. He is so constituted, naturally, that he must walk 
 because he cannot fly ; and he must walk upon the 
 earth because, naturally, he cannot tread the air or 
 walk upon the water. Therefore, these natural neces- 
 sities become indications of his natural rights. If his 
 nature and constitution compel him to walk upon the 
 earth, he has an indisputable right to walk upon it ; and 
 no one is authorized to question that right.^ 
 
 1 Necessity, when imposed upon us by the very constitution of our being, ia 
 above all conventional law. If the Autlior of our being has given us an exist- 
 ence upon the earth, and has made us constitutionally subject to certain 
 necessities looking to the development, continuation and perfection of our 
 existence, and has provided for us the means of supplying those necessities, 
 he has, thereby, given us a perfect right to the use of those means; a right as 
 
12 INTRODUCTORY. 
 
 5 8. Again, man is so constituted that lie must breatlie 
 the pure air wliicli God has i)rovided, to maintain a 
 healthy existence. It is a necessity which God has 
 Imposed upon him, and He has provided the ax)pro- 
 priate supply free of expense. Therefore, man has an 
 unalienable right to breathe the pure atmosphere of 
 heaven, and he has God's warrant of authority for the 
 same. Thus it is in respect to the sunlight, the rains 
 and the dews, etc. 
 
 S 9. Ma<n must draw his physical supplies from the 
 earth, gathering them from the gardens of nature as 
 supplied without the labor of man, or produced through 
 cultivation by his labor. In either case the supply must 
 come from the earth. Hence, man has a natural right 
 to have access to the bosom of the earth, that he may 
 draw his necessary supplies therefrom. 
 
 § 10. To maintain his existence and accomplish his 
 destiny, man must exercise in a proper manner, the 
 faculties and powers with which he is naturally endowed. 
 If he must draw his supplies from the earth, he must be 
 permitted to exercise those faculties and powers by which 
 they are to be produced or obtained ; and he must be 
 permitted to possess and appropriate the supplies, thus 
 obtained by his own labor or creation, to his own use to 
 supply his needs. 
 
 g 11. By thus making the necessities which God has 
 imposed upon man, a clear indication of his right to 
 use the natural means provided for their supply, we 
 arrive without difficulty at the basis of man's natural 
 rights, and, hence, at a just jjerception of their natural 
 equality in all men.^ 
 
 absolute as existence itself. The Almighty has not created man upon the 
 eartli, and by the very constitution of his existence compelled him to derive 
 his physical subsistence therefrom, without, thei-eby, giving him an unaliena- 
 ble right to have access to the earth that he may draw his supplies thence. 
 Hence, man's natural right to the use of the eartli as a means of supplying his 
 natural necessities, may be claimed as appurtenant to his existence. 
 
 1 To make an inherent necessity an indication, or basis even, of a right, 
 either in the individual or in the state, is no new doctrine. If an Individual or 
 Btate has a right to exist, he or it has, as a necessary incident to such right, the 
 
OF GOVERNMENT. 13 
 
 § 12. The affirmation that all men are created equal 
 and are endowed by their Creator with certain unalien- 
 able rights, is an assertion that all men having the same 
 origin, the same ultimate destiny to seek, and the 
 same means by which to attain that destiny under the 
 divine government, have the same natural necessities ; 
 and, hence, the same natural right to supply them. 
 And, therefore, the power which cannot dispense with 
 these necessities, has no authority to deny ov ques- 
 tion these natural rights. 
 
 g 13. These natural rights are not only equal in all, but 
 they are unalienable. Until man can become superior 
 to his necessities, and can dispense with tlie means of 
 supplying them, there is no consideration by which he, 
 while he continues to exist, can separate himself from 
 his right to seek their supply. Therefore, his natural 
 rights are as unalienable as his natural necessities are 
 constant. How far these rights may become forfeited 
 "will be considered when man is introduced into society 
 and comes under the higher law of social necessity. 
 
 g 14. The doctrine of the natural equality of all 
 men, as indicated by their natural constitutions, implies: 
 1. That all men have a common origin, and a common 
 destiny ; and possess in common the natural means by 
 
 authority of the Author of that existence to use all necessary and just means 
 to maintain and defend that existence. When President Jefferson assumed 
 that France must not possess the territory of Louisiana, and occupy New 
 Orleans, and that to do so would necessarily involve the two countries in war, 
 he based the morality of his position upon the necessity of the case : to wit, 
 the right on the part of the United States to do that which was indispensable 
 to self-iDreservation. (See Life of Jefferson, 30, pp. 7, 8 and 9; see also his mes- 
 sages on the purchase of the Louisiana territory ; see also 2^ost, .) 
 
 Says PuFFENDORF : " Since human nature agrees equally to all persons, and 
 since no one can live a sociable life with another who does not own and 
 respect him as a man, it follows as a command of the law of nature, that every 
 man should esteem and treat another as one who is naturally his equal, or one 
 who is a man as well as he." (Book ill, ch. 2, § 1.) Says Mr. Barbeyrac, in his 
 note to the same : " For every one having a perfect right to expect that he be 
 regarded and treated as a man, he that doeth otherwise with him does him a 
 real damage. This duty being founded on an immovable condition, namely, 
 that men should be used precisely as men, is not only of general, but of per- 
 petual obligation ; insomuch, that notwitlistanding all the inequality by the 
 changes and diversity of addition, titles and degrees, the rights of natural 
 equality always remain immovable, and agree to every one in relation to 
 another, whatever condition he is in." 
 
14 INTRODUCTORY. 
 
 which that destiny is to be accomplished ; 2. That it is 
 their common right to use these means without let or 
 hinderance for the accomplishment of that destiny. 
 And as all are to unfold and perfect, if at all, under the 
 divine government by obedience to the same laws, all 
 have a natural and unalienable right to be permitted to 
 obey those laws, physically, intellectually, morally and 
 religiously. 
 
 g 15. From these considerations it follows, that all men 
 are created equal ; equal in coming from the hand of the 
 same Creator; equal in being possessed of the same 
 natures, physical, intellectual, social, moral and religious ; 
 equal in having before them the same destiny to seek, 
 to wit, the perfection of each of these natures ; equal in 
 deriving with their existence, from the hand of their 
 Creator, the right to use the means provided for all for 
 the unfoldment and perfection of these natures. 
 
 g 16. The natural equality of all men does not imply 
 that all have the same advantages which depend upon 
 adventitious circumstances. Under the divine govern- • 
 ment, the constitution of the son is derived through the 
 constitution of the sire ; and the effect not unfrequently 
 extends to the third and fourth generations, called in the 
 decalogue, " visiting the iniquities of the fathers upon 
 the children." This must be so under that government 
 by which individualization is carried forward. It is in 
 obedience to that law by which the individual can pro- 
 gress from the less perfect to the more perfect. If the 
 sire could not transmit his infirmities, he could not 
 transmit his excellencies to his child. The susceptibility 
 to improvement implies the susceptibility to retrogres- 
 sion, which is simply susceptibility to change of con- 
 dition.^ 
 
 1 Under the divine government, the laws of generation seem to be uniform, 
 which are, that the offspring shall be begotten into the likeness of the parent ; 
 that is, every element, attribute and faculty of the parent is imparted to the 
 offspring. This principle is manifest in the production of individuality in 
 the several kingdoms. 
 
 The child necessarily derives its vital and mental constitution through its 
 parents, and especially its mother. When there are no influences to compel a 
 deviation, its vital and spiritual constitution must be in harmony with that of 
 
OF GOVERNMENT. 15 
 
 g 17. The doctrine of tlie natural equality of all men 
 implies, that, however weak, feeble or imperfect may be 
 the physical constitution of the individual at birth, 
 there are natural means by which it may be improved ; 
 and the individual has the natural right to the use of 
 those means for its improvement and perfection. The 
 same implication is to be made also in respect to the 
 intellectual, social, moral and religious constitution of 
 the individual. He has a natural right to the use of all 
 his powers and faculties to improve his condition, and 
 to seek a perfect destiny. If they are naturally weak 
 owing to unfavorable conditions attending parentage 
 and infancy, so much greater the necessity that he 
 enjoy all the means at hand, and that he be permitted 
 to exorcise all the faculties and powers with which he 
 has been endowed to seek his better condition and 
 higher destiny. The doctrine is, that, however unequal 
 the advantages at the commencement of the race, each 
 has an equal right to use the means God has given him, 
 to win the prize.^ 
 
 the mother ; for, during the period of gestation, no influence can reach the 
 infant except through her. Hence, ordinarily, the new-born infant is a record 
 of the influences controlling the mother during the period of gestation. Wlien 
 the influence is of a marked character, it is recognized by ordinary observers. 
 Such are instances termed "marking children." In families the diflerences 
 which characterize children of the same parents, may be accounted for by the 
 difference of condition in parents, and of influencing circumstances attending 
 the respective periods of the generation, gestation and birth of their children. 
 
 This susceptibility to influences afiecting the character of the oflspring is 
 incident to the law of progress. All individualities are produced under general 
 and special conditions and relations to outward influences. General condi- 
 tions and relations mark their general character ; and special conditions and 
 relations mark their speciflc character. Thus arise classes, orders, genera, 
 species and varieties of individuals in the several kingdoms, each gradually 
 advancing toward perfect individuality. From the lowest to the highest these 
 advancing forms can be traced, perfecting in individuality at every step. 
 Along the mighty chain, connecting the lowest with the highest, no link is 
 absent ; the chain is unbroken. Each individuality is developed under con- 
 ditions peculiarly its own, and advances only with advancing conditions. It 
 follows, necessarily, that in respect to physical and mental constitution, in 
 respect to speciflc endowments, those only can be born equal who are equal 
 m all these accidents of parentage, ante-natal and natal conditions and influ- 
 ences. But these only affect state and degree of endowment, which are not 
 counted in the scale of natural rights. They belong to education and acquire- 
 ment. 
 
 1 " For, as in well ordered commonwealths, one subject may exceed another 
 iu riches, or in honor, but all a,re eg^ual sh£tr§vs ih the common liberty ; so, 
 
16 INTRODITCTORT. 
 
 CHAPTER II. 
 
 Life, liberty and tlie right to seek one's oivn hajypiness, are 
 
 gifts from God to man ; and therefore the natural and 
 
 unalienahle right of all. 
 
 g 18. This proposition necessarily follows the con- 
 clusion, that life, liberty and the right to seek a perfect 
 destiny are incident to the right to exist. It also follows 
 the conclusion, " that all men are created equal," and, 
 hence, are equally entitled to that which is essential to 
 their well-being and destiny. The proposition itself is 
 so self-evidently true, that it cannot be made more cer- 
 tain by argument. It belongs rather to that class of 
 conscious aiSrmations called axiomatic truths, than to 
 that other class which are ascertained through a process 
 of ratiocination. * 
 
 g 19. If, however, one were disposed to deny or ques- 
 tion man's natural right to life, liberty, etc., and to set up 
 an authority to the contrary, he would be obliged to show 
 in some other being a superior right which must neces- 
 sarily be sacrificed or endangered, by the existence of 
 this right in man. Eor if this right be essential to the 
 existence, well-being and final destiny of man, and if 
 it does not conflict with any equal or superior right in 
 another being, it cannot be denied or questioned. 
 
 S 20. Whatever is the natural and unalienable right of 
 one man, is the natural and unalienable right of all men. 
 For when it is demonstrated that one man is immortal, 
 it is to be assumed that all men are so, unless exceptions 
 can be pointed out. When it is admitted that life, lib- 
 erty, &c., are the natural and unalienable rights of one 
 man, there appearing to be no exception, it is to be 
 assumed that they are, likewise, the natural and unal- 
 ienable rights of all men. 
 
 under this regulation of nature, how much soever a man may surpass his 
 neighbors as to bodily or intellectual endowments, he is still obliged to pay all 
 natural duties as readily and fully as he expects to receive them ; nor do thoso 
 advantages give him the least power or privilege to oppress his fellows." (Ptjf- 
 FENDOEF, B. 3, eh. 2, g 2.) 
 
OF GOVERNMENT. 17 
 
 § 21. Again, whoever asserts that one man has natural 
 rights superior to another, and before which the rights 
 of others must yield, assumes an affirmative which 
 cannot be admitted, until it is clearly and logically 
 proved. If he has any special claim to the natural pro- 
 visions which God has made for supplying the needs of 
 his creatures not possessed in common by his fellows, he 
 must produce his charter from the Almighty, and show 
 by evidence that cannot be questioned, his superior 
 origin, aim and destiny. 
 
 g 22. The natural necessities of all men being the 
 same, their natural rights are likewise the same. And, 
 until it can be shown that a i3articular man has natural 
 necessities not common to the race, it cannot be claimed 
 that he has natural rights not common to all. In short, 
 until it can be demonstrated that one man has a different 
 origin from another, and is sustained by different means, 
 and has a different destiny to accomplish, it cannot be 
 claimed that he has been endowed with different and 
 superior rights to others. 
 
 g 23. The natural rights of man, as indicated by his 
 natural necessities, are limited only by the equal rights of 
 others; and the limit can generally be ascertained by the 
 inquiry, " Should all others claim and exercise the same 
 natural rights, would there necessarily be any conflict?" 
 For no one can justly claim a natural right so broad that 
 he cannot accord the same to all others ; and when he 
 does so, he is trespassing upon the common rights of the 
 race ; and he thereby authorizes them, in that respect, to 
 trespass upon him. Therefore, in defining the sphere 
 of individual rights, care must be observed to make the 
 definition broad enough to meet the needs of the indi- 
 vidual, and yet not so broad as to conflict with the like 
 rights in others. Eight cannot conflict with eight, 
 
 NOR CAN TRUTH CONTRADICT TRUTH.^ 
 
 1 Nothing is conformable to the rules of wisdom which, being practiced by 
 every one, becomes hurtful and evil. (Barbeyrac's note on Puf., B. Ill, ch. 2, §4, 
 quoting Lactantius' Inst., Div. 1, 3, ch. 23.) 
 3 
 
18 INTKODUCTORY. 
 
 g 24. Man has that natural right to his life which can, 
 Tinder the same circumstances, he accorded to all other 
 men. And where he has a right to the prolongation of 
 his life, he has, as an incident thereto, the right to seek 
 and use all proper means to support and defend it. 
 When, under what circumstances, and upon what princi- 
 ple, man may forfeit the right to prolong his life, will 
 be fully discussed when the social and governmental 
 problems are under consideration. 
 
 § 25. Liberty is the right to exercise all the faculties 
 and powers with which man is endowed that he may pro- 
 tect himself and provide for his natural necessities ; and 
 also to do and perform whatsoever he pleases, so that he 
 does not, in any way, interfere with, or violate the equal 
 rights of, others, or endanger the well-being of society. 
 
 g 26. The extent of man's natural liberty as an indi- 
 vidual, is to be ascertained by considering his individual 
 necessities as a physical, intellectual, social, moral and 
 religious being. Whatever these natures may require for 
 their proper development and perfection, he is at liberty 
 so to provide for, as not to interfere with the like right 
 in others. He is at liberty, naturally, to appropriate to 
 his own use so much of that which nature has provided, 
 without the labor of man, as his necessities require. 
 He is at liberty so to bestow his labor, as by the aid of 
 natural forces, to convert to his own use, not only that 
 which is immediately necessary to supply his own wants, 
 and the needs of those dependent upon him, but also to 
 lay up in store for their future necessities. In short, his 
 personal liberty gives him the right to use all his facul- 
 ties and powers, and to possess himself of all the pro- 
 ductions thereof, to the extent that the same right can 
 be accorded to all others without necessitating conflict. 
 
 g 27. Man's right to the enjoyment of perfect liberty as 
 above defined also implies the right to possess himself 
 of the means for defending and maintaining that liberty ; 
 and also the right to use the same for that purpose. 
 For the right to enjoy is of no value unaccompanied 
 
OF GOVERNMENT. 19 
 
 with the i)rivilege of maintaining and defending that 
 right. Therefore, when the right to life and liberty are 
 conceded, it follows that every other right essential to 
 the maintenance thereof, is also conceded. For the right 
 to life would be of no value unless accompanied with 
 the right to defend and maintain it ; nor can the right 
 to liberty be maintained without the accompanying 
 right of self-defense. 
 
 § 28. Man's right to pursue after or seek happiness, 
 implies his right to acquire and enjoy that upon which 
 his happiness or well-being depends. He can only 
 be happy in the supply of all his needs. There cannot be 
 contentment while the mind feels the demand of neces- 
 sities it is unable to supply ; and in the absence of 
 contentment, there cannot be complete enjoyment. 
 Thus, while there is hunger or thirst, and the means are 
 not to be had to supplj^ the demand, there can be 
 no complete enjoyment. The higher necessities may 
 be so abundantl}^ supplied in the presence of such 
 physical lack, as almost to overcome the lower dis- 
 quiet; but, nevertheless, the demands of hunger and 
 thirst will make themselves felt, unless consciousness 
 be entirely withdrawn from the physical nature. 
 
 ^ 29. But there are, also, social, intellectual, moral and 
 religious needs, which must be supplied, to enable man 
 to attain his true destiny; and those needs, unless 
 properly supplied, have their hungeriugs and thirstings, 
 creating an " aching void." Every nature has its needs, 
 without the supply of which man cannot obtain happi- 
 ness. The gratification he experiences in the appropriate 
 supply of the need indicated by hunger or thirst, is but 
 one of the many strings vibrating in harmony with 
 his perfect destiny, and tending to produce that state 
 in him known as happiness. When every need of his 
 nature is supplied, so that, physically, intellectually, 
 and affection ally, there is no lack, he will have attained 
 the state of complete happiness. The affirmation, there- 
 fore, of the right of man to seek happiness, implies his 
 
20 INTRODUCTORY. 
 
 right to seek perfection in every department of his 
 being. He has a right to perfect his i^hysical nature, by 
 supplying every need thereof; he has a right to perfect 
 his intellectual nature, by seeking all knowledge ; he 
 has a right to perfect his social and affection al nature, 
 by striving to come into true and just relations to man 
 and God.^ 
 
 g 30. This natural right to seek happiness, and, hence, 
 to employ the means by which alone it can be obtained, 
 gives also the right of property, by means of which, in 
 many respects, man's needs are to be supplied.^ Man's 
 
 1 Perfect happiness is an incident of a perfected individuality and character, 
 and is the proposed end of every human being. Such destiny is the birth- 
 right of all, and hence, the desire for happiness is instinctive in man. But 
 happiness is to be distinguished from mere gratification of desire. That state 
 called desire, looking for gratification independent of the supply of needs, 
 arises from a disregard of the demands of the higher nature, whence arise 
 spiritual hunger and thirst, creating an "aching void," — uneasiness, discon- 
 tent—to silence which, gratification is sought, not by the supply of those 
 higher needs, but by the excitation of tiie lower appetites and passions. This 
 ■undue excitation tends to disease, sufiering and death. This desire for gratifi- 
 cation is denominated "lust." 
 
 Real happiness can result only from obedience to law. It is a state of con- 
 sciousness in the individual, realizing the complete supply of everything 
 essential to his present well-being, without regrets for the past or anxiety for 
 the future. It implies a sense of duty performed to one's self, neighbor and 
 God. By obedience of every law of his being, man dwells in the smile of Divine 
 favor, hearing the voice of God saying, " Well done good and faithful servant, 
 enter into the joy of thy Lord." Perfect happiness can result only from perfect 
 obedience to every law promotive, in the individual, of his perfect destiny ; 
 consequently, when man seeks happiness through the gratification of his 
 selfish desires, he must not only fail, but must involve himself in a degree of 
 sufiering incident to such disobedience of the requirements of his highest des- 
 tiny. It is to be observed that happiness can never be obtained while it is 
 made the object of pursuit. It can only follow as a result incident to a state or 
 condition in the individual, in harmony with the divine attributes. Hence, 
 happiness cannot properly be made the object of pursuit, except as an incident 
 of perfected condition or state. 
 
 2 The subject of property, or that to luhich the doctrine of property relates. GoD- 
 ■WiN, in his treatise on Political Justice, says : " That it relates to all those 
 things that conduce, or may be conceived to conduce, to the benefit or pleasure 
 of man, and which cannot otherwise be applied to the use of one or more 
 persons, than by a permanent or temporary exclusion of the rest of the 
 species. Such things in particular are food, clothing, habitation and furniture. 
 (Vol. 2, p. 415.) 
 
 Of the nature of property. Pxjffendorf (B. IV, ch. 4, g 1), says that property is 
 a moral quality which does not aflfect the things themselves, or as to their 
 intrinsic nature, but only produce a moral effect with regard to other persons; 
 and that these qualities, as all others of the same kind, derive their birth from 
 indisposition, &e. That the natural substance of things suflers no alteration, 
 whether property be added to them or taken from them. He defines property 
 
OF GOVERNMENT. 21 
 
 property rigbte are either in common, or such as belong 
 to him exclusively as an individual. He has a right' in 
 common to that which nature has provided without the 
 labor of man, and which is necessary or convenient for 
 his use ; to be so exercised, however, as not to interfere 
 with the like right in others. He has a right in common 
 to the use of the earth, and the natural i)roducts there- 
 of; to the use of the water, and the natural products of 
 the same ; to the use of the sunlight, the air, etc., to be so 
 used as not to interfere with the same right in others. 
 But any appropriation of these natural provisions 
 beyond the requirement of his wants, which necessarily 
 excludes others, cannot be claimed as a natural right.^ 
 
 g 31. He has also a natural right to the products of 
 his own labor. They are, so to speak, his creations, and 
 he has a title thereto as the producer or creator of such 
 products. This property belongs to the individual, and 
 is not held in common, as in case of mere natural pro- 
 
 to be "a right by which the very substance, as it were, of a tiling, so belongs to 
 one person, tiiat it doth not in whole belong, after the same manner, to any 
 other." (Idem.,l 2; see also Kaufmann's Mackeldey's Civil Law, §260.) He uses 
 the terms " dominion " and "property" as synonymous. The right constituting 
 a thing property, he says, " strictly speaking, inheres in the person from which 
 the things themselves derive some kind of extrinsic denomination." {Idem.) 
 But aside from metaphysical disquisitions upon the question, my right of 
 absolute property in a thing implies my right of dominion over, and of appro- 
 priation of, the thing; and my property therein, when limited to a particular 
 use, or when qualified by a particular obligation, is not absolute as to the Whole 
 thing, but is deemed a limited or qualified property. But of this hereafter. 
 
 (Beepost, ; see Kaufmann's Mackeldey's Civil Law, § 260.) 
 
 1 Man's right to appropriate those things to his use which God has provided 
 for the supply of his needs, is absolute in itself, but is only inchoate in respect to 
 the things to be appropriated ; and his absolute property in the thing does not 
 commence until the appropriation has taken place. The right to appropriate 
 for the supply of needs is absolute, but this right does not attach to a particular 
 thing until exercised in respect to such thing. This right, which he holds in 
 common with all mankind, to the use of those means provided by the Author 
 of his being, without the labor of man, for the supply of his necessities, is, 
 therefore, absolute, but it only attaches to the thing when exercised in respect 
 thereto. Therefore, the right to appropriate must not be confounded with the 
 act of appropriation. Before appropriation, his property in the thing is incho- 
 ate and conditional; after appropriation, as above, it is absolute. But this 
 absolute right to appropriate these things made essential to the existence of 
 man, extends only to the supply of his necessities ; and when, by so extending 
 this right, he interferes with the like necessary rights of others, he Is acting 
 without authority from nature. 
 
22 INTRODUCTORY. 
 
 ducts, upon wliicli man Las bestowed no labor.^ He 
 has an absolute right to apply to his own use that which 
 he has produced without taxing the labor or invading 
 the rights of others ; and he has a natural right to keep 
 or part with the same upon such terms as he thinks 
 proper, subject, however, to such modifications as the 
 rights of societj'- impose. 
 
 % 32. He may have property rights in whatever he 
 takes from the common stock and renders more valuable 
 to himself or to society by the bestowal of his labor upon 
 it. Thus, he may take uncultivated land, and by his 
 labor subdue it, until its products are more suited to the 
 needs of man, or are produced in greater abundance. 
 By so* doing, he naturally acquires a property in such 
 land, justly measured by the improved character im- 
 parted to it by his labor. The same iDrinciple is appli- 
 cable to every natural thing made more valuable by the 
 labor of man. His exclusive property in anything, 
 naturally, is to be measured by what he has bestowed 
 upon or imparted to it. Eights of property acquired by 
 contract, etc., cannot properly be considered in this place. 
 
 CHAPTER in. 
 
 OF THE OEIGLN^ OF GOVERNMENTS. 
 
 g 33. Civil governments are institutions of society, 
 established for the aid and protection of the members 
 thereof; and man's right to use his faculties and 
 powers to j)rovide for his present and future well-being, 
 
 1 This right to tlie products of one's own labor is absolute, because such pro- 
 ducts are the creation of tlie laborer. His title thereto is original, and not 
 derived after the tiling has had an existence, as in case of title by appropriation 
 or purchase. His title begins with the beginning of that to which he is entitled. 
 This proposition presupposes tlie laborer to be the owner of himself, his facul- 
 ties and his powers ; and as such owner, to have the riglit to dispose of their 
 use for a limited time, or of the products of their use; hence, by contract, he 
 can transfer his title to the products of his labor to another, even before they 
 have an existence, or, which is the same tiling, he may hire out to another any 
 lawful use of himself, his faculties and powers. 
 
OF GOVERNMENT. 23 
 
 is the basis of the authority with which civil governments 
 are necessarily invested. Were all men sufficiently wise, 
 powerful and just to understand, respect and perform 
 their various duties to themselves and others, the neces- 
 sity for human governments would, in a measure, be 
 obviated. But, as men are naturally weak, ignorant 
 and selfish, and are inclined to prefer self to justice, 
 human governments, established upon i^rinciples of 
 impartial justice, become a necessity.^ 
 
 g 34. Man is so constituted, that, living alone, he can- 
 not perfect himself in his social, moral and religious 
 natures. He is constituted for society, and must live 
 in it or fail of his destiny. He may live by himself as 
 an animal, but he cannot as a social, moral and religious 
 being. Hence, society is one of the necessities of his 
 existence, giving birth to a class of rights to which 
 those of the mere individual are necessarily subordi- 
 nated.^ 
 
 1 "All men are endowed with certain unalienable rights, among which are 
 life, liberty and the pursuit of happiness; that, for the protection of these 
 rights, governments arc instituted among men, deriving their just powers 
 from the consent of the governed." (Declaration of Independence.) 
 
 2 Man is so formed by nature that he cannot supply all his own wants, but 
 necessarily stands in the need of the intercourse and assistance of his fellow 
 creatures, whether for his immediate preservation, or for the sake of perfecting 
 his nature, and enjoying such a life as is suitable to a rational being. (See 
 Vattel's Law of Nations, Prelim., p 45, ? 10.) 
 
 " The great end of every being endowed with intellect and sentiment, is hap- 
 piness. It is by the desire alone of that happiness that we can bind a creature 
 possessed of the faculty of thought, and form the ties of that obligation which, 
 shall make him submit to any rule. Now, by studying the nature of things, 
 and that of men in particular, we may thence deduce the rules which man 
 must follow in order to attain his great end — to obtain the most perfect hap- 
 piness of Wiiich he is susceptible. We call those rules the natural laws, or the 
 laws of nature. They are certain, they are sacred, and obligatory on every 
 man possessed of reason, independently of every other consideration than 
 that of his nature, and even though we sliould suppose him totally ignorant 
 of the existence of a God. But the sublinae consideration of an eternal, neces- 
 sary, infinite Being, the Author of the universe, adds the most lively energy to 
 the laws of nature, and carries it to the highest degree of perfection. Tiiat 
 necessary being necessarily unites in himself all perfection; he is therefore 
 superlatively good, and displays his goodness by forming creatures susceptible 
 of happiness. It is then his wish that his creatures should be as happy as is 
 consistent with their natui-e; consequently it is his will tliat they should, in 
 their whole conduct, follow the rules which that same nature lays down for 
 them as the most certain road to happiness. Thus the will of the Creator per- 
 fectly coincides with the simple indications of nature; and those two sources, 
 producing the same law, unite in forming the same obligation. The whole 
 
S4 IK'TOOPFC^'OKY. 
 
 §1 35, A*5 n\an U tWmtHrtw sooiety. ami i.^ oiulo\\od 
 >vith ttuniUii^ and jH>\vtH^ whioli i\M|wiix\ for tboir ouUi- 
 vaiiou and povt\vii<>n. tho pw'^^enoo ai\il aul of his follow 
 Innnii"^. ho iiuij^t ^^iibmit to all <4iu'h ruU\s ami iViiulations 
 as aiv ntHH\<i:>ii>rY t\>r tho t^!!4t«bl^^m^ont aiul uiaintonauco 
 of Sivial oxi^tonvv and owlor. Honoo. avii^tviij tho iliH^ 
 tvino. that, on ivniinii' into sooiorx . man. in oonj^idovaiion 
 of tho Wnotitv^ and ailvanta^iiw^ to bo dorivod thoivfixnn. 
 ntHws^vrilv ^s^ninvndoi'^ii \ij> a jH>rtion i\f hi* natm^jvl lil>- 
 ortY.* 1\y whioh is moant, tho iudividnal innsr snnvndov 
 his olaiin to snoh rights and ivrivilogvs as oanm>t bo 
 oxomstHl innxsistontlv with tho oxislomv axnl wolfaiv v^f 
 svvioty. Ho must claim fov lumsolf tho oxoiviso of no 
 lilvrty whioh cannot Ih^ atHHuthnl to all othoi^. 
 
 ^ ,S(K ^lan must Ih^ faithful to lumsolf if ho would 
 fultUl tho dt^tmv l\>r which ho is en\>toih E\i>rY ondow- 
 
 iv>\^rts t\^ thi? ttrst $t««t «>»w\ 04- n\wv» Avhivh Is l»a\>|vlnie<s&, 11 was to vx«xtl«<>» 
 UUwiv> »ix«t sw<*» w\v\ <h4»? nvi!^ \!i»\v^ vM" nauuv w^^rij* v>¥v\ai«<;Ni ; It l&t>\xmtih«> 
 
 ^h<fv^^f^*x^ wv> xuau— \vh^xi>^wT nv^y K^ Ms W<\xs i^\s^H\'th\s t^<* vm'^«4« v\f ?ht> 
 u«iws^!»\ (fx^xx xf Ixif txAvi tiim^ ixxisKxttXiXXn^ tv> W ixix aiWxsi — \v»xv> Js xxoi K^xxxd tv> 
 
 V^^e^>- 5iX<f UWS v\f XX^^UXWX T^^y a?^;> XX<:\N\!S;Xry 5v^ «lX<> S^nXtn'Wl hSi>lxt»Xl\SS V\f XXXSXXX' 
 
 kuxvi: »uxv\ xvlxvv!>xvr sJxvhxKI xrv^Kvi tVxxx. xvhvvxv-'r sJxv>xxM oj^^xx^v a«\si>$s<^ Oxexxx, 
 xwHxlvi. l\v sxxs-ix v.\MXvlxxo« !*lvxt\<\ vttViATs^ Uhxxss-lf axx <t^xx<>»xx>i- !v> ilx^ hxxxxxsxxx r^iv, 
 *ixv^ d>!Ns«!^yxx^ u-* V 5ir<;N»«<ts\ ixs sxxotx, :Xv>xv. vv.x^'' v>f ?Jx<^ rtx-s? isrxxths xvhU-lv th<^ stxxv^- 
 »,xf xx\*ix t>fx^<*is tv* xxs, «xxvl xvixxv-Xx tsA\xt\v<sas»ry «.\>xxs<;XixxexxvNe>vxf hisxx)*ixx»\\Xs, 
 iJx*!, XXX * susxf vxt U\xx<-^\>- s^vs*ftxsiv\xx ftxxxxx tJxi? xyxs! vxf Ixis SiVVi<f«, hi? o«xxxxxvxi 
 sx«aJxx h5s $i!v<!X! ifxx*.^, hAi^v\Sxx«"sss; Jiwxxl th^^ ifxNssvMx Js, tx* vr;*s ixx5exxvl«\l tv^ liYt> ixx 
 s\vi^«y xifxtix txxs ^s5lv>x>f v"irv«xnxxy«s». ^Nasxxr^ ht^rss^n". Uxi?x>^Jfi.v>^ h*s «NslAWishi\l 
 tix*i s^vx<^5^^ wlHvs*? sw**? «xd te 5lx<e» v\x5xxxx\vxxx Av^xsixlsxs'f vM" an its xxx^^xxxNmts: 
 s«v\ th<^ xxx<«*«s v>f sxttixixxhx^ tixixt ifixv) vN>i\stJtxxt«^ tix<? rxxt<?« that <\xoh ixx^tx-^ulxxaX 
 is KhxxxvI t\^ v<Svs«;>rY<f U\ txis wfcvxK^ owixv^xxv-ts iSwlx *re» tlx<f xxijxtxxiKxl laxvs vxf ixxxxxxaxv 
 svvi<^\" v^*»?^'' «v>ty^ v>xx <Si.\ $v Yati^xl^s T^vr vxf >\ativ>ttSs^ 
 
 X K.VACK'Sxxxsxs; txx tx^ Cvxxxxxxxs^xxtiwirxs vi R» jv I:Si\ Ixas th«> )KmK>x\-ixxs; Ttx* 
 »^«!\>ixxt>f r^ts vxf xxx*xx» vVAxsin?<f)^!\\ *s Ji« t>e^> s^nxt^ <>«i>lii>xifwl wtsix v\iSk.>?rxxxx\oxxt 
 tv> Sixxv^w ssvn\ t\vvxxx ^vxl. *xxvi vUix |\,nvvirv>f olxvxxsixxs tixtkvs*^ jxxe<Asxxxy\s xv^xK'^tx 
 *j^|xxwr tv» Ixittx xxxvxsi d<xsiir*W^\ axv* xxsxxsxlly sxxa\xxx<?^\ xx? Ux 04x<t» s>^xxeT5»l spxv" ,-.- 
 tivxsx, sMXvl vlexxvxxxxtxxs«5<!\l tlx<^ xxatxxiniU ntN^yty oJf m»xxktxxvU TMs xx»txxCixX i.>. > 
 v\>5xsxs?s. \\rv^\x^!r^\ xxx * is^>wr vvf Sv^ti^xgt !i»s oixxo" tlii«ks St, "witSvv^xt ajx>" jv*:. . ' . . 
 v\r vN\xxtrk\5. xxixl!;\ss Vy 5>s<^'«5xxv v\s" xxji»txxr>e>; lvfSix$ * rtjrtxt txxtxi!»Jr>:Hxt ixxxxslv V . ■., 
 iixiv^ wxe ^xt~ :^.o ji'-t^s of ^^\l tv> xxx*xx at hi* v-j^ftixtioix. xvJxeix he eixvl«>xirt:xl hhxx v\ uix 
 ^^^^ ^v'X',';> of x>:w N^ -.r.. Itxxt <>Y*?sry xxxaxx. xvbtxxx Ixe exx!<Mrs into sv.v>it>ty. s*>v« xxj> 
 A V*Art v\f >o.s xx,^:ui-:su UN?rty, *s tii* jvrxvwxf sk> \^xx«>.V a x^v.xTV^*se : sxxxvi xw 
 vN>ixsiv^«x5iv>xx vxt Tvwivuxs sit"!* a*.\x^sxts^?e* v\f xxxxxutsU *.\xx^xxxxo3\\\ v>M5^v« ixaxx- 
 «!?■;;? tv» cv>tt^>!rut tv> 5Jxos«e> i5»"«rs wMv^ tV> (Nxsxxxxxxuxtty txAs tJxoxi5i~tx5 ^xrv^^vr to 
 <?«5&Wtea6x. • * * i\\tx5K"*l ox v-ix-tl tH><^rty. »lxej>?S^)r<\ xs xxo »>ther tixaix uatxxral 
 Ixtvrty s»> *w w*t«xtxxM by ixxxtxxasx l*ws — swKi txo fixrtixt^r— as is xx<iv*<5s*ry axtd 
 
iiicttl oi' \t<)(\y .'j.nd of rninH i« alw)lijf,<:ly <'HH(nit,ial to 
 fijf; awornj*IiHhfn<;nl, of hi > f riK; (J»;HtJny. Thcmrorf;, Jkj 
 Cttfinot Hun'<;nrJ<;r, (;n c/niiiri^ ifjt/> HocJ<;t,y, any <;HH*:nt.ial 
 liberty fjr ri^fit. Ah fjin natural rJg^liiH hav<5 lh<;ir baj^in 
 in Iji.H natural tiiu;o,HHiVicM, ho far aH Hocicty rno'lifi'^M or 
 
 diMJJCnWJM Willi thc.Hf; UCJ'AtHnh'UiH, to that <;7.U;ii\, h'iH 
 natnral ri^htn arf; ifnnlii'icA or <'.\\',i.\\in-A. liut h<5 Hnr- 
 rcjjdcr.H no r;HH*;ntial ri^ht; hfj Io,H(;h no \>v\^\h;U^f', of 
 injnrif)!^ anothr;r, or of int<;rf((;ring with tho f;/juul rii/;htH 
 
 of OtiHjrH.' 
 
 3 'J7. 1'hr; natural nf',f;^;:',Hiti<;H of tho individual whilo 
 iHolat<;d fronj .Hoci«;ty, or flwcilin;^ in a HHVHt^H hUiU;, av*; 
 i\\\Xi'.Tt'.u\. frofn thorn oi' orio cnjoyin/^ the sulvtiiitifi^fiH of 
 a hi;<h civilization. And tho natnral tU'/'J'.hhWwm bcin;^ 
 dirtV'.rent, the natural rif^hts incident to those u<;('/'»,h)Iu'.h, 
 an; like.wi.se differrjnt. The, man advanein;^ from a 
 Hava^e to a caxWv/A'A condition dof.H not thweby «ur- 
 rendr;r the natnral ri^htn incident to bin native Htaf;^;. 
 Haviri;^ pnt off his primitive condition, be has alH<^> put 
 off with it, the ineidentH thereof, or, in other 1an;;(nage, 
 the ('/>nrlitiori cj'/fiHiufr^ the incidentM thereof c<ja«<? with it/ 
 
 3 '>H. Society beinj( ne/;es.sary to tbe individual to 
 enable bim to fulfill hi.s true destiny, be bjis, iiH an 
 incident, all tbriri/^hts ne^Mjssarily involved in tbe (tni'dh- 
 lishment and rcf^ulation of tbe s^iciety demanded, ft 
 hcAU'^ a natural ner;/5.s.sity, it rniist be cstablinbed upon 
 Huch foundations as will secure its <;^;nti nuance, and 
 
 ' " M'/raJ or natrjral llfxrrfy Im i.h<! rl!<>it wyiU-M Tisttarc- nivm U> t%,\\ ntnn)i\n/l <it 
 6)»pfMini( 'if thTlr iif^rHfirin ari'l prop*^r1.y iifUrr tbft maum^r Ih'ry Jm'Jk'; ttt'/Htcj/tt- 
 wtrtnut Ui thtvir happirK^m, on fy/ndiOwi </f Wi«ir tuMnn within thft Utnitst utihn 
 Uw of uninrt-., an'l l,N;if, t,h*;y do ^ofc any way at>twe It to the jfr*r)aau» ot anjr 
 otb<!f ni«;n." <y.ar\si.rnsuin\, ch, ?, ? Di.) 
 
 « '"ni*! iWtni/M f/vMIU/et fo/^i/wli, fft Xhf, liberty «'/f doinff «nr«rrythJn« wtil/;h th« 
 p»iW»J/>r)<t of rnan rnay urj{<! h)rn t/;> attempt, f/r hlx «rtr«rn«(th #maW« hlni t/* tittttt^, 
 l« navHK'; tir'^:U.y ; It U th<! \\\,nny '/f the tl«<?r, an4 mH tti« liberty '/f man." 
 (HhHrnw)'>'\'n wiU; U> 1 IJIa, lUmi., p, 12^,; 
 
 M/».n c.Ttvu.u-A \u th«; immtc of h)n S1o,kt^r, an'l, Vrtr'tn^t Mn c/nxtltotl/zn, rna/le 
 tbe iiahj«^;t of rnoml ifoyemment, l«, by natore, invt^U-A with no nUrn.y 
 <fT t^iiVfWf-A wU.tt nt> tiffitU \nfjmn\%U'.nt with the reqwlrerrientf* '/f that. ((ov«rrn- 
 rn'int t^j whleh h<; Ji »i«bj»!et. It wmhi be a perv«rr»i'/Ti '/f rfjav/n t/zsay that 
 man ha/1 the liMrrty or rijjJit u^ eomrnlt a wrcmg bfecatwe the Al/fll«l«ty Jiad 
 intrw.Uul him with power t/j do «o. 
 
 4 
 
26 INTRODUCTOEY. 
 
 enable it to accomplisli the purposes for wliicli it is 
 coDstituted. And man coming into, and becoming 
 a member of, civilized or enlightened society, and 
 participating in its benefits as a refining and civilizing 
 institution, ceases to be a savage ; consequently the 
 rights incident to the savage state cease to exist ; not 
 so much by a surrender of the right or liberty, as by a 
 destruction of that condition out of which it arose. 
 
 g 39. That society which is adapted to the natural 
 necessities of the individual, must establish its founda- 
 tions in natural justice. It must permit no necessary 
 liberty or right of the individual to be abridged. It 
 must not hinder him in the pursuit of a perfect destiny, 
 and, hence, must not embarrass him in seeking the 
 supply of his essential needs. Tliose necessities of the 
 individual which call for the existence of society, require 
 it for purposes of aid and protection. Tlierefore, society 
 must be so constituted and used as not to interfere with 
 the essential rights or liberties of the individual members 
 thereof. 
 
 ^ 40. Civil liberty consists in the right to seek after, 
 and employ, every means essential to the perfection of 
 the individual in evevj department of his being. Civil 
 governments are instituted for the purpose of protecting 
 man in the exercise of such liberty, and also for aiding 
 him when such aid can be given without encroaching 
 upon the equal liberty of others. Man is entitled to no 
 greater liberty than that which leaves him free to seek 
 the end for which he was created ; and no government 
 can be authorized to restrain him in the exercise of such 
 liberty. A true civil government, therefore, is one so 
 instituted and administered as leaves every subject 
 thereof free to seek the supply of every need, and 
 protects him in such endeavor.^ 
 
 1 Civil liberty is " that of a member of society, and is no otlier tlian natural 
 liberty so far restrained by liuman laws — and no farther — as is necessary and 
 expedient for the general advantage of the public." (1 Bla. Com., 125.) 
 
 " Civil liberty is tlie not being restrained by any law but what conduces in a 
 greater degree to the public welfare." (Paley on Civil Liberty, B. 6, c. 5.) • 
 
OF GOVERNMENT. 27 
 
 § 41. Civil liberty, then, consists in living under the 
 protection of a civil government, -where the subject is 
 left free to exercise fully all his faculties and powers in 
 seeking the perfection of his being, or the attainment 
 of a XJerfect destiny ; and where he is fully protected in 
 the exercise and enjoyment of such rights. A true 
 government cannot restrain its subjects, as such, in the 
 exercise of any individual right.^ For government is 
 not authorized to make unnecessary requirements of its 
 subjects ; and those which are essential to the existence 
 and well-being of society, the subject has no individual 
 right to retain or claim.^ 
 
 g 42. Society can have no rights not essentially in 
 harmony with the rights of its individual members. 
 For God, having ordained society as necessary for the 
 perfection of the individual, has jjlaced social and 
 individual rights upon the same basis. The necessities 
 of the individual give birth to those of the social. 
 Hence, there must be agreement between individual 
 
 1 The terms "civil" liberty and "civil" rights, and "political" liberty and 
 " political " rights, are usually treated as synonymous. In this work they will 
 be carefully distiuguislied. By "civil" liberty and "civil" rights will be 
 understood tlie liberty and rights appurtenant to the individual as a member 
 of society and subject of ^ivil government, whetlier he be an infant or an 
 adult, a male or a female, a native or an alien. By "political" liberty and 
 " political " rights are meant those riglits and privileges conferred upon the 
 subject by tlie government. That is, " civil " rights inhere in the individual ; 
 "political" rights are conferred upon him. "Civil" rights are a natural 
 endowment; "political" rights are a governmental one. Government must 
 concede "civil" rights and "civil" liberty to all; it confers political rights 
 according to its discretion. This principle has its foundation in the law of 
 necessity. The government must determine upon whom, and upon what 
 conditions, it is safe to confer political power, having in view the existence 
 and higliest good of society ; but it must respect the " civil" liberty and " civil " 
 rights of all, or defeat the very end of its existence. 
 
 2 " Every wanton and causeless restraint of the will of the subject, whether 
 practiced by a monarch, a nobility, or a popular assembly, is a degree of 
 tyranny; nay, even laws themselves, whether made with or without our con- 
 sent, if they regulate and constrain our conduct in matters of indifference, 
 without any good end In view, are regulations destructive of liberty." (1 Bla. 
 Com., 126.) 
 
 The right to regiilate or constrain the conduct of the individual in one thing 
 indifferent, implies the same right in all things, which would necessarily be 
 destructive of all liberty and right in tlae subject. The exercise of such power 
 is tlie characteristic of despotism; and it does not properly belong to a 
 legitimate civil government, which derives all its right to govern upon the 
 theory of a public authority created on account of a public necessity. 
 
28 INTRODTJCTORY. 
 
 and social necessities — and, therefore, between indi- 
 vidual and social rights — and civil government performs 
 its office most perfectly when it so administers as not to 
 abridge the rights of any of its subjects. 
 
 § 43. Civil government is a necessity of society, and, 
 hence, the necessity of every individual member thereof. 
 Therefore, everything essential for the estabhshmeut and 
 maintenance of such government becomes a like 
 necessity. Whatever right or power is demonstrated to 
 be indispensable to its existence and maintenance, 
 society can properly confer upon it. Therefore, society 
 has sovereign authority to invest civil government with 
 every right and power essential to its existence and 
 just administration ; and the highest government thus 
 constituted must have sovereign authority, absolute 
 within such limits, and for such purposes. 
 
 % 44. Every civil society must necessarily establish a 
 public authority, under which its common affairs are to 
 be regulated, and the civil conduct of each member, in 
 respect to the public welfare, is to be prescribed. This 
 authority belongs essentially to the whole body of 
 the society, until it is vested in those intrusted with the 
 administration of its government. ♦ But as soon as 
 society institutes its government, and determines the 
 mode of its administration, the public authority is vested 
 therein, and can only be exercised thereby.^ 
 
 § 45. The fundamental regulations which determine 
 the manner in which the public authority is to be 
 executed, form the constitution of the government. And 
 society, having instituted its government, determined 
 the fundamental regulations by which it is to be admin- 
 istered, and invested it with the public authority, is 
 bound by it, and must itself submit to that authority. 
 
 1 All the members of a state cannot be called together to be consulted or to 
 vote upon the enactment of its laws; or upon the adjudication or execution 
 of them, and if they could be consulted, upon all questions of this. character, 
 they would not be able to agree unanimously. Hence, there must be an estab- 
 lished pu^blic authority by which the laws of society are to be enacted, adjudged 
 and executed, without which society could not exist. 
 
OF GOVERNMENT. 29 
 
 It can, then, exercise its autliority, civilly, in no other 
 way, for, politically considered, the government repre- 
 sents, or stands for the society/ 
 
 § 46. Between the body of society, and the govern- 
 ment instituted by it, there is a manifest distinction. 
 Society institutes its government and invests it with 
 the public authority ; and the government thus insti- 
 tuted executes that authority in the manner prescribed. 
 Hence, while the body of society is the source of the 
 authority, it is not the government itself, and it can 
 execute the public authority only in the manner pre- 
 scribed.^ 
 
 CHAPTER lY. 
 
 Of the Nature of Governments, and their Natural Rights. 
 g 47. Whatever may be the form of the government 
 established by society, it is instituted to be intrusted 
 with the execution of the public authority. By the act 
 of association each citizen subjects himself to the 
 authority of the entire body in everything relating to 
 the common welfare.^ The public authority emanates 
 from the entire body of society, which, to be executed, 
 must be vested somewhere ; and wherever that author- 
 ity is vested, there is to be found the government of 
 that society. Therefore, while the authority of all over 
 each member, belongs essentially to the body politic or 
 
 1 For the necessity requiring society to establish a public authority, also 
 requires it to submit to the execution of that authority in the manner and 
 form prescribed. Where the constitution prescribes the manner in which the 
 national authority is to be executed, or its fundamental laws are to be modified 
 or repealed ; or, in which the national will is to be ascertained, the nation is 
 thereby estopped from adopting any other method, except by overturning the 
 established authority, which is equivalent to revolution. 
 
 2 "It is evident that, by the very act of civil or political association, each 
 citizen subjects himself to the authority of the entire body in everything that 
 relates to the common welfare. The authority of all over each member, there- 
 fore, essentially belongs to the body politic or state ; but the exercise of that 
 authority may be placed in different hands, according as the society may have 
 ordained. (Vattel, B. 1, ch. 1, g 2.) 
 
 3 Vatt. L. of N., B. 1, ch. 11, § 2. 
 
30 ' INTRODUCTORY. 
 
 state, the exercise of that authority may be placed in 
 different hands, according as society ordains.^ 
 
 § 48. Society determines the form of its government, 
 that is, the body to which the execution of the public 
 authority is committed, which may be democratic, aris- 
 tocratic or monarchical : that is, the public authority 
 may be vested in a number of men elected by the peo- 
 ple ; or in a particular or select class of the people ; or 
 in a single individual ; or the government may be a 
 combination or a modification of these three kinds. 
 But whatever its form or constitution, it is created for 
 the purpose of executing the public authority ; and 
 derives its authority to act in the premises, from the 
 body of society.^ 
 
 g 49. From the nature and constitution of men, and 
 from their situation upon the earth, there must neces- 
 sarily be many independent societies or nations. It is 
 manifestly impossible for the whole race to dwell 
 together in a single society, or to become subjects of a 
 single civil government. 'No one government could 
 adapt its administration to all ; nor could it execute the 
 public authority upon all. Hence, from necessity, the 
 race must be gathered into many independent societies 
 or nations ; and governments must be devised adapted 
 to the conditions and necessities of these various socie- 
 ties ; and hence, being separate from, and independent 
 of, each other, each must be sovereign within its own 
 limits. 
 
 S 50. The largest societies of men civilly associated 
 together constitute nations : consequently, the highest 
 public authority to be executed by any civil government 
 is the authority of the nation. As nations are consti- 
 
 1 Idem. 
 
 2 " In Europe, sovereignty is of feudal origin, and imports no more than the 
 state of tlie sovereign. It comprises his riglits, duties, exemptions, prerogatives 
 and powers. But witli us, all power is with the people. They alone are sov- 
 ereign ; and they erect what government they please. None of these govern- 
 ments are sovereign in the European sense of the word, all being restrained 
 by written constitutions." (See Webster's reply to CALHOirisr, in the Senate 
 of the U. S., Feb. 16, 1833.) 
 
OF GOVERNMENT. 31 
 
 tuted of societies composed of the largest number of 
 individuals civilly associated together, and as the public 
 authority consists of the authority of all over each, it 
 follows that the public authority of the nation is sov- 
 ereign within its limits.^ 
 
 g 51. Sovereignty is the supreme authority and power 
 by which a state is governed.'^ It implies the right of 
 commanding in the last resort.^ As an attribute of civil 
 government, it is the right of commanding civil society 
 in all matters pertaining to the public welfare, in the 
 last resort; which right the members of such society 
 have conferred on one and the same person — which 
 may be an individual or a body corporate. — with a view 
 to preserve order and security in the commonwealth; 
 
 1 It does not follow that all national societies are equally numerous, wealthy 
 or powerful. One nation may be much inferior to another in each of these 
 particulars— may, in fact, be obliged to seek alliance with another and more 
 powerful nation, to protect itself against the encroachments of other powers. 
 But this does not abridge its sovereignty or lessen its authority to command 
 within its own limits, or its right to claim its position in the family of nations. 
 Nations, as individuals, may differ in wisdom, wealth and power; but, like 
 individuals, they are also equal in their rights as sovereign states, which do 
 not depend upon considerations of that character. Says Vattel (Prelim., J 15), 
 " Nations composed of men, and considered as so many free persons living 
 together in the state of nature, are naturally equal, and inherit from nature 
 the same obligations and rights. Power or weakness does not, in this respect, 
 produce any difference. A dwarf is as much a man as a giant ; a small republic 
 is no less a sovereign state than the most powerful kingdom." 
 
 From the very design that induces a number of men to form a society 
 which has its common interests, and which is to act in concert, it is necessary 
 that there should be established a public authority to order and direct what is 
 to be done by each in relation to the end of the association. This political 
 authority is the sovereignty : and he or they who are invested with it are the 
 sovereign. (Vattel, B. 1, ch, 1, § 1.) 
 
 2 " Sovereignty is that public authority which has no superior, and which 
 commands in an independent civil society, ordering and directing what each 
 must do to acquire its ends. It is the union of all the powers; it is the power 
 to do any and everything in a state, without being accountable to any one." 
 (Bouv. Inst., vol. 1, p. 8. See, also, Lawrence Wheat., p. 35 ; also note 1 to ? 49, 
 ante.) 
 
 3 This right of commanding in the last resort must not be the subject of 
 appeal to other authority. It must include the right to command each and 
 every member of the nation, or all residing within its local jurisdiction, in all 
 matters in any way pertaining to the public welfare, without authority left in 
 any one or anywhere, to resist. For if its authority may be resisted, then 
 there must be superior authority within the same jurisdiction. This is impos- 
 sible. For the nation being the highest form of civil society, its government 
 is the highest in authority, and is, therefore, supreme. (See, also, Burlamaqui, 
 P. L., ch. 5, § 3; Vattel, B. 1, ch. 1, 2 4.) 
 
32 INTRODUCTORY. 
 
 to promote the general welfare, and to secure tlie bless- 
 ings of liberty.^ 
 
 § 52. To entitle a society to rank as a nation, and to 
 figure in the family of nations, it must become actually 
 sovereign and independent within the limits of its 
 assumed jurisdiction. It must have the power to com- 
 mand therein in the last resort. It must have instituted 
 a government and invested it with sovereign authority ; 
 and before it can claim recognition, it must give prima 
 facie evidence of its ability to execute the public 
 authority against all resistance within its limits. 
 
 § 53. Before a society is morally entitled to attempt 
 establishing for itself an independent national existence, 
 there must exist a necessity for it so imperative that the 
 failure to establish it would be a public misfortune. 
 That is, the social necessity for it must be such that it 
 cannot be otherwise supplied. 
 
 S 54. That social necessity which calls for the estab- 
 lishment of a nation as a sovereign and independent 
 
 iSee Preamble to Const. U. S., also Burlamaqui P. of Pol. Law, cliap. 5, §§ 1, 2, 
 3, 4. 
 
 "This supreme authority may be exercised either internally or extern- 
 ally. Internal sovereignty is that which is inherent in the people of any 
 state, or vested in its rulers by its municipal constitution or fundamental 
 law. This is the object of what has been called ' internal public law,' but 
 which may more properly be termed ' constitutional law.' External sov- 
 ereignty consists in the independence of one political society in respect to all 
 other political societies. It is by the exercise of this branch of sovereignty 
 that the international relations of one political society are maintained, in 
 peace or war, with all other political societies. The law by which it is regula- 
 ted has, therefore, been called ' external public law,' but more properly 
 termed 'international law,' (Lawrence Wheat. Int'l Law, pp. 35 and 36.) 
 
 The rules applicable to the establishment of nations are quite similar to 
 those by which the natural rights of the individual are determined. No nation 
 should arrogate to itself rights and privileges in its institution, establishment 
 and administration which cannot be awarded to all other nations. For, as all 
 are equally sovereign and independent, and are to co-exist as such, they must 
 mutually recognize this sovereignty as belonging to each, and must consider 
 the necessary incidents of sovereignty as being the same in each and all. The 
 logic is this : If God has made the existence of nations upon the earth a neces- 
 sity, then must the nations be entitled to territorial locations upon the earth, 
 and to such locations as are suited to their existence and security ; and he has 
 clothed each nation with those natural rights which are essential to establish, 
 maintain and perfect its existence, and to accomplish the purposes for which 
 it has been established ; and these rights, naturally incident to the sovereign 
 and independent condition of the several nations, must harmonize ; so that, 
 If observed, the highest interest of each nation could be secured. 
 
OF GOVERNMENT. 33 
 
 state, naturally limits it to the occupation of sucb ter- 
 ritory as is essential to enable it to fulfill the purpose 
 for which it was established, and to maintain and per- 
 petuate its existence. It has a natural right to so much 
 territory as is not occupied by, or is not essential to, the 
 existence and safety of an existing- nation. For, if 
 the establishment of a ijarticular nation as a sovereign 
 and independent state is a necessity of society, then has 
 society a natural right to such boundaries as are essen- 
 tial to its existence and security. 
 
 g 55. The necessity requiring the establishment of 
 independent societies or nations, has its limits in those 
 principles essential to the existence, security and pre- 
 servation of the nation when established. Whatever is 
 essential to national existence and security, must attend 
 the right to establish a nation. Hence, in asserting the 
 right to establish a new nation, the right to everything 
 essential to the existence and security of that nation, 
 must also be considered. If such essential rights can- 
 not be asserted and maintained without violating other 
 essential principles and rights, the moral right to estab- 
 lish such nation is not perfect. 
 
 § 56. Territorial extent, natural limits, homogeneous- 
 ness of people, indicating a geograi)hical, moral and 
 commercial unity, suited to form one nation, are among 
 the essentials to a healthy, prosperous and secure politi- 
 cal existence as a nation. ^ Neither requisite may be 
 perfect, naturally ; but each should be so nearly so, that 
 the spirit and genius of the people can readily supply 
 that which is lacking. 
 
 g 57. That social necessity which requires the estab- 
 lishment of a nation, demands that it shall be so 
 established and located as to secure permanence and 
 safety. This demand is as imperative as the necessity 
 calling for its existence. Hence, a nation is under the 
 highest obligations to itself to provide, in every way 
 
 iSee "State Rights," a Photograph from the ruins of ancient Greece," by 
 Prof. Tayler Lewis, LL. D., pp. 5, 6, 7, 8, &c. 
 5 
 
84 - mTRODUCTORY. 
 
 possible, for its own perpetuity and security. It must 
 seek such natural boundaries as indicate separation and 
 are most easily defended. It must secure to itself 
 means of external communication with the civil, social 
 and commercial world ; and, hence, should hold in its 
 own hands the key by which such communication is 
 secured.^ 
 
 1 Some of tlieso considerations are alluded to by President Lincoln in his 
 Annual Message to Congress, December 1, 1862. 
 
 " Physically speaking we cannot separate. We cannot remove our respective 
 sections from each other, nor build an impassable wall between them." * * « 
 " There is no line, straight or crooked, suitable for a national boundary upon 
 which to divide. Trace through from east to west upon the line between tlae 
 free and slave country, and we shall find a little more than one-third of its 
 length are rivers easy to be crossed, and populated, or soon to be populated, 
 thickly upon both sides; while nearly all its remaining length are merely 
 surveyor's lines over which people may walk back and forth without any 
 consciousness of their presence. No part of this line can be made more 
 difficult to pass by writing it down on paper or parchment as a national 
 boundary." * * * 
 
 "There is another difficulty. The great interior region bounded east by the 
 AUeghanies, north by the British dominions, west by the Rocky Mountains, 
 and south by the line along which the culture of corn and cotton meets, and 
 which includes part of Virginia, part of Tennessee, all of Kentuck5', Ohio, 
 Indiana, Michigan, Wisconsin, Illinois, Missouri, Kansas, Iowa, Minnesota, 
 and the Territories of Dakota, Nebraska and part of Colorado, already has 
 about ten millions of people, and will have fifty millions within fifty years, 
 if not prevented by any political folly or mistake. It contains more than one- 
 third of the country owned by the United States. Certainly more than one 
 million of square miles. Once half as populous as Massachusetts already is, 
 it would have more than seventy- five millions of people. A glance at the map 
 shows, that territorially speaking, it is the great body of the Republic. The 
 other parts are but marginal borders to it, the magnificent region sloping west 
 from the Rocky Mountains to the Pacific being the deepest, and also the 
 richest in undeveloped resources. In the production of provisions, grains and 
 grasses, and all which proceed from them, this great interior region is naturally 
 one of the most important of the world. Ascertain from the statistics the 
 small proportion of the region which has as yet been brought into cultivation, 
 and also the large and rapidly increasing amount of its products, and we 
 shall be overwhelmed with the magnitude of the prospect presented. And 
 yet this region has no seacoast, touches no ocean anywhere. As part of one 
 nation, its people now find, and may forever find, their way to Europe by 
 New York ; to South America and Africa by New Orleans, and to Asia by San 
 Francisco. But separate our common country into two nations, as designed 
 by the present rebellion, and every man of the great interior region is thereby 
 cut off from some one or more of these outlets, not perhaps by a physical 
 barrier, but by embarrassing and onerous trade regulations." 
 
 " And this is true wherever a dividing or boundary line may be fixed. Placo 
 it between the now free and slave country, or place it south of Kentucky or 
 north of Ohio, and still the truth remains that none south of it can trade to 
 any port or place north of it, except upon terms dictated by a government 
 foreign to them. Those outlets east, west and south, are indispensable to the 
 well-being of the people inhabiting and to inhabit this vast interior region. 
 Which of the three may be the best is no proper question. All are better than 
 either, and all of right belong to that people and to their successors forever. 
 
OF GOVERNMENT. 35 
 
 g 58. The duty of self-protection and self-preservation 
 "wbicli a nation owes to itself, requires that it should 
 prevent any other power taking a position in reference 
 to itself, by which its security or prosperity could be 
 made dependent upon a foreign will. Hence, it has a 
 right to demand that another nation shall not, unneces- 
 sarily, take such a position or occupy such territory, as 
 will give it power over the existence, security or pros- 
 perity of its own people.^ 
 
 S 59. A State^ consists of an association of individuals 
 united together under an organized government,^ insti- 
 tuted to aid and j)rotect the members thereof in the 
 exercise of their civil liberty and the enjoyment of their 
 just rights ; and for that purpose, intrusted with the 
 execution of the public authority.* In its organic exist- 
 True to themselves, they -will not ask ivhere a line of separation shall be, but 
 ■will vow rather, that there shall be no such line. Nor are the marginal regions 
 less interested in those communications to and through them to the great 
 outside world. They too, and each of them, must have access to this Egypt 
 of the west without paying toll at the ci-ossing of any national boundary." 
 
 " Our national strife springs not from our permanent part ; not from the land 
 we inhabit; not from our national homestead. There is no possible severing of 
 this, but would multiply, and not mitigate, evils among as. In all its adapta- 
 tions and aptitudes, it demands union and abhors separa(tion. In fact it would 
 ere long force re-union, however much of blood and treasure the separation 
 might have cost." 
 
 1 See the letter of President Jefferson to the American Minister in France — 
 Mr. Livingston— dated April 18, 1802, touching the cession of Louisiana and the 
 Floridas by Spain to France. (Life of Jefferson by Randall, vol. 3, p. 6.) The 
 position taken by the President is, substantially, that the United States can- 
 not permit P'rance to possess the mouth of the Mississippi, &c. ; the right of 
 self-preservation prohibited it. See, also, his message to Congress on that sub- 
 ject, ilecessity is above conventional law. 
 
 2 The term state and nation are here used synonymously. 
 
 3 "The government of a state is that organization in which the political 
 power resides. It is the political being created by the Constitution or funda- 
 mental law. A government is a body politic ; it has a will of its own ; and it 
 possesses powers and faculties to execute its own purposes." (Webster's 
 speech in U. S. Senate, February 16, 1833.) 
 
 <BuRLAMAQUi says : "The state may be defined a society by which a multi- 
 tude of people unite togetlier under an organized government In order to And, 
 through its protection and care, the happiness to which they naturally aspire." 
 (Polit. Law, ch. 4, ? 9.) 
 
 Vattel says : " A nation or state is a body politic or society of men, united 
 together for the purpose of promoting their mutual safety and advantage, by 
 their combined strength." (Law of Nations, B. 1, ch. 1, g 1.) 
 
 Cicero gives substantially the same definition. (De Rep., 1, § 25.) 
 
 TuLLY says: "Multitudo juris consensu, et utilitatis communione sociata." 
 
86 INTEODUCTORY. 
 
 ence, it is a body corporate, having an individual will, 
 purpose and power, by which only it can be known in 
 its volitions, purposes and actions.^ 
 
 g 60. Nations, as sovereign states, are bodies corpo- 
 rate, free and independent, living together as equal 
 members of the universal national family, having no 
 superior except nature and God, under whom they exist 
 and by whose laws they must be governed to perpetuate 
 that existence. Hence, they are to be considered as so 
 many persons living together in a state of nature, free 
 and unrestrained, except so far as governed by the end 
 for which they were created, under the laws of nature 
 thereto applicable. 
 
 iTwo things are essential to tlie formation of a sovereign state. (1.) It is 
 necessary to unite permanently the wills of all the members of the society in 
 such a manner, that from that time forward they should never desire but one 
 and the same thing, in whatever relates to the end and purpose of society. (2.) 
 To establish a supreme authority, supported by the strength of the whole body, 
 by which to enforce obedience to all rules and regulations of the state estab- 
 lished by the public authority. This union of the will and power of society 
 constitutes the body corporate and politic thereof, and without which civil 
 society could not exist. This union of wills in the body corporate is by the 
 expressed or implied agreement of every one in society, by which he under- 
 takes to submit his private judgment and will in all matters pertaining to the 
 public interest, to the determination of those intrusted with the execution 
 of the public authority; and to yield himself to obey, and to give his power to 
 the government to compel others to obey, whatever in that respect the public 
 authority constitutionally requires. (See BurlamacLui's Prin. of Polit. Law, 
 ch. 4, §2 4, et seq.) 
 
 This union of strength, which produces the sovereign power of the state, 
 is not formed by each man communicating his physical strength to the corpo- 
 rate body so as to remain utterly weak and impotent himself; but by an 
 engagement by which all in general and each in particular oblige themselves 
 to use their strength for the public only in the manner prescribed by tlie pub- 
 lic authority. By this union each member of society is under the protection 
 of the power of the whole society united. This multiplication of strength in 
 the body politic resembles that of each member of the human body. Take 
 them asunder and they are powerless; unite them and their strength 
 increases, until together they form a robust and powerful organism, or human 
 body. (See also, Burlamaqui, supra.) 
 
 Nations being composed of men naturally free and independent and who, 
 before the establishment of civil societies, lived together in a state of nature, 
 are to bs considered as so many free persons, living together in a state of 
 nature. (Vattel, B. 1, ch. 1, § 4.) All men are subject to the laws of nature, and 
 as their union in civil society cannot have exempted them from their obliga- 
 tion to observe those laws, since by that union they do not cease to be men, 
 the entire nation — whose common will is but the result of the united wills of 
 the citizens — remains subject to the laws of nature and is bound to respect 
 them in all her proceedings ; and since rights have their basis in needs, the 
 nation possesses also the same rights which nature has conferred upon men, 
 in order to enable them to perform their duties. (See Vattel, B. 1, ch. 1, § 5.) 
 
OF GOVERNMENT. 37 
 
 ^ CI. Since nations, as civil institutions, are an out- 
 birth from the social necessities of men, there are certain 
 laws having their basis in such necessities, which are 
 fundamental to the existence and security of nations. 
 These laws are the laws of nature as applicable to them. 
 They are necessarily immutable, being founded on the 
 nature of man and his relation to his fellows as mem- 
 bers of society. Therefore, to constitute, maintain and 
 perpetuate such society as an organized, orderly 
 and healthy body, these laws must be observed and 
 enforced. They constitute the necessary laws of 
 nations.^ 
 
 g 62. The universal society of the human race being 
 an institution of nature, that is, a necessary conse- 
 quence of the nature of man, all men in every station 
 are bound to cultivate it and discharge its duties. They 
 cannot liberate themselves from the obligation by any 
 convention or private association. When, therefore, 
 they unite in civil society for the purpose of forming a 
 separate state or nation, they still remain bound to the 
 performance of their duties toward the rest of mankind. 
 Hence civil societies, thus constituted of persons owing 
 these moral duties, become moral persons, possessed of 
 an understanding, a volition and strength, and are 
 under the like obligations to other nations, as men are 
 to other men.^ 
 
 ^ C3. The object of the establishment of civil societies 
 among men being to enable each member to attain that 
 
 1 Vattel, Prelim. ? 7. 
 
 "There are things just in themselves and allowable by the necessary law of 
 nations, on which states may mutually agree with each other, and which they 
 may consecrate and enforce by their manners and customs. There are others 
 of an indifferent nature, respecting whicli it rests in the option of nations to 
 malie in tlieir treaties whatever agreements they please, or to introduce what- 
 ever customs or practices they think proper. But every treaty, every custom 
 which contravenes the injunctions and prohibitions of the necessary law of 
 nations, is vinlawful. * * * Nations being free and independent, tliougli the 
 conduct of one of them be Illegal and condemnable by the laws of the con- 
 Bcience, the others are bound to acquiesce in it where it does not infringe upon 
 their perfect rights. The liberty of that nation could not remain entire if 
 others were to arrogate to themselves the right of inspecting and regulating 
 her actions." (Vattel, Gen. Prin., § 9.) 
 
 2 See Vattel, Prelim., g 11. 
 
38 ■ INTRODUCTORY. 
 
 perfection of individuality and character for wliicli lie 
 was created; and the government being bound to do 
 everything in its power to accomplish the object for 
 which it was instituted, it follows as a fundamental law 
 of nations, that, in their conduct in respect to each 
 other, each is bound to do everything in its i)ower, con- 
 sistent with its duties to itself and its subjects, to 
 contribute to the perfection and consequent happiness 
 of other nations.^ 
 
 g 64. As a consequence of the freedom and independ- 
 ence of nations, each is entitled to the enjoyment of 
 that i)erfect liberty she inherited from nature ; and, 
 hence, it is, also, a fundamental law of national exist- 
 ence, that, in respect to all matters depending u[)on 
 judgment, or conscience, as to what she may or may 
 not do, it must rest solely with herself to determine. 
 This is a fundamental law, because a nation cannot 
 exist, and perform its duties in executing the public 
 authority, without this absolute right to examine and 
 determine such questions.^ 
 
 1 The duties a nation owes to itself are, unquestionably, paramount to those 
 it owes to other nations. When, therefore, she cannot contribute to the wel- 
 fare of another nation without doing an essential injury to herself, her obliga- 
 tion, in that respect, ceases, because she is then under a disabilitj'- to perform 
 the office in question. (Vattel, Prelim., g 14.) 
 
 The golden rule is as applicable to nations as to individuals: "Whatsoever 
 ye would that men should do unto you, do ye even so to them ;" and as it is 
 according to the nature of men, that kindness and good office should, in turn, 
 beget kindness and good office, and that unkindness should beget unkindness, 
 God has made it for the interests of individuals and nations to do each other 
 all the good possible. Says Xenopiion : " If we see a man who is uniformly 
 eager to pursue his own private advantage without regard to the rules of honor 
 or the duties of friendship, why should we, in any emergency, think of sparing 
 him?" 
 
 2 Whatever is fundamentally essential to the existence and security of 
 nations, is conferred by natural law, which may be denominated a funda- 
 mental laxu, or a necessary law of nations. 
 
 The rights of nations, incident to their sovereignty and equality, are not 
 unlike those natural rights incident to individuals, as equals, in their individ- 
 ual sovereignty. In matters of duty and conscience, or of judicial determina- 
 tion, individuals have a right to examine and determine all questions for 
 tliemselves, being answerable only for an abuse of such liberty. We cannot 
 constrain a person to perform a particular act or service for us except when 
 there is a legal obligation by Avhich he is bound to perform for us the particular 
 thing or service, independent of the determination of his conscience or judg- 
 ment. When one has a right to do or not to do a particular thing, or has a 
 discretionary duty to perform, his obligation is said to be imperfect, because 
 
OF GOVERNMENT. " 39 
 
 § G5. Tliat necessity which requires the institution of 
 nations, and the establishment of civil governments, 
 requires, also, that they shall be maintained and pre- 
 served. Therefore, all sovereign states have a perfect 
 right to those things which, by the laws of nature, are 
 necessary for their security and preservation.^ 
 
 § CG. All nations being equally sovereign and inde- 
 pendent in their intercourse with each other, each is 
 bound to respect the other as possessing the same pre- 
 rogatives, as entitled to the same rights, and bound to 
 the same duties as itself. Hence, the golden rule appli- 
 cable to individuals, requiring them to do unto others 
 as they would that others should do unto them, is like- 
 wise applicable unto nations requiring the same conduct 
 between them. 
 
 ^ 67. Nations being sovereign and indei)endent, have 
 perfect authority to enter into treaty stipulations with 
 each other, by which they can bind themselves to do or 
 
 there is no authority to compel liis determination or action. But wliere he 
 may be compelled to perform the act, whether he will or no, his obligation is 
 said to be perfect. 
 
 Says Vattel : " The perfect right is that which is accompanied by the right 
 of compelling those who refuse, to fulfill the corresponding obligation. The 
 imperfect right is unaccompanied by that right of compulsion — it gives him only 
 the right to ask." (Prelim., g 17.) For where one is subject to compulsion in 
 respect to his action, he is no longer free in that respect. 
 
 Also, as a necessary consequence of the civil equality of nations, whatever, 
 in principle, is lawful for one nation, is lawful for another ; and whatever, in 
 principle, is unjustiflable in one, is also, in the other. Each, alike, is mistress 
 of her own actions so long as they do not aflFect the perfect rights of other 
 nations. (See Vattel, Prelim. 1 19.) 
 
 1 It, therefore, follows that all nations have a right to resort to forcible means 
 for the purpose of repressing any particular nation, which openly violates the 
 J.aws of society, and thereby endanger the security and stability of nations. 
 
 "The laws of natural society are of such importance to the safety of states, 
 that, if the custom of trampling them under foot once prevailed, no nation 
 could flatter herself with the hope of preserving her national existence, and 
 enjoying domestic tranquillity, &c. All nations have, therefore, the riglit to 
 resort to forcible means for the purpose of repressing any one particular nation 
 who openly violates the laws of society which nature has established between 
 them, or who directly attacks the welfare and safety of that society." (Vattel, 
 Prelim., g 22.) 
 
 But, as nations are free and independent, they have no authority to interfere 
 with the conduct of one another, where perfect rights are not infringed. Thus, 
 though the conduct of those intrusted with the administration of public 
 authority be against good conscience, in respect to the subjects of that author- 
 ity, other nations cannot interfere without infringing the fundamental 
 principle of national sovereignty and equality. 
 
40 INTRODUCTORY. 
 
 not to do, any particular act or thing, within the per- 
 mission of natural law, in harmony with the purposes 
 of their institution, and not prohibited by their funda- 
 mental law. 
 
A TREATISE ON GOVERNMENT. 
 
 CHAPTEE I. 
 
 OF THE UNITED STATES AS A NATION. 
 
 ^ 68. When the people of the American colonies pro- 
 mulgated their declaration of independence, it was 
 necessary for them to unite, that they might provide 
 for their common defense, promote their general wel- 
 fare, and secure to themselves and their posterity, the 
 blessings of civil liberty.^ That necessity was a war- 
 rant of their authority to establish for themselves, an 
 
 1 In the Declaration of American Independence Is set forth the following 
 catalogue of grievances, wliich impelled the Colonies to a political separation 
 from the motlier Country : 
 
 "The history of the present King of Great Britain is a history of repeated 
 injuries and usurpations, all having in direct object the establishment of an 
 absolute tyi-anny over these States. To prove this, let facts be submitted to a 
 candid world." 
 
 " He has refused his assent to laws the most wholesome and necessary for the 
 public good ; he has forbidden his governors to pass laws of immediate and 
 
 Eressing importance, unless suspended in their operation till his assent should 
 e obtained, and when so suspended, he has utterly neglected to attend to 
 them." 
 
 "He has refused to pass other laws for the accommodation of large districts 
 of people, unless those people would relinquish the right of representation in 
 the legislature; a right inestimable to them, and formidable to tyrants only." 
 
 " He has called together legislative bodies at places unusual, uncomfortable, 
 and distant from the respository of their public records, for the sole purpose 
 of fatiguing them into compliance with his measures." 
 
 "He has dissolved representative houses repeatedly for opposing with manly 
 firmness his invasion on tlie rights of the people." 
 
 "He has. refused, for a long time after such dissolutions, to cause others to 
 be elected, whereby the legislative powers, incapable of annihilation, have 
 returned to the people at large, for their exercise, the State remaining in the 
 mean time, exposed to all the dangers of invasion from without, and convul- 
 sions within." 
 
 " He has endeavored to prevent the population of these States, for that pur- 
 pose, obstructing the laws for naturalization of foreigners ; refusing to pass 
 others to encourage their migration hither, and raising the conditions of new 
 appropriations of lands." 
 
 " He has obstructed the administration of justice, by refusing his assent to 
 laws for establishing judiciary powers ; he has made judges dependent on his 
 will alone, for the tenure of their offices, and the amount and paymen t of their 
 salaries." 
 
 " He has created a multitude of new offices, and sent hither swarms of 
 officers, to harass our people, and eat out their substance ; he has kept among 
 us in times of peace, standing armies without the consent of our legislatures ; 
 he has affected to render the military independent of, and superior to, the civil 
 power; he has combined with others to subject us to a iurisdiction foreign to 
 our constitution and unacknowledged by our laws, giving his assent to their 
 acts of pretended legislation." 
 
 6 
 
42 
 
 OF GOVERNMENT. 
 
 independent national existence;^ and being successful 
 in their nndei'taking, they became a nation de facto ; 
 and their independence being recognized by the nations, 
 they became a nation de jure. 
 
 g69. American independence was proclaimed " in the 
 name and by the authority of the good people of the 
 colonies;" it was established by their united power, 
 acting under a common executive head^ and obeying a 
 
 " For quartering large bodies of armed troops among us ; for protecting them 
 by a moclv trial, from punishment for any murders whiola they shoula com- 
 mit on the inhabitants of these States; for cutting off our trade with all parts 
 of the world; for imposing taxes on us without our consent; for depriving us, 
 in many cases, of the benefits of trial by jury ; for transporting us beyond seas 
 to be tried for pretended ofleuses; for abolishing the free system of English 
 laws in a neighboring province, establishing therein an arbitrary government, 
 and enlarging its boundaries so as to render it at once an example and lit 
 instrument for introducing the same absolute rule into these Colonies ; for 
 taking away our charters; abolishing our most valuable laws and altering 
 fundamentally the forms of our government; for suspending our own legisla- 
 tures and declaring themselves invested with power to legislate for us in all 
 cases whatsoever." 
 
 " He has abdicated government here, by declaring us out of his protection, 
 and waging war against us; he has plundered our seas; ravaged our coast; 
 burnt our towns, and destroyed the lives of our people; he is at this time 
 transporting large armies of foreign mercenaries to complete the work of 
 death, desolation and tyranny already begun, with circumstances of cruelty 
 and perfidy scarcely paralleled in the most barbarous ages, and totally 
 unworthy the head of a civilized nation." 
 
 "He has constrained our fellow-citizens, taken captive on the high seas, to 
 bear arms against their country; to become the executioners of their friends 
 and brethren, or to fall themselves by their hands." $ 
 
 "He has excited domestic insurrection amongst us, and has endeavored to 
 bring on the inhabitants of our frontiers, the merciless Indian savage, whose 
 known rule of warfare is ap undistinguished distinction of all ages, sexes and 
 conditions." 
 
 " In every stage of these oppressions we have petitioned for redress in the 
 most humble terms. Our repeated petitions have been answered only by 
 repeated injury. A prince, whose character is thus marked by every act which 
 may define a tyrant, is unfit to be tlie ruler of a free people. Nor have we been 
 wanting in our attentions to our British brethren. We have Vvarned them, 
 from time to time, of attempts by their legislature to extend an unwarrant- 
 able jurisdiction over us; we have reminded them of the circumstances of our 
 emigration and settlement here; we have appealed to their native justice 
 and magnanimity: and we have conjured them by the ties of our common 
 kindred to disavow these usurpations, which would inevitably interrupt our 
 connections and correspondence. Tliey, too, have been deaf to the voice of 
 justice and of consanguinity. We must, therefore, acquiesce in the necessity 
 which denounces our sepai-ation, and hold them, as we hold the rest of man- 
 kind, eneinies in war, in peace, friends." 
 
 1 " We, therefore, the representatives of the United States of America, in 
 general Congress assembled, appealing to the Supreme Judge of the world for 
 the rectitude of our intentions, do, in the name, and by the authority of the 
 good people of these Colonies, solemnly publish and declare that these United 
 States are, and of right ought to be, free and independent States; that they 
 are absolved from all allegiance to the British Crown, and tliat all political 
 connection between them and the state of Great Britain is, and ought to be, 
 totally dissolved ; and that as free and independent States, they have full 
 power to levy war, conclude peace, contract alliances, establish commerce, and 
 to do all other acts and things which independent States may of right do. 
 And for the support of this declaration, with a firm reliance on the protection 
 of Divine Providence, we mutually pledge to each other our lives, our for- 
 tunes and our sacred honov." — Declaralion of American Independence. 
 
 The obligations of protection on the part of the government, and allegiance 
 on the part of the subjects, are mutual. If, therefore, a province or body of 
 people, who are exposed to imminent peril, are utterly neglected or aban- 
 doned, or, worse than either, are wantonly oppressed by their government, 
 without any prospect or hope of redress or protection, they become perfectly 
 free to provide for their own safety and pi-eservation, in whatever manner 
 they find most convenient, without paying any regard to those who, by their 
 conduct or neglect, were the first to fail in their duty. See Vattel, g 200; see also 
 Dec Am. Ind., as to the rights of a people to throiv off their allegiance to government. 
 
 « On the 19th day of June, 1775, a commission for George Washington was 
 made out and signed by the President of Congress, in the words following: 
 
 "Jn Congress. The delegates of the United Colonies of New Hampshire, 
 Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Peun- 
 
THE UNITED STATES AS A NATION. 43 
 
 coniniou legislative aiitliority ;' it was recognized by the 
 nations as the achievement of the people of all the 
 Colonics ; therefore, nationality attached to them in their 
 associated capacity, as one i)eople, constituting one 
 nation ; and not as thirteen peoples, constituting thirteen 
 nations.^ 
 
 ^ 70. The people of the American colonies becoming a 
 nation de facto and dejiire, by the establishment of their 
 
 sylvania, New Ciistle, Kent and Sussex, on DelaM^are, Maryland, Virginia, North 
 Oarolina and South Carolina, to George Waslungton, Esquire: We, reposing 
 especial trust and conlldence in your patriotism, conduct and fidelity, do, l)y 
 tliese presents, constitute and appoint you to be general and coniniander-in- 
 cliicf of the army of tlio U nited Colonies, and of all tlie forces raised or to be raised 
 by tliem, and of all otliers who shall voluntarily oiler their services, and join 
 tlie said army for the defense of the American liberty and for repelling every 
 hostile invasion thereof; and you are hereby vested with full power and 
 authority to act as you shall think fit, for the good and welfare of the service. 
 And we do hereby strictly cliarge and require all oflicers and soldiers under 
 your command, to be obedient to your orders, and diligent in tlie exercise of 
 tlieir several duties. And we do also enjoin and require you to be careful in 
 executing the great trust reposed in you, by causing strict discipline and order 
 to be observed in the army, and that the soldiers are duly exercised and pro- 
 vided with all convenient necessaries. And you are to regulate your conduct, 
 in every respect, by the rules and discipline of war, as herewith given to you, 
 and punctually to observe and follow such orders anil directions from time to 
 time, as you shall receive from this or ii future Congress of the said United 
 Colonies, or a committee of (Jongross for that pui-pose appointed. By order 
 of Congress. John Hancock, President. Dated Philadelpliia, June 19, 1775. 
 Attest, ClTAKLKS TllOJiPSON, Secretary." 
 
 I The (fi'st Congress of delegates appointed by the Colonies to take into con- 
 sideration the situation of tli(^ provinces in North America, and the dillerences 
 subsisting between tliem antl Great Britain, met at Carpenter's Hall, in tlie 
 city of riiiladelphia, on the oth of Septeml)er, 1771. and organized by electing 
 Pe.vton llandolpli tlieir Presiilent, and Charles Thompson their Seci'ctary. 
 This (Congress continued in session until 20th of Octoljor following, when, 
 having passed a rcsDlution on the ■22d of October, reconuiu'nding the delegates 
 to meet again at riiiladelphia on the 10th of May,1775, they diss(jlved theirfirst 
 session. The tlelegates, in pursuance of such recommendation, met again at 
 Pliiladelphia on tli<! lOtli of iNIay, 1775, and again elected Peyton Randolph 
 President, and Charles Thompson Secretary. This Congress was cpmposed of 
 delegates from New Hampshire, Massachusetts Bay, Rhode Island and Provi- 
 dence Plantations, Connecticut, New York, New Jersey, Pennsylvania, New 
 Castle, Kent and Sussex, on Delaware, Maryland, Virginia, North and South 
 Carolina, and Georgia. The President, Peyton Randolph, being obliged to 
 return home, on the 21th of May, 1775, John Hancock was unanimously elected 
 President. This Congress commissioned Washington as the commander-in- 
 chief (see preceding note) of the army of the United Colonies, on the l!)th of 
 June, 1775, and on the first of August ad.]ourned to thc.5th of September, 1775. 
 On the 5th of September they again convened, and continued in session from 
 time to time until the -1th of July, 177H, when they promulgated to the world 
 the Deelaiation of American Indepcnilonce, and ordered it to be sent to thc> 
 several assemblies, conventions .and committees or councils of safety, and to 
 the several commanding officers of the Continental troops, and to be pro- 
 claimed ill each of the United Statiis, and at the head of the army. 
 
 - The people of the American colonies, in their united character and efTort, 
 denominated them.selves The United Colonies or The United States. As 
 a common society they were known by no other name. In the origin of the 
 term, it signified the unity of the people of the colonies in the great work of 
 achieving their common independence. The term, "The United States," 
 usually applied to the people coniiiosing the sever.al States, rather than to the 
 .States themselves as political instit iitions. The Union was that of the people, 
 and not of the governments of the States. The State, as a political institution, 
 had no national authority, for it had been created for no such purj;ose. The 
 term " United States" was sometimes used both as a description, and also as 
 a limitation, of the territory and of the people to whom nationalitv was 
 accorded. Thus, in the definitive treaty of pe.ace between the United States of 
 America and Great Britain, September .3d, 1783, " His Britannic Majesty acknow- 
 ledged the said United States, viz., New Hampshire, &c., to be free, sovereign 
 and independent States; that he treats with them as such," &c. It is to bo 
 obsei-ved that he treats with them in their common or united cnaracter and 
 capacity, and not in severalty. Great Britain, bv her minister plenipotentiary, 
 D. Hartly, was treating with the United States through her ministers nlenipo- 
 tentiary, John Adams, Benjamin Franklin and .John Jay, wno represented 
 the people of all the States constituting the American nation. 
 
44 OF GOVERNMENT. 
 
 independeuce, and the recognition of the same among 
 the family of nations, they had sovereign authority 
 to establish such a government as they deemed essential 
 to the protection, security and prosperity of the Amer- 
 ican people, as a nation ; hence, they had authority to 
 institute a confederacy of the States, and vest in it the 
 execution of the public authority ; or to establish a 
 national government of the people, making the govern- 
 ments of the several States subordinate thereto.^ 
 
 g 71. Whenever the people institute a government to be 
 intrusted with the execution of the public anthoritj^ 
 the authority of such government must be derived from 
 the people in whom sovereignty inheres ; and in the 
 institution and endowment of such government, the 
 nation necessarily asserts its authority to create, endow 
 or revoke at pleasure. Hence, having tried the form of 
 a confederated government, and found it inadequate to 
 the needs of a sovereign nation, they had authority 
 to lay it aside, and institute in its place, a national gov- 
 ernment of the people; and to intrust it with the 
 execution of such public authority as they deemed 
 13roper. 
 
 § 72. Prior to the American revolution, the citizens 
 of the American Colonies did not claim to be national 
 subjects of any other government than that of Great 
 Britain.^ Hence, when they attempted to throw off 
 
 1 Sovereign authority to establish for itself such a form of government, and 
 to invest it with the execution of such public authority, in respect to mat- 
 ters of the general welfare, as it deems proper, must inhere in every nation. 
 Sovereignty is an essential attribute of nationality. If it has not the author- 
 ity to command in the last resort, but is amenable to higher authority, 
 it has not the essential attribute of an independent nation. But it is to be 
 remembered that this sovereignty inheres in the people constituting the 
 nation — not in the government instituted by them. The authority of the 
 government established by them is derivative, and may be general or limited, 
 according to the constitution by which it is instituted and invested with 
 authority; and having instituted a form of government, and intrusted it with 
 the execution of the public authority, if it becomes destructive of the ends for 
 which it was instituted, or even fails to accomplish the purpose of its creation, 
 the people have the right to alter or to abolish it, and to institute a new govern- 
 ment, laying its foundation on such principles, and organizing its pov/ei's in 
 such form, as to tliem shall seem most likely to effect their safety and happi- 
 ness. See Dec. Am. Ind. 
 
 2 " In the first place, antecedent to the Declaration of Independence, none 
 of the colonies were, or pretended to be, sovereign States, in the sense in which 
 tlie term " sovereign " is sometimes applied to States. The term " sovereign," 
 or " sovereignty," is used in different senses, which often leads to confusion of 
 ideas, and sometinres to very raischievous and unfounded conclusions. By 
 " sovereignty " in its largest sense is meant supreme, absolute, uncontrollable 
 power, theiits summi imperii, the absolute right to govern. A State or nation is 
 a body politic or society of men, united together for the purpose of promoting 
 their mutual safety and advantage by their combined strength. By the very 
 act of civil and political association, each citizen subjects himself to the 
 authority of the whole ; and the authority of all over each member essen- 
 tially belongs to the body politic. A State wliich possesses this absolute 
 power without any dependence upoii any foreign power or State, is, in the 
 largest sense a sovereign State ; and it is wholly immaterial what is the form 
 of the government, or by whose hands this absolute authority is exercised. 
 It may be exercised by the people at large, as in a pure democracy, or by a 
 select few, as in an absolute aristocracy, or by a single person, as in an absolute 
 
THE UNITED STATES AS A NATION. 45 
 
 their allegiance to the British crown, they assumed to 
 act in virtue of their original authority as men, and not 
 as citizens of any government. They repudiated their 
 allegiance to, and hence their nationality through, the 
 
 monarchy. But " sovereignty " is often used in a far more limited sense than 
 that of which we have spolien, to designate such political powers as, in the 
 actual organization of the particular state or nation, are to be exclusively 
 exercised by certain public functionaries witliout the control of any superior 
 autliority. It is in this sense tliat Blackstone employs it wlien lie says tliat is 
 of " tlie very essence of a law, that it is made by tlie supreme power. Bover- 
 reignty and legisUiture are indeed convertible terms; one cannot subsist with- 
 out the otlier." Now in every limited goverume^it tlie power of legislation is, 
 or at least may be, limited at tlie will of tlie nation, and theretbre the legisla- 
 ture is not, in an absolute sense, sovereign. It is in the same sense that Black- 
 stone says, " the law ascribes to tlie King of England tlie attribute of sover- 
 eignty or preeminence," because, in respect to the powers contided to him, he 
 is dependent on no man, and accountable to no man, and subject to no superior 
 jurisdiction. Yet tiie King of England cannot make a law, and liis acts, 
 beyond the powers assigned to him by the constitution, are void." Story on 
 the Constitution, g 207. 
 
 The Colonial Congress that assembled in Pliiladelpliia on the 5tli of Septem- 
 ber, 1774, published a declaration of the rights of the subjects of Great Britain 
 in the colonies, wliich contained the following: "Tlie good people of tlie 
 several colonies of New Hampshire, Massacliusetts Bay, Rhode Island and 
 the Providence Plantations, Connecticut, New Yorlc, New Jersey, Pennsyl- 
 vania, Newcastle, Kent, and Sussex, on Delaware, Mar3dand, Virginia, North 
 Carolina and South Carolina, justly alarmed at these arbitrary proceedings of 
 parliament and administration, have severally elected, constituted and 
 appointed deputies to meet and sit in general Congress in the city of Phila- 
 delphia, in order to obtain such establislmient as that their religion, laws and 
 liberties may not be subverted. Whereupon the deputies so appointed, being 
 now assembled in a full and free representation of tliese colonies, tailing into 
 tlieir most serious consideration the best means of attaining the ends afore- 
 said, do, in the rirst place as Englishmen, their ancestors, in like cases liave 
 usually done for asserting and vindicating their riglits and liberties. Declare, 
 
 That the inhabitants of the Englisli colonies in North America, by the 
 immutable laws of nature, the principles of the English Constitution, and 
 the several charters or compacts, have the following rights: 
 
 " Resolved, N. C. D. 1. Tliat they are entitled to life, liberty and property ; and 
 that they liave never ceded to any sovereign power whatever, a right to dis- 
 pose of either without their consent. 
 
 " Resolved, N. C. D. 2. That our ancestors who first settled tlicse colonies were, 
 at the time of their emigration from the mother country, entitled to all the 
 rights, liberties and immunities of free and natural born subjects witliin the 
 realm of England. 
 
 '■'Resolved, N. C. D. 3. That by such emigration, they by no means forfeited, 
 surrendered or lost any of those rights; but that they were, and tlieir descend- 
 ants now are, entitled to the exercise and enjoyment of all such of them as 
 their local and otlier circumstances enable them to exercise and enjoy. 
 
 " Resolved, i. That the foundation of English liberty, and of all free govern- 
 ment is a right in tlie people to participate in their legislative council ; and as 
 tlie English colonists are not represented, and from tlieir local and otlier cir- 
 cumstances cannot properly be represented, in the Britisli parliament, they 
 are entitled to a free and exclusive power of legislation in their several pro- 
 vincial legislatures, where their right of representation can alone be preserved 
 in all cases of taxation and internal polity, subject only to the negative of 
 their sovereign in such manner as lias been heretofore used and accustomed. 
 But from the necessity of the case, and a regard to the mutual interests of 
 botii countries, we cheerfully consent to the operation of such acts of the 
 British parliament as are bona fide restrained to the regulation of our external 
 commerce for tlie purpose of securing the commercial advantages of the whole 
 empire to the mother country, and the commercial benefits of its respective 
 members; excluding every idea of taxation, internal or external, for raising 
 a revenue on tlie subjects in America, without their consent. 
 
 ''■ Resolved, N. C. D. 5. That the respective colonies are entitled to the com- 
 mon law of England, and more especially, to the great and inestimable priv- 
 ilege of being tried by their peers of the vicinage, according to the course of 
 the law. 
 
 " Resolved, Q. That they are entitled to the benefit of sucli of the English 
 statutes as existed at the time of their colonization ; and wliich they have, by 
 experience, respectively found to be applicable to tlieir several local and otlier 
 circumstances. 
 
 " Resolved, N. C. D. 7. That these, his Majesty's colonies, are likewise entitled 
 to all the immunities and privileges granted and confirmed to them by royal 
 charters, or secured by their several codes of provincial laws. 
 
 " Resolved, N. C. D. 8. That they have a right peaceablv to assemble, consider 
 of their grievances, and petition the King ; and that all prosecutions, prohib- 
 itoi'y proclamations, and commitments for the same are illegal. 
 
46 OF GOVERNMENT. 
 
 Britisli crown, that they might achieve foi themselves a 
 new nationality.^ 
 
 g 73. As the people of the several Colonies were 
 united in the assertion of their independence, and 
 unitedly achieved it; and as they unitedly claimed 
 recognition, and were recognized as one nation ; they 
 could claim and exercise national authority only as 
 citizens of the nation. As citizens of a separate Colony 
 or State, they had no claim to national authority, either 
 from the necessity of the case, or from their individual 
 achievement, or from the assent of the American 
 people. Hence, neither the people of a separate Col- 
 ony, nor the government thereof, had any authority to 
 set up for themselves alone, a separate nationality ; or to 
 exercise national prerogatives in derogation of the com- 
 mon sovereignty of the American people.^ 
 
 §74. In all democratic nations, national authority 
 belongs to the people constituting the nation. This 
 authority, with such limitations and restrictions as they 
 
 " Resolved, N. C. D. 9. That the keeping a standing army in these colonies in 
 times of peace, Avithout the consent of the legislature of that colony in which 
 such army is kept, is against law. 
 
 " Resolved, N. O. D. 10. It is indispensably necessary to good government, and 
 rendered essential by the English Constitution, that the constituent branches 
 of the legislature be independent of each other ; tliat therefore, the exercise of 
 legislative power in the several colonies, by a council appointed during pleasure 
 by the crown, is unconstitutional, dangerous, and destructive to the freedom 
 of American legislation. 
 
 "All and each of which the aforesaid deputies, in behalf of themselves and 
 their constituents, do claim, demand and insist on as their indubitable rights 
 and liberties, which cannot be legally taken from them, altered or abridged 
 by any power whatever, without their own consent by their representatives in 
 their several provincial legislatures." 
 
 1 "We hold these truths to be self-evident, that all men are created equal; 
 that they are endowed by their Creator with certain inalienable rights ; tliat 
 among these, are life, liberty and the pursuit of happiness ; that to secure these 
 rights, governments are instituted among men, deriving their just powers 
 from the consent of the governed ; that whenever any form of government 
 becomes destructive of these ends, it is the right of the people to alter or 
 to abolish it, and to institute a new government, laying its foundation on such 
 principles, and organizing its powers in such foi'm, as to them shall seem most 
 likely to effect their safety and happiness." Dec. Am. Ind. 
 
 2 The highest public authoritj' to be executed by any civil government, is the 
 authority of the nation; because it is composed of the largest association 
 of individuals for the purposes of civil government ; and the public authority 
 consists of the authority of all over each. Hence a limited portion of such 
 society, as a neighborhood or district, cannot possess as high public authority 
 as the whole society together, upon the principle that the whole is greater 
 than any of its parts. 
 
 By the declaration that a nation is composed of the largest association of 
 individuals, is not meant that all nations are composed of equal numbers 
 of individuals, or that there may not be sovereign and independent nations 
 composed of fewer persons than a moiety of another nation. The autliority 
 of a nation does not depend upon the number of persons constituting it. 
 Nations, as individuals, may differ in wisdom, wealth and power; but, like 
 individuals, they are also equal in their rights as sovereign States, which 
 do not depend upon considerations of that character. {See Vattel, Prelim., 
 §15.) By the declaration that nations are composed of the largest number of 
 individuals civilly associated together is meant, that a nation, as a society, can 
 be included in no other civil association; that the highest civil' jurisdiction 
 over any territory or people is that of the nation. 
 
 Again, national autliority extends uniformly over all the territory embraced 
 within the national domain. Hence, all citizens have equal national authority 
 in every part of the nation. National laws, applicable to ail, are enacted, 
 adjudged and executed by the same government. 
 
THE UNITED STATES AS A NATION. 47 
 
 tliink proper to impose, is, by them, vested in a body- 
 selected or created for that purpose, that it may be 
 executed in respect to matters pertaining- to the general 
 welfare. Hence, in the United States, national author- 
 ity belongs to the people as constituents of the nation, 
 and not as citizens of any domestic State or territory; 
 and they have sovereign authority to institute such forms 
 of government, and to intrust them with the execution of 
 such public authority, as they deem proper.^ 
 
 § 75. The sovereign authority essential to the estab- 
 lishment and maintenance of government, inheres in, 
 and resides with the people ; and hence, the authority 
 of government is derivative. In democratic republican 
 countries, government is an institution of the people, 
 established by them to be intrusted with the execution 
 of the public authoi'ity. Hence, in such countries, gov- 
 ernments derive their authority from the people ; and can 
 act only in virtue of the authority intrusted to them.^ 
 
 1 Not unfrequently the authority of the government is confounded with the 
 authority of tlie people instituting it. It sliould never be forgotten tliat gov- 
 ernments are institutions of the people, and possess no original authority. 
 In tlie discussion of questions connected with the origin of tiie national gov- 
 ernment, a class of politicians commit this error, and are constantly talking 
 of tlTe sovereignty of the States, from which they argue that the national 
 government is but a creation of the State governments, instituted by 
 them, and not by the people of the United States. They seek to make the 
 State governments the source and fountain of political sovereignty, as though 
 the people, in the institution and endowment of tljese governments, had 
 exhausted their own authority, by transferring it irretrievably to these State 
 institutions; and from thencefortli these State governnu'nts had authority to 
 do wliat they pleased, and the people had none except through them. If these 
 State governments have such absolute authority, from wlience did they receive 
 it? Not, certainly, from Great Britain, while they were provincial Colonies. 
 Not from the people, when they united to declare and achieve their common 
 independence. Not by the recognition of the nations as constituting such an 
 independent nation. As Colonies they set up no claim to national sovereignty, 
 and would not have been entitled to recognition had they done so. Independ- 
 ence was proclaimed and achieved in the name and by the authority of "</ie 
 people" and not in the name and by the authority of the several local govern- 
 ments; and the independence achieved was recognized as applying to the 
 united, not the separate States. The State governments, as political institutions, 
 were derived from the people, and existed and acted only by the authority of 
 the people. As such governments, they had no original sovereignty, and 
 hence could act in virtue of no such authority. The people could use them 
 in providing means to assert and maintain their independence; but could 
 derive no authority from them to proclaim and establish the same, for that 
 authority inhered in the people themselves, independent of all governments. 
 
 The true statement of the case is simply this: The people who severally 
 instituted these State governments, and intrusted them with the execution of 
 the public authority in certain matters, wished to unite all the Colonies or 
 States as one people, to resist the aggi'essions of the British crown, and, 
 if necessary, to establish a common independence. They did not resort 
 to these institutions of their.s to obtain authority to form this union, or to pro- 
 claim their independence. In this respect, they acted in virtue of their inhe- 
 rent .sovereignty. They used their State governments as instruments to bring 
 about the necessary union of action, and also to furnish the means necessary 
 for accomplishing their undertaking. These State governments were institu- 
 tions of their own creating, over which they had sovereign authority. 
 
 And when they had achieved their common independence, and had become 
 national, as well as State citizens, they had authority to establish for them- 
 selves as a nation, such a form of government as they deemed most expedient. 
 They could confederate their several governments for national purposes, and 
 delegate to the confederation such authority as they thought proper, trusting 
 to the faith of the States; or they might institute a governinent of the people, 
 and vest in it the execution of all national authority. 
 
 • " State legislatures as jxtlitical bodies, however sovereign, are yet not 
 sovereign over tlie people. So far as the people have given power to the gen- 
 
48 OF GOVERNMENT. 
 
 % 76. When tlie people institute a government, and 
 intrust it with the execution of the public authority, 
 they do not thereby divest themselves of, or in any 
 degree abridge, their inherent sovereignty. That is 
 inalienable. In the institution of government, they 
 merely create a body or person to be intrusted with 
 the execution of their authority, to the extent and in the 
 manner by them prescribed in their Constitution ; and 
 when the government is so intrusted with the execution 
 of the public authority, it is, nevertheless, subject to 
 that sovereignty that gave it existence.^ 
 
 g 77. As sovereignty is the supreme authority and 
 power by which a State is governed, and implies the 
 right of commanding in the last resort, it follows, that 
 as an attribute of civil society, it can only attach to the 
 people as a whole or nation ; and not to them, as a lim- 
 ited portion or moiety of a nation ; for, as the largest 
 
 eral government, so far the grant is unquestionably good, and the government 
 holds of the people and not of the State governments. We are all agents of 
 the same supreme power, the people. The general government, and the State 
 governments derive their authority from the same source." Webster in U. S. 
 Senate, in reply to Hayne ; Gales and Seaton's Reg. Vol. 6, pt. 1, p. 74, 1829, 1830. 
 
 "In Europe, sovereignty is of feudal origin, and imports no more tlian the 
 state of the sovereign. It comprises his riglits, duties, exemptions, preroga- 
 tives and powers. But with vis, all power is with the people. They alone are 
 sovereign, and they erect wliat government they please. None of these gov- 
 ernments are sovereign in the European sense of the word, all being restrained 
 by written Constitutions." See Webster's reply to Calhoun in the Senate of the 
 United States, Feb. 16, 1833. 
 
 1 Says BuELAMAQUi : " This sovereignty resides originally in the people. 
 But when they have once transferred it, they cannot, without contradiction, be 
 supposed to continue masters of it. When the people establish a government 
 and confer upon it the supreme power, that is, the power to determine what 
 measures are necessary to preserve civil society, to promote its prosperity ; to 
 punish those who disturb its peace or plot its destruction ; to settle differences 
 among its members, and to enforce the judgments which it pronounces, it is 
 evident that they part with their sovereignty." He adds : " The government 
 m y enact laws to which the people are opposed ; yet there is no question that 
 they are bound to obey them, and that the government has the right to enforce 
 obedience, and was instituted for that purpose." See Principles of Politic Laws, 
 Ch. 7, §? 10, 11 and 12. 
 
 The error in the reasoning of the learned author consists in this : He separates 
 between the authority of the people and the authority of their government. 
 This attribute of sovereignty in the people exists because of the necessity of 
 the case, as society could not exist without it. But this sovereign authority 
 must be executed, or it might as well not exist ; and society as an unorganized 
 mass, cannot execute it ; therefore, necessity compels society to institute means 
 for executing tlieir authority, not the authority of the agent employed. 
 Hence, the necessity of establishing a government, to be the agent or instru- 
 ment of the people in executing their authority. It is true that the people 
 individually are bound to obe-^' the laws enacted and adjudged by the govern- 
 ment, because they are enacted by the sovereign authority of the people, 
 through the instrumentality ordained by them for that purpose ; but if the 
 government departs from that authority, and enacts laws upon its own 
 lesponsibility alone, individuals, even, are not bound to obey them. 
 
 BuBiiAMAatJi overturns his own theory on this point in the very next 
 section. He says, § 13: " It may be asked if the people have parted with their 
 sovereignty by establishing a government, what control have they over it, and 
 in what does their power consist ? We answer, that they still retain the power 
 to alter or abolish it at their pleasure." 
 
 What! have the people sun-endered to the government, their sovereignty, 
 and yet retained it to be exercised at their pleasure? This cannot be. They 
 have intrusted the government with the execution of their authority over 
 matters committed to it, because it could be executed in no other way. But 
 the government, in all it has a right to do, is but the servant of the people and 
 answerable to them. 
 
THE UNITED STATES AS A NATION. 49 
 
 societies of men, civilly associated, constitute nations, 
 and as the highest public authority to be executed by 
 civil government is the authoritj^ of the nation, it fol- 
 lows that the authority of the nation must be sovereign 
 within its territorial limits; that is, it cannot be subject 
 to question or resistance by any other lawful authority. 
 
 % 78. That necessity which requires the people of a 
 nation to possess sovereign authority in all matters per- 
 taining to the general welfare, is incident to national 
 existence. Hence sovereignty is a necessary attribute 
 of every nation — one which inheres in the people in 
 their national character. The people of the United 
 States, as a nation, possess this necessary attribute, and 
 hence, have sovereign authority over all matters of 
 general interest within their territorial limits. 
 
 g 79. This sovereignty pertains to the people of the 
 United States as national citizens only, and not as citi- 
 zens of any other government. There cannot be two 
 se])arate and independent sovereignties within the same 
 limits or jurisdiction ; nor can there be two distinct and 
 separate sources of sovereign authority within the same 
 jurisdiction. The right of commanding in the last 
 resort can be possessed only by one body of people 
 iiihabiting the {?ame territory,^ and can be executed 
 only by those intrusted with the execution of such 
 authority. 
 
 g 80. The people of the United States, as a nation, 
 have supreme authority over all matters pertaining to 
 the general welfare, within the territorial limits of the 
 nation ; and they have authority to .determine by whom, 
 and in what mode the public authority shall be exe- 
 cuted ; what rights, duties and powers shall pertain to 
 
 1 The characteristics of sovereignty are such as to demonstrate the correct- 
 ness of the above. Sovereignty necessarily inheres in the people of a nation, 
 to be used for the establishment and maintenance of public order and security, 
 and for the protection of private rights. And being the right of commanding 
 in the last resort in all matters pertaining to the public weal, certain charac- 
 teristics must inevitably attend upon it. 
 
 1. The first characteristic of sovereignty is, that it is a supreme and independ- 
 ent powei — one which judges and determines in the last resort of whatever is 
 susceptible of human direction, relating to the welfare and advantage of 
 society, and can acknowledge no superior on earth. Whatever it ordains in 
 the plenitude of its power, cannot be reversed by any other human will as 
 superior to it. Since human power cannot be increased to infinity, there must 
 necessarily be a limit, beyond which there is no sviperior authority. And 
 whatever the form of government, there must inevitably be a supreme tri- 
 bunal, beyond which there can be no appeal. 
 
 2. A second characteristic of sovereignty is, that it is not accountable for the 
 exercise of its authority, nor liable to punishment; for it has no superior. 
 Hence, it is manifestly apparent that sovereignty belongs to the people in their 
 highest civil character alone, and not to any person or body having only deri- 
 vative authority; that while governments exercise sovereign authority, it is 
 the sovereign autliority of the people, and no: of the government as the mere 
 institution of the people. See BMii.a7uaquV & Prin. Pol. La/iv, ch. 7, §2 1*^* 
 
50 
 
 OF GOVERNMENT. 
 
 the national government, and what to th^ ^o^^e^'iinenti, 
 of the States."^ 
 
 % 81. The sovereign authority essential to tha estab- 
 lishment and maintenance of a national government 
 inheiiug in, and remaining witli, the people of the 
 United States, they are authorized to establish a 
 national government in such form, and vest in it such 
 I)owers in respect to the general welfare, as they deem 
 proper.^ And they, also, have authority to establish 
 State governments, and vest in them the execution of 
 such public authority as they deem expedient; and, in 
 virtue of the same sovereignty, they can enlarge or re- 
 strict the limits of State or national authority at 
 pleasure.^ 
 
 g 82. Sovereignty, as an attribute of the people of the 
 United States as a nation, excludes the like sovereignty 
 
 1 " If the government of the United States be the agent of the State govern- 
 ments, then they may control it, restrain it, modify it, or reform it. It is 
 observable enough that the doctrine for wliicli tlie gentleman contends leads 
 him to the necessity of maintaining, not only that tliis general government is 
 the creature of the States, but tliat it is tlie creature of each of the States 
 severally; so that each may assert tl:e power for itself, of determining whether 
 it acts within the limits of its authority. It is the servant of four and twenty 
 masters of different wills and different purposes, and yet bound to obey all. 
 This absurdity — for it seems no less — arises from a misconception as to the 
 origin of this government in its true character. It is, sir, the people's constitu- 
 tion, the people's government; made for the people ; made by the people, and 
 answerable to the people. The people of the United States have declared that 
 this constitution sliall be the supreme law. We must either admit the prop- 
 osition or dispute their autliority. The States are unquestionably sovereign, 
 so far as their sovereignty is not affected by tliis supreme law. But the State 
 legislatures, as political bodies, however sovereign, are yet not sovereign over 
 the people. So far as the people liave given power to the general government, 
 so far the grant is unquestionably good, and the government holds of the 
 people, and not of the State governments. We ai'e all agents of the sanie 
 supreme power — the people. The general government and the State govern- 
 ments derive their authority from the same source. Neither can, in relation 
 to the other, be called primary, though one is definite and restricted, and the 
 other general and residuary. Tlie National government possesses those 
 powers which it can be shown the people have conferred upon it, and no more. 
 AH the rest belongs to the State governments or to the people. So far as the 
 people have restrained State sovereignty by the expression of their will in the 
 Constitution of the United States, so far it must be admitted State sovereignty 
 Is effectually controlled." Webster's reply to Hay ne in United Hiates tS'enate, Jan. 
 27, 1830. G. <fc 8. Rep. of Cong. Deb., Vol. 6, p. 1, page 74. 
 
 2 This follows from the doctrine that the sovereignty essential to the estab- 
 lishinent and maintenance of government, inheres in, and remains with the 
 people ; together with the further principle or doctrine, that the authority to 
 legislate for tlie government of society belongs to the sovereignty. Says 
 Blackstone: " The very essence of a law is, that it be made by the supreme 
 power. Sovereignty and legislature are, indeed, convertible terms; one can- 
 not exist without the other." (1 Black. Com.., 46.) By which is meant, the 
 authority to make a law binding upon the people must be sovereign. In other 
 words, he defines municipal or civil law to be, " a rule of civil conduct pre- 
 scribed by the supreme power in a State," &c. (1 Com., 44); " for legislature is 
 the greatest act of superiority that can be exercised by one being over 
 another," (idem, p. 46.) 
 
 3 The territory constituting the field of State jurisdiction, is within the 
 jurisdiction of the nation ; and the American people as a nation, possess and 
 exercise the authority of drawing the line of jurisdiction between the State 
 and national government according to their sovereign pleasure. Besides, as 
 has already been stated (a?ii'e. g 79 anri noie), there cannot be two independent 
 sovereignties within tlie same limits or jurisdiction ; nor can there be two 
 distinct and separate sources of sovereignty within the same jurisdiction. 
 If the people of the nation, as a natioii, possess sovereign authority in 
 respect to all matters pertaining to the general welfare, then the people of the 
 State, as State citizens merely, cannot possess such authority, except as 
 derived from the nation. 
 
THE UNITED STATES AS A NATION. 51 
 
 of the people of a single State, as State citizens merely. 
 Hence, tbe authority of a citizen as a constituent of the 
 nation, is superior to his authority as a constituent of a 
 mere State or territory. Hence, also, when the nation 
 assumes to confer upon the national government exclu- 
 sive authority over any particular class of subjects, the 
 people of a particular State have no legal i)o\ver to 
 question or deny such grant, though it encroach upon 
 what before belonged to their peculiar jurisdiction.^ 
 
 .§ 83. In the United States, the people of a particular 
 territory have no authority to vest themselves with the 
 rights, powers and prerogatives of a State ; nor can 
 they lawfully exercise anj^ public authority, except 
 under the enabling power conferred b}^ the nation. 
 They can draft the frame-work of a government, and 
 the form of a cons} i tut ion ; and can ask to be endowed 
 with authority to govern themselves in all matters local 
 and domestic. But they can give to their constitution 
 no authority, and to theii- government no life or power. 
 That must come from those in whom sovereignty resides.^ 
 
 g 84. The national and State governments are insti- 
 tutions of the people, and each derives its existence and 
 authority from the same source. Hence, they are 
 instituted in such form, clothed with such powers, and 
 subject to such limitations, as the jjeople of the nation 
 in their sovereign tv ordain.^ 
 
 1 This likewise is a corollary flowing from tlie propositions that sovereignty- 
 is an essential attribute of nationality (§77 cmte); and that there cannot exist, 
 at the same time, and within tlie same limits or jurisdiction, two separate and 
 distinct sovereignties or sources of sovereign authority, (g 79 ante.) Hence, if 
 tlie people of the United States as a nation, are sovereign, and can exercise 
 sovereign authority throughout the territorial limits of the United States, 
 they have tlie authority to determine in Avliat body or bodies, the execution 
 of the public autliority shall be vested ; and from them as a nation, must come 
 the authority to exercise tlie functions of government within the national 
 limits. Practically, in the institution of local or State governments, this doc- 
 trine is observed. Tlie people ol a territory within the United States, liowever 
 numerous, cannot clothe themselves with the autliority of self-government 
 even in local and domestic matters. They are obliged to obtain the consent 
 of the nation through the national legislature, which, so to speak, becomes an 
 act of political enfranchisement. This will be fully considered when the 
 origin, nature and autliority of the States v.'ithin the Union come under con- 
 sideration. 
 
 2 According to the Constitution of the United States, the territories are to be 
 under the regulation and control of Congress; and no new State can be formed 
 or admitted except by the authority of Congress, as expressing the legislative 
 will of the nation in respect thereto ; and besides, the United States or nation, 
 ai'e to determine the /ocm of the State government, and to guarantee that it 
 shall be republican. (See ?§ 3 and 4 of the 4th Art. of Const. U. S.) But this 
 subject will be fully considered when the State governments come under con- 
 sideration. 
 
 3 See Welister's reply to Robert Y. Hayne, in the United States Senate, 
 Jan. 27, IS.iO, where this proposition is fully discussed. 
 
 The truth of this proposition in respect to the general government is appar- 
 ent from the manner in which the government was established, the object of 
 its institution, ami the subject matters of its jurisdiction and administration. 
 The preamble of tlie Constitution of the United States recites it as an ordi- 
 nance of the people. "Wf the people of the United States * * * do ordain 
 and establish this Constitution."' It was framed by delegates from the several 
 States then existing ; it was submitted to the people of the States to be ratified 
 
52 OF GOVERNMENT. 
 
 g 85. State governments being instituted by, and 
 deriving their authority from, the nation, they are 
 invested with the same authority over matters within 
 their jurisdiction, as the national government, over 
 matters within its jurisdiction, to wit : the authority of 
 the nation. Hence, the authority exercised by the State 
 over matters within its jurisdiction, is sovereign and 
 absolute ; they are commissioned to execute the will of 
 the nation in respect to i)ublic interests of a local and 
 domestic character.'^ 
 
 g 86. The national and State governments being insti- 
 tutions of the nation, and amenable to its authority, 
 hold the authority with which they are intrusted, at the 
 pleiisure of the nation. As in their origin, the people 
 determined the extent and limitation of the authority 
 to be intrusted to each, so, in their continuance, they 
 are subject to the supervision and control of the same 
 supreme authority.^ 
 
 g 87. Neither the national nor the State governments, 
 as political institutions, are constituent elements of the 
 Union. They are each institutions of the nation — cor- 
 porate instruments, created hj it, to execute its authority 
 
 by them ; it was thus ratified by the people of all the States, and in their 
 name, and by their authority, it became tlie Constitution of tlae United States. 
 It provided tliat tlie Constitution, and the laws of the United States made in 
 pursuance thereof, and all treaties made, or wliicla should be niade, under the 
 authority of the United States, sliould be the supreme law of the land ; and 
 the judges in every State should be bound tliereby, anytliing in the Constitu- 
 tion or laws of any State to the contrary notwithstanding. (Art. 6, 2d clause.) 
 Article 5 also provides tliat the Congress, wlienever two-tliirds of botli Houses 
 should deem it necessary, should propose am.endments to this Constitution ; 
 or on the application of the legislatures of two-thirds of the several States, 
 should call a convention for proposing amendments, whicl:^ in either case, 
 should be valid to all intents and purposes as part of the Constitution, when 
 ratified by the legislatures of three-fourths of the several States, or by conven- 
 tions in three-fourths thereof, as the one or the other mode of ratification might 
 be proposed by the Congress. 
 
 By an examination of these provisions it will be manifest that the govern- 
 mental authority of the whole country was conceded to be in the people of 
 the United States as a nation ; to be exercised by them, tlirough tlie agency 
 of such governments as tliey deemed necessary and proper to establish. This 
 will be made clearly to appear, in the chapter upon States within the limits of 
 the United States. (See po,si!.) 
 
 1 The people of the nation, in the institution of the national government, 
 assigned to the then existing States the limits of their jurisdiction, by super- 
 ■ imposing the national government with its jurisdiction; and the same 
 authority which thus circumscribed the authority to be exercised by the then 
 existing States, could, at its pleasure, withdraw every subject from their 
 jurisdiction, and confer upon the national government plenary powers in 
 respect to all governmental matters within the territorial limits of the United 
 States. Is it objected that the people of the several States would never agree 
 to amendments of the national Constitution giving sucla plenary powers to be 
 exercised by the national government? That may be so. But, as citizens of 
 the nation, they have authority to agree to it, and that is all that is contended 
 for. Thus, it will be perceived, that the jurisdiction reserved to the several 
 States then existing, was by the permission or authority of the nation : that 
 in respect to new States, none can be organized and enfi'anchised with political 
 rights as States, except by the authoi-ity of Congress, and in such form, 
 and under such a Constitution as it shall approve. Thus the State governments, 
 as political institutions, take their existence and authority from the nation, 
 and hence administer under such authority. This will more fully appear 
 hereafter. (See pout p. 298-32G: Appendix 120.) 
 
 a (Seeijosf Appendix 120.) 
 
THE UXITED STATES AS A NATION". 53 
 
 within their respective jurisdictions. They cannot be 
 considered constituent elements of the nation, since thej^ 
 were instituted by it, to be intrusted with the execution 
 of its authority.^ 
 
 ^ 88. Since the national and State governments derive 
 their existence and authority from the national will, 
 and are not constituent elements of the Union, national 
 existence, sovereignty and integrity de})end not ui)on 
 the continuance of tliese governments. The institution 
 of a State government within the Union adds nothing 
 to the sovereignty or administrative authority of the 
 nation. Hence, the dissolution of such a government 
 can take nothing therefrom. 
 
 CHAPTER 11. 
 
 OF THE UNITED STATES AS A GOVEENMENT. 
 
 g 89. The United States as a civil government, was 
 instituted by the people, who constitute the United 
 States as a nation. As a government of the people, it 
 was instituted by them in order to form a more perfect 
 union; to establish justice ; to insure domestic tran 
 quillity ; to provide for the common defense ; to promote 
 the general welfare, and to secure the blessings of liberty 
 to themselves and their i)osterity.^ 
 
 1 A constituent element of a body is that wlaich is essential to its exist 
 ence as a component part thereof. Hence, if the people Of tlie United States 
 were a nation prior to the institution of tlie general government by them, then 
 such government cannot be a constituent element or component part of the 
 nation. So of the State governments. Tlie political existence of each State 
 in tlie Union is not a component part of the nation, because the national 
 unity is tlie same whether there are few or many States. When the govern- 
 ment was instituted there were thirteen of tliese local institutions, since 
 wliich there have been created twenty-three more; yet the nation has not 
 been changed in its existence or political character. Its authority remains 
 unchangeii. It is tlie same nation, and will continue the same, should the 
 number of States be increased indefinitely. Now, it is most manifest tliat the 
 nation does not depend upon the institution of these local governments for 
 its existence or authority. Tliose whicli were in existence at tlie time of the 
 adoption of the national constitution, continued by the permission of the 
 people as a nation ; and they possess such governmental authority as remained 
 to tlieni after tlie nation had ordained what sliould belong to the general 
 government. Those twenty-three States or local governments which have 
 since been instituted, have taken their charter to govern, from the nation — 
 hence are institutions of the nation. 
 
 1 " We, the people of the United States, in order to form a more perfect union, 
 establisli .justice, insure domestic tranquillity, provide for the common defense, 
 promote the general welfare, and secure tlie blessings of liberty to ourselves 
 and our posterity, no ordain and establish this Constitution of the United 
 States of America." Preamble to (he ComlUution of the United States. 
 
 The draft of this Constitution was prepared by delegates from all the States, 
 who were appointed for that purpose by their several legislatures, on the 
 recommendation of Congress, dated Feb. 21, 1787. A part of these deputies, or 
 delegates, met in convention at the State House, in Philadelphia, on the 14th 
 day of Ma.v, 1787, and adjourned, from time to time, until a quorum appeared, 
 on the 2-5th of May. They continued in session until the 17th of September 
 following, when, having perfected the draft of the Constitution, they signed it, 
 
54 
 
 OF GOVERNMEKT. 
 
 § 90. By government is liere meant, that body cor- 
 porate to which the people have committed the exercise 
 of their authority over matters pertaining- to their 
 general welfare as a nation. It is a cori)oration of offi- 
 ces, to which are attached rights, duties and powers 
 deemed essential to, and given for the pnri)ose of form- 
 ing a more perfect union, establishing justice, securing 
 domestic tranquillity, providing for the common defense, 
 promoting the general welfare, and securing to them- 
 selves and their posterity the blessings of civil liberty. 
 
 ^ 91. The body of this government is distinct from 
 the body of the nation. It was instituted for the sole 
 purpose of being intrusted with the exercise of 
 national power and authority in all matters committed 
 to its jurisdiction. Hence, the existence of the nation 
 is independent of any particular form of government 
 instituted by it, or of any degree of authority intrusted 
 to its execution. 
 
 and reported the same to Congress. On the 28th of September, 1787, Congress 
 unanimously resolved to transmit the report, &c., to the several legislatures, 
 to be submitted to a convention of delegates to be chosen in each State by the 
 people thereof, in conformity to the resolves of tlie convention. (See Appen- 
 dix.) The several States proceeded to provide for the calling of these conven- 
 tions of delegates, to be chosen by the people for the purposes expressed in the 
 resolutions accompanying the draft (see Appendix); and such proceedings were 
 had, that conventions to ratify the Constitutioii were held in all the several 
 States, and the Constitution was ratified, and ordained, by each of these con- 
 ventions, or deputies of the people, in tlie name, and by the authority of, the 
 people themselves. (See Appendix.) 
 
 The citizens of the nation were also citizens of the several States, and were 
 as directly connected with, and interested in, the general government, as in 
 their respective State governments. The proposition was to institute a general 
 government for national purposes only; leaving the State governments to 
 administer only in local and domestic matters. And the people were alike 
 citizens of both governments, and had tlie like authority over each. Citizen 
 A, of the State, asked citizen A, of the nation, being the same individual, 
 wliether, in his opinion, the general welfare required that the interests of the 
 people, as a nation, should be provided for and secured by a general government 
 of tlie people, or whether it should be committed to the diverse wills and 
 interests of thirteen independent local governments. After an experience of about 
 thirteen years, trusting to these local governments to provide for the common 
 defense, and to promote tlie general welfare, the unanimous opinion of the 
 people was given in favor of the establishment of a general, or national govern- 
 ment, and tliey ordained and established the national Constitution for that 
 purpose. 
 
 See also the opinion of the Supreme Court of the United States, in Hunter v. 
 ilfa?-<m, 1 Wlieat. Rep., o0')-321; also McCalloch v. j)/a7V/to'xrf,.4 Wheat. Rep., 316, 
 401. &c.; also CoAe/is v. Fw-f/i/ua, 6 Wheat. Rep., 263, 41o, 414; also Story, Const., B 
 463; (see appendix.) Extracts from Webster, in reply to Hayne, in United 
 States Senate, Jan. 27, 1830 ; also in reply to Calhoun, in United States Senate, 
 Feb. 16, 1833. 
 
 The people of the United States, as a nation, declared and achieved their 
 common independence, and were recognized as a nation, before they estab- 
 lished their government. Tliey attempted to make use of the governments of 
 the States as an instrument by which to administer in matters pertaining to 
 the general welfare, and articles of confederation were entered into for that 
 purpose. (See Articles of Confederation, in Appendix.) These articles were 
 drawn up and agreed to during the progress of the revolution (Nov. 15, 1777), 
 and though declared to be perpetual, they were evidently only suited to the 
 then existing revolutionary state of things. The principal powers had respect 
 to the operations of war, and would be dormant in times of peace. Says Judge 
 Story, in his Commentaries on the Constitution, ? 215, " They, the Congress, 
 wei-e indeed clothed with authority of sending and receiving embassadors; 
 of entering into treaties and alliances; of appointing courts for the trial of 
 piracies and felonies on the high seas; of regulating the public coin ; of fixing 
 the standard of weight's and measures ; of regulating trade with the Indians ; 
 
THE UNITED STATES AS A NATION". 55 
 
 g92. Tliis civil govern iiient was instituted by the people 
 for DO other ])nri)oses, and it is intrusted with the exer- 
 cise of no other rights, duties or ])owers, than are enu- 
 merated or implied in the Constitution of the United 
 Stiites. Hence, as a government, or body cori)orate, it 
 has no original or inherent sovereignty per se.^ It is a 
 mere instrument or agency of the nation, by means of 
 which the people are enabled to exercise their authority 
 and powers over matters within the jurisdiction of the 
 general government.^ 
 
 § 93. As the authority of this government is derived 
 from the peoi)le, and is lield by it in trust for the par- 
 ticular x)urposes specified in the constitution, should it 
 assume to exercise authority over subjects not within 
 its ex]>ressed or implied jurisdiction, or in a manner 
 other thjiu that directed or recognized by the constitu- 
 tion, such proceedings would be without authority, and 
 void.^ 
 
 of establishing; Post-oflices; of borrowing; money, and emitting bills on credit 
 of the United States; of ascertaining and appropriating tlie sums necessary 
 for defraying the pulilic expenses; and of disposing of tlie western territory. 
 And most of these powers required for their exercise tlie assent of nine States. 
 But tliey possessed not the power to raise any revenue, to levy any tax, to 
 enforce any law, to secure any right, to regulate any trade, or even the poor 
 prerogative of commanding means to pay its own ministers at a foreign court. 
 They could contract debts, but they were without the means of discharging 
 them. They could pledge the public faith, but they were incapable of redeem- 
 ing it. They could enter into treaties, but every State in the Union might 
 disobey them with impunity. They could contract alliances, but they could 
 not command men or money to give them vigor. In short, all powers which 
 did not execute themselves,' were at the mercy of the States, and might be 
 trampled upon at will with impunity." 
 
 Says a writer in the American Museum (1780, p. 270): " By this political com- 
 pact — the articles of confederation — the United States, in Congress, have 
 exclusive power for the following purposes, without being able to execute one 
 of them : they may make and conclude treaties, Isut can only recommend the 
 observance of them. They may appoint embassadors, but cannot defray even 
 the expenses of their tables. They may borrow money in their own name, 
 on the faith of the Union, but cannot pay a dollar. They may coin money, but 
 they cannot purchase an ounce of bullion. They may make war, and deter- 
 mine what number of troops are necessary, but cannot raise a single soldier. 
 In short, they may declare everything, l)ut do nothing." See also Mr. Jay's 
 Letter, addressed to the people of New York, 17S7. M Am. 3Ius., pp. 534, 556. 
 
 During all tiiis lime the people of tlie United States were a nation ; and as a 
 nation, had autliority to institute a government, and clothe it with plenary 
 powers ; but, until the adoption of the national constitution, they had failed 
 to do so. 
 
 1 This branch of the proposition cannot be made more .apparent by discus- 
 sion. When a corporate liody is created for a particular purpose, and is clothed 
 with powers only to enable it to accomplish the purpose of its creation, it can 
 have no original authority of its own underived from the authority creating 
 and endowing it. 
 
 2 In democratic countries, governments are instituted for their use to the 
 people, and not for their benefit to the corporation, called government. They 
 are intrusted with the exercise of the public authority, for the benefit of society 
 and the mem1>ers thereof; not for tlie glory and advantage of those intrusted 
 with the administration of the public autliority. The general government was 
 instituted by the people to administer in respect to matters pertaining to tlieir 
 welfare as a wliole, or nation ; because, without such an agency, the general 
 welfare could not be promoted. 
 
 3 It is universally admitted that the government of the United States is one of, 
 delegated powers only, and that it can exercise no power not expressly 
 granted, or necessarily implied. That the Constitution is the fundiimental law 
 of its institution, and that in it we are to look for the grant of any authority 
 or power it can exercise. 
 
56 
 
 OF GOVERNMENT. 
 
 g 94. This government has no other authority tham 
 the authority of the nation, as expressed or implied in 
 the coustitntion. Hence, having no authority of its 
 own, distinct from that of the people, when it acts 
 within the sphere of its constitutional powers, it 
 exercises the supreme and sovereign authority of the 
 nation.^ 
 
 g 95. When the people of the United States, as a 
 nation, ordained this constitution, they thereby insti- 
 tuted the general government, and endowed it with the 
 rights, enjoined upon it the duties, and intrusted it with 
 the exercise of the powers specified in the constitution. 
 Hence, in the exercise of the rights, duties and powers 
 thus conferred and enjoined, the government acts, in 
 the name and by the authority of the nation, and not 
 otherwise. 
 
 g 96. It was the manifest intention of the people of 
 the United States, when they iustituted the general 
 government, to make it national in character, and per- 
 manent in duration.^ Hence, the duties enjoined upon, 
 
 1 When the authority of the government is spoken of, it should be remem- 
 bered that the authority is tliat of the people instituting the government, and 
 intrusting it with the exercise thereof in the manner prescribed, for their 
 common benefit. A common error prevails in this respect, confounding 
 the government instituted with the people or nation instituting it. In speak- 
 ing of the government, some use the term in the sense of the nation ; others 
 use it in the true sense, and speak of its authority as being limited b5^ the 
 terms of the grant, and held in trust for the common beneiit of those insti- 
 tuting the government. By this indiscriininate use of the term, " the govern- 
 ment," some ascribe to it too much authority, by confounding it with the 
 nation; others ascribe to the nation too little authority, by confounding it 
 with the government. If, in the discussion of these questions, all are agreed as 
 to the fundamental principles, and as to the meaning of terms- to be used, and 
 then use understandingly the same terms in making the application of those 
 principles, there will be little opportunity for differing in their conclusions. 
 Thus, suppose all agree to the principle that the people as a whole, are the sove- 
 reigns ; and that the authority to govern must come from them. That they 
 institute a government for the purpose of intrusting it with the execution of 
 such public authority as they deem necessary for accomplishing certain speci- 
 fied purposes. Hence, the government, in such case, is an institution of the 
 people, deriving its authority from tiiem, to be exercised»for their common 
 welliire, over the subjects, and in the manner prescribed. Agreeingupon these 
 principles, and making use of terms which are understood alike, there will be 
 little opportunity of arriving at different conclusions. 
 
 '■2 " If it had been the design of the framers of the Constitution, or of the 
 people who ratified it, to consider it a mere compact, resting on treaty stipula- 
 tions, it is difficult to conceive that the appropriate terms should not have 
 been found in it. The United States were no strangers to compacts of this 
 nature. * * * The only places where the term confederation or compact are 
 found in the Constitution, apply to subjects of an entirely different nature, 
 and manifestly in contradistinction to Constitution. Thus, in the 10th section 
 of the 1st article, it is declared : ' No State shall enter into any treaty, alliance, 
 or confederation.' ' No State shall, without the consent of Congress, enter into 
 any agreement or compact with another State, or with a foreign power.' 
 Again, in the sixth article it is declared, 'that 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 confedera- 
 tion.' Again, in the tenth amendment it is declared, 'that the powers not 
 delegated by the Constitution, nor prohibited by it to the States, are reserved 
 to the States respectively, or to the people.' A contract can in no just sense 
 be called a delegation of powers." S/.ori/ on the Constitution, g 353. 
 
 "But that which would seem conclusive on the subject is the very language 
 of the Constitution itself, declaring it to be a supreme fundamental law, and 
 to be of judicial obligation and recognition in the administration of justice. 
 'This Constitution,' says the sixth article, 'and the laws of the United States 
 
THE UNITED STATES AS A NATION. 57 
 
 and tlie powers intrusted to, the general government, 
 are ada[)ted to, and sufficient for, that purpose.^ 
 
 § 97. When the people of the nation ordained and 
 established the Constitution of the United States, they 
 thereby instituted a national government, amenable 
 only to themselves as a nation ; and they clothed it 
 with authority and power suflScient for national pur- 
 poses.^ And by the same ordinance they denied to the 
 State governments the right to exercise authority over 
 national subjects, or over any other, except within their 
 own State limits.^ 
 
 § 98. Tlie people of the United States, in whom, as a 
 nation, sovereignty inheres, when they instituted the 
 national government, and conferred upon it jurisdiction 
 and authority over matters pertaining to the nation as 
 
 ■which shall be made in pursuance thereof, and all treaties made orwhich shall 
 be made under the authority of tlie United States, shall be the supreme law of 
 the land, nnd the judges in every State shall be bound thereby, anything in 
 tlie Constitution or laws of any State to the contrary notwithstanding.' If it 
 is tlie supreme law, how can the people of any State, either by any form of its 
 own Constitution or laws, or other jji-oceedings, repeal, or abrogate, or suspend 
 it?" Jde?M,iJ354. 
 
 " But, if the language of the Constitution were less explicit and irresistible, 
 no otlier inference could be correctly deduced from a view of tlie nature and 
 objects of the instrument. The design is to establish a form of government. 
 Tliis, of itself, imports legal obligation, permanence, and uncontrollability by 
 any but the authorities authorized to alter or abolish it. The object was to 
 secure tlie blessings of liberty to the people and their posterity. The avowed 
 intention was to supersede the old Confedei'ation, and substitute in its place a 
 new form of government." Idem, § 3.55. 
 
 In the several conventions of delegates chosen by the people of the several 
 States to ratify or reject this Constitution, it was the understanding of all par- 
 ties, that it was not a confederation ot the States, but a rjovernrnent of individuals, 
 that was to be instituted by the nation if the Constitution was ratified. The 
 opponents, on many occasions, pressed the objection, that it was a consolidated 
 government; and contrasted it witli the Confederation. The advocates did 
 not deny that its design was to establisli a national government, as contra- 
 distinguished from a mere league, or treaty, or confederation. Story on Const., 
 §§ 356 to 360, and notes. 3 Ell. Deb., 22, 27, 28. 
 
 1 See chapter on the Constitution of the United States, post p. 65, ? 124. 
 
 2 In Gibbons v. Ogden (9 Wheat. Rep., 187), the Supreme Court of the United 
 States held this language: "As preliminary to the very able discussion of the 
 Constitution which we have had from the bar, and as having some influence 
 on its Constitution, reference has been made to the political situation of those 
 States, anterior tcj its formation. It has been said that they were sovereign, 
 were completely independent, and were connected with each other only by iX 
 league. This is true. But when these allied sovereigns converted their league 
 into a GOVERNMENT, when they converted their congress of embassadors, deputed 
 to deliberate on their common concerns, and to recommend measures of gen- 
 eral utility, into a legislature, empowered to enact laws on the most inter- 
 esting subjects, the whole character in which the States appear, underwent a 
 change, the extent of which, must be determined by a fair construction of the 
 instrument by which the change was effected." 
 
 3 Art. 1, § 10, of the Constitution of the United States provides as follows: 
 "No State shall enter into any treaty, alliance, or confederation; grant letters 
 of marque and reprisal; coin money; emit bills of credit; make anything but 
 gold and silver coin a tender in payment of debts ; pass any bill of attainder, 
 ex post facto law, or impairing the obligation of contracts, or grant any title of 
 nobility." 
 
 " No State shall, without the consent of the Congress, lay any imposts or 
 duties on imports or exports except what may be absolutely necessary for 
 executing its inspection laws; 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; and all such laws shall be subject to the revision and con- 
 trol of Congress. No State sliall, without the consent of Congress, lay any 
 duty of tonnage; keep troops, or ships of war, in time of peace, enter into any 
 agreement or compact with another State, or with a foreign power, or engage 
 in war, unless actually invaded, or in such imminent danger as will not admit 
 of delay." (See post — chapter on State Governments p. 298, g 477.) 
 8 
 
58 GOVERNMENT. 
 
 sncli, ordaiued tliat the residue of fi^overn mental 
 authority aud power siiould be exercised by the ix^ople 
 of the several States, through the agency of State gov- 
 emiiients; which residue of autliority had respect only 
 to matters local aud domestic, and was to be exercised 
 witliiu the limits of the State, and iu such a manner as 
 not to interfere with tlie jurisdiction of the national gov- 
 ernment, or to trench upon the rights of national citizens 
 as such.^ 
 
 g 99. The authority which instituted the national 
 government was sovereign to determine what subjects 
 should be committed to the jurisdiction of tlie general 
 government, and what should remain under State juris- 
 diction. Heiice, whatever of authority renuiins with 
 the citizens of the States to be exercised by the State 
 governments, remains by the will of the nation ; aud is 
 still subject to national control.^ 
 
 CHAPTEE III. 
 
 OF THE GOVERNMENT OP THE UNITED STATES. 
 
 § too. The government of the United States is a body 
 corporate and politic, created b}^ the peoi)le of the nation 
 to be intrusted with the exercise of their authority over 
 matters committed by them to its jurisdiction. It con- 
 sists of othces to which are attached rights, duties and 
 powers to be possessed and exercised by the respective 
 
 1 " state legislatures, as politicnl bodies, however sovereign, are yet not sov- 
 ei'eign over the people. So far as the people have given power to the general 
 government, so far the grant is unquestionably good; and the government 
 holds of the people, and not of the State governments. We tare all agents of 
 the same supreme power — the people. The general government and the State 
 governments derive their authority from the same source. Neitiier can, in 
 relation to the other, be called primary, though one is definite and restricted, 
 and the other general .and residuary. The national government possesses 
 those powers whicli it can be shown the people have conferred on it, and no 
 more. All the rest belongs to the State governments or to the people them- 
 selves." Daniel Webster in United States Senate, Jan. 27, 1S30, in reply to 
 Hayne on Foot's resolutions. 
 
 2 When the people said, "we ordain and establish this Constitution for the 
 United States of America," it was the voice of absolute sovereignty asserting 
 its authority to ordain and establish government over all subjects pertaining 
 to the general welfare, whether of a national or local character. It was the 
 assertion of that sovereignty which is indivisible in its existenc';^, and which 
 presides over every authorized jurisdiction, whether State or national. " It is 
 a gross error to confound the exercise of sovereign powers, witli sovereignty 
 itself; or the delegation of such powers, with the surrender of them. A sov- 
 ereign may delegate his powers to be exercised by as many agents as he may 
 think proper, under sucli conditions and with such limitations as he may- 
 impose; but to sui'render any portion of his sovereignty to another is to anni- 
 hilate the whole. Sovereignty is in its nature indivisible." Calhoun on the 
 Force Bill in tlie United States Senate, Feb. 15, 1833. Gales & Seaton's Cong. 
 Debates, vol. 9, pt. 1, p. 537. 
 
 See also § 81 and note, ante. 
 
GOVERNMENT OF UNITED STATES. 59 
 
 incuinl)ents, in the manuer and for the purposes ordained 
 by tlie people. 
 
 g 101. The rights i)ossessed, the duties enjoined, and 
 the powers cont'ened, pertain to the othce, and not to the 
 indiviihiai incumbent. They are the same, whether 
 the othce be tilled with good or bad men ; wise or weak 
 ones. They continue whether the incumbent continues 
 or not. Like the king or state, they never die. They 
 were created for the good of the state ; and the benetits 
 resulting from a i)roper administration of them, are 
 secured to all alike. 
 
 g 102. Since tlie rights, duties and powers conferred 
 and enjoined upon an incumbent of a governmental othce 
 belong to the office, and not to the incumbent, they are 
 to be {possessed and exercised, as a trust for the benefit 
 of the people ; and an officer who has been intrusted 
 with these rights and i)0\vers, if he exercise or employ 
 them for any other purpose, is guilty of a breach of 
 trust, and unworthy to be continued as an officer of the 
 government. 
 
 S 103. The rights and powers conferred as an incident 
 of office, being in the strictest sense a trust, created for 
 the benefit of the people, it becomes the duty of those 
 charged with the administration of government to see 
 to it, that the trust be faithfully executed in the manner 
 and for the i)urposes prescribed in the grant. And the 
 trust being conferred for the benefit of the people, mal- 
 administration in office is, consequently, a crime against 
 the people, and should be punished accoi'dingly. 
 
 g 104. The national government having been instituted 
 for the purpose of defending all, and promoting the gen- 
 eral welfare of the nation, must be supreme within the 
 sphere of its jurisdiction ; that is, in the exercise of 
 the authority and power of the nation for national 
 ])urposes, so far as the same has been expressly or 
 imjdiedly committed to its jurisdiction.^ 
 
 g 105. The duties, rights and powers to be observed, 
 possessed and exercised by those charged with the 
 administration of government, must correspond with 
 those necessary requirements of society which make 
 government a necessity as a means for providing for the 
 
 I It is to be remembered that the government is intrusted with the exercise 
 of supreme authority over such matters only as have been committed to its 
 jurisdiction by tlie people. These are spec'iflcd in the constitution of the 
 United States ; and the purposes for which they are given are also specified. 
 In respect to other subjects and powers, essential to the government of the 
 people, tliose which have not been intrusted to the states as local governments, 
 yet remain witli the people. 
 
60 GOVERNMENT. 
 
 common defense, and promoting the general welfare. 
 Therefore, the national constitution made provision for 
 the exercise of rights, offices and powers, essential for 
 jnaintaining and defending the rights of the people as a 
 nation, both externally and internally ; that is, for inter- 
 national and for police purposes. 
 
 g 10(). There necessarily exists as incident to a sovereign 
 and independent nation, an internal sovereignty, inhe- 
 rent in the ijeople of the nation, and, which is, to a 
 limited extent, vested in the gov^ernraent instituted by 
 them.^ This internal sovereignty in its exercise has 
 respect to the rights, duties and welfare of the indi- 
 vidual members of the society or nation, and is repre- 
 sented by what is called the police imwer^ police riglits 
 and police duties of the state or nation.^ 
 
 g 107. As a like incident of nationality, there must also 
 exist an external sovereignty which has its basis in the 
 natural and necessary independence of nations. This 
 external sovereignty is accorded to the nation by its 
 recognition as a nation. Intercourse between the nations 
 is regulated and maintained by the exercise of this 
 branch of national authority. N"ational rights and duties 
 in peace and in war, are asserted and vindicated in 
 virtue of this external sovereignty. The laws by which 
 this kind of sovereignty governs, and is known, are 
 denominated interxatioxal, or the laws op nations.^ 
 
 1 Sovereignty ever inheres in the people ; and they never part with it. Tliore- 
 fore, it is never strictly correct to say that tlie government per se, is invested 
 Avitli sovereignty or sovereign authority. Tlie people remain sovereign 
 whetlier they institute a government or not; sovereign at all times to create, 
 to amend, to annul, or to destroy wliat they have created. Sovereignty, as an 
 essential attribute of nationality, can employ as many agents to execute its 
 authoi'ity as it deems proper, and ' can appoint to them tlie limits of their 
 respective jurisdictions and powers. But liice otlier agents, or agents for other 
 purposes, tiiey can only exercise tlie authority of tlieir principal; tliey cannot 
 possess it as their own ; and if tliey attempt to do so, their acts are void. 
 Hence, whenevever we speak of granting authority, granting power, &c., let it 
 be understood, that the grant extends only to the right to exercise the author- 
 ity and power in the manner and for tlie purpose prescribed. 
 
 s The authority of the people is absolute over all matters xiertaining to 
 internal adnainistration. Tliat is, tliere is no other autliority to call in ques- 
 tion wliat they ordain or establish for the government of themselves as 
 individual members of the nation. " A nation is mistress of her own actions 
 so long as tliey do not aflfect the proper and perfect rights of any other nation ; 
 so long as sheis only internally bound, and does not lie under any external and 
 perfect obligations. If slie makes a wrongful use of her liberty, she is guilty 
 of a bi'each of duty; but other nations are bound to acquiesce in her conduct, 
 since they have no right to dictate to her." (Vattel, g 20.) 
 
 3 " Internal sovereignty is that which is inherent in the people of any state, or 
 vested in its ruler by its municipal constitution or fundamental laws. Tliis is 
 the object of wliat has been called internal public law, droit public interne, but 
 which may more properly be termed constitutional law. External sovereignty 
 consists in the independence of one political society, in respect to all other 
 political societies. It is by the exercise of this branch of sovereignty that the 
 international relations of one political society are maintained in peace and 
 war, with all other political societies. The law by which it is regulated, has, 
 therefore, been called external public law, droit public externe, but may more 
 properly be termed international law." Lawrence Wheaion, pt. 1, cli. 2, g 5. 
 
OF THE UNITED STATES. 61 
 
 g 108. In respect to subjects of internal administra- 
 tion, there are naturally three departments of govern- 
 ment, each of which is necessarily supreme in the exercise 
 of its duties and powers. And as national authority 
 extends over every part of the national domain, and is 
 binding upon each and every individual inhabitant 
 thereof, it follows, that the government, in the exercise 
 of the authority of each of these departments, extends 
 over all the territory, and embraces all the inhabitants 
 of the United States, unless specially excepted there- 
 from in the constitution. 
 
 g 109. To be sovereign in the exercise of the authority 
 of the nation for national purposes, the government 
 must be intrusted with the exercise of supreme authority 
 in each and every department. It must have sovereign 
 authority to enact all laws necessary for the government 
 of the societj^ composing the nation. It must have 
 supreme authority to interpret and apply those laws to 
 every individual and subject within its jurisdiction. It 
 must have absolute authority to execute the final judg- 
 ments and decrees rendered by its authority. That is, 
 the government must have a supreme legislative, judicial 
 and executive department, representing the sovereignty 
 of the nation in whatever it enacts, adjudges, 
 
 DECREES AND EXECUTES. 
 
 g 110. To be sovereign in its legislative authority, it 
 must be authorized to prescribe the laws by which society 
 is to be governed in respect to matters committed to 
 it; and there must exist within its jurisdiction no other 
 authority to enact to the contrary, or repeal the laws it 
 has enacted.^ 
 
 § 111. To be sovereign in its judicial department, there 
 must exist no other or higher tribunal to which appeal 
 can be taken, to review its final judgments or decrees. 
 A sovereign judiciary must possess the right of final 
 interj)retation and decision in applying the law. Its 
 
 1 The legislature is an office of government created and endowed by the 
 constitution. Tlie department of legislation continues independent of the con- 
 tinuance of any particular set of incumbents. A person elected to the office 
 of legislator, on taking tlie oath of office to discharge the proposed trust faitli- 
 fully, according to the terms, and for tlie purposes prescribed in the constitu- 
 tion, becomes invested with rights, duties and powers incident as a trust of 
 that office. If, therefore, after having been selected by the people for that 
 office, and having, upon oath of fidelity, assumed its duties and trusts, to be 
 used only for the good of society, the legislator abuse the trust, and become 
 guilty of malfeasance, he commits a crime against society, deserving punish- 
 ment, commensurate with the crime committed — which is little less than 
 treason, combined with moral perjury. 
 
62 
 
 GOVERNMENT. 
 
 judgments or decrees must stand, unless the same 
 authority suspend or reverse them.^ 
 
 § 112. To be sovereign in its executive department, 
 there must exist no other authority to stay the execu- 
 tion of its judgments and decrees. The authority by 
 whicli a judgment or decree of the court can be stayed 
 in its execution, must be such as can vacate or reopen 
 the same for further consideration and adjudication ; or 
 such as is authorized to reprieve or pardon the offender. 
 . S 113. By the constitution of the United States a 
 supreme legislative, judicial and executive department 
 of tlie government are created, each distinct from, and 
 independent of the other ; and each intrusted with the 
 exercise of sovereign authority within the sphere of its 
 prescribed duties and powers.^ 
 
 1 "The people erected this government. They gave it a constitution; and in 
 that constitution they liave enumerated tlie powers wliicli tliey bestow on it. 
 They liave made it a limited government. They have defined its authority. 
 The.y have restrained it to the exercise of such powers as are granted ; and all 
 others tliey declare are reserved to the states or to the people. But they have 
 not stopped here. If they had, they would have accomplislred but half their 
 work. No definition can be so clear as to avoid possibility of doubt; no limit- 
 ation so precise, as to exclude all uncertainty. Who then shall construe this 
 grant of tlie people? Who shall interpret their will, where it may be sup- 
 posed they have left it doubtful ? With whom do tliey repose this ultimate 
 right of deciding on the powers of government ? They have settled all this in 
 the fullest manner. They have left it with the government itself in its appro- 
 priate branch. The very chief end, the design for which the whole constitution 
 was formed and adopted, was to establish a government that should not bo 
 obliged to act through state agency, or depend on state opinion, or state dis- 
 cretion. The people have wisely provided in the constitution itself a proper, 
 suitable mode and tribunal for settling questions of constitutional law. There 
 are in the constitution grants of power to congress, and restrictions of these 
 powers. There are, also, prohibitions on the states. Some authority must, 
 therefore, exist having the ultimate jurisdiction to fix and ascertain the inter- 
 pretation of these grants, restrictions and prohibitions. The constitution has 
 itself pointed out, ordained and established that authority. How has it accom- 
 plished this great and essential end? By declaring that 'the constitution, 
 and the laws of the United States made in pursuance thereof, shall be the 
 supreme law of the land, anything in the constitution or laws of any state to 
 the contrary notwithstanding.' " 
 
 " This was the first great step. By this the supremacy of the constitution 
 and laws of the United States is declared. The people so will it. No state law 
 Is to be valid which comes in conflict with the constitution or any law of the 
 United States. But who shall decide this question of interference ? To whom 
 lies the last appeal ? Tliis the constitution itself decides also, by declaring 
 ' that the judicial power shall extend to all cases arising under the constitution 
 and laws of the United States.' These two provisions cover the whole ground. 
 They are in truth the key-stone of the arch. With these, it is a constitu- 
 tion ; WITHOUT THEjr, IT IS A CONFEDERACY. In pursuaucc of these clear and 
 express pi'ovisions, congress established at its very first session, in the judicial 
 ACT, a mode for carrying them into full eflfect, and for bringing all questions 
 of constitutional power to the final decision of the supreme court. It then 
 became a government. It then had the means of self-protection, and, but for 
 this, it would, in all probability, have been among things which are past." 
 Wubsler in U. S. Senate, Jan. 27, 1830, in reply to Mr. Hayne on Footers resolution. 
 Cong. Deb., vol. 6, pt. 1, pp. 77, 78. See also opinion of Chief Justice Marshall 
 in Cohens v. Virginia (6 Wheat. Rep., 261, pp. 376, 377) ; Story on the Constitu- 
 tion, I'i 373, 396, inclusive, and notes. 
 
 2 By the constitution, all legislative authority therein granted is to be exer- 
 cised by the Congress. Thus, Art. 1, Sec. 1: "AH legislative powers herein 
 granted shall be vested in a Congress of the United States, which shall consist 
 of a Senate and House of Representatives:" and the constitution proceeds to 
 institute the corporate Congress by prescribing its construction, duties and 
 powers. 
 
 By Art. 2, it commits the executive power to the President of the United 
 States, prescribing his office, with its duties and powers, and the mode by 
 which a person shall be selected to assume the exercise thereof. It says : " The 
 executive power shall be vested in a President of the United States," &c. 
 
OF THE UNITED STATES. 63 
 
 § 114. The legislative, executive and judicial depart- 
 ments of the o-overnment thus created l)y tlie constitu- 
 tion of the United States, each act by the same sui)i'eme 
 and sovereign authority, whether enacting, adjudging, 
 or executing the laws of the nation : to wit, the authority 
 of the government and nation. 
 
 g 115. Each department of the government, though 
 distinct and independent of the others in its offices, 
 duties and powers, in the exercise of its constitutional 
 functions, represents the entire authority of the govern- 
 ment as derived from the nation, and not the authority 
 of that particular department alone.^ 
 
 § IIG. In the administration of the general govern- 
 ment, each department is limited to its peculiar sphere 
 of duties and powers, as enjoined and conferred by the 
 constitution of the United States. Thus, Congress, as 
 the legislative department, is limited to the act of legis- 
 lation ; the courts are limited to the sphere of adjudica- 
 tion ; and the executive to that of executing the laws 
 as applied by the order, judgment or decree of the 
 courts. Bat in the discharge of their various duties, 
 and in the exercise of their respective powers, each 
 dojiartment acts by the authority of the government 
 and people, and hence, it acts by sui)reme and sovereign 
 authority. 
 
 § 117. The sphere of legislation is distinct both from 
 the sphere of adjudication and execution. Congress 
 can enact any constitutional law and make it binding 
 upon the people individually. But it has no authority 
 to interi)ret, construe or api)ly the law enacted. It 
 cannot judicial!}" determine tljat there has been an 
 infraction of the law by one upon whom it was obliga- 
 tory. That power can only be exercised by the judiciary. 
 
 § 118. The sphere of adjudication is limited to the 
 ascertainment of the law, and to its application to 
 the facts judicially ascertained ; to the end that the 
 
 Tlie constitution also creates the judicial department. Thus: "The judicial 
 power of the United States shall be vested in one supreme court, and in such 
 inferior courts as Congress may from time to time ordain and establish." (Art. 
 3, g 1.) 
 
 1 Thus, the government can only legislate through Congress ; but the laws 
 enacted by Congress, if constitutional, express the autliority of tlie govern- 
 ment and nation. Only the judiciary department can interpret and apply 
 those laws; yet their interpretation and adjudication is final, and expresses 
 the judgment of the government and nation. So the executive has the sole 
 right to execute the adjudicated will of the nation, as interpreted and applied 
 by the national judiciary; but in doing so, he represents both the government 
 and nation, and acts by all the authority the nation could confer in that re- 
 spect. Sovereignty is not divided between the several departments of the 
 government; on the contrary, it is exercised by the government through 
 tlie .several departments thereof. 
 
64 GOVERNMENT. 
 
 proper remedies may be applied by the appropriate 
 judgment, order or decree of the court. But tliis 
 department can only interpret and apply the law as it 
 exists. It can enact nothing to supply the deficiency 
 of legislation. And when it has pronounced its final 
 judgment or decree, its authority over the subject is at 
 an end. What remains to be done then passes into the 
 hands of the executive. 
 
 § 119. It is the duty of the executive department as 
 such, to see that the law as ascertained and applied by 
 the final order, decree or judgment of the court, is 
 executed in accordance with such order, judgment, or 
 decree. By the constitution of the United States it is 
 made the duty of the President, as the executive head 
 of the nation, to take care that the laws are faithfully 
 executed. (Art. 2, % 3.) 
 
 % 120. There are other duties and powers necessarily 
 incident to a national government which arise out of 
 the external relations sustained by it to other nations. 
 These duties and powers are international in character ; 
 and may be imposed or conferred on such departments as 
 the people in their sovereignty ordain. By the national 
 constitution, the President, by and with the advice and 
 consent of the senate, has power to make treaties, to 
 nominate, and by the like advice and consent, to appoint 
 embassadors and other public ministers and consuls. 
 He is also made the commander-in-chief of the army 
 and navy of the United States, &c. (Art. 2, g 2.) 
 
 (5 121.' There are also other duties and powers per- 
 taining to administration, which may be enjoined and 
 conferred on either of the several departments, as shall 
 seem most appropriate. By the constitution the Presi- 
 dent may nominate, and by and with the advice and 
 consent of the senate, appoint judges of the supreme 
 court, and all other officers not otherwise provided for 
 by the constitution. He has power to fill vacancies 
 which occur during the recess of the senate, by grant- 
 ing commissions which are to expire at the end of their 
 next session. The constitution requires him to give to 
 the Congress information of the state of the Union, and 
 to recommend to their consideration such measures as 
 he judges to be necessary and expedient, &c. These 
 may be denominated presidential duties and poivers, &c} 
 
 1 These are denominated presidential duties and powers, because they pertain 
 to tlie office of president, not as a part of the executive duties of that office, 
 bnt because they are specifically attached to it by the terms of the constitution. 
 
PRINCIPLES OF INTERPRETATIOISr, 65 
 
 S 122. The government of the United States, as 
 instituted by the people in the adoption of the national 
 constitution, is a national government ; having 
 supreme antliority to legislate in respect to all matteil 
 pertaining to the permanence, security and prosperity 
 of the nation ; having supreme authority to determine 
 the limits of its own jurisdictions and powers under the 
 constitution and laws of the United States ; and having 
 supreme authority to carry into effect its own final judg- 
 ments aiid decrees, anything in state constitutions and 
 laws to the contrary notwithstanding. 
 
 S 123. To this government of the United States is 
 committed not only all the authority and power to be 
 exercised in the administration of a supreme national 
 government over the people composing the nation, but 
 also the exercise of all national authority essential or 
 necessary to the preservation of the sovereignty and 
 independence of the nation among the nations of the 
 earth ; the constitution having clothed the government 
 with ample powers to adjust and maintain international 
 
 relations and rights.^ 
 
 CHAPTER lY. 
 
 OF THE CONSTITUTION OF THE UNITED STATES. 
 
 PRINCIPLKS OF INTERPRETATION. 
 
 S 124. The government of the United States is a 
 constitutional government, deriving its existence and 
 authority from the people. It is intrusted with the 
 exercise of those powers which are expressly or impli- 
 edly granted in the constitution, and with no other. 
 Hence it is a limited government; limited by the terms 
 of the grant. Therefore, the powers of the national 
 government are to be determined by ascertaining the 
 meaning of the several provisions of the constitution, 
 and their api^lication to the subjects intended by the 
 people. 
 
 S 125. The meaning of the constitution, and its appli- 
 cation to the subjects intended, must be ascertained by 
 the application of such rules of interpretation as were 
 
 _ 1 {8ee as to powers conferred upon congress, section eight, article one, of the constiiti- 
 lion of the U. S. ; as to the treaty making power, see art. 2, 2 2; also as to the amoini- 
 ment of embassadors. Idem.) 
 
 9 
 
66 GOVERNMENT. 
 
 understood and recognized as just and valid, at tLe time 
 the constitutioQ was framed and adopted. Therefore, 
 in construing the constitution for the purpose of ascer- 
 taining the powers and duties of the national govern- 
 ment, it becomes necessary first, to consider the rules by 
 which its true meaning and application are to be ascer- 
 tained and determined.^ 
 
 § 126. Construction and interpretation imply uncer- 
 tainty, ambiguity. Therefore one of the first maxims 
 in respect to interpretation is, that it is not allowable 
 where there is no uncertainty as to the meaning of the 
 language used. That no one shall interpret where 
 interpretation is not needed. " When the deed is worded 
 in clear and precise terms, when its meaning is evident 
 and leads to no absurd conclusions, there can be no 
 reason for refusing to admit the meaning which such 
 deed naturally presents."^ 
 
 g 127. In construing the constitution the end sought 
 is, to ascertain the intention of the people, as expressed 
 in the various provisions of that instrument. But that 
 intention is ijresumed to be expressed in language 
 appropriate for the purpose ; therefore the natural and 
 ordinary meaning of the language used, should control, 
 unless a different meaning is inferable by comparing the 
 provision with other parts of the instrument, or with 
 what was the apparent intention of the people in that 
 respect.^ 
 
 g 128. It is a fundamental rule in the interpretation 
 
 1 As a principle to be observed in the construction of treaties, or any other 
 deed, Vattel says, (i 268), " the question Is to discover wliat the contracting 
 parties liave agreed upon — to determine precisely, on any particular occasion, 
 what has been promised and accepted : that is to say, not only what one of the 
 parties intended to promise, but also what the other must reasonably and can- 
 didly have supposed to be promised to liim, what has been sufficiently declared 
 to him, and what must have influenced him in his acceptance. Every deed, 
 therefore, and every treaty, must be interpreted by certain fixed rules, calcu- 
 lated to deternaine its meaning as naturally understood by the parties 
 concerned at the time when the deed was drawn up and accepted." 
 
 2 (Vattel, § 263.) " Where a law is plain and unambiguous, whether expreSE?ed 
 in general or limited terms, there is no room left for construction." {Bartlet v. 
 Morris, 9 Port., 260.) (See also 1 Bl. Com., p. 60, and Sharswood's note.) 
 
 " Words are the common signs that mankind make use of to declare their 
 intention to one another, and when the words of a man express his meaning, 
 plainly, distinctly and perfectly, we have no occasion to have recovirse to any 
 other means of interpretation." Rutherforth's Inst., B. 2, eh. 7, g 2. 
 
 3 The construction or interpretation of a law consists in ascertaining the 
 meaning or intention of the legislator as expressed therein, either from his 
 words or from other conjecture, or both. Hence, interpretation is literal, 
 rational, or mixed. It is literal when his meaning or intention is gathered 
 from the words only, requiring reference to no other parts or subjects. It is 
 rational when his words do not express perfectly his intention, and it becomes 
 necessary to collect it from probable or rational conjectures only. It is mixed 
 when the words, if rightly understood, would express the intention, but being 
 themselves of doubtful meaning, it becomes necessary to have recourse to 
 probable or rational conjecture to ascertain in what sense they were used. 
 (Ruth. Inst., B. 2, ch. 7, i 3.) 
 
PRINCIPLES OF INTERPRETATION". 67 
 
 of instruments to construe tlieni according to the 
 natural meaning- of the terms, and tbe intention of 
 the parties. The intention of a law is to be gathered 
 from the words, the context, the subject matter, the 
 effects and consequences, and the reason and spirit of 
 the law.^ 
 
 g 129. While it is a fundamental rule in the interpret- 
 ation of instruments to construe them according to the 
 natural meaning of the words used, and the intention 
 of the parties, this can be done only when such inten- 
 tion is expressed in language, which, both in words and 
 construction, "is agreeable to common use, without 
 atttending to etymological fancies or grammatical 
 refinements."^ 
 
 % 130. Where a literal interpretation leaves the inten- 
 tion of the party or legislator obscure or doubtful, 
 recourse must be had to construction, or rational inter- 
 I)retation ; by which is meant, other signs of intention 
 must be sought after, by referring to the context ; or 
 the subject matter; or the effects and consequences; 
 or the reason and spirit of the instrument or law.^ 
 
 1 1 BI. Com., 59, CO: Story on Const., ? 400. 
 
 Says Blackstone, ^1 Com., p. 59.") " The fairest and most rational method to 
 interpret the will of the legislator is by exploring his intentions at the time 
 when the law was made, by signs the most natural and probable. And these 
 signs are either tlie words, tlie context, the subject matter, the effect and con- 
 sequences, or the spirit and reason of tlie law." 1. Words are generally under- 
 stood in their usual and most known signification. * * Terms of art or 
 technical terms, must be taken according to the acceptation of the learned in 
 eacli art, trade and science." 2. " If words happen to be still dubious, we may 
 establish their meaning from the context, with wliich it may be of singular 
 use to compare a word or a sentence whenever they are ambiguous, equivocal 
 or intricate;" as calling in tlie preamble to help construe tlie act; or a com- 
 parison of the act with other laws made by the same legislator, having some 
 aflinity with tlie subject, or that expressly relate to the same point; as statutes 
 in pari materia must be construed witli reference to each other. (See Shars- 
 wood's Blackstone, 1 Vol. p. 60 and notes.) 3. Words are always to be under- 
 stood as having regard to the subject matter; for that is always supposed to be 
 in tlie eye of the legislator, and all his expressions directed to that end. 4. As 
 to the eflect and consequences, tlie rule is, if the words bear eitlier none, or a 
 very absurd signification when literally understood, we must deviate a little 
 from the rc<;eived sense. 5. But the most effectual way of discovering the true 
 meaning of a law when the words are dubious, is by considering tlie reason 
 and spii-it of it, or the cause wliich moved the legislator to enact it. For when 
 the reason of the law ceases, the law itself ought likewise to cease. (See 1 Bl. 
 Com., p. 00,61; 3 Maule & Selwyn, .510; Wilkinson v. Lelan.d, 2 Peters, 661; The 
 Emily & Caroline, 9 Wheat., 388; (see also Sharswood's note, 1 Bl. Com., p. 60.) 
 
 a Ruth. Inst., B. 2, ch. 7, ? 4. " If the words and the construction of a writing 
 are clear and precise, we scarce call it interpretation to collect tlie intention 
 of the writer from them. But the definition of interpretation will best inform 
 us whether it is to be called by this name or not. Interpretation consists in 
 collecting tlie intention of a man from the outward signs that he makes use 
 of to declare liis intention ; it must tlierefore certainly be one brancli of inter- 
 pretation to collect his intention from his clear and precise words, as they lie 
 before us." * * "The principal rule to be observed in literal interpretation, 
 is to follow that sense in respect both of the words and of the construction, 
 wliich is agreeable to common use, without attending to etymological fancies, 
 or grammatical refinements." Idem. 
 
 3 Bl. Com., p. 59, and notes. 
 
 The construction of a law or instrument, implies the exercise of the rational 
 faculties in exploring tlie intention of the maker through an examination of 
 signs and indications so connected with the instrument construed, as to make 
 
68 GOVERNMENT. 
 
 g 131. When construction or rational interpretation 
 is required, all doubtful words or expressious are to be 
 taken in such a seuse as will make them produce some 
 effect, which is reasonable, and consistent with the 
 general intention of the law-maker as expressed or 
 necessarily implied in the law which is being construed.^ 
 
 g 132. In the construction or rational interpretation 
 of words or expressions of doubtful meaning in a law, 
 sucli an interpretation must be given to them as will be 
 consistent with the spirit and reason thereof : that is, 
 with the end which the law-maker had in view. Eor 
 since the reason of a law consists in the end sought to 
 be obtained by the law-maker, or the eiFect intended 
 to be produced, such meaning should be given to doubt- 
 ful words, if possible, as would tend to produce such 
 result.^ 
 
 S.133. There are numerous circumstances attending 
 a law which may help to ascertain the meaning of 
 ambiguous words or expressions used by the legislator. 
 But these circumstances by which to explain doubtful 
 writings, laws, &c., must be shown to have immediate 
 connection with the writing or law to be interpreted 
 thereby.^ 
 
 it clear that the same or a similar intention pervaded the whole. If it be a 
 contract that requires construction, we must ascertain as far as possible the 
 common intention of the parties ; as well the understanding of him who 
 accepts, as of him who made the instrument; for it was their common under- 
 standing and assent tliat made the agreement. 
 
 1 (Rutherforth's Institutes, B. 2, ch. 7, § 8. Grot., B. 2. ch. 16, § C.) " All doubt- 
 ful words or expressions are to be taken in such a sense as will make them 
 produce some effect ; that is, they are to be so construed as to give them some 
 meaning, for to take them in any sense that will make them produce no mean- 
 ing is in reality to give them no meaning at all." 
 
 " Ambiguous words or expressions are sometimes capable of two senses, and 
 will produce some effect in either of the two. The rule then goes further, 
 and says, that the effect must be a reasonable one. No otiier effect can be 
 supposed to have been in the speaker's or writer's intention, because no man 
 can be supposed to intend what is absurd or unreasonable." (Ruth. Inst., 
 supra.) 
 
 " All civil laws * * are to be so construed where the words are of doubtful 
 meaning, as to make them produce no other elfect but what is consistent with 
 reason, or with the law of nature. And when men live in a state of civil 
 society, all doubtful words in any of their contracts with one another, are to 
 be construed in that sense which will produce an effect consistent with the 
 civil laws of the society to which they belong." Idem. 
 
 2 " It may be laid down that the intention of the makers of a statute is to 
 govern, even though the construction grounded upon such intention m&y 
 appear to be contrary to the literal import of the words. Every technical 
 rule as to the construction or form of particular terms, must yield to the clear 
 expression of the paramount will of the legislature. Wilkinson v. Leland, 2 
 Peters Rep., 661. In construing statutes, penal as well as others, an interpreta- 
 tion must never be adopted which will defeat the evident purpose of the law, 
 if it will admit of any other reasonable construction." (The Emily and Caro- 
 line, 9 Wheat. 388. Sharswood's note, 1 Bl. Com., p. 60.) 
 
 3 " Grotius divided these circumstances into two sorts, such as are connected 
 with the writing in origin only, and such as are connected with it in place as 
 well as origin. To these two we may add a third; for there are some circum- 
 stances which seem to be connected with a law or contract, &c., rather in time 
 than either in origin or place." Ruth. Inst., B. 2 ch. 7, § 9. 
 
PRINCIPLES OF INTERPRETATION. 69 
 
 § 134. Contemporary practice, contemporary inter- 
 pretation, and contemporary history are circumstances 
 to which reference may be had to aid in the interpreta- 
 tion of ambiguous words and expressions in the grants 
 of rights, duties and powers. But contemporary history, 
 IH'actice and interpretation must be resorted to for such 
 purpose, " with much quahficatiou and reserve."^ 
 
 S 135. The construction to be given to instruments 
 may be strict or large, close or literal. Common usage 
 has given two senses to the same word, one of which is 
 more confined by including fewer i)articu]ars ; this is 
 denominated its strict sense; the other is more com- 
 prehensive, or includes more particulars; and this is 
 called its large sense. If the word is taken in its con- 
 fined sense, the interpretation is strict; if in its enlarged 
 one, the interpretation is large. By the same usage, 
 strict and large interpretation may be opposed to each 
 other ; as sometimes the meaning of the language used 
 is to be restrained so as to take in less than the words 
 express ; sometimes the meaning is to be enlarged so as 
 to take in more. In the former use it is called close 
 interpretation ; in the latter it is denominated liberal or 
 free.^ 
 
 I A circumstance of origin occurs where tlie same lawgiver lias previously or 
 subsequently enacted on the same or a similar subject. It is a circumstance 
 of origin Ijecause both had tlie same origin, and were connected with each 
 otlier by coming from the same person. 
 
 A circumstance of origin and place together, occurs when interpretation Is 
 sought by the help of some other clause or part of the same instrument, which 
 is connected with the clause to be explained in place as well as origin. 
 
 Contemporary practice is a circumstance which is connected with a law in 
 time. See Ruth. Inst., supra. 
 
 " In examining tlie constitution, the antecedent situation of the country, 
 and its institutions, the existence and operation of the State governments, the 
 powers and operations of tlie confederation, in short all the circumstances 
 whicli had a tendency to produce or to obstruct its formation and ratification, 
 deserve careful attention. Much also may be gathered from contemporary 
 history and contemporary interpretation, to aid us in just conclusions." 
 Story on Const., ? 404. See also Stuort v. Laird, 2 Cranch., 299, 309: Martin v. 
 Hunter, 1 Wheat. Rep., 304; Cohen v. Virninia, 6 Wheat. R., 264, 418, 421. But see 
 Chisholm v. Georgia, 2 Doll., 419; The Federalist No. 77. 
 
 2 Story, Com. Const., § 406. 
 
 " In the tirst place, the private interpretation of any particular man or body 
 of men, must manifestly be open to much observation. The constitution was 
 adopted by the people of the United States. It was submitted to the whole 
 upon a just survey of its provisions as they stood in the text itself. In differ- 
 ent States and in diflerent conventions, different and very opposite objections 
 are known to liave prevailed, and might well be presumed to prevail. Oppo- 
 site interpretations and different explanations of different provisions may 
 well be presumed to have been presented, in different bodies, to remove, local 
 objections, or win local favor. And there can be no certainty that the differ- 
 ent State conventions in ratifj'ing tlie constitution gave the same uniform 
 interpretation to its language, or that even in a single State convention, the 
 same reasoning prevailed with a majority, much less with the whole of the sup- 
 porters of it." Story Cora. Const., g 406. 
 Ruth. Inst., B. 2, Ch. 7, i 10. 
 
 " In order to extend the meaning of a writer beyond the precise or common 
 sense of his words, we may argue from the reason or motive upon which 
 he proceeded ; from the end which he had in view, or the purpose which he 
 designed to obtain. When we thus argue from the reason of a law, and would 
 
70 
 
 GOVERNMENT. 
 
 g 136. When the people institute and establish a 
 constitutional government, and enjoin npon it duties, 
 secure to it rights, and confer on it powers to enable it to 
 provide for the common defense, to promote the general 
 welfare, and to secure to all the blessings of liberty, 
 all grants of power and endowments of rights essential 
 for such purposes, are to receive a large, liberal and free 
 interpretation.^ 
 
 § 137. The people of the nation, in whom alone abso- 
 lute sovereignty within the territorial limits of the 
 United States is vested, in the institution of the national 
 government, with its rights, duties and powers, exercised 
 no au-thority in derogation of any existing legitimate 
 authority, right or power ; either of individuals or States. 
 And, for this reason, a strict or close interpretation of 
 the grants of powers and rights to the national govern- 
 ment, is not required.^ 
 
 ,§ 138. The powers given to the general government, 
 belonged to the people and not to the State govern- 
 ments. If any of them had been exercised by the State 
 governments ijrior to the institution of the national 
 
 extend the meaning to any case which is not included in its words, Grotius 
 observes that the case must be shown to come within the same reason upon 
 which the law-maker proceeded. If it only comes within the like reason this 
 will be no evidence that it is included in his meaning. * * It must be agree- 
 ably to the same reason upon which he proceeded." (Ruth. Inst., B. 2, Ch. 7, § 
 11; also Grot. B. 2. Ch. 16, ? 20.) "But every writing, and every clause in a 
 writing, whether it is a law or a contract, or a will, though it is not to be con- 
 strued agreeably to the reason upon which the writer might have proceeded, is 
 certainly to be construed agreeably to the reason upon which he did proceed. 
 When we know what was the reason or final cause which the writer had in 
 view, what end he proposed, or what effect he designed to produce, and the 
 m.eaning of the law, or contract, or will, if we were to adhere closely to the 
 words of it, would not come up to this reason, or would not produce this efTect, 
 we may then conclude that his words express his meaning imperfectly ; and 
 that his meaning is to be extended beyond his words, so as to come up to this 
 reason, or so as to produce this effect. For it is much raore probal^le that the 
 writer should fail in expressing his meaning, than that his meaning should 
 fall short of the purpose he designed to obtain." Ruth. Inst., Idem. 
 
 1 (Observe the language of the supreme court of the United States in Gibbons 
 V. Ogden, 9 Wheat., 1 et seq.; also in Martin v. Hunter, 1 Wheat., 304; 8. C. 3 
 Pet. Cond. R. 575 ; Ogden v, /Saunders, 12 Wheat., 332.) 
 
 " The constitution of the United States is to receive a reasonable interpreta- 
 tion of its language and its powers, keeping in view the objects and purposes 
 for which those powers were conferred. By a reasonable interijretation Ave 
 mean, that in case the words are susceptible of two diffevent senses, the one 
 strict and the other more enlarged, that should be adopted which is most con- 
 sistent Avith the apparent objects and intent of the constitution; that which 
 will give efHcacy and force as a government, rather than that which will 
 impair its operation and reduce it to a state of imbecility." Story's Com. 
 Const., 1 419. 
 
 2 It is to be remem.bered that the people of the nation and the people of the 
 States are the same. That the necessities for national and State governments 
 are the same. That the authority by which they are instituted is the same. 
 They are but different agents of the same principal — the people — intrusted 
 with the several talents committed to their use. The national government is 
 charged with the defense of the whole people as a nation, and with promoting 
 their general welfare; while the State is charged with the exercise of such 
 duties and powers as pertain to domestic matters, and to the local welfare of 
 those residing within her limits. Both governments have the same end to 
 accomplish — to wit, the enjoyment by all citizens of life, liberty, security and 
 happiness, and the protection of all in such enjoyment. 
 
PRINCIPLES OF INTERPRETATION. 71 
 
 government, tliey Lad been so used by the authority of 
 the people who had authority to withdraw such powers 
 at (Pleasure, and to confer them upon the national gov- 
 ernment. 
 
 § 139. In construing the constitution of the United 
 States, it is important to keep in mind that it is a funda- 
 mental law, ordained and established by the people of 
 the nation for the purpose of instituting a national 
 government, to be invested with supreme authority and 
 power to defend and maintain the rights and interests 
 of the nation, against invasions from without, and insub- 
 ordination from within ; and to do all things necessary 
 to provide for the common defense, and to promote the 
 general welfare of the nation. 
 
 g 140. It is also to be kept in mind that the people in 
 instituting the government of the United States by the 
 establishment of this constitution, intended to commit 
 their rights and interests as national citizens to the 
 absolute protection of the government thus instituted; 
 and to give to it supreme power and authoritj^ to aftbrd 
 them that protection whenever and wherever it should 
 be needed. 
 
 ^ 141. It is also important to remember that it pro- 
 posed to institute a national government complete in all 
 its parts, and dependent for its rights of administration 
 only upon the authority committed to it, to be exercised 
 upon all national subjects within its jurisdiction. That 
 it proposed to invest this government with supreme 
 authority to legislate, and to interpret, apply, adjudge 
 and execute the laws enacted by it, independent of all 
 other legislative, judicial or executive authority.^ 
 
 1 The people erected this government. They gave it a constitution ; and in 
 that constitution they enumerated tlie powers whicli they bestowed on it. 
 They made it a limited government. They restrained it to the exercise of such 
 powers as are granted, and all others, they declare, are reserved to the states 
 or to tlie people. But * * no definition can be so clear as to avoid possibil- 
 ity of doubt ; no limitation so precise as to exclude all uncertaintJ^ Who, 
 tlien, shall.construe this grant of the people? * * * They have left it with 
 tlie government itself, in its appropriate branches. The very chief end, the 
 main design for which the wliole constitution was framed and adopted, was to 
 establish a government tliat sliould not be obliged to act through state agency, 
 or depend on state opinion or state discretion. The people had had quite 
 enough of that kind of government under tlie confederacy. * * * The 
 people have wisely provided in the constitution itself a suitable mode and 
 tribunal for settling questions of constitutional law. There are in the consti- 
 tution, grants of powers to congress, and restrictions on these powers. There 
 are, also, prohibitions on the states. Some authority must, therefore, necessa- 
 rily exist, having the ultimate jurisdiction to fix and ascertain the interpreta- 
 tion of these grants, restrictions and prohibitions. The constitution has itself 
 pointed out, ordained and established that authority * * by declaring that 
 " the constitution and the laws of tlie United States, made in pursuance thereof, 
 shall be the supreme law of the land, anything in the constitution and laws 
 of any state to the contrary notwithstanding." By this the supremacy of the 
 constitution and laws of the United States are declared. No state law is to be 
 valid which comes into conflict with the constitution or any law of the United 
 
72 GOVERNMENT. 
 
 § 142. The powers granted by the people to the 
 national government to be exercised in providing for 
 their common defense, promoting their general welfare, 
 and securing to them and their posterity the blessings 
 of civil liberty, were granted that they might inure to 
 the sole benefit of the grantors — the people — and are 
 to be exercised only for their benefit ; therefore, such 
 grants should receive a free, liberal and large construc- 
 tion, so far as the powers granted are essential to 
 securing such end.^ 
 
 g 143. In construing the grants of power in the con- 
 stitution, the power should be deemed coextensive with 
 the terms of the grant ; unless from something which 
 appears in the context, a plain restriction is intended. 
 The mere possibility of abuse will not justify restricting 
 the power to a particular case.^ 
 
 g 144. As, in the construction of doubtful words or 
 expressions in a law, such an interpretation must be 
 given as will not defeat the end the law-maker had in 
 view, so in respect to a given power, such an interpre- 
 tation must not be given as will plainly defeat or impair 
 its avowed object. Therefore, where the words of the 
 grant are fairly susceptible of two interijretations accord- 
 states. But who is to decide this question of interference ? Tliis tlie constitu- 
 tion itself decides, also, by declaring "that the Judicial power shall extend to 
 all cases arising under the constitution and laws of the United States. These 
 two provisions cover the whole ground ; they are the key-stone of the arch." 
 (Webster's reply to Hayne in U. S. Senate Jan. 27, 1830. G. & S. Cong. Deb., V. 6, 
 pt. 1, pp. 77, 78.) 
 
 1 " In regard to municipal charters or public grants, similar considerations 
 usually apply. They are generally deemed restrictive of the royal or public 
 prerogative, or of the conimon rights secured by the actual organization of the 
 government, to other individuals or communities. They are supposed to be 
 procured, not so much for public good as for private or local convenience. 
 They are supposed to arise from personal solicitation, upon general sugges- 
 tions, and not ex certa causa, or ex mero motu, of the king or government. 
 Hence, such charters are often required bj"- the municipal jurisprudence to be 
 construed strictly, because they yield something which is common for the 
 benefit of a few." (Story's Com. Const., § 421.) 
 
 " But a constitution of government founded by the people for themselves 
 and their posterity, and for objects of the niost momentous nature, for perpet- 
 ual union, for the establishment of justice, for the general welfare, and for a 
 perpetuation of the blessings of liberty, necessarily requires that every inter- 
 pretation of its powers should have a constant reference to these objects. No 
 interpretation of the words in which those powers are granted, can be a sound 
 one, which narrows down their ordinary iniport, so as to defeat those objects." 
 Idem, § 422. 
 
 Laws and acts which tend to public utility should receive the most liberal 
 and benign interpretation to effect the object intended or declared, (1 Bl. 
 Com., 89), so as to make the private 5aeld to the public interest, and in favor of 
 public institutions, and all establishments of piety, charitv, education and 
 public improvement. (11 Co., 70-78; Hob. 97, 122, 157; 1 Serg. 55; Dy. 255; 5 Co., 
 14; 9 Cranch, 331; 3 Pet, 140, 481; 6 id., 436.) 
 
 2 Every government, to be effective, rriust necessarily be intrusted with the 
 exercise of some disci-etionary powers; as it is impossible to foresee what con- 
 tingencies may arise in its administration, and to expressly provide for them. 
 The means by which the administration is to discharge its trusts, under the 
 ever changing conditions and relations of society, must be subject to perpetual 
 modification. Therefore, confidence must be reposed in those charged with 
 the administration of government, after providing the proper remedies ia 
 cases of an abuse of the trust reposed in them. 
 
PRINCIPLES OF INTERPRETATION 73 
 
 ing to their common use, the one of which will defeat, 
 and the other preserve and promote the object intended, 
 the latter should be adopted, according to the maxim, 
 lit mac/is valeat, quam pereat.^ 
 
 g 145. Upon a principle similar in spirit, it follows, 
 that in the interpretation of a power granted to govern- 
 ment, to be exercised for the benefit of the people alone, 
 such grant of power carries with it the necessary means 
 to execute it.^ 
 
 § 14G. The general and State governments as institu- 
 tions of the people intrusted with the exercise of govern- 
 mental authority, have jurisdiction over the same 
 persons and territory, each possessing jjowers.in exclu- 
 sion of the other in matters committed to their respec- 
 tive jurisdictions. In the institution and endowment 
 of these governments, it is the intention that the gene- 
 ral government shall administer in respect to the needs 
 and interest of a national character, and the State 
 governments in respect to those of a local and domestic 
 character. But as the State and national citizen have 
 certain rights and necessities in common, it follows that 
 some of the duties and powers of the general and State 
 governments may be concurrent. 
 
 § 147. As the general and State governments are 
 distinct from each other in their institution and admin- 
 istration, it follows from necessity, that in respect to 
 concurrent powers, they must be of such a nature that 
 they can be possessed and exercised by the general and 
 State governments without conflict, or the possession 
 and exercise by the one must exclude the like posses- 
 sion and exercise by the other. 
 
 1 " Courts will look to the provisions of a law to discover its objects ; to meet 
 its intention at the time it was made, which they will not suffer to be defeated. 
 It will be sousht in the cause and necessity of making the law; the meaning 
 thus extracted will be taken to be the law intended, as fully as if expressed in 
 its letter; and a thing which is within the letter but not within the intention 
 of the law-maker, is not within the statute. (1 Bl. Com., 60; 15 Johns. R., 380; 
 14 Mass., 92; 5 Wheat., 9t; 12 id., 151; 6 Pet., 644.) When the whole context 
 demonstrates a particular intent in the legislature to effect a certain object, 
 some degree of .implication may be called in to effect it. (6 Cranch, 314; 1 Bl. 
 Com., 60, 92.) The whole statute, and those on similar subjects, as the context 
 will be taken in aid, according to the apparent meaning of their provisions. 
 (1 Bl. Com., 60; 1 Pick., 154.) The history and situation of the country will be 
 referred to to ascertain the reason and meaning of a provision, so as to enable 
 a court to apply the rule of construction. (1 Wheat., 121; 4 Pet., 432) In doubt- 
 ful cases the title and preamble will be resorted to to explain the law. (3 
 Wheat., 631; 4 Serg. & R., 166.)" Judge Baldwiii's Constitutional Views, pp. 8, 9. 
 
 s It must be obvious that the means of carrying into effect the objects of a 
 power must be varied, in order to adapt themselves to the exigencies of the 
 nation at different times. A mode efficacious and useful in one age, or under 
 one posture of circumstances, may be wholly vain or even mischievous at 
 another. Government presupposes the existence of perpetual mutability in 
 its own operations on those who are its subjects; and a perpetual flexibility in, 
 adapting itself to their wants, interests, habits, occupations and inflrmitiea 
 (See Story Const., ? 430.) 
 
 10 
 
74 GOVERNMENT. 
 
 % 148. Inasmucli as tbe constitution of tlie United 
 States, and the laws made in pursuance thereof, are the 
 supreme law. it follows that the possession and exercise 
 of a constitutional power by the general government, 
 must necessarily exclude the possession and exercise of 
 the same power by tlie State governments, in all cases 
 where, in the exercise of such power, there is likely to 
 arise an iccompatability or repugnancy in the adminis- 
 tration of the two governments. 
 
 g 149. Where the power given to the general govern- 
 ment, to be effective and adequate to the purpose for 
 which it was granted, must be exclusive in that govern- 
 ment, it is to be implied that it is exclusive. This 
 implication arises from the reason and spirit of the 
 grant itself^ 
 
 S 150. Where the power granted to the general gov- 
 ernment is not, either in its nature or in the exercise 
 thereof, incompatible with a concurrent power in the 
 States, then, such power may be deemed to be possessed 
 by both the general and State governments, until exer- 
 cised by the general government in such a manner as to 
 render its concurrency incompatible.^ 
 
 .§ 151. Where the incompatibility and repugnancy 
 which would result from the concurrence of the power 
 in the general and State governments, arises from the 
 character of the power itself, as applied to subjects 
 peculiarly withiu the jurisdiction of the general gov- 
 ernment, such power is to be deeuied exclusive in the 
 general government, whether exercised by it or not. In 
 such case the incompatibility being in the character of 
 the power itself, it is no answer to say, that each party, 
 in its exercise, might avoid interference with the other.^ 
 
 g 152. Where the repugnancy or incompatibility does 
 not pertain to the character of the power, but only to 
 its exercise or operation, in such case the State govern- 
 ments are restrained only to the extent of actual inter- 
 ference. 
 
 ■ I story Com. Const., § 447. 
 
 2 Story Com. Const., § 447. 
 
 In such a case the concurrency of the power may be incompatible in its 
 nature or general character, by being applied to objects which could control, 
 defeat or destroy the powers of the general government, if permitted to be 
 thus exercised by the States. The concurrency of the power may become 
 incompatible in its exercise, when there arises a conflict in tlie actual laws and 
 regulations made in pursuance of the power by the genei-al and State govern- 
 ments. In the former case there is a qualification ingrafted upon the generality 
 of the power, excluding its application to such objects and purposes as might 
 Interfere with the power of the general government. In the latter case, there 
 is a qualification only upon its exercise to the extent of actual confiict in the 
 operations of each. Story Com. Const., ? 447. 
 
 3 See Story Com. Const., ? 447. 
 
PRINCIPLES OF INTERPRETATION. 75 
 
 ^ 153. In the construction of the constitution of the 
 Uuited States, it is not a universal rule of interpretation, 
 that a specification of particular powers granted neces- 
 sarily excludes others not specified. But in order to 
 ascertain how far an affirmative or negative provision 
 excludes or implies others, the nature of the provision, 
 the subject matter, the objects, and the reason and 
 si)irit thereof, must be examined, rememberiug that the 
 instrument is a constitution of government ordained 
 and established by the people for their own security 
 and welfare; and that, by special provision, all powers 
 necessary to carry into effect those expressly granted, 
 are given by implication. 
 
 S 154. It is a fundamental principle of public law, 
 that nations are equal in respect to each other, and 
 entitled to claim equal consideration for their rights, 
 however much they may dift'er in numbers, strength, 
 government, manners or religion. ^ Hence when the 
 people of the United States instituted the general gov- 
 ernment, as the sole means of maintaining a national 
 existence, and providing for their common defense and 
 promoting their general welfare as a nation, they must 
 have intended to have conferred on the government 
 every power essential for that purpose, as possessed and 
 exercised by other nations. 
 
 § 155. If, then, the people of the nation by ordaining 
 and establishing the constitution of the United States, 
 instituted a national government, and clothed it with 
 authority and powers to enable it to execute the trusts 
 committed to it, that instrument should confer by 
 express grant or by necessary implication, all the 
 authority and powers essential to a complete and per- 
 fect administration of such government, to the end that 
 the existence, security and welfjxre of the nation mighb 
 be provided for in the most perfect manner. 
 
 g 156. The constitution of the United States contains 
 a grant to the general government, of all powers neces- 
 sary to the external and internal administration of 
 national authority; and it prohibits to the several state 
 governments, the exercise of any of those powers ; 
 thereby showing that the people intended to commit 
 the safety and welfare of the nation to the exercise, 
 management and control of the {renernl government. 
 
 » 1 Kent Com., 21. 
 
76 GOVERNMENT. 
 
 CHAPTEE y. 
 
 OF THE CONSTITUTIONAL STRUCTUEE OF THE NATIONAL 
 OR GENERAL GOVERNMENT. 
 
 S 157. Ill the construction of a national government, 
 it becomes necessary to provide both for an external 
 and an internal administration of the authority and 
 jiowers of the nation. There must be a department of 
 EXTERNAL ADMINISTRATION clothcd with the authority 
 and power essential to preserve the sovereignty and 
 independence of the nation from whatever dangers may 
 threaten it. To this end, the department of external 
 administration must have authority and power to con- 
 tract alliances ; to make treaties ; to enter into and 
 discharge obligations, and to do everything essential to 
 the perfect exercise of these powers ; it must hav^e 
 authority to declare war, and to provide for carrying it 
 on ; to make peace and adjust the rights and duties of 
 the nation in respect thereto ; and to do everything 
 fully which a free and independent nation must neces- 
 sarily do. 
 
 % 158. As the authority and powers above enumerated 
 are essential to the existence and administration of a 
 nation, it is to be presumed that every people who 
 attempt to institute and establish a national goverii- 
 ment to secure to themselves and their posterity the 
 blessings of liberty, will fully provide for the external 
 ADMINISTRATION of such government, hj bestowing on 
 it the authority to exercise such powers as are necessary 
 to maintain its independence and sovereignty at home 
 and abroad. 
 
 g 159. In the institution of the general government, 
 the people of the United States intended to provide for 
 their existence as a sovereign and independent nation, 
 nntil, at least, in their own pleasure they should ordain 
 to the contrary. And they further intended to intrust 
 the government instituted by them, with the exercise of 
 such authority and powers as would make it safe for 
 them to commit the defense and welfare of the nation 
 to its keeping.^ 
 
 I It is manifest that the people intended to raake the general government 
 their only one for national purposes ; as they made no other provision for their 
 national existence, security and welfare. The conclusion is, therefore, irre- 
 sistible, that if the people intended to remain a sovereign and independent 
 nation, and had any just ideas of what authority and powers were essential to 
 
CONSTITUTIONAL STRUCTURE. 77 
 
 g 160. In pursuance of the intention of the people of 
 the United States, the constitution confers on the gen- 
 eral government plenary powers to provide for the 
 EXTERNAL ADMINISTRATION of their authority over all 
 subjects iateruational between themselves and other 
 nations ; and it denies to the states the exercise of such 
 authority.^ 
 
 g 161. The people of the United States taking their 
 station as a sovereign and independent nation, among 
 the nations of the earth, took therewith the incidents of 
 such station. They necessarily began to figure in the 
 grand society of the human race as independent of all 
 earthly power. The ijrerogatives and rights of sover- 
 eignty are inseparable from sovereignty itself ; therefore, 
 they also attached to the people as a nation. As a 
 nation it became their duty to maintain their dignity, 
 and to cause themselves to be respected ; for in no other 
 way could they x)reserve their tranquillity and safety. 
 To this end the establishment of a government, to be 
 clothed with authority to exercise in their behalf, all 
 needed powers, became indispensable. Hence, in the 
 institution of the general government, the constitution 
 provides, in the most general terms, for maintainiug 
 intercourse with nations. It gives to Congress the power 
 to regulate commerce ; to the President and Senate, the 
 authority to make treaties ; to appoint embassadors and 
 other public ministers. It also gives authority to coin 
 money and to regulate its value ; to emit bills of credit ; 
 to borrow money. It also authorizes the government to 
 define and punish piracies and felonies committed on 
 the high seas, and offenses against the law of nations ; 
 to declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water ; 
 to raise and support armies ; to provide and maintain a 
 navy ; to make rules for the government and regulation 
 of the land and naval forces; to i)rovide for calling 
 
 enable a government to provide for, and administer to, their needs as a 
 nation, they intended to clothe the general government with such authority 
 and powers. For when we know the end they had in view, we have a right to 
 suppose they purposed to accomplish that end by what they did ; and, in the 
 language of Rutherlorth,itis much more probable that they should fail in 
 expressing their meaning, than that their meaning should fall short of the 
 purpose tliey designed to obtain. 
 
 1 No state shall enter into any treaty, alliance, or confederation ; grant let- 
 ters of marque and reprisal; coinnioney; emit bills of credit; &c. * * No 
 state shall, without the consent of congress, lay any imposts or duties on 
 Imports or exports, except wliat may be absolutely necessary for executing its 
 inspection laws. Nor shall thej^, without the like consent, lay any duty of 
 tonnage, keep troops or ships of war, in time of peace, enter into any agree- 
 ment or compact with another state or with a foreign power, or engage in war, 
 unless actually invaded or in siach imminent danger as will not admit of 
 delay. (Art. 1, § 10, Const. U. S.) 
 
78 GOYERNMENT. 
 
 forth the militia, and for its organization, arming and 
 discipline, for its government and employment while in 
 the national service ; and also to make all laws which 
 shall be necessary and proper for carrying into execution 
 the foregoing powers, and all other powers vested by the 
 constitution in the government of the United States, or 
 in any department thereof. ^ 
 
 g 162. The people of the United States provided for 
 maintaining intercourse with other nations, through the 
 sole agency of the general government; and for that 
 cause they granted to it the powers essential to the main- 
 tenance of such intercourse. The power to make trea- 
 ties, to enter into and discharge obligations in respect 
 to other nations, is given in unlimited terms. This is 
 necessary, because the constitution denies the exercise 
 of such authority to all other governments ; and yet 
 the exercise of this power in a practical manner, is 
 essential to the existence and proper administration of 
 national authority. The i)ower to make treaties being 
 nnqualifled, it necessarily includes the authority to enter 
 into treaty obligations of every character and descrip- 
 tion, essential to the peaceful and prosperous existence 
 of the nation.^ 
 
 % 163. The power to bind the nation by treaty stipu- 
 lations must come from the national sovereignty. Those 
 who are intrusted with the exercise of governmental 
 authority, are limited to the exercise of the powers 
 conferred. Therefore, the treaty making power, by the 
 exercise of which, obligations are to be assumed or 
 discharged by the nation, must be granted to the gov- 
 ernment by tiie fundamental law, or it cannot exercise 
 the power. And the people in the grant of the power 
 to make treaties, usually designate the particular man- 
 ner in which it is to be exercised.^ 
 
 1 See Const. U. S., art. 1, ? S ; art. 2, ? 2. 
 
 2 " Treaties or the contracts of nations are recognized and enforced by inter- 
 national law ; but they no more form a part of it than the contracts of private 
 persons form any part of the municipal law bj'- which they are enforced. Care 
 must be taken not to confound those rules, which properly belong to the law 
 of nations, with those founded upoii treaties. Treaties are declaratory of 
 International law, so far as they imply or set forth its principles; but they are 
 in derogation of it between the contracting parties, so far as their legal rights 
 are varied by their mutual stipulations. Usage as a part of the law is derived 
 from the perpetual current of decisions and treaties. Treaties whicli depart 
 from the custom do not alter the law of nations. By a confusion of terms 
 they have been styled conventional law, which is but anotlier term for the law 
 of nations. They are, in truth, conventional obligations recognii;ed by the 
 law of nations." (See 1 Wildman's Inst., p. 2.) 
 
 3 " Public treaties can only be made by the superior powers, by sovereigns 
 who contract in the name of the state — nation. * * The sovereign who pos- 
 sesses the full and absolute authority, has, doubtless, a right to treat in the 
 name of the state he represents ; and his engagements are binding on the 
 
CONSTITUTIONAL STRUCTURE. 79 
 
 g 164. The general government having authority to 
 make treaties of every character and nature essential 
 to the well-being and harmony of the nation in its inter- 
 course with other nations ; having power to bind the 
 nation by its compacts and agreements in that respect ; 
 to borrow money, if necessary to fulfill its engage- 
 ments; to regulate commercial intercourse with them; 
 to send to, and receive from them, ministers plenipo- 
 tentiary; to appoint consuls, etc., and also having 
 authority to declare war, and to make all necessary 
 provisions for carrying it on ; to conclude peace, and to 
 adjust the rights of the parties by requiring or granting 
 such conditions as are essential to that end ; has all the 
 powers and authority essential to external national 
 administration ; all, in that respect, that any national 
 government can have, or exercise.^ 
 
 g 165.. In the institution of the national government 
 it was necessary to provide for an internal national 
 administration. The national citizens had rights and 
 interests common to them as members of the nation, 
 which required the favor and protection of a common 
 government. Within the territorial limits of the nation 
 were existing thirteen state governments. They had 
 been instituted by their respective inhabitants for pur- 
 poses of local administration. But while the state gov^ 
 ernment was intrusted with the exercise of the authority 
 of the people within its limits, it could exercise no 
 authority beyond. As a state merely, the people had 
 no authority outside its limits. For as state citizens 
 only, they had no national status. 
 
 § 166. The government of Massachusetts was never 
 a national government. A mere citizen of Massachu- 
 setts had no nationality. It was only when state lines 
 disappeared, and the citizens of all the states stood 
 shoulder to shoulder as members of one society, with a 
 common interest and a common couutrj^, that nation- 
 
 whole nation. But all rulers of states have not power to make public treaties 
 on their own authority alone; some are obliged to talie the advice of a senate, 
 or of tlie representatives of tlie nation. It is from tlie fundamental laws of 
 eacli state — nation — that we must learn where resides tlie authority tliat is 
 capable of contracting with validity in the name of the state." (Vattel, J 151.) 
 
 1 It is difficult to conceive of any avithority or power essential to the external 
 achninisiration between sovereign and independent nations, whicli is not 
 granted in the constitution, to be exercised by the general government. 
 Every sort of compact or agreement necessary to adjust their rights and inter- 
 ests in time of peace, can be entered into by the general government, and 
 made binding upon the nation ; and when war threatens, the government can 
 invoke and command the power of tlie nation; can command and apply tlie 
 means necessary for raising and equipping tlie land and naval forces; can 
 marslial and lead them against the enemy ; In short, can do everything neces- 
 sary to be done in war and peace. 
 
80 GOVERNMENT. 
 
 ality attached to tliem. As sucli, they declared their 
 common independence. As such, they unitedly achieved 
 that independence, and were unitedly recognized as one 
 katio:n^.^ 
 
 g 1G7. As soon as the people of the states had united 
 as one people, to achieve their common independence, 
 and to establish themselves as a sovereign and inde- 
 pendent nation, they became members of the new 
 nation ; and having established a common or national 
 government, they became the citizens of that govern- 
 ment ; and hence, had a double citizenship : to wit, a 
 national, and a state citizenship. As members of the 
 nation, their rights, interests and authority extended 
 over the national domain, and throughout the entire 
 territorial limits of the nation. Their representatives 
 and senators were to legislate for the whole nation. As 
 members of the state, their rights, interests and powers 
 were limited to their respective states. Their laws had 
 no binding authority outside their respective limits. 
 
 g 168. Inasmuch as the citizens of the general gov- 
 ernment about to be instituted, were likewise citizens of 
 the several states, in providing for the internal adminis- 
 tration of the national government, it became necessary, 
 either to absorb the governmental powers of the states, 
 and institute but one consolidated government for them 
 all, or to continue the state governments in the exercise 
 of their authority and powers over local and domestic 
 matters ; and to confer upon the general government 
 jurisdiction and authority over, matters pertaining to 
 them as members of the nation, and citizens of its 
 government. 
 
 g 169. The interests of the citizen of the state gov- 
 ernment, and of the citizen of the national government, 
 were not adverse, but were in harmony. The citizen of 
 the state was likewise a citizen of the nation ; having 
 national rights and interests superadded to his local 
 rights and interests ; and he sought favor and protec- 
 tion in the exercise and enjoyment of both classes of 
 rights and interests. The state, as such, could adminis- 
 ter only in local matters ; could provide only for local 
 or state interests. Therefore the general government 
 
 1 " But Georgia cannot be viewed as a single, unconnected sovereign power, 
 on whose legislature no other restrictions are imposed than may be found in 
 its own constitution. She is a part of a large empire. She is a member of the 
 American union, and the union has a constitution, the supremacy of which 
 all acknowledge, and which imposes limits to the legislatures of the several 
 states which none claim a right to pass." (Fletcher v. J'eek, 6 Cranch, 136 ; see 
 also 9 Wheat., 187; 5 id., 514 ; 6 id.,-414 ; 12 id., 334; 2 Pet., 590.) 
 
CONSTITUTIONAL STRUCTURE. 81 
 
 became a necessity, notwithstanding the existence and 
 authority of the state governments.^ 
 
 § 170. Therefore in providing for the internal admin- 
 istration of the general government, and yet permitting 
 the state governments to continue in the exercise of 
 governmental authority over matters of a local and 
 domestic character, it became necessary that the powers 
 committed to the general government to be exercised 
 by it, and those which were to remain to be exercised by 
 the state governments, should be distinguished the one 
 from the other, to avoid conflict of jurisdiction and 
 authority, in the x)ractical administration of the same, 
 over the same people and within the same territorial 
 limits. 
 
 § 171. The authority and powers to be exercised by 
 the two governments could be generally distinguished, 
 by giving to the general government authority over 
 matters and subjects of a national character ; and to 
 the state governments, authority over matters purely 
 local and domestic.^ But such definition standing alone, 
 would not be sufficiently certain to avoid constant con- 
 flict of jurisdiction. For there are a large class of 
 interests common to the state and national citizen. It 
 therefore became necessary in the institution of the 
 general government, to define very clearly the powers 
 intrusted to its exercise, leaving the unenumerated 
 powers essential to the government of the state, to be 
 exercised by the state governments. 
 
 g 172. The people, in the institution of the general 
 government, and in the endowment of it with authority 
 to exercise the powers specified and implied in the 
 grant, did not make it residuary in character, as they 
 did the state governmen.ts ; for the plain reason, that it 
 was comparatively easy to enumerate the powers essen- 
 tial to a purely national administration; w^hile there 
 
 1 "The political character of the several states of this union in relation to 
 each other is tills : For all national purposes the states and citizens thereof 
 are one, united under the same sovereign authority and governed by the 
 same laws. In all other respects, the states are necessarily foreign to, and 
 independent of, each other." (2 Pet., 590; 10 id., 579; 12 Wheat., 334.) "The 
 national and state system are to be regarded as one whole." (6 Wheat., 419.) 
 " In America, the powers of sovereignty are divided between the government 
 of tli£ union, and those of the states. They are each sovereign witla respect to 
 the otflects committed to it; and neither sovereign with respect to the objects 
 committed to the other." (4 Wheat., 410.) 
 
 2 "For all national purposes, the states and the citizens thereof, are one ; 
 united under the same sovereign authority, and governed by the same laws. 
 In all other respects the states are necessarily foreign to, and independent of, 
 each other." * * The states retain tlieir individual sovereignties, and with 
 respect to their municipal regulations, are to each other sovereign." (2 Pet., 
 690; 10 id., 579.) 
 
 11 
 
82 GOVERNMENT. 
 
 would be no limits to the detail of powers essential to 
 a proper administration in respect to subjects of a local 
 and domestic character. 
 
 ^ 173. The national and state governments, then, are 
 neither of them primary, in respect to each other. They 
 are each corporate institutions created by the authority 
 of the people, for specific purposes only. Each are 
 intrusted with the exercise of such authority and j)owers 
 as the people have ordained; and each are prohibited 
 from the exercise of certain other powers. Hence, in 
 the tenth amendment of the constitution of the United 
 States, the people are recognized as possessing i)owers 
 not intrusted to the exercise of either the general or 
 state governments.^ 
 
 % 174. The general and state governments are each 
 intrusted with the exercise of governmental authority 
 properly belonging to the department of internal admin- 
 istration. That is, in a nation where there are no other 
 governments than the general or national one, to admin- 
 ister in local matters, or in matters pertaining to the 
 intercourse of one citizen or inhabitant with the other, 
 and in respect to the rights and duties arising out of that 
 intercourse, the internal administration of the nation 
 embraces these subjects, here committed to the jurisdic- 
 tion of the states. And the difference between such a 
 nation and the United States as a nation, consists mainly 
 in the division or distribution of the subjects of internal 
 national administration between the general and state 
 governments ; giving to the general government juris- 
 diction over a certain enumerated class of these sub- 
 jects ; and giving to the state governments jurisdiction 
 over what remains of them. 
 
 § 175. Such, then, is the structure of the government 
 of the United States, including both the general and 
 state governments. As institutions, neither of ■ them 
 possess any original or inherent authority. They are 
 merely the corporate agents of the people, authorized 
 to exercise the powers committed to their trust in the 
 manner and for the purposes ordained by the people. 
 The general government holds its powers in trust for 
 the people of the nation, and it is administered by-the 
 will of the nation, without respect to state lines. The 
 national citizen of New York, by his representatives 
 
 1 "The powers not delegated to the»United States by tlie constitution, nor 
 prohibited by it to the states, are reserved to the states respectively, or to the 
 people." (10th Amendment of the Const. U. S.) 
 
CONSTITUTION" OF UNITED STATES. 83 
 
 and senators in congress, legislates for every part of 
 the nation ; and so in respect to the national citizens 
 of the other states. But the people of each state, as 
 state citizens, administer only within the limits of their 
 respective states, in matters pertaining to local and 
 domestic interests alone. 
 
 CHAPTER yi. 
 
 THE CONSTITUTION OF THE UNITED STATES — 
 ITS PEEAMBLE. 
 
 § 176. The constitution of the United States was 
 ordained and established by the people, for the purpose 
 of instituting a national government to be intrusted 
 with the exercise of national authority over all subjects 
 committed to its jurisdiction, to the end that the defense 
 of the nation might be provided for, and its welfare 
 secured.^ 
 
 g 177. " This leads to an inquiry into the origin of 
 this government, and the sources of its power. Whose 
 agent is it ? Is it the creature of the state legislatures, 
 or the creature of the people? If the government of 
 the United States be the agent of the state govern- 
 ments, then they may control it, provided they can 
 agree in the manner of controlling it ; if it be the agent 
 of the people, then the people alone can control it, 
 restrain it, modify or reform it. * * * Is it the 
 servant of four-aud-twenty masters of different wills, 
 and different purposes, and yet bound to obey all ? 
 This absurdity arises from a misconception as to the 
 origin of this government in its true character. It is 
 the peoi)le's constitution, the people's government ; 
 made for the people, and answerable to the people."^ 
 
 l"We, the people of the United States, in order to form a more perfect 
 union, establish justice, insure domestic tranquillity, provide for the common 
 defense, promote the general welfare, and secure the blessings of liberty to 
 ourselves and our posterity, do ordain and establish tliis constitution for the 
 United States of America." (Preamble to Const. U. S.) 
 
 2 Webster in reply to Hayne, Jan. 27, 1830, in the U. S. Senate. Debates in 
 Congress, vol. 6, pt. 1, p. 74. 
 
 "To the formation of a league, such as was the confederation, the state 
 sovereignties were certainly competent. But wlien, in order to form a more 
 perfect union, it was deemed necessary to change the alliance into an effective 
 government, possessing great and sovereign powers, and acting direeily on the 
 people, the necessity of referring it to the people, and of deriving its powers 
 directly from them, was felt and acknowledged by all." (4 Wheat., 404.) 
 
 " The constitution of the United States was ordained and established, not by 
 the states in their sovereign capacities, but emphatically, as the preamble of 
 
84 
 
 GOVERNMENT. 
 
 g 178. This preamble was not adopted as a mere 
 formulary. It was a solemn promulgation of a funda- 
 mental fact, vital to the character and operations of 
 the government being instituted.^ The one nation, 
 sovereign in its authority to ordain and establish a 
 government, was about to exercise that authority, that 
 it might have one government ; actuated by one pur- 
 pose ; governed by one mind and will, as expressed by 
 such government ; having one interest in the common 
 defense and general welfare of the people as a nation. 
 Hence the language : " We, the 'people of the United 
 States, do ordain and estahlish this constitution for the 
 United States of America ;" not, we the states do enter 
 into a compact or treaty with each other.^ 
 
 § 179. At the time the constitution was submitted to 
 the people for their ratification, those who feared a con- 
 solidated government, objected to the preamble, because 
 it declared that the constitution was to be ordained and 
 established by the people.^ 
 
 the constitution declares, by tlie people of the United States." {Hunter v. 
 Martin, 1 Wlieat. R.. 305, 324; see also McCiMoch\. Maruland, -4 id., 310, 401, 405; 
 Cohens v. Virginia, id., 264, 413, 414.) 
 
 " Filially, how can any man get over the words of the constitution itself? 
 •We, the people of the United States, do ordain and establish this constitu- 
 tion.' These words must cease to be a part of the constitution, they must be 
 obliterated from the parchment on which they are written, before any human 
 Ingenuity or human argument can remove the popular basis on which the 
 constitution rests, and turn the instrument into a mere compact between 
 sovereign states." (Webster in U. S. Senate, Feb. 16, 1833.) 
 
 See also Story's Com. on Const,, § 463; see also 1 Wilson's Lectures, 417. 
 
 1 Story's Com. on Const., §463. 
 
 2 The impossibility of using the state governments as agents for providing 
 for, and adininlstcrinsj; to, the needs of the American people as a nation either 
 at home or abroad, had been fully demonstrated by an experience of thirteen 
 years. Said Edmund llandolph, in the Virginia convention : " The confedera- 
 tion has done a great deal for us, we all allow. But it was the danger of a power- 
 ful enemy and the spirit of America, and not any energy in that sj'stem, that 
 cal'ried us through that perilous war. The greatest exertions were made when 
 danger was most imminent. This system was n6t signed till March, 1781. 
 Maryland had not acceded to it before. Yet the military achievements and 
 other exertions of America previous to that period, were brilliant, eflectual 
 and successful as they could have been under the most energetic government. 
 This clearly shows that our perilous situation was the cement of our union. 
 How different the scene when this peril vanished, and peace was restored ! 
 The demands of congress Avere treated with neglect; one state complained 
 that another had not paid its quotas as well as itself- public credit was 
 gone; for, I believe, wore it not for the private credit of individuals, we should 
 have been ruined long bofoie that time ; commerce languishing ; produce fall- 
 ing, and justice tramiiled under foot. We became contemptible in the eyes of 
 foreign nations. Tliey tlisearded us as little wanton bees, who had played for 
 liberty, but had not surticient solidity or wisdom to secure it on a permanent 
 basis, and were therefore unworthy of their regard. It was found that congress 
 could not even enforce the observance of treaties. That treaty under wlilch 
 we enjoy our present tranquillity was disregarded. * * * What was the reply 
 to the demands and requisitions of congress? You are too contemptible; we 
 will despise and disregard you." (3 Elliott's Debates, by Lippincott, p. 27.) 
 
 These were among the reasons assigned by Governor Randolph why the 
 confederated system had been abandoned; and why a national government 
 ordained and established by the people had been resorted to, to wit: the neces- 
 sity for a national govenament. 
 
 3 Patrick Henry, in the Virginia convention, said ; " I would make this 
 inquiry of tliose worthy characters who composed a part of the late federal 
 convention. I am sure they were fully impressed with the necessity of form- 
 ing a great consolidated government, instead of a confederacy. That this is a 
 
CON"STTTUTION" — ITS PREAMBLE. 85 
 
 §180. The general government thus instituted, derived 
 its existence und authority immediately from the people 
 of the United States as members of the nation, having 
 sovereign authority to ordain and establish for them- 
 selves such government as they thought proper ; and 
 to intrust to it the exercise of such authority and powers 
 as to them seemed wise and good. By ordaining and 
 establishing the constitution, each citizen of the nation 
 agreed with all, and all with each, in the institution and 
 endowment of the general government, in the manner 
 and for tlie purposes therein expressed. 
 
 S 181. The general government is neither a consoli- 
 dated government, dangerous to the liberties of the 
 states on the one hand, nor a confederated government 
 dangerous to the stability of the nation on the other. 
 It is a government of the people of all the states; 
 representing them in their national sovereignty and 
 character ; protecting them in their national interests ; 
 defending them in the exercise of their national rights ; 
 promoting their national welfare, and securing to them 
 the blessings of liberty^ as national citizens. It was 
 instituted by the people for such purposes, because the 
 state governments could not be employed in that 
 capacity. There was but one nation, and it could be 
 authoritatively represented only by one national gov- 
 ernment. 
 
 ^ 182. The words, " we the people of the United 
 States," require no interpretation, and, hence, inter- 
 pretation is not allowable. The preamble is worded in 
 clear and precise terms ; the meaning is evident, and 
 leads to no absurd conclusions; therefore, there is no 
 reason for refusing to admit the meaning which it nat- 
 urally suggests.^ The " people of the United States " 
 were the people of all the states who had united in 
 the declaration and achievement of their common 
 independence, taken together as one people — one 
 NATION — acting together for the institution of one 
 GOVERNMENT, to which the exercise of national author- 
 ity was to be committed.^ 
 
 faro, leads ino to ask, who Jiuthonzed thoiu to spoak the latiguaKO of 'we the 
 proplr' instead of 'we the states?' States are the characteristics and the soul 
 of a coiileiU'ratioii. If tlie states bo not tlie agents of this compact, it must be 
 one i^reat coiisolidatt'd Kovernmont." (3 Elliott's Debates, by Lippiucott, p. 22.) 
 
 1 See ante, jJ ll.'") and note. 
 
 2 The language used M'as the only appropriate languapce whicli could have 
 been used by the people of all the states, acting as cue, lor the purpose of iusti- 
 
86 GOVERNMENT. 
 
 S 183. The language of the preamble, " we the people, 
 &c., do ordain and establish this constitution for the 
 United States of America," is the language of a people 
 speaking and acting from their original sovereignty. 
 It is not the language of sovereign states entering into 
 a compact, agreement or confederation with each other. 
 The people, in virtue of their inherent sovereignty as a 
 nation, were covenanting each with all, and all with 
 each ; exercising their authority to provide for them- 
 selves and their posterity an institution, by which they 
 could will and act as one people, iiavin& one mind 
 AND PUKPOSE, on all subjects pertaining to national 
 existence, security and happiness.^ 
 
 g 184. "The people of the United States" included 
 the peoiile of all the states, without state discrimination. 
 " We the people," &c., was the only form of expression 
 appropriate to define those who constituted the nation, 
 without including in the definition something of the 
 limitation of state organization. This form of expres- 
 sion included as well the people inhabiting the terri- 
 tories as those residing in the organized states ; while 
 the expression, the people of the several states, would 
 literally have excluded them. We, the people of the 
 United States, is a national expression, descriptive of 
 the constituents of the nation, and cannot be made 
 more plain in its significance by any interpretation. Its 
 natural meaning is evident, and leads to no absurd 
 conclusion. 
 
 g 185. The purposes for which the people ordained 
 and established the constitution were also national in 
 character. The first purpose named was, " in order to 
 form a more perfect union." A more perfect union was 
 not needed for purposes of state administration. Their 
 several state governments were fully competent to ad- 
 minister in respect to persons and subjects over which 
 they had jurisdiction. In respect to matters local and 
 domestic, the state government could act promptly 
 and efiiciently, because it was a unit, and it possessed 
 the necessary authority. It was only in respect to sub- 
 
 tuting a national government. The instrument Ibeing a constitution of gov- 
 ernment, it was necessary and proper tliat it should show upon its face who 
 were the parties that ordained and established it, and the purposes for whiclx 
 they established it. By its language, in presenting the autliors of the instru- 
 ment and the grantors of the powers delegated, it abolislied state lines and 
 state jurisdiction. State individuality was purposely lost sight of. The lan- 
 guage is, "we the people of the United States"— not, we the people of the 
 SEVERAL STATES—" do ordain and establish this constitution," &c. 
 
 See remarks of Webster on this subject in U. S. S., Feb. 16, 1833, G. & S. 
 Cong. Deb., vol. 9, pt. I, p. 555. See appendix, p. — 
 
CONSTITUTION — ITS TRE AMBLE. 87 
 
 jects over which tlie state had no jurisdiction, and yet 
 ill respect to wliich governmental anthority and power 
 were demanded for the safety and welfare of the people. 
 It was, ill respect to those subjects of interest, common 
 to the people of all the states, as members of one great 
 community ; interest connecting the citizens of New 
 York Avith the citizens of South Carolina, and with the 
 citizens and governments of foreign lauds, that made a 
 more perfect union of the people of the United States 
 necessary. Hence, the union called for was a national 
 union of the people ; that they might institute a gov- 
 ernment which would be, in respect to national interests, 
 a unit ; having but one mind, one will, one purpose 
 and one power, in pursuing the necessary end. 
 
 § 18G. The more perfect union sought by the people 
 was not a more perfect union of the several states as 
 political institutions, intrusted with the exercise of the 
 governmental authority of their people. A union of 
 that character already existed. But it was a luiion in 
 which there were diverse minds, purposes and deter- 
 minations; each dictating, none obeying; each jn'opos- 
 ing, none performing ; each sovereign, no one subject.^ 
 If each of the thirteen state governments were sove- 
 reign in their governmental authority over all subjects 
 within their respective limits, there could have been no 
 union so perfect as to fuse their thirteen minds and wills 
 into one national mind and will, without dissolving 
 their state individualism, and thus destroying their state 
 sovereignty. The union established under the articles 
 of confederation was fundamentally and radically de- 
 fective, in this, that it permitted the institution called 
 government, to bo subject to the diverse minds and 
 wills of thirteen states. That was the weakness which 
 threatened the life of the nation, and which required 
 for a remedy a more perfect union of the sovereign 
 people — not of the political states. 
 
 § 187. The governments of the states were mere local 
 institutions of the people, intrusted with the exercise 
 of their authority within their respective limits. Having 
 been instituted by the people of the local territory 
 embraced within their respective limits, the states had 
 no jurisdiction beyond those limits. Therefore, as politi- 
 cal institutions, tliey had no national authority ; and, 
 consequently, as political institutions, they could confer 
 
 1 See ante, 2 'Jl and note. 
 
88 GOVERNMENT. 
 
 none. The people of the several states had becooie 
 national citizens — not through their respective state 
 governments, but in virtue of the union of the good 
 people of all the colonies, in proclaiming and establish- 
 ing themselves as a nation. The " more perfect 
 UNION " demanded, then, was the . more perfect union 
 of the people, to be represented by one general govern- 
 ment for national purposes. 
 
 g 188. This more j)erfect union of the people, de- 
 manded, was a union of them, not as citizens or 
 inhabitants of particular states, but as people of all 
 the states having rights and interests iu common. To 
 become a nation, the sovereignty of nationality must 
 attach, which is independent of, and above all other 
 earthly authority. This kind of sovereignty could not 
 attach to a state with its limited jurisdiction and 
 authority, nor could it attach to the people of a state 
 as state citizens merely, because the state was not a 
 nation and had no claim to nationality. The advan- 
 tages to be secured by the more perfect union of the 
 people as a nation, were, among other things, to 
 extend, by administration, the national rights, powers 
 and authority of each citizen over all the states, and 
 make all subjects of one government. 
 
 g 189. The union of the people of the United States 
 as a nation, and the institution of the general govern- 
 ment to represent them as such, necessarily involved 
 the denial of sovereignty to the states. The absolute 
 sovereignty of the nation necessarily excludes the like 
 sovereignty in any other body than its own within its 
 limits. The nation as a society, is a unit ; as a body, 
 it is one ; as a power, it has no superior ; as a sovereign, 
 it is absolute, and answerable to no earthly tribunal. 
 This national personality occupies and possesses every 
 inch of territory, and every iota of authority and power 
 within the limits of the United States. What the 
 people as a nation legislatively will, is the supreme 
 law ; what they determine, is final, and from it there is 
 no appeal. 
 
 § 190. When the people ordained and established the 
 constitution of the United States, and thus instituted 
 the general government with its powers, they asserted 
 this sovereign authority over all. The convention which 
 drafted the constitution for the people of the United 
 States proposed, among other things, that the consti- 
 tution migiat be amended in the manner prescribed. 
 
CONSTITUTION — ITS PREAMBLE. 89 
 
 The people, in ratifying the constitution, sanctioned the 
 proposed mode of making amendments. By it, any of 
 the states, as people or government, may be deprived 
 of the exercise of such powers as three-iburths of the 
 others may ordain by way of amendment to the consti- 
 tution, whether they assent to it or not. The assertion 
 of this authority by the nation, necessitates the obedi- 
 ence of the states. They are amenable to other and 
 higher authority. There is an earthly power above 
 them, to which, by their own oaths, they are bound to 
 submit. There is that authority which can make laws 
 that are supremely obligatory upon them, notwithstand- 
 ing the authority of their state constitution and laws to 
 the contrary.^ 
 
 S 191. The authority by which the general govern- 
 ment was instituted, and is sustained, is absolute over 
 all state authority, whenever the people 'see fit to exer- 
 cise it. The authority which can withdraw one subject 
 from the jurisdiction of the states, and can confer on the 
 general govej'nment additional power to regulate and 
 control it, can withdraw all subjects from state jurisdic- 
 tion, and intrust the general government with plenary 
 powers over all matters of internal administration. It 
 is no answer to say, the people will never consent to 
 such amendments. They have the authority to assent 
 to them ; and that involves the absolute authority of 
 the nation over the states. 
 
 g 192. The amendments made to the constitution in 
 the manner prescribed, become a part of the constitu- 
 tion, and, consequently, of the supreme law of the 
 nation; and the one-third of the states not assenting 
 to such amendment, are nevertheless bound thereby, 
 notwithstanding the constitutional encroachment made 
 upon their state constitution and laws. A state or 
 people thus situated are not sovereign in the absolute 
 sense. There is a higher authority to which they, as 
 people and states, are subject. Their constitution and 
 laws may be abrogated, in whole or in part, without 
 their consent ; and they are without remedy, except in 
 revolution. 
 
 1 " The congress, whenever two- thirds of both houses shall deem It necessary, 
 shall propose amendments to this constitution, or, on tlae application of the 
 legislatures of two-thirds of the several states, shall call a convention for pro- 
 posing amendments, which, in either case, shall bo valid to all intents and 
 purposes, as a part of this constitution, when ratified by the legislatures oi 
 three-fourths of the several states, or by conventions in three-fourths thereoij 
 as the one or the other mode of ratification may be proposed by the congress, 
 &c. (Art. 5 of the Const, of the U. S.) 
 
 12 
 
90 GOVERNMENT. 
 
 § 193. Such was tlie " more perfect union " sought 
 by tbe people of the United States when they ordained 
 and established the national constitution. It was to 
 weld the people of all the states, for national purposes, 
 into one grand society as a nation, having one interest, 
 one purpose, one aim, and one destiny ; to institute for 
 such j)eople one government, clothed with authority and 
 power to command respect and honor from abroad, 
 and obedience and support at home ; and thus to secure 
 to all its citizens the full enjoyment of their civil rights. 
 
 § 194. Another purpose for which the constitution 
 was ordained was " to establish justice." The state 
 governments, if they would, had full power to establish 
 justice between the citizens thereof, in respect to sub- 
 jects of a local and domestic character. But they could 
 exert no authority over subjects international, or which 
 involved the jurisdiction of persons or subjects situated 
 beyond their respective limits. The congress of the 
 United States, under the articles of confederation, had 
 no power to exact obedience, or to punish disobedience, 
 to its ordinances. The great defect in the confederation 
 was this lack of power to give sanction to its laws.^ 
 There was no express authority to exercise force, and 
 it could not be implied, because the articles of confed- 
 eration prohibited any implication of power by the 
 congress. The congress could neither impose lines, nor 
 direct imprisonment, nor divest privileges, nor declare 
 forfeitures, nor suspend refractory officers.^ 
 
 g 195. The source of this Aveakness under the con- 
 federation was, that the states refused to commit to 
 the congress the exercise of the necessary authority 
 to administer as a government of the nation. It was 
 rather an advisory than a legislative body. It could 
 
 1 Kent's Com., 200; Story's Com. Const., g 252. 
 
 2 By this political compact — articles of confederation— the United States, In 
 congress, had exclusive power for the following purposes, without being able 
 to execute one of them : They might make and conclude treaties, but they 
 could only recommend the observance of them; they might appoint embassa- 
 dors, but could not even defray the expenses of their tables; they could borro^^r 
 money in their own name on the faith of the union, but could not pay a dol- 
 lar ; they were authorized to coin money, but could not commiand the means 
 to buy the bullion ; they might make war and deterniine the number of troops 
 necessary, but they could not raise a single soldier ; in short, they might 
 declare everything, but they could do nothing. (Story on Const., ^ 246.) 
 
 Governor Randolph, in the Virginia convention, in speaking of this lack of 
 power under the confederation, after stating what had been accomplished dur- 
 ing the war, remarks : " How different the scene when this peril vanished, and 
 peace was restored ! The demands of congress were treated with neglect. * * 
 We became contemptible in the eyes of foreign nations. They discarded us as 
 little wanton bees, who had played for liberty, but had not sufficient solidity 
 or wisdom to secure it on a permanent basis. * * It was found that congress 
 could not even enforce the observance of treaties. The treaty under which we 
 enjoy our present tranquillity was disregarded," &c. (3 Ell. Deb., p. 27, Lip- 
 pincott's ed.) 
 
CONSTITUTION — ITS PREAMBLE. 91 
 
 investigate and recommend, but it conld not command 
 and enforce. The thirteen states maintaining- tlieir 
 separate and independent autliority ; acting from tbeir 
 supposed separate interests ; jealous of the particular 
 burdens imposed upon tbem ; jealous of the tardiness 
 of other states in fulfilling their engagements ; com- 
 plaining that others had not paid its quotas, there was 
 no alternative left but to give up national existence 
 and to go back to a state of colonial dependence, or 
 to change the system, and establish a government of 
 the people, perfect in all its departments, to legislate, 
 adjudge, and executed by the authority of the nation.^ 
 
 ^ 19G. The nation could not maintain its existence 
 among the nations, without maintaining international 
 relations with them. It, therefore, became indispensable 
 that those relations should be regulated and determined 
 by treaties, compacts and agreements ; that some agency 
 should be established by which those necessary treaties 
 and agreements could be made and entered into on the 
 faith of the nation ; and, being made, it was also neces- 
 sary that they should be observed and kept. This 
 involved the binding of the nation by the exercise of 
 its authority, and the command of its resources, by 
 which its faith might be kept and its pledges redeemed. 
 This required the institution of a government clothed 
 with the necessary authority and power to represent the 
 nation as a unit in mind, purpose and power ; to under- 
 take, and to i^erform for, and in behalf of the nation. 
 In no other way could justice be established by being 
 made certain and secure to every one having to do with 
 the nation. But this end could not be secured, so long 
 as the nation was in any degree dependent upon the 
 diverse minds and wills of thirteen independent state 
 governments to determine what justice required, and by 
 what means, if any, it should be enforced. Therefore, 
 the establishment of justice between the people of the 
 United States as a nation, and other nations, as well 
 also as between the citizens of the nation, required the 
 
 1 After showing that under the confederation there was no power to enforce 
 the authority of tlie congress, and that the nation was on the very verge of 
 ruin, Governor Randolpli, in reply to tlie remarks of Patrick Henry, demand- 
 ing by what autliority the framers of the constitution had used the expression 
 of " ive the people," instead of we the states, answers : "The gentleman inquires 
 why we assume the language of 'we the people?' I ask, why not? The gov- 
 ernment is for the people, and the misfortune was, that the people had no 
 agency in the government before. The congress had power to make peace and 
 war under the old confederation. Granting passports by the law of nations is 
 annexed to this power, yet congress was reduced to the humiliating condition 
 of being obliged to send deputies to Virginia to solicit a passport." (3 Ell. 
 Deb., p. 29.) 
 
92 GOVERNMENT. * 
 
 institution of a general government by the people, 
 which should hold its authority of the j)eople, and be 
 amenable to them alone. 
 
 g 197. Again, the citizens of the several states were 
 alike national citizens, and equally entitled to protec- 
 tion by the nation in their national rights and interests. 
 There were interests common to the members of the 
 nation which the local governments were not compe- 
 tent to adjust. Those engaged in commercial pursuits 
 were peculiarly liable to the unequal operations of the 
 laws of the different states affecting trade. That whole 
 class of subjects committed to the regulation and con- 
 trol of congress by the constitution could have been 
 justly provided for in no other way. The power to lay 
 and collect taxes for national purposes ; also, duties, 
 imposts and excises ; the power to regulate commerce ; 
 to establish uniform rules of naturalization, and uni- 
 form laws on the subject of bankruptcies ; to coin 
 money and regulate its value, could not have been 
 exercised justly to the national citizen by the state 
 governments. The national government was therefore 
 necessary and appropriate to establish justice, in these 
 respects. 
 
 § 198. But the institution of the general government 
 under the constitution was necessary to establish justice 
 between the nation and its citizens, and foreign nations 
 and their citizens. After the confederacy was formed, 
 and the rights of war as a sovereign belligereuj: nation 
 had been assumed, authority to make captures and 
 bring in ships and cargoes for adjudication, necessarily 
 flowed from the exercise of these rights, according to the 
 law of nations. The several states retained, or rather 
 assumed, the power of appointing prize tribunals to 
 take cognizance of these matters, so that there were 
 thirteen separate and independent prize tribunals insti- 
 tuted by one party carrying on a war. And although 
 the articles of confederation authorized congress to insti- 
 tute appellate tribunals, which they did, they had no 
 authority to enforce their decisions. Consequently these 
 appellate tribunals were disregarded, and their decisions 
 treated as nullities, and neutral individuals and neutral 
 nations were without any adequate redress for the most 
 inexcusable injustice, and the nation subjected to immi- 
 nent dangers ; and there was no remedy for these evils 
 and the consequent injustice, until the people instituted 
 the general government, and thus placed these ques- 
 
CONSTITUTION— ITS PREAMBLE. 93 
 
 tions where they could be adjudicated and determined 
 by the authority of the nation.^ 
 
 § 199. Again, the treaties which were entered into by 
 congress with foreign nations were neglected, although 
 they were declared to be absolutely obligatory upon the 
 several states. AVhile these states assumed to exercise 
 their authority in national affairs they did not regard 
 the responsibilities of the nation. They did not, indi- 
 vidually, hesitate to violate treaty obligations entered 
 into by the congress, both by legislation and adjudica- 
 tion. The treaty of 1783, by which, as against Great 
 Britain, our independence was legally established, was 
 notoriously violated, and the provisions therein for pay- 
 ing debts, discarded. This could not be otherwise while 
 the national administration was committed to the petty 
 interests, jealousies and diverse wills of thirteen local 
 governments. And because of the existence of such 
 defects iu the confederation, it was well said : " We, the 
 people, do ordain and establish this constitution, for the 
 purpose of establishing justice.'''' 
 
 % 200. The states treated the debts of the nation as 
 though they were under no obligation to provide for 
 their payment. The obligations of the nation to those 
 creditors who had advanced money, and to those soldiers 
 who had served in the war, were disregarded by the 
 states. Particularly the officers and soldiers who had 
 achieved the independence of the nation, "were suffered 
 to languish iu want, and their just demands evaded or 
 passed by with indifference. No efficient system to pay 
 the public creditors was ever carried into operation 
 until the constitution was adojited." ^ 
 
 § 201. The conduct of the several states, in the local 
 administration of justice among their respective citi- 
 zens, was, if possible, more reprehensible. Laws were 
 continually enacted by the state legislatures violating 
 the sacredness of contracts ; such as laws authorizing the 
 payment of debts by installments at periods differing 
 from the original terms; laws suspending the remedies 
 for the recovery of debts ; laws authorizing the delivery 
 of any kind of property in payment of debts, upon an 
 arbitrary or amicable appraisement; laws closing, for a 
 limited time, the courts, under particular circumstances; 
 insolvent laws — some of a permanent, and some of a 
 
 1 story's Com. Const., g 4S.5 and notes. 
 
 2 Story's Com, on Const., § 486, 
 
94 GOVERNMENT. 
 
 temporary character — wliicli operated like a general 
 gaol delivery in several of the states ; in short, the prin- 
 ciples of justice were habitually subverted under the 
 administration of the local governments, through their 
 unwise and partial legislation. Hence, there was pecu- 
 liar meaning in this expression, " to establish justice," 
 for which, among other things, the people of the United 
 States ordained and established their constitution for 
 the United States of America.^ 
 
 § 202. Another purpose for which the people ordained 
 and established the constitution for the United States, 
 was "to insure domestic tranquillity." First, there were 
 dangers quite likely to arise out of the conflicting inter- 
 ests of the several states. Although the people of the 
 United States were a nation, hitherto they had not 
 organized a government to exercise their authority as 
 such ; and there was no institution among them author- 
 ized to adjust the conflicting claims which were liable 
 to arise between the several states, or between the state 
 and citizens of other states. That the state govern- 
 ments were disposed to maintain state authority, and 
 assert their peculiar interests, even in questionable 
 cases, was quite apparent. Instances were not unfre- 
 quent where justice was denied, owing to unjustifiable 
 preferences, fostered in favor of state citizens where the 
 interests of citizens of other states were concerned. 
 Moral obligations were discarded, and feelings of retali- 
 ation, sure to arise when the law furnishes no redress, 
 
 1 See Story's Com. on Const., § 487 ; see also Chase, J., in Ware v. Hylton, -3 
 Dall., 199, 1 Cond. R., 99.) 
 
 " Prior to the date of the constitution, the people had not any national tri- 
 bunal to which they could resort for justice. The distribution of justice was 
 then confined to state judicatories in whose institutions and organizations 
 the people of the other states had no participation, and over whom they had 
 not the least control. There was then no general court of appellate jurisdic- 
 tion, by whom the errors of state courts, affecting either the nation at large or 
 the citizens of any other state, could be revised and corrected. Each state was 
 obliged to acquiesce in the measure of justice which another state might yield 
 to her, or to her citizens ; and that in cases where state considerations were 
 not always favorable to the most exact measure. There was danger that, from 
 this source, animosities would in time result ; and as the transition from ani- 
 mosities to hostilities was frequent in the history of independent states, a 
 common tribunal for the termination of controversies became desirable, from. 
 motives both of justice and policy. Prior also to that period, the United States 
 had, by taking a place among the nations of the earth, become amenable to 
 the laws of nations ; and it was their interest as well as their duty to provide 
 that those laws should be respected and obeyed. In their national character 
 and capacity, the United States were responsible to foreign nations for the 
 conduct of each state, relative to the laws of nations and the performance of 
 treaties; and then the inexpediency of referring all such questions to state 
 courts, and particularly to the courts of delinquent states, became apparent. 
 While all the states were bound to protect each, and the citizens of each, it was 
 highly proper and reasonable that they should be in a capacity not only to 
 cause justice to be done to each, and the citizens of each, but also to cause 
 justice to be done by each, and the citizens of each; and that, not by violence 
 and force, but in a stable, sedate and regular course of judicial procedure." 
 (Remarks of Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. R., 419, 474; S. C, 2 Pet. 
 Cond. R., 635, 670 ; see also 2 Graham's Hist. Appendix, 498, 499.) 
 
CONSTITUTION— ITS PREAI^IBLE. 95 
 
 were enkindled. Laws impairing the obligations of 
 contracts were passed by several of the states, affecting 
 iujuriously citizens of other states. Had snch states 
 been members of the family of nations, they would 
 have been somewhat under the moral restraints of inter- 
 national law; but being independent governments, cre- 
 ated out of separate colonies which had recently thrown 
 off the authority of the mother country, they were, as it 
 were, subject to no code of laws; as improvised govern- 
 ments, they belonged to no sj^stem. Hence, they were 
 peculiarly independent, not only of one another, but of 
 all earthly governments ; responsible to no one but the 
 people of their respective states. In this condition, it 
 was morally impossible that thirteen such governments 
 should continue to administer in such a manner as to 
 avoid conflict. Being subject to no common code of 
 laws, recognizing no common authority to decide when 
 they disagreed, if this state of things should continue, 
 collisions were certain to arise. ^ 
 
 ^ 203. Before the revolution, these thirteen states 
 were colonies of Great Britain, and they recognized 
 the supremacy of her authority. But when they pro- 
 claimed their independence, and renounced their alle- 
 giance to the British crown, each set up for itself. They 
 were no longer political bodies, or societies, revolving 
 around a national center, by means of which they 
 maintained relations to other nations of the earth ; nor 
 did they become nations, and thus take upon them- 
 selves the incidents of nationality. The people of the 
 thirteen states, in their union, became a nation ; but 
 they were without a government by which to exercise 
 their authority; and, hence, were a nation unorganized ; 
 that is, they were organically powerless. During this 
 period, from 177G to 1787, the states within their respect- 
 ive limits were supreme in their administration ; not 
 because they possessed sovereign authority, or had been 
 intrusted with the exercise of it ; but because there was 
 no organized body authorized to supervise them. This 
 was the peculiar political condition of the United States 
 prior to the institution of the general government. One 
 nation with thirteen professed sovereignties ; each abso- 
 lute ; each independent ; each amenable to no earthly 
 authority — not even the authority of international law. 
 
 1 Connecticut once retaliated in an exemplary manner upon enormities 
 committed upon lier citizens by a neighboring state, wliicli had passed laws 
 affecting inj uriously the citizens of Coilhecticut. (See Federalist, No. 7.) 
 
96 GOVERNMENT. 
 
 The administrators of such governments must have 
 been something more than human, or they would soon 
 have found the necessity of a general government to 
 
 INSURE DOMESTIC TEANQUILLITY. 
 
 § 204. Situated as these states were with respect to 
 themselves, they were in a condition to invite factions 
 among the people. Those intrusted with the adminis- 
 tration of governmental authority would naturally feel 
 the independence of their position ; and, hence, would act 
 with a less sense Of responsibility than was necessary to 
 secure fidelity in the execution of those trusts. A single 
 state, as such, was independent and sovereign in respect 
 to all other states or governments ; was responsible to 
 no one for the manner in which she administered. If 
 the federal congress contracted debts, the creditor must 
 look to congress, or the states collectively, for payment. 
 There was little sense of individual obligation or moral 
 responsibility. This naturally induced recklessness, or 
 at least indifferent morals, in those charged with state 
 administration. Not occupying the position of a sover- 
 eign nation in the grand society of the human race, 
 they had neither the self-respect, morality or dignity of 
 such station. Hence, they were naturally arrogant, 
 illiberal, petty and selfish. Their injustice would natu- 
 rally induce retaliation. Hence, factions would arise, 
 prompted by hatred, revenge, retaliation, self-interest. 
 The states being small, divided in interest, naturally 
 antagonistic, the prospect of success would encourage 
 a few, even, to resist the law with expected impunity. 
 These, and other like considerations, demonstrated the 
 necessity for instituting a government of a higher 
 and more responsible character, to insure domestic tran- 
 quillity. 
 
 g 205. " To provide for the common defense." The 
 nation was a unit in existence, although it had insti- 
 tuted no government to represent that unity in its 
 will and action. The oppressions of the British govern- 
 ment had compelled the people to unite in defending 
 themselves, and, finally, in asserting their common 
 independence. But the bond of this union was their 
 common danger, arising from their weakness when stand- 
 ing separated and alone. Hence, as soon as peace Avas 
 established, and danger ceased to threaten, the demands 
 of their congress of embassadors were treated with 
 neglect. Jealousies sprang up between the states ; 
 complaints were made that burdens had not been 
 
CONSTITUTION— ITS PREAMBLE. 97 
 
 equally distributed ; and the tendency was to separate 
 agiun into their colonial elements. Had tbey thus sep- 
 arated, and each maintained an independent existence, 
 ■with no commanding power to regulate their intercourse, 
 the nation would have been dissolved; the elements of 
 discord would have been enkindled in their midst, and 
 an appeal to some foreign power for protection would 
 have been the inevitable result. But had they main- 
 tained a separate and peaceful existence among them- 
 selves as states, each exercising sovereign authority over 
 all sul)jects within its territorial limits, from their indi- 
 vidnalweakness, it would have been impossible for them 
 separately to have maintained an independent existence 
 in respect to foreign powers. They had neither the 
 wealth or strength necessary to have provided and used 
 the means requisite for national existence or safety. As 
 it required a union of all to assert and establish their 
 independence, so also it required the continuance of 
 that union to defend and maintain it. 
 
 § 206. As a nation, it was necessary to exercise 
 national authority throughout its entire limits. The 
 state of Massachusetts and the state of Georgia, as a 
 nation, were one. An invasion of the territory of 
 Georgia by a foreign force, was the same to the citizen 
 of Massachusetts as though Massachusetts territory had 
 been invaded. The safety and dignity of the nation 
 would be as really threatened by an invasion of one part 
 thereof as of another. If there had been a necessity 
 upon the colonies, justifying their revolution and the 
 establishment of their nationality, that same necessity 
 required that it should be maintained and preserved in 
 all its vigor and administrative efficiency. As a nation, 
 an external and an internal administration of author- 
 ity was indispensable. Hence, there were common 
 interests both external and internal, to be promoted; 
 common dangers to be repelled, and common rights to 
 be defended. 
 
 g 207. " To PROMOTE THE GENERAL WELFARE." This 
 
 involves, in general terms, the whole end and scope of . 
 government. The general welfare of a people consists 
 in the free exercise and enjoyment of their natural and 
 acquired rights. And when government shall so provide 
 that all men living in society can be protected in such 
 exercise and enjoyment, it has provided for the public 
 welfare in a very high degree; and when, in addition to 
 this protection, it benignly and judiciously extends its 
 
 13 
 
98 GOVERNMENT. 
 
 aid to foster and encourage every branch of industry 
 and art tending to the welfare, happiness and perfec- 
 tion of individuals and society, it has provided for the 
 public welfare in the highest degree, and accorai)lished 
 perfectly the primary and ultimate end of all civil gov- 
 ernments. 
 
 g 208. The primary and ultimate end of civil govern- 
 ment being to aid and protect the members of society 
 in the exercise and enjoyment of all their natural and 
 acquired rights, its mission proper is aid and protec- 
 tion. Its aid should be so extended as to be available 
 to all alike, who put themselves in a i^osition to enjoy 
 its benefits, without interfering with the vested rights of 
 any. Thus, it can favor business associations by acts 
 of incorporation and grants of franchises, by means of 
 which many citizens can imite their wealth, talent, 
 and enterprise, for the accomplishment of works of 
 greater magnitude than individual enter[)rise is compe- 
 tent to perform. But in the exercise of governmental 
 power for such purposes, great care should be observed 
 to guard against the misapplication and abuse of the 
 powers granted, to the detriment of individuals or 
 society. The objects for which such corporations are 
 created, should be the general or public welfare, as well 
 as the individual and associated advantages of the cor- 
 porators. Such objects may be found in works of 
 internal improvements ; in the building of public roads ; 
 in developing the resources of the country ; in the 
 education of the people ; the promotion of the arts and 
 sciences ; or in the general advancement of civiliza- 
 tion and Christianity by the various agencies adapted to 
 such purposes. 
 
 § 209. Government can properly be authorized to aid 
 individual members of society, as well as society at 
 large, by building light-houses, harbors, and by improv- 
 ing the navigation of rivers, making safe and convenient 
 the reception and transportation of all articles of trade, 
 manufacture and commerce. It can and should aid the 
 people individually and collectively by establishing jwst- 
 offices and post-roads; by providing for the safe and 
 speedy transportation of the public mails to and from 
 all settled parts of its territory, thus aiding every 
 branch of industry, as agriculture, commerce, manu- 
 factures, navigation, and every other art or trade at all 
 dependant on the speedy distribution of intelligence of 
 markets, or general or si)ecial news, or information 
 
CONSTITUTION — ITS PREAMBLE. 99 
 
 of any character necessary, agreeable or useful to the 
 people in their laudable and oi'dinary pnrsuits. It should 
 be able, also, to aid society and individuals by promot- 
 ing the i)rogTess of science and art ; by securing for 
 limited periods, to authors and inventors, the exclusive 
 right to their own writings, inventions and discoveries. 
 It is the proper business of government to aid all 
 departments of industry, by providing a uniform and 
 safe currency as a medium of exchange, carefully guard- 
 ing against fraud and imposition by counterfeiting or 
 otherwise. These and many other like aids the gov- 
 ernment could properly be authorized to extend to 
 individuals and society, aud thereby really promote its 
 general welfare. 
 
 g 210. As the government is instituted and intrusted 
 with the exercise of the authority of the people for their 
 benefit, as members of society, or, more ai)propriatel3% 
 for the benefit of the commonwealth, those intrusted 
 with its administration should take care that benefits, 
 conferred upon one class or i)ortion of society, are 
 not conferred at the exi)ense of another; for govern- 
 ment should ever exercise its powers in such a manner 
 that thereby many may be benefited and none injured 
 in the exercise of their just rights. It is not in the 
 province of government to take that which belongs to 
 one man aud bestow it upon another, unless the welfare 
 of society demands it; and not even then, without 
 making just compensation therefor. 
 
 g 211. Government not only may promote the gen- 
 eral welfare of society by affording aid to individual 
 members thereof as above set forth, but it is also 
 required to promote their general welfare by jn'otecting 
 them in the enjoyment of their just rights. This is to 
 be done by making, and enforcing obedience, to all laws 
 necessary to the maintenance of equal and exact justice. 
 To do this, government must have jurisdiction over the 
 persons and subjects necessary to such an administration 
 of its authority. Hence, the constitution, instituting the 
 general government, clothed it with authority to exercise 
 those powers essential to an efficient administration in 
 respect to subjects beyond the jurisdiction of the states, 
 and yet vital to the welfare of the people as a nation. 
 
 g 212. The final puri)ose for w^hich the constitution 
 was ordained and established — "to secure the blessings 
 of liberty to ourselves and our posterity" — is the 
 sum of ail the others. Liberty, in its true civil sense, 
 
100 GOVERNMENT. 
 
 secured to the citizen, is all he can of right deraaiid. 
 Civil liberty consists in the free exercise of all the 
 faculties and powers beloDgiug* to the individual, essen- 
 tial to the continuance and perfection of his being and 
 the attainment of a perfect destiny. A government 
 that secures to its citizens and subjects the blessings 
 of such libertj^, secures all that is essential on its part 
 to the perfect destiny of every subject. 
 
 § 213. Inasmuch as the ultimate object of the people 
 of the United States in ordaining this constitution for 
 the United States of America, was to secure to them- 
 selves and their j)osterity the blessings of liberty, it 
 follows that ifc was their design that the government 
 thus instituted should be permanent, and should con- 
 tinue with their posterity. It was to be a general 
 government of the nation, to exercise national authority 
 over all subjects committed to its jurisdiction. It was 
 ordained and established to secure the blessings of 
 liberty in a sense in which the state governments were 
 incompetent to the purpose ; in a sense in which the 
 state governments were without jurisdiction, and, there- 
 fore, could not be employed.^ 
 
 § 214. The safety and welfare of the nation required 
 a government with continuing authority to represent 
 the will and i]iQ 'poioer of the nation, on every question 
 vital to its interests, whenever and wherever occasion 
 should require. It required a government of one mind, 
 will and purpose, in the exercise of national authority 
 and power ; one that could speak with authority to the 
 people* of Massachusetts and Georgia, and make itself 
 obeyed ; one that had jurdisdiction on the high seas 
 from the northernmost limits of Maine to the utmost 
 limits of Georgia; one which, in the pleutitude of its 
 authority, could, for all national purposes, obliterate 
 state lines and rise above state jurisdictions. In short, 
 the nation, from necessity, was instituting a govern- 
 ment as the only means of exercising its authority and 
 power to save itself, and secure the blessings of liberty 
 thereby to the people and to their posterity. 
 
 § 215. The state governments had not been instituted 
 by the authority of any nation, nor for the j)urpose 
 
 1 In all monarchical governments, where the state in all its sovereignty and 
 authority is represented by its king, the maxim is -'the king never dies;" by 
 whicli is meant, the autliority of the nation is the sani,e, whether tliat author- 
 ity be administered by one king or another. The Icing, in a legal sense, is the 
 representative of sovereignty. In democratic governments, the same idea 
 would be expressed by tlie maxim, "the people never die," or, in plainer terms, 
 "the public never die," thereby representing the continuity of national sover- 
 eignty in the corporate body of the nation. 
 
CONSTITUTIOIT — ITS PREAMBLE. 101 
 
 of administering national authority. They had been 
 improvised during the revolutionary struggle by the 
 people of the respective colonies, who, when they 
 renounced their allegiance to the British government, 
 were, as communities, without national recognition or 
 national relations. These colonies took the name of 
 states, not in the sense of nations. Ehode Island and 
 the Providence plantations Avere never supposed to be a 
 nation, or to have the incidents of nationality, or the 
 rights, ijrerogatives and powers of a nation. There 
 never was a time when the United States were sup- 
 I)osed to constitute more than one nation, although, 
 since the revolution, there has never been less than 
 thirteen separate and independent states. Prior to the 
 institution of the general government by the people of 
 all the states, acting in virtue of their inherent author- 
 ity as a nation, there was no organized government to 
 question the authority of the state governments. All 
 agree that the people of Virginia, as a colony or state, 
 were separate from, and independent of, all the other 
 states or colonies as such ; and so of all the others. So 
 that, in respect to each other, as local political govern- 
 ments, they were sovereign and independent. But they 
 had not, and from their situation never could have, the 
 absolute sovereignty and independence of a nation, in 
 respect to the people of the United States, by 
 whose proclamation and action they had been separated 
 from the British crown, and absolved from all alle- 
 giance to the British government. The authority of 
 the united people constituting the one nation, de facto 
 and de jure, including the territory and people of all 
 these governments, is the only absolute sovereign 
 authority ever known or recognized here. !N'ationality 
 was the achievement of all ; and, hence, national sover- 
 eignty belonged to all, and could be exercised only by 
 those authorized by all to exercise it. And the people 
 of the thirteen colonies, in conventions called for that 
 purpose, ordained and established this constitution to 
 secure the blessings of liberty to all, as members of the 
 nation. 
 
 % 21G. Whenever the sovereignty and independence 
 of the several states are spoken of in this treatise, it is 
 to be understood, that State sovereignty and independ- 
 ence is only relative, not absolute ; that is, they are each 
 sovereign and independent in respect to the other, but 
 not in respect to the nation. The nation alone is 
 
102 GOVERNMENT. 
 
 absolutely sovereign in its inherent antliority ; and can 
 speak from that absolute sovereig'uty, and ordain, in 
 respect to these states, whatever it i)]eases; and its 
 ordinance, when once recorded as the will of the nation, 
 is the supreme law, anything in the constitutions and 
 laws of these states to the contrary notwithstanding. 
 
 g 217. In the internal administration of tlie nation, 
 these state governments have been preserved., and the 
 sphere of their administration has been assigned, in 
 which sphere only, they have jurisdiction to act. But 
 they can exercise only snch authority as remains to 
 them after the nation has assigned to the general gov- 
 ernment the sphere of its duties and x)owers. The 
 nation as such, in virtue of its inherent sovereignty, 
 has authority to transfer to the general government 
 jurisdiction over any subject it thinks proper. 
 
 g 218. The people have intrusted the states with .the 
 exercise of those powers essential to that i)ortion of 
 internal administration which remained after their grant 
 of powers to the general government; not because of 
 any authority or right on the part of the state to claim 
 the exercise of snch jjowers, but because, in matters of 
 a local and domestic character purely, the people of the 
 state are supposed to know best what the particular wel- 
 fare of those interested in such administration demands. 
 Such local jurisdiction is committed exclusively to them, 
 not from any right they have to govern as states, but 
 from the policy and iitness of permitting, as far as pos- 
 sible, those whose interests only are affected, to have 
 the exercise of the authority to govern themselves in 
 that respect.^ 
 
 g 211). B}'- dividing the internal administration be- 
 tween the general and state governments, giving to 
 each, jurisdiction over such subjects as from the nature 
 of things more properly belong to them respectively, 
 the democratic principle of self-government is most 
 aptly applied, in securing to each and every member of 
 the nation the largest amount of liberty, and the high- 
 est possible security for the same.. Thus, the general 
 and state governments are each institutions intrusted 
 
 I It is a principle in democratic governments to realize, as far as possible, the 
 idea of self-government. For this reason, instead of committing the entire 
 internal administration to the general government, it ever has been deemed 
 most fitting and proper to commit to the people of each state the exercise of 
 governmental authority over subjects peculiarly their own, and to the general 
 government jurisdiction over such subjects as primarily atfected the welfare 
 of the people of the nation. Upon the same principle, the people of the state, 
 as far as consistent with the general interests, commit the govern.ment of cities 
 and towns to tlae municipality. 
 
CONSTITUTION— ITS PREAMBLE. 103 
 
 with fbe exercise of tlie sovereign authority of the 
 nation, so api)ortioned to each as that those interested 
 in any particular subject of administration control it. 
 
 g 220. The system is most admirable. There is but 
 one sovereignty absolute, existing in the United States, 
 and that is, the sovereignty of the nation. It neces- 
 sarily excludes all other sovereignty absolute. But 
 there are several institutions within the United States 
 intrusted with the administration of this sovereign 
 authority over certain subjects committed to them. The 
 general government, in administration, is charged with 
 the exercise of sovereign authority over subjects com- 
 mitted to its jurisdiction. The state government is 
 likewise charged, in administration, with the exercise 
 of sovereign authority over what remains. But neither 
 government ])Ossesses any sovereignty of its own. The 
 autJiority to be exercised is that of the people of the 
 United States, and those exercising it are ever responsi- 
 ble to them. 
 
 g 221. The general and state governments, as admin- 
 istrative institutions, are a part of the same national 
 system. There is but one authority to be administered, 
 although there are divers administrations of such au- 
 thority adapted to the subjects thereof. There is but 
 one nation, and it possesses and occupies every inch of 
 territory, and embraces every subject of government. 
 Tlie nation is a unit in being, in mind, in purpose and 
 power, unlimited within the national boundaries. The 
 agencies by which it: administers are limited to the 
 powers committed to them. There is neither consolida- 
 ti(m nor division. There is one power over all, with 
 limited administrations suited to all. 
 
 S 222. By the national constitution the state govern- 
 ments have, in some respects, been ordained as agencies 
 in the practical administration of the general govern- 
 ment. Thus, the representatives in congress are to be 
 chosen by the people of the several states, having the 
 qualitications requisite for electors of the most numer- 
 ous branch of the state legislature.^ The senate is to 
 be composed of two senators from each state, chosen by 
 the legislature thereof.^ Each state is to appoint, in 
 such manner as the legislature thereof may direct, a 
 number of electors equal to the whole number of sen- 
 ators and representatives to which the state may be 
 entitled in the congress.^ 
 
 1 Const. U. S!, art. 1, 2 2. a Idem, § 3. 3 Idem, art. 2, ? 1. 
 
104 GOVERNMENT. 
 
 ^ 223. But in performing these offices in the practical 
 administration of the general government, the states 
 act in virtue of the authority intrusted to their exercise 
 by the national constitutiosi, and not in virtue of any 
 authority inherent in the states themselves. In these 
 respects, the states have been constituted national agen- 
 cies, to exercise administrative authority in the selection 
 of representatives and senators in congress; and also 
 in selecting electors for president and vice-president of 
 the United States. But all must agree that in these 
 respects they act in virtue of delerjatecl, and not of origi- 
 nal, authoricy. All must agree that it was competent 
 for the people to have vested the exercise of such 
 authority in the general government had they thought 
 proper to have done so. 
 
 § 224. The idea of separate original sovereignties in 
 the national and state governments, or in the nation 
 and states, is an erroneous and dangerous one. The 
 anticipated conflict between the two authorities, has 
 ever created visions of state and national ruin. The 
 only dangers which have seriously threatened the de- 
 struction of the nation, and the consequent loss of 
 security and liberty to its people, have arisen from this 
 erroneous idea of original sovereignty in the states, 
 and, consequently, of a natural antagonism of rights, 
 interests and authority between two separate original 
 sovereignties, occupying the same territory, and embrac- 
 ing the same people. 
 
 § 225. These anticipated conflicts of authority between 
 the general and state governments, which have created 
 in many minds, serious apprehensions as to the stability 
 of these American institutions, are the natural and 
 instinctive recognitions of theincompatibility of absolute 
 sovereignty in two distinct governments, each occupy- 
 ing the same territory, and embracing the same subjects. 
 It is the judgment of common sense that the hypothesis 
 is in itself an absurdity. 
 
CHAPTER VII. 
 
 LEGISLATIVE DEPAKTMENT. 
 
 ^ 226. At its commencement, the convention, which 
 drafted the constitution, while it was in committee 
 of the whole on the state of the American union, 
 resolved that, in the opinion of the committee, a na- 
 tional government onght to be established, consisting 
 of a supreme legislative, judiciary and executive.^ The 
 convention acted upon this suggestion, and divided the 
 internal administration of the government into three 
 departments ; committing to one the authority to legis- 
 late, to another the authority to adjudicate, and to a 
 third the authority to execute the laws.^ 
 
 g 227. These several departments, in the exercise of 
 the special powers committed to them respectively, are 
 independent of each other, and collectively constitute the 
 government ; that is, they exercise all the authority of 
 the government for purposes of internal administration 
 through their several departments. The government 
 can exercise legislative authority only through congress, 
 to which the legislative authority of the government is 
 committed. It can ascertain and apply the laws only 
 through the judiciary, to which the judicial powers of 
 the government are committed. It can execute its 
 orders, judgments and decrees, or enforce the observ- 
 ance of' the laws generally, only through the executive, 
 to which department the executive powers of the gov- 
 ernment are committed. It is not to be supposed, 
 because each department is intrusted with the exercise 
 of supremo authority in its appropriate sphere of duty, 
 that, therefore, there are three sovereignties, or that 
 sovereignty is divided between these three departments. 
 The government is intrusted with the exercise of the 
 sovereign authority of the people to legislate through 
 congress ; to adjudicate through the supreme court, and 
 sucii inferior courts as congress shall establish ; and to 
 execute the laws through the president of the United 
 States. 
 
 \ 1 Lipp. Ell. Deb., 151. , ., ^ ..„, 
 
 2 " All legislative powers herein granted shall vest in a congress of tne uni- 
 ted States, which shall consist of a senate and a house of representatives. 
 
 "The executive power shall be vested in a president of the United States of 
 America." (Art. 2, ? 1, Const. U. S.) ^ , c,„.r«mA 
 
 "The judicial power of the United States shall be vested in one supreme 
 court, and such inferior courts as the congress may from time to time oraain 
 and establish." (Art. 3, § 1.) 
 14 
 
108 GOVERNMENT. 
 
 § 228. Ifc is essential to the perfection of admin- 
 istration, that the legislative, judicial and executive 
 departments should be independent of each other. The 
 proper administration of governmental authority re- 
 quires the exercise of the liighest wisdom, the greatest 
 X)rudence, the strictest virtue, and the loftiest pariotism, 
 to make it what it ouglit to be, as the educating, devel- 
 oping, protecting, sustaining and governing power of 
 the nation. When it legislates, its laws should be cal- 
 caiated to benelic as many as possible, without injuring 
 any ; therefore, ifc should have the wisdom and the 
 pru;lenc3 to ascertain what laws are needed, and what 
 will hi th3 probable effect of those laws in their appli- 
 cation to the people they are to govern. The judges 
 -who interpret and apply the laws to individuals and 
 subjects, should have the wisdom to comprehend them 
 in their true meaning and application; to ascertain with 
 judicial certainty the occasions of their application ; 
 and should be possessed of that integrity which would 
 make them blind to ev^ery other consideration than the 
 doing of equal and exact justice to individuals and 
 society. And he, who executes these laws as ascer- 
 tained and applied by judicial determination, or in any 
 Other manner required by law, should be ])ossessed of 
 firmness of mind, integrity of heart, and kindness and 
 humanity of spirit, so that ho become the lit repre- 
 sentative of the dignity, the power, and the good will 
 of the people, who, in their utmost severity, seek the 
 highest good of all. 
 
 g 229. There are many and weighty reasons for sepa- 
 rating the authority to be exercised by the gov^ernmcnt 
 into thase independent departments. First, the several 
 departments are each distinct in their nature, and 
 require a distinct class of minds having different quali- 
 fiaations, to administer them. The office of legislation 
 will necessarily be performed by a changing body of 
 men, taken from the various classes of society, to 
 administer for a limited time as members of the legis- 
 lature. In democratic governments, this is one of the 
 essential features of the system. They must come 
 from the body of the people, that they may know their 
 wants, and be identified with their interests. They 
 must return at short intervals to the [)eoi)le, that they 
 may be responsible to them. They must be taken from 
 the various arts, occupations, trades and professions, 
 that all interests may be represented and cared for, to 
 
LEGISLATIVE DEPARTMENT. 107 
 
 tlic end that laws promotive and protective of each, 
 may be enacted. Such, necessarily, must be the g^eneral 
 constitntiou and character of the legislative assembly 
 in all democratic governments. Farmers understand 
 best the interests of agriculture; mechanics under- 
 stand best what belongs to their x^articular trade; 
 merchants know best what provisions are required 
 to facilitate exchange of commodities. Each of the 
 learned professions best comprehend their res])ective 
 professional interests. But neither farmers, mechanics, 
 tradesmen or artists, know best how to frame a law, 
 ])roniotive or protective of their interests, without inter- 
 fering or injuriously affecting others. There will be, in 
 the legislative assembi}', legal minds accustomed to the 
 forms of legal definition and expression; there will be 
 statesmen who can comprehend the general scoi)e and 
 effect of any particular law proi)osed, and they will aid 
 in embodying the ideas of the various members repre- 
 senting the various interests, in legal form, with suitable 
 restrictions and limitations, so that the laws enacted 
 may do much good and no harm. 
 
 g 230. But these legislative assemblies are composed 
 of men often influenced by particular interests; subject 
 to be controlled by combinations which unite many 
 separate measures for the purpose of securing a mnjor- 
 ity for each ; and in many ways they are influenced to 
 act hastily, from impulse, interest, jmpular excitement 
 and the like, which tend to defeat the exercise of that 
 wisdom, prudent foresight and calm judgment, so essen- 
 tial to correct legislation for the welfare of individuals 
 and society. For these and similar causes, laws enacted 
 by legislative assemblies are not always wise and just; 
 do not always tend to the well-being of society. Some- 
 times they are in violation of the fundamental princii)les 
 of justice. If laws thus enacted were to be adjudicated 
 and applied by the same body, subject to the same influ- 
 ences and impul-ses ; controlled by the same interests, 
 the well-being of individuals and society would be in 
 great danger; and the government, instituted to foster 
 and protect the best interests of societ}^ would become 
 its most dangerous oppressor. 
 
 § 231. The constitution of the judicial office, and the 
 requisite character and condition of the judges are very 
 ditferent. The judges are selected from a class of men 
 familiar with the principles by which rights are to be 
 determined, and justice to be ascertained and applied. 
 
108 GOVERNMENT. 
 
 By a long course of studying the constitution and laws, 
 they acquire a knowledge and discipline suited to 
 accurate determination. In practice, the judge is not 
 allowed to sit in cases where he has even the remotest 
 interest; or is within the ninth degree of consanguinity, 
 or in any manner akin to either party. By his position 
 as a judge, he is removed from all excitement or popu- 
 lar influence, and in the discharge of his duty he has 
 only to ascertain the facts and apply the law thereto ; 
 but in all other respects, as the symbol of justice, he is 
 required to be blind. 
 
 g 232. 8uch being the constitution of the legislative 
 and the judicial departments respectively, and such the 
 characters and qualifications of their respective mem- 
 bs^rs, it cannot be doubted, that the interest of all 
 requires them to be thus separated and made independ- 
 ent each of the other. Then should the legislature enact 
 a law obnoxious to the principles of justice as secured 
 by the constitution, it would be powerless for mischief. 
 Before such law could be enforced, it would necessarily 
 be subject to the strictest scrutiny of learned and 
 impartial judges, authorized to examine into its validity 
 and pronounce upon its constitutionality; required to 
 ascertain judicially the existence of facts demanding its 
 application; and the deliberate and impartial judgment 
 of the court in respect thereto. 
 
 § 233. The same considerations calling for the sepa- 
 ration and independence of the legislative, judicial and 
 executive departments, also require that the legislature 
 itself should be separated into two distinct branches.^ 
 One branch comes directly from the people, and repre- 
 sents them in all their various rights and interests. It 
 is emphatically the popular branch of the legislature, in 
 which the people speak from every trade, occupation, 
 profession and interest. It is the most numerous branch, 
 coming from and returning to the people every two 
 years, that it may ever be fresh from their presence. 
 This branch is democratic in an eminent degree ; and is 
 characterized by the universality of the interests of 
 society represented by it, rather than by its wisdom and 
 discretion in such representation. It is better fitted for 
 
 1 " The house of representatives shall be composed of members every seconri 
 year by the people of the several states; and the electors in each state shall 
 have the qaalifications requisite for electors of the most numerous branch of 
 the state legislature." (Art. 1, § 3, Const. U. S.) 
 
 " The senate of the United States shall be composed of two senators from 
 each state, cliosen bytlie legislature thei-eof, for six years; and each senator 
 shall have one vote." (Art. 1, § 3, Const. U. S.) 
 
LEGISLATIVE DEPARTMENT. 109 
 
 proposing subjects for legislative action than for matur- 
 ing legislation upon those subjects. Experience has 
 demonstrated the utility of adding another body as a 
 branch of the legislature, distinguished more for its 
 wisdom, gravity and prudence, than for its numbers, 
 nearness to, or freshness from, the body of the people. 
 This is considered the aristocratic branch, designed as a 
 check upon the hasty, immature and indiscreet legis- 
 lation, of the more popular branch. In one sense the 
 senate is figuratively composed of the honored fathers 
 of the nation, -while the house consists of the sons 
 thereof.^ 
 
 § 234. In the legislature thus constituted, it is expected 
 that the assembly or house of representatives will rep- 
 resent the people in their individual and social interests; 
 will pro[)ose all necessary measures to secure them in 
 the exercise and enjoyment of their respective rights ; 
 and that the respective members will, according to their 
 wisdom and ability, be faithful to their particular con- 
 stituencies. It is expected that the u[)per house or 
 senate will more particularly represent the M'isdom, 
 prudence, discretion and dignity of the state or nation, 
 in the exercise of its legislative authority. In its con- 
 stitution it does not profess to be democratic ; it was 
 instituted as a check upon the centrifugal tendencies of 
 the extreme democracy of the house of representatives, 
 and it is one of its particular offices to bring to the test 
 of wisdom and prudence, the enactments of the other 
 house.^ The senate is composed of two from each state, 
 who are elected by the legislatures of their respective 
 states, and hold their otfice for the term of six years. 
 As a governmental body it never ceases to exist, but the 
 house of representatives is renewed every two years.^ 
 
 I "The person appointed" to the senate "must be at least thirty-flvo j^ears 
 of age, have been a citizen of the United States nine years, and at the time of 
 his election, lie must be an inhabitant of the state by which he shall be cliosen. 
 The senatorial trust requiring great extent of information and stability of 
 character, a mature age is requisite; participating immediately in some of the 
 transactions with foreign nations, it ouglit to be exercised by those %vho are 
 thoroughly weaned from the professions and habits incident to foreign birtli 
 and education. The terra of nine years is a reasonable medium between total 
 exclusion of naturalized citizens, whose merits and character may claim a 
 share of public confidence, and an hasty admission of them, wliich might pos- 
 sibly create a channel for foreign influence in the national council." (Rawle on 
 the Constitution, p. 32; Federalist No. G2.) 
 
 '-' The senate forms a great check upon undue, hasty and oppressive legisla- 
 tion. Public bodies, like private persons, are occasionally under the dominion 
 of strong passions and excitements ; impatient, irritable and impetuous. * * 
 Certain popular leaders often require an extraordinary ascendency over the 
 body, by their talents, their eloquence, their intrigues or tlieir cunning. 
 Measure's are often introduced in a hurry, and debated with little care, and 
 examined with less caution." (Story's Com. on Const., i 550.) 
 
 3 " A good government implies two things: fidelity to the objects of the gov- 
 ernment; secondly, a knowledge of the means by which those objects can be 
 
110 GOVERNMENT. 
 
 § 235. The institution of the senate as a branch of 
 the le<>islatui'e, con}posed, as ic is, of members removed 
 from the direct influence of the peoi)le, representing 
 society at large rather than particular individuals or 
 districts, with their personal and local interests and 
 influences, is an expression of the deliberate judgment 
 of the nation, that it is unwise and unsafe to intrust 
 the exercise of the law making power to the exclusive 
 direction and control of a popular assembly. That 
 there are times when the people, like individuals, require 
 to be protected from their own indiscretions. Although 
 tlie majority are usually under the control of benevo- 
 lence and good intentions; yet they are liable to 
 transgress; and there should be i)ro visions suited to 
 such emergencies^ 
 
 S 23G. Both the senate and house of representatives 
 are composed of citizens of the United States, who are 
 themselves subject to obey the laws of their own enact- 
 ing ; and while the office of legislature as a department 
 of government, is permanent, those who administer 
 therein, remain in office only for a limited period, when 
 they are succeeded by others. It is not to be supposed, 
 therefore, that as a legislative body, they will seek to 
 accumulate power in their own hands; for as members 
 of that body, it could inure to their benefit but for a 
 short period ; and would operate to their disadvantage 
 
 best attained. It was suggested that in the Araerican government too little 
 attention had been paid to the last; and tliat the establishment of a senate 
 upon a proper basis, would greatly increase the chances of fidelity, and of wise 
 and safe legislation. What, it was asked, are all the repealing, explaining and 
 amending laws, which fill and disgrace our voluminous codes, but so many 
 monuments of deficient wisdom; so naany impeachments exhibited by each 
 succeeding against each preceding session ; so many admonitions to the people 
 of the value of those aids which may be expected from a well constituted sen- 
 ate." (Story's Com. on Const., ^ 561.) 
 
 " A senate duly constituted would not only operate as a salutary check upon 
 the representatives, but occasionally upon the people themselves, against their 
 ov/n temporary delusions and errors. The cool, deliberate sense of the com- 
 munity, ought in all governments, and actually will in all free governments, 
 ultlm.ately prevail over the views of their rulers. Bat there are particular 
 moments in public affairs, when the people, stimulated by some irregular pas- 
 sion or some illicit advantage, or misled by the artful misrepresentations of 
 Interested men, may call for measures which they themselves will afterward 
 be most ready to lament a,nd condemn. In tliese critical moments how salu- 
 tary will be the interference of a body of respectable citizens, cliosen witliout 
 reference to the exciting cause to check the misguided career of public opinion 
 and to suspend the blov/ until reason, justice and truth, can regain their 
 authority over the public mind." (Idem, g 568: Federalist No. 63.) 
 
 1 " John Adams in his defense of the American constitution, letter 6, pp. 215, 
 216, holds this language : ' If we should extend our candor so far as to own that 
 the majority of mankind are generally under tlie dominion of benevolence and 
 good intentions ; yet it must be confessed that a vastmajority frequently trans- 
 gress; and what is more decidedly in point, not only a majority, but almost 
 all, confine their benevolence to their families, relations, personal friends, 
 parish, village, city, county, province; and that very few indeed extend it 
 impartially to the whole community. Now grant but this truth and the question 
 is decided. If a majority are capable of preferring their own iirivate interests 
 or that of their families, counties and party, to tliat of the nation collectively, 
 some provision must be made in the constitution in favor of justice, to compel 
 all to respect the common right, the public good, the universal law, in prefer- 
 ence to all private and partial considerations." 
 
LEGISLATIVE DEPARTMENT. HI 
 
 as citizens both while in office and also after their term, 
 had exi)ired. 
 
 % 237. There are many weighty reasons for instituting 
 this independent body as a branch of the national legis- 
 lature, unnecessary to be considered in this place. It 
 has been, and is claimed that the senate particularly 
 represents the interests of the several states as such, 
 and stands as a shield between the people of the nation, 
 or of the government they have instituted, and the 
 respective state governments. The soundness of this 
 position is not readily perceived. It seems to assume 
 that the state governments are in danger of being 
 invaded by the people of the nation, because of some 
 natural incompatibility between the state and nation ; 
 and that the state, being small and weak compared with 
 the nation, needs to be protected by a council of semi- 
 embassadors in the persons of the senators of the 
 United States. This hypothesis has no real foundation 
 in fact. Every national citizen is likewise a state citizen ; 
 and national and state interests are so interwoven in 
 each citizen, that he is equally interested in maintaining 
 the just authority of each government. The national 
 government is as much his own as the state govern- 
 ment, created in the same manner, by the same authority 
 and for the same general purpose. It difiers in the 
 subjects and in the extent of its jurisdiction, in the same 
 degree that the subjects of national welfare differ in 
 their nature and extent from the more local affairs of 
 the state. The powers to be exercised by the general 
 government are i)articularly specified in the grant, while 
 those to be exercised by tbe states are merely described 
 as the powers, not granted, &c. 
 
 § 23S. The general and state governments are a part 
 of one and the same system, instituted by one and the 
 same i)eople, having one and the same general duty 
 to perform for the people. Every national citizen is 
 necessarily connected with business and interests of a 
 domestic character; and there is but one class of insti- 
 tutions in this country that can administer to his 
 necessities in respect to those subjects. That branch of 
 internal administration is by common consent, as well 
 as by particular regulation, committed to state admin- 
 istration. And the state governments are as absolute 
 in the exercise of their authority within the limits of 
 their respective jurisdictions, as is the general govern- 
 ment within its particular sphere ; and every national 
 
112 GOVERNMENT. 
 
 citizen is as rnucli interested in preserving intact the 
 jui'isdiction of the several state governments as he is 
 that of the general government. Therefore, the idea 
 of danger of encroachments of national power npon 
 state authority, is without any foundation in philosophy 
 or fact. If there is any danger of encroachment by 
 one government upon the jurisdiction of the other, that 
 danger is to be found in the local and petty disposition 
 of the states to assert and maintain authority over sub- 
 jects affecting the nation at large. All real danger to 
 the welfare of the people, hitherto experienced, has come 
 from that source. 
 
 § 23D. But it is no part of the constitutional duty 
 of the senators of the United States to represent the 
 political rights and interests of their particular state 
 gavernments as political institutions; nor can they do 
 so practically, because the state governments have no 
 political interests or rights separate from the people, to 
 be represented in the general government or elsewhere. 
 The senate have no special jurisdiction in respect to the 
 local interests of the several states, and no special 
 duties to perform in respect to them. The senate is a 
 branch of the national legislature, and was so consti- 
 tuted for the greater security of the people of the nation 
 at large, and not of the states in particular. 
 
 § 240. The manner in which the senate is constituted, 
 proves that it is not designed to be strictly a representa- 
 tive body. The number of senators to which the people 
 of a state are entitled nnder the constitution, has no 
 reference to the population of the state. Delaware, 
 Avith her three counties and a population of one hun- 
 dred and twelve thousand, has as potent a voice in the 
 senate of the United States as New York with her four 
 millions. The people of Delaware and the people of 
 New York are represented in the house of representa- 
 tives in proportion to their respective population ; and 
 representation extends only to the house. The senators 
 are elected by the state legislatures, not to represent the 
 people of the state as national constituents, but to rep- 
 resent the wisdom, prudence, foresight and dignit}?- of 
 the state, in a department of the general government 
 where the legislative action of the immediate represent- 
 atives may be brought under their examination and 
 review before it becomes binding as law.^ 
 
 1 As legislation may act upon the whole community, and inyolve interests 
 Of vast difficulty and complexity, and require nice adjustments and compre- 
 
LEGISLATIVE DEPARTMENT. 113 
 
 § 241. The house of representatives is composed of 
 members chosen every second year by the people of the 
 several states; and they are elected by those citizens 
 who have the qnalitications requisite for electors of the 
 most niunerons bi-anch of the state legislature.^ In 
 the internal administration of government, the general 
 and state governments are a part of the same system ; 
 and, consequently, the same reasons for dividing the 
 legislatures into two in<lependent branches, apply as 
 well to the state as to the general government. Thus 
 tile states have their senate and house of represent- 
 atives, making the former aristocratic in structure, and 
 the latter more democratic. Tiierefore, the rei)resent- 
 ative branches of the legislature in the national and 
 state governments, are comi)osed of men elected by a 
 constituency of their respective states, having the same 
 electoral qualifications. 
 
 § 242. By this provision of the constitution the peo- 
 ]>le have committed to the state governments respect- 
 ively, the authority to determine the qualifications 
 requisite for a national elector, by first prescribing the 
 qualifications essential for an elector of the inost 
 numerous branch of the state legislature. There are 
 substantial reasons why the qualifications of a state 
 and national elector should be the same. But it may 
 well be doubted whether they are sufficient to justify 
 the nation in putting its citizens in that respect, under 
 the exclusive authority of the state governments. 
 
 § 243. Every national government should be intrusted 
 with the exercise of authority to determine what quali- 
 fications are essential to entitle any class of its citizens 
 to participate m the administration of its authority. 
 The general government in its jurisdiction and by its 
 authority, embraces every citizen within its territorial 
 limits ; its laws are equally binding ui)on all, and all 
 are required to bear a part of the same general burdens 
 in its su[)port ; therefore, it is but just that the same 
 classes of citizens througliout the several states, should 
 enjoy equal rights in the exercise of administrative 
 
 hensive enactments, it is of the greatest consequence to secure an independent 
 review of it by difterent minds, acting under diflerent opinions and feelings, 
 so that it niay be as perfect as Imman wisdom can desire. An appellate juris- 
 diction, therefore, that acts and is acted upon alternately in the exercise of an 
 Independent revisory authority, must have the means, and can scarcely fail to 
 possess the will, to give it a full and satisfactory i-eview. (See Story's Com. 
 Const., g 557.) 
 
 1 " The house of representatives shall be composed of mernbers chosen every 
 second year by the people of the several states; and the electors in each state 
 shall have the quaiiflcations requisite for electors of the most numerous branca 
 of the state legislature." (Art. 1, J 2, Const. U. S.) 
 15 
 
114 GOVERNMENT. 
 
 authority. This can be secured only by uniform laws 
 of enfranchisement and disfranchisement throughout 
 the nation. 
 
 % 244. The right to participate in the institution and 
 administration of civil government, is herein denomi- 
 nated political, as distinguished from the civil rights of 
 meinbers of society.^ These two classes of rights are 
 essentially difierent in their origin, and in their appli- 
 cation to individuals. Civil rights are incident to the 
 individual, derived with his existence, and essential to 
 his continued well-being and ultimate destiny. These 
 are the rights of the individual referred to in the declar- 
 ation of independence in these words, " We hold these 
 truths to be self-evident, that all men are created equal, 
 and endowed by their Creator with certain inalienable 
 rights, among which are life, liberty and the pursuit of 
 happiness." Political rights are such as pertain to the 
 individual as a member of political society, and have 
 their origin in society, and can be exercised by those 
 only who expressly or impliedly are authorized by 
 society to exercise them. In short, civil or natural 
 rights are inherited, political rights are acquired. The 
 former are the gift of God to man, and are inalienable ; 
 the latter are the gifts of society to man, and may be 
 forfeited when their continuance becomes incompatible 
 with the safety and well-being of society. Hence the 
 right of voting is called a franchise — some right con- 
 ferred by government upon the individual, which he did 
 not before possess ; and the individual thus acquiring 
 the right, is said " to be enfranchised." 
 
 g 245. Political rights have their origin in the neces- 
 sity for a government by which the public authority 
 must be exercised; which necessity is ever present with 
 society. And these rights are to be exercised in the 
 institution and administration of government as a social 
 necessity. They belong to society, and not to the indi- 
 vidual ; as the individual can neither possess or exer- 
 cise them except in society and as a member thereof. 
 These political rights, or, more properly speaking, 
 
 1 1 prefer to use the term civil rights in such a sense as to embrace the natu- 
 ral rights of the individual as defined. (Ante, ?§ 40, 41 and notes.) I denominate 
 the right to participate in the institution and administration of government 
 political, because it has its origin in political necessity. The right to vote is 
 a political right, because voting is a governmental act ; and the individual who 
 exercises that right, participates in the government of others as well as of 
 himself. This right to participate in the administration of government, by 
 which the public welfare is to be afiected, and the public interests are to be 
 controlled, must, necessarily, come from the public. Hence, the exercise of 
 this right must be confined to such classes as are deemed by the public worthy 
 to be intrusted with its safety and welfare. 
 
LEGISLATIVE DEPARTMENT. 115 
 
 powers, to be exercised by the individual as a member 
 of an enfranchised class, are intrusted to him, primarily 
 for the benefit of society ; and, secondarily, through 
 the well-ordered state of society, for the benefit of all the 
 members thereof. Hence, government, as the author- 
 ized agent of society, confers the exercise of political 
 franchises upon such classes of individuals as is consist- 
 ent with public safety and welfare. 
 
 § 246. In the organization of government, those 
 members of society by whom it must be instituted and 
 administered to become the government of society, have 
 a natural right to exercise the powers necessary for 
 such purpose ; which right has its foundation in natural 
 necessity. Those members of society whose intelligence 
 must frame the governmental structure; whose strength 
 must defend its existence, and whose means must sup- 
 port its administration, by their majority have the 
 natural provisional authority to determine for society 
 by whom political power shall be exercised in the insti- 
 tution and administration of the government. This 
 provisional authority belongs to this class from neces- 
 sity, because it cannot be possessed and exercised by 
 any other as a class. It belongs to the majority of this 
 class, from the same necessity, because it cannot be 
 exercised by a minority of them, and to require a greater 
 number than a majority would be impracticable. The 
 right to exercise this political authority belonging to 
 societ}^ as essential to its existence and well-being, it is 
 a duty which society owes to its individual members to 
 enfranchise those classes only who will be likely to exer- 
 cise the authority for the good of society, and through 
 it, for the welfare of the members thereof. 
 
 S 247. The question of political enfranchisement must 
 be addressed to the enlightened and honest discretion 
 of those intrusted with the exercise of public authority. 
 Manifestly, the welfare of society will not permit uni- 
 versal enfranchisement. There must be discriminations 
 based upon competency, discretion, common prudence, 
 &c., for it is to be remembered that whoever is enfran- 
 chised, is intrusted with the exercise of a power which 
 can be directed to the subversion of society, as well as 
 to its improvement and well-being ; and government 
 would be guilty of a wrong, not only to society at large, 
 but to those wrongfully enfranchised, should it intrust 
 the exercise of political power to a class who would use 
 
116 GOVERNMENT. 
 
 it so ignorantly or so corruptly as to endanger tlie well- 
 being of society. 
 
 g 248. The most democratic governments, in tlieir 
 practical operations, are obliged to observe these priuci- 
 Ijles. The law necessarily has determined the period 
 of legal discretion at which legal infancy terminates. 
 Those intrusted with the exercise of legislative authority 
 are obliged to fix the period at some age ; not because 
 there is, in fact, an exact i)eriod of age at which all 
 become discreet, and before which none become so; but 
 because there is an average age which it is supposed 
 embraces more, and excludes less, discreet persons than 
 any other; it is, therefore, fixed upon as the period 
 of legal majority ; and is made one of the necessary 
 qualifications for political enfranchisement. The neces- 
 sary possession of this discretion on the part of those 
 intrusted with the exercise of governmental authority, 
 demonstrates the position that political rights do not 
 pertain to the individual as being natural and inherent. 
 Thus, every democratic government prescribes the qual- 
 ifications essential to the exercise of these rights, and its 
 duty to society and to the individual members thereof 
 requires that it should do so. The exercise of the elect- 
 ive franchise requires judgment, prudence, discretion, 
 integrity and loyalty in selecting persons suitable to 
 administer in the several departments of government. 
 Hence, classes characterized as not possessing compe- 
 tency, as idiots and insane persons ; as not possessing 
 discretion, as infants ; as not being loyal, as traitors ; 
 are necessarily excluded from the exercise of the voting 
 franchise. So, also, persons convicted of crimes against 
 society are, in most states, by such conviction and judg- 
 ment,' divested of such right. It is requisite as an act 
 of prudence, and of safety to the public, that those who 
 will exercise this power to the detriment of society 
 or government, should not possess it. Hence, rebels 
 against government, traitors, or those in sympathy with 
 them, are nntit persons, as a class, to be intrusted 
 with the exercise of thi3 political franchise. 
 
 g 249. Political rights belong to society as an inci- 
 dent of its existence ; and they are to be exercised 
 only in the manner society, by its fundamental law, or 
 through the agency of its government, shall ordain. It 
 has the absolute discretion to determine to what classes 
 of individuals the exercise of political rights shall be 
 committed ; and it can limit its exercise to persons pos- 
 
■ LEGISLATIVE DEPARTMENT. 117 
 
 sessing any particular qualification, and can determine 
 at pleasure wbat shall amount to disqualification. It 
 has authority to limit its exercise to persons of a certain 
 a<;e, sex, race, color, character — in short, to any quali- 
 fication it deems discreet, prudent, wise, just and safe to 
 adoi)t.^ Disloyalty in sentiment, and particularly in 
 conduct, amounting to treason, are j)eculiarly natural 
 disqualifications for the exercise of the i)oliticaI fran- 
 chise ; and no society or government which permits 
 disloyal classes to i)articipate in the administration 
 of government is faithful to the commonwealth. Xs 
 qualification or disqualification extends to class, and not 
 to individuals, except through the class to which they 
 belong, the individual can have no vested rights in the 
 exercise of a political franchise ; and, therefore, cannot 
 require judicial determination to invest him with, or 
 to divest him of, the power to exercise such rights. 
 Whether he belongs to the enfranchised or disfranchised 
 class is a question of fact, which belongs to the inspectors 
 of election to decide at the polls, when the individual 
 presents his ballot.^ 
 
 § 250. Political rights belonging to society as incident 
 to its governmental necessities, they are conferred ou 
 classes with sole reference to their qualifications as 
 members of society, for maintaining by their votes, the 
 healthy and just administration of the government. 
 Political rights are not conferred on individuals, except 
 as members of an enfranchised class ; nor are they 
 denied to individuals, except as members of an unen- 
 franchised class. The individual convicted of a crime 
 and sentenced to suffer the penalty affixed thereto, 
 according to the law in some of the states, thereby 
 becomes a member of a disfranchised class, and, con- 
 sequently, becomes himself disfranchised. 
 
 g 251. Government disfranchises only by classes. It 
 is ev^er in the power of society to determine to what 
 classes the exercise of this power shall be committed, 
 
 1 In no two of the state constitutions will it be found that the qualifications 
 of tlie voters are settled upon the same uniform basis. There is tlie most 
 abundant evidence that among a free and enliglitened people, convened for 
 the purpose of establisliing tlieir own forms of government and tlie rights of 
 their own voters, the question as to the due regulation of the qualifications, 
 has been deemed a matter of mere state policy, and varied to meet the wants, 
 to suit the prejudices, and to foster the interests of the majority. An absolute, 
 indefeasible right to elect, or to be elected, seems never to have been asserted; 
 but the subject has been freely canvassed as one of mere civil polity, to be 
 arranged upon such a basis as the majority may deem expedient with refer- 
 ence to the moral, physical and intellectual condition of the particular state. 
 (Story's Com. on Const., § 582; also Dr. Lieber's Encyclopedia Americana, Art., 
 Const. U. S.) 
 
 2 The subject of the political rights of individuals and of states will be fully 
 discussed in. a subsequent chapter on state governraents. 
 
118 GOVERNMENT. 
 
 and to what classes it sliall be denied. And in deter- 
 mining these questions, the highest good of society is 
 ever to be kept in view ; and such classes only should 
 be enfranchised as from their average competencj^ dis- 
 cretion, prudence, foresight, integrity and virtue, would 
 justify the expectation of benefit to the general welfare, 
 should the exercise of political power be committed to 
 them as a class. And upon the same principle, it 
 becomes the duty of government or society to disfran- 
 chise, or leave unenfranchised, classes whose average 
 competency, discretion, prudence, foresight, integrity 
 and virtue would justify the expectation that, to enfran- 
 chise or leave enfranchised such class, would tend to 
 subvert society or prove detrimental to public interests 
 and the general welfare. This question necessarily 
 belongs to government to decide ; and it rests in its 
 discretion, from which there is no appeal, except to 
 society at large, to determine by its fundamental law 
 the political rights and powers of classes. 
 
 g 252. As government enfranchises only by class, it 
 never becomes a question of individual right to enfran- 
 chisement, or of individual merit, but of class right and 
 class merit. The class of legal infants would furnish 
 many individuals endowed with sufficient discretion, 
 judgment and prudent foresight to justify the govern- 
 ment in intrusting them with the exercise of political 
 rights ; but the government cannot entertain the ques- 
 tion of individual qualification or merit in distributing 
 that which belongs to class, because it necessarily 
 becomes impracticable for it to do so. 
 
 g 253. As political rights belong to, and are the neces- 
 sary incidents of every political society, and are to be 
 exercised only for the political welfare of such society, 
 there are certain classes in society, or may be such, as, 
 from the nature of things, must remain unenfranchised, 
 or must become disfranchised. Thus, society cannot with 
 safety enfranchise any but its own citizens ; hence, for- 
 eigners, legal aliens necessarily remain unenfranchised. 
 There may be individuals of the class competent, both 
 from intelligence and love of country, to exercise the 
 franchise in such a way as to benefit the public ; but 
 the class, notwithstanding, must remain unenfranchised. 
 The individual, to gain enfranchisement, must leave the 
 class and gain admission to one that is enfranchised. 
 So, also, a class of malcontents may rise up in rebellion 
 against the government and attempt its overthrow. In 
 
LEGISLATIVE DEPARTMENT. 119 
 
 comraittiug the crime of treason, they become traitors ; 
 which class, from the nature of thiugs, must be disfran- 
 chised. The public sense revolts from that logic which 
 attempts to prove, upon constitutional grounds, that a 
 class seeking to destroy government are to be intrusted 
 with its administration. Treason, in all countries and 
 under all governments, is political death; and no one 
 belonging in the class traitor, has any political life or 
 power. 
 
 ^ 254. Political rights, having their origin in the social 
 necessity for maintaining government, they belong only 
 to those classes of society who are faithful to that end. 
 No one can claim enfranchisement on personal grounds. 
 When a member of an unenfranchised class asks for 
 personal enfranchisement, he must be prepared to satisfy 
 the public that not only he is qualified to exercise the 
 franchise, but also that his class is likewise qualified ; 
 and he must be prepared to abide the political fate of 
 his class, or leave it. 
 
 S 255. From these considerations, it cannot be doubted 
 that every national government should possess the 
 power requisite to determine the qualifications essential 
 to entitle its citizens to participate in the exercise of its 
 administrative authority. The principles of self-preser- 
 vation, as well as of a healthy and vigorous adminis- 
 tration, require it. No government can secure fidelity 
 in its administration without such power. Therefore, in 
 this respect, the constitution requires amendment ; and 
 by such amendment, the question of national enfran- 
 chisement would be committed to the general govern- 
 ment, where it properly belongs.^ 
 
 § 256. The legislative authority of the nation, to be 
 exercised by the general government, is committed 
 exclusively to congress, which is to be composed of a 
 senate and a house of representatives. The members 
 of the house are to be elected by the people of the 
 several states, having the qualification of electors of 
 the most numerous branch of the state legislature. The 
 senate is to be composed of two from each state, who 
 are to be elected by the state legislature.^ 
 
 1 See a further discussion of tliis subject in a subseqent chapter on the duties 
 and powers of the state governments. 
 
 TT^u^y2,f''l'''^"''*',P'^.^®.''^/?®''®'"-Sr^'^ted shall be vested in a congress of the 
 / A^t 1 ^V'^ n*' '^^i^V^'^l'^^l ,^°^,sist of a senate and a house of representatives. 
 (Art 1, ^1 Const. U. b.) 1 he house of representatives shall be composed of 
 mernbers chosen every second year by the people of the several states' and the 
 electors in each state shall have the qualifications requisite for electors of 
 the most numerous branch of the state legislature. (Art. 1, ? 2, id.) The 
 senate of tlie United States shall be composed of two senators from each state, 
 
120 GOVERNMENT. 
 
 S 257. The primary object of tlie people of the United 
 States in ordaining and establishing the constitution, 
 was to institute a government, independent and com- 
 plete in every department thereof, to which the exercise 
 of their authority to govern in certain matters mighc 
 be committed. As a department of that government, 
 a supreme legislature became indispensable ; which 
 body the constitution requires to be composed of two 
 branches, and the members of each branch to have 
 certain specified qualifications, and to be elected by cer- 
 tain ])rescribed constituencies. But the times, places 
 and manner of holding the elections are, by the consti- 
 tution, made subject to the regulation and control of 
 congress, except as to the place of choosing the sen- 
 ators. ^ 
 
 .§ 258. The propriety of making the times, places and 
 manner of holding these elections subject to the regu- 
 lation and control of congress, rests upon the plain 
 proposition, that every government ought to contain in 
 itself the means of its own preservation. The exclusive 
 power in the state legislature to regidate and control 
 elections of members of congress, would leave the 
 continued existence of the government of the nation 
 at the mercy or pleasure of the states. They could 
 destroy the legislative branch of the government by 
 neglecting to provide for the election of members to 
 administer in that department, and thus effectually 
 subvert the general government. It is no answer, to 
 say that such an abuse of power is not probable. Its 
 possibility is a sutificient reason for providing against 
 the happening of such an event. But the same danger 
 would threaten the legislative department of the gov- 
 ernment, should the state legislatures refuse or neglect 
 to choose senators according to the requirements of rhe 
 constitution. It can hardly be doubted that the people 
 of the nation, when they imposed a duty upon a sub- 
 ordinate institution, the exercise of which they made 
 essential to the continuanceof the government ordained 
 and established for themselves and their posterity, that 
 they, expressly or impliedly, gran ted thex)0wer toenforoe 
 the performance of such duty. 
 
 g 259. The constitution provides that the senate shall 
 be composed of two senators from each state, chosen 
 
 clao'jen by the legislature thereof, for six years, and each senator shall have 
 one vote. (Art. 1, g 3, id.) 
 1 Art. 1, 2 4, Const. U. S. 
 
LEGISLATIVE DEPARTMENT. 121 
 
 by the legislature thereof; that if vacancies happen 
 dnriiig" the recess of the legislature, the state executive 
 iiiny make temporary appointments until the meeting 
 of the legislature, which shall then fill such vacancies.^ 
 But, supposing, from a factious spirit in the state legis- 
 lature, or from other cause, there should be a neglect or 
 refusal on the part of this national agency to do its 
 duty in this respect, seeking thus to subvert the general 
 government by aiming at the destruction of the legis- 
 lative department thereof, is there not in the general 
 government legislative, judicial and executive authority 
 sufficient to require the performance of a duty so vital 
 to the safety and welfare of the nation ? Here is a 
 duty to be performed, imposed by the national consti- 
 tution upon the incumbents of an office, who have 
 sworn to obej^ it as the supreme law ; and the perform- 
 ance of which duty is vital to the existence of the nation 
 as an organized and potential body. The performance 
 of this duty is enjoined upon this ottice by the sovereign 
 authority of the nation itself And that this authority 
 might compel obedience to its requirements, the nation 
 created a supreme legislative office, a supreme jiulicial 
 office, and a supreme executive office, and made that 
 constitution, and the laws made in pursuance thereof, 
 the supreme law, anything in state constitutions and 
 state laws to the contrary notwithstanding. Here, then, 
 is a constitutional duty to be performed by a body of 
 officers bound by oath to its performance. Here is a 
 supreme judiciary invested with full jurisdiction, which 
 extends to all cases in law and equity, arising under 
 this c(mstitution, and the laws of the United States 
 made in pursuance thereof. Here is a supreme legisla- 
 tiu'e empowered to make all laws necessary and proi)er 
 for carrying into execution the ])owers conferred by the 
 constitution upon the government, or upon any depart- 
 ment thereof. Therefore, it cannot be doubted that 
 there is sufficient authority vested in the several depart- 
 ments of the general government to compel the per- 
 formnnce of any duty enjoined by the constitution of 
 the United States upon any office or officer, state or 
 national. 
 
 g 2G(). It is no answer to say that the members of the 
 legislatures are not officers of the nation, and are not 
 amenable to national authority. The state government 
 exists and administers by permission of the nation. It 
 
 1 Art. 2, § 3, Const. U. S. 
 
 16 
 
122 GOVERNMENT. 
 
 has jurisdiction over no subject which may not be taken 
 froui it at the pleasure of the nation. It can administer 
 only in respect to those subjects left to it by the people 
 of the nation. The form of its administration is subject 
 to the supervision of the general government ; and no 
 one can administer in any of its departments without 
 first taking an oath to support, in his administration 
 as such oiiicer, the constitution of the United States. 
 Every requirement of the national constitution is the 
 supreme law, by which they are to be governed, whether 
 as officers or private citizens. Every duty thereby 
 enjoined upon them is supremely obligatory, and may 
 be enforced by proper authority, indepeudent of the 
 constitutional or legislative authority of the state. 
 Therefore, it is not true, that state officers are not 
 amenable to national authority in respect to duties 
 imposed upon them by the constitution of the United 
 States. In respect to such duties they are charged with 
 the execution of a national trust — one which they can 
 execute only by national authority ; and for the faithful 
 performance of such trust they are responsible to the 
 nation. 
 
 S 261. The necessity calling for the institution of the 
 general government to exercise the authority of the na- 
 tion in respect to matters committed to its jurisdiction, 
 required that the government thus instituted should be 
 indepeudent of all other governments in maintaining 
 its existence and administering the authority committed 
 to it. It would have defeated the end of its institu- 
 tion to have made it, in the administrative authority of 
 any of its departments, subject to an adverse will, 
 which might, at pleasure, disorganize its existence or 
 arrest its constitutional action. It is not, therefore, to 
 be supposed that the people, in the institution of the 
 general government, intended to make its continuance 
 or efficiency dependent upon the will of local govern- 
 ments, by giving to these governments the authority to 
 act as the agents or instruments of the nation in certain 
 departments of governmental administration. It was 
 the purpose of the j)eople to institute a government, 
 having a supreme legislature, a supreme judiciary, and 
 a supreme executive to administer for the nation, exter- 
 nally and internally in respect to all subjects committed 
 to it. Such was the end sought, and such the reason 
 and si)irit of its institution. 
 
LEGISLATIVE DEPARTMENT. 123 
 
 g 2G2. Therefore, while the constitution commits to 
 the states the authority to determine the qualifications 
 requisite for electors of members of the house of repre- 
 sentatives, by identifying them with those having the 
 qualifications requisite for electors of the most numerous 
 branch of the state legislature, it has left witli congress 
 the authority to prescribe by law the time and place 
 of holding, and the mode of conducting the elections of 
 such members ; and has given to the general govern- 
 ment authority to enforce the constitutional guaranty 
 of a republican form of government to each of the 
 states ; so that the authority of the general government 
 can be used to provide for the election of members to 
 the house, should the state, as a political institution, 
 neglect or refuse to do its duty in that respect. For 
 while the state continues republican in form, there must 
 be a class of its citizens having the qualifications requi- 
 site for electors of the most numerous branch of its own 
 legislature ; and those electors, or such of them as think 
 proper, can return members to the house of representa- 
 tives under such regulations as congress may find it 
 necessary to prescribe. And should a state legislature 
 neglect or refuse to elect a senator according to the 
 command of the constitution, which is the supreme law 
 of the state, and which by their oaths they have under- 
 taken to support and obey, it cannot be doubted that, 
 under the constitution of the United States, there is 
 sufficient authority and power in the supreme legis- 
 lative, judicial and executive departments to compel 
 obedience. The nature of this remedy will be con- 
 sidered when the state governments, together with their 
 source, authority, duty and powers, are considered. 
 When it is remembered that absolute sovereignty belongs 
 to the nation alone; and that this sovereignty includes 
 within its authoritative jurisdiction every individual 
 subject or citizen, and every iota of governmental 
 authority ; and that these state governments are but 
 instruments or agencies of this absolute sovereignty to 
 administer the nation's authority in matters of a purely 
 local and domestic character, except so far as by the 
 constitution of the United States they may be appointed 
 to the execution of powers pertaining to the general 
 welfare, it will not be difficult to find authority in the 
 general government to hold these local agencies of 
 the nation to a strict accountability for the manner in 
 which they discharge the trusts committed to them. So 
 
124 GOVERNMENT. 
 
 hmg as there is a supreme law, binding alike upon state 
 legislatures, state judges and governors; and tliere is a 
 sui)renie legislature, a supreme judiciary, and a supreme 
 executive, which are autliorized to speak and act by the 
 will and power of the nation, the political rebellion of 
 a state is as much the subject of national restraint and 
 control, as the individual rebellion or treason of the 
 citizen. 
 
 g 263. To become a member of the house of repre- 
 sentatives, a person must have attained to the age of 
 twenty-five years, and must have been a citizen of the 
 United States seven years, and must be an inhabitant 
 of that state in which he is chosen. These are the only 
 qualitications imposed by the constitution as essential 
 to membership of the house. It is designed that it 
 s,hould be eminently a democratic body, fresh from the 
 l)resence of the people every two years ; consequently, 
 that it should be familiar with the needs of the pe()i)le 
 of every class, occupation, trade, profession and calling. 
 Among its members are to be found men representing 
 every bi'anch of industry, as farmers, mechanics, traders; 
 and professional men as lawyers, doctors and ministers; 
 so that all classes of society needing the fostering hand 
 and [)rotecting care of the government, will find some 
 one in this body to speak for his calling, and represent 
 his interest. The house is made a branch of the legis- 
 lature, that the will of the people may enter directly into 
 the composition of the laws; that through this branch 
 they may compel regard to, and a protection of the public 
 welfare, as pertaining to the interests of all classes. 
 
 g 264. It cannot be denied that so numerous and 
 transient a body as the house of representatives in con- 
 gress, is unfavorable to judicious and wise legislation. 
 That a majority of its members have not the culture, 
 discipline or information necessary to constitute a body 
 of wise and discreet legislators. Nor is it necessary 
 they should have. As a body, they represent the wants 
 and wishes of the people, with a demand that the legis- 
 lation of congress shall conform thereto ; and as a 
 branch of the legislature, they have power to enforce 
 their requirements. They do not represent the discre- 
 tion or wisdom of the state necessary for wise and 
 judicious legislation. They were not constituted for 
 that purpose. The house is constituted with reference 
 to the wishes, and not the wisdom, of the nation. 
 Hence, the essential feature of the house is, that the 
 
LEGISLATIVE DEPARTMENT. 125 
 
 members shall be immediately from the people, Tvith 
 qualifications sufficient to understand and represent 
 their wishes. For such purpose, it is sufficient that the 
 member has attained to the a^e of twenty-five years; 
 and to ])rompt him to be faithful, he must go back to 
 the i)eop]e every two years, and receive their judgment, 
 and learn anew their requirements. 
 
 g 265. It is no disparagement of the farmer, mechanic 
 or tradesman to say of them as a class, that they have 
 not the culture, education and discipline essential for 
 the learned professions, or for discharging the duties 
 devolved upon the legislator or judge. The i)eople of 
 the nation; being themselves farmers, mechanics, trades- 
 men and professional men, in the structure of the 
 general and state governments, and by their general 
 and local laws, have affirmed the same doctrine. They 
 have deemed it necessary to secure fidelity to their 
 common welfare, by reserving to themselves a place in 
 the department of legislation ; but they have never 
 deemed it prudent or safe to intrust to the popuhu' 
 branch of the legislature the sole i^owers of legislation. 
 To legislate wisel}^ and well for the interests of all, 
 requires the possession of an educated mind, a matured 
 judgment, a prudent foresight, a comprehensive under- 
 standing, and calm reflection — possessed by few ; and 
 for this reason the people, in the structure of the legis- 
 lative and judicial dei)artments of government, have 
 sought to secure the aid of this class, in the senate and 
 upon the bench. And wherever they have departed 
 from this policy, they were seduced by the devices and 
 wiles of the demagogue, and not influenced by the wise 
 and prudent counsels of the good, or the dictates of 
 their own plain common sense. 
 
 g 2GG. This principle is observed in the praclical 
 organization of the house into working committees. 
 Each interest asking for legislative aid is at once referred 
 to an appropriate committee, which consists of such 
 members of the house as are supposed to be competent, 
 or, at least, x)eculiarly fitted from their profession, .art, 
 trade or calling, for the discharge of the particular duties 
 required. This organization of the house into commit- 
 tees appropriate to the investigation of every ])articular 
 question likely to arise in the course of i)opular legisla- 
 tion, has its basis in the recognition of the principle, 
 that men should be suited by qualifications, for the par- 
 ticular work committed to their execution. 
 
126 GOVERNMENT. 
 
 g 267. The people are more interested in wise, prudent 
 and necessary le^^islation ; in upright, faithful and just 
 administration of the laws, than they are in the questions, 
 by whose wisdom have they been framed, or by whose 
 judgment have they been administered. Hence, the 
 highest interests of the people require that the qualities 
 of wisdom, prudence, foresight, judgment and integrity, 
 should characterize those who administer the govern- 
 ment ; and any ijolicy which tends to lower the standard, 
 or to exclude this class from a controlling influence 
 in the several departments of government, is adverse to 
 the common welfare of the people, however much they 
 may flatter themselves they have gained in power. 
 
 g 268. The advantages of a democracy over every 
 other form of government, are to be found in the poten- 
 tial presence of the people in the administration of their 
 authority, by which they are enabled to secure the 
 incorporation of their common rights and interests into 
 the laws by which they are to be governed. If this end 
 could be accomplished under a monarchy or an aristoc- 
 racy, the people would be less liable to the corrupting 
 influence of political demagogues, than they are under 
 a democracy; and their common rights and interests 
 would be equally as well protected. But this cannot be. 
 Popular rights and interests will not be secured by a 
 government which does not feel the potential presence 
 of the people in its administration. 
 
 § 269. But this potential presence of the people in 
 the administration of the government is most effect- 
 ually secured by making one branch of the legislative 
 department purely a representative body — lilie the 
 house of representatives, as a branch of congress. The 
 constitution provides for receiving them immediately 
 from the people of the nation. As far as possible, it 
 provides for an equal representation of the people of 
 every part of the nation in the popular branch of the 
 congress. It apportions the representatives among 
 the several states according to their respective num- 
 bers ; taking care, however, to secure to the people of 
 each state, at least one representative.^ When, for 
 any cause, vacancies shall happen in the representation 
 from any of the states, the executive authority thereof 
 is required to issue writs of election to fill the same.^ 
 
 1 Art. 1, 2 2, cl. 3. 
 s Art. 1, 2 2, clause 4. 
 
LEGISLATIVE DEPARTMENT. 127 
 
 g 270. At tlie time the draft of the constitution was 
 proposed, the convention were not prepared to fix upon 
 an exact ratio of representation. But in their draft, 
 which was adopted by the people, they provided for 
 taking- an actual enumeration of the people of the 
 United States within three years after the first meeting 
 of the congress ; and until that should take place, the 
 representation of the people of the several states was 
 determined by the constitution itself.^ The constitution 
 also provided for estimating the numbers of the people 
 to be represented, by adding to the number of free 
 persons — including those bound to service for a term 
 of years, and excluding Indians not taxed — three- 
 fifths of all other persons. For the purpose of future 
 equality of representation, the constitution provided 
 that a new enumeration should be taken within every 
 subsequent term of ten years. 
 
 g 271. Equality of representation in the institution 
 and administration of the government is an essential 
 feature of democracy. Hence, the i)eople of the United 
 States provided in the constitution that representatives, 
 &c., should be apportioned among the several states 
 according to their respective numbers ; that is, the 
 people of the several states should have a representation 
 4n congress in proportion to their number of inhabitants. 
 Proportion signifies, equality of ratio ; for which equal- 
 ity the people intended to make constitutional provision. 
 But it is manifest, that with a limited representation in 
 congress, and an ever-changing population in the several 
 states, an exact equality of ratio can never be obtained. 
 This provision, then, must be interpreted according to 
 the reason and spirit of the same. Since an exact 
 equality cannot be obtained, it intends that a ratio of 
 representation shall be adoped which shall give to the 
 people of the several states a representation in congress 
 as nearly equal as possible ; leaving as few and small 
 unrepresented fractions in the several states as possible. 
 But as the number of representatives are limited by the 
 provision that they shall not exceed one for every thirty 
 thousand^ unrepresented fractions less in number than 
 thirty thousand are always liable to exist in some of the 
 
 1 By th3 provisions of the constitution, the ratio for the first house of repre- 
 sentatives was not to exceed one representative for every tiiirtv tliousand 
 inliabitants ; and until an actual enumeration should take place, New Hamp- 
 shire was entitled to clioose three representatives ; Massachusetts, eight; Rhode 
 Island and Providence Plantations, one; Connecticut, Ave; New Yorli, six; 
 New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Vir- 
 ginia, ten; Nortli Cirolina, Ave; South Carolina, Ave; and Georgia, three — 
 making in all sixty -Ave representatives. (Art 1, 2 2, clause 3, Const. U. S.) 
 
128 GOVERNMENT. 
 
 states. Bat taking a periorl of years together, tliey will 
 be found sometimes in one state and sometimes in 
 another, ultimately becoming nearly equal ou the prin- 
 ciples of average. 
 
 § 272. It is not to be inferred that the people of the 
 United States intended to recognize the authority of 
 the several states as absolutely' sovereign, in thus pro- 
 viding for this equality of ratio in their congressional 
 re[)resentation. The state governments, according to 
 the American system, are an essential branch of the 
 national administration. While the sovereignty of 
 the nation necessarily includes all other governmental 
 authority to be exercised within its territorial limits, 
 the democratic principle by which that authority is to 
 be exercised, requires that those whose interests are 
 involved in a particular administration shall be intrusted 
 with it. Thus, there are interests common to the people 
 as a nation, requiring the supervision and control of a 
 government having jurisdiction throughout the nation. 
 There are interests of a local and domestic character, 
 affecting only those residing within the limits of a par- 
 ticular state ; and there are other interests confined to 
 the municipality, affecting only those who resided in the 
 X)articular city or town. But the citizen of the city or 
 town has also other interests in common with the citizen 
 of the state or nation. In other words, while he is a 
 citizen of the city or town, he is also a citizen of the 
 state, and of the nation ; and has rights and interests 
 peculiar to the city, the state, and the nation. The 
 democratic or American system requires that, as a 
 citizen of the nation, he shall be represented and be 
 permitted to participate in the administration of the 
 general or national government ; and shall have equal 
 authority in such administration with other like national 
 citizens. That as a state citizen, it is his right to be 
 represented and to participate in the administration of 
 the state government, and to have equal authority in 
 such administration with all other like state citizens. 
 That as an inhabitant of a municipality, it is his right 
 to participate in the administration of the municipal 
 government, npon equal terms with other like inhab- 
 itants of the municipality. And the democratic or 
 American system further requires that, so far as the 
 public interests will permit, none but the inhabitants 
 of the municipality shall participate in the municipal 
 administration ; none but the citizens of the state shall 
 
LEGISLATIVE DEPARTMENT. 129 
 
 participate in state administration ; and that only the 
 citizens of the nation should participate in the national 
 administration. But all these are questions of admin- 
 istrative right — not of governmental authority. The 
 authority to administer, is one thing ; the authority 
 which is administered, is quite another. 
 
 g 273. The principles of democracy do not antagonize 
 with the existence of absolute sovereignty in the body 
 of the people or nation ; nor do they require that this 
 sovereignty should be parceled out, or divided between 
 different classes of governments. The existence of an 
 absolute and undivided sovereignty is as essential to a 
 democratic government, as it is to a monarchy or des- 
 potism. Authority to compel obedience is absolutely 
 essential to all governments. Sovereignty is always 
 one and indivisible ; and its authority is always the 
 same, b}'' whomsoever lawfully exercised. The funda- 
 mental principle of democracy is, that sovereignty 
 belongs to the people of a nation taken together as a 
 Avhole. That each individual is sovereign only in respect 
 to his own, when compared with other individuals ; but 
 that no one is sovereign when taken in reference to all. 
 That the public authority is the authority of all ; and is 
 alone sovereign in respect to all, and over all. With 
 resi)ect to the administration of this authority, the dem- 
 ocratic theorj^ asserts the right of those to administer 
 whose sole rights are to be atiected by the administra- 
 tion. But in such administration, whether it be of the 
 general, state or municipal government, there is but one 
 source of governmental authorit3\ 
 
 § 274. This clause of the constitution apportioning 
 this congressional representation among the several 
 states, was providing for equality of representation in 
 the administration of national authority, in order that, 
 as far as possil)le, all citizens of the nation, without 
 regard to the particular states in which they resided, 
 should be equally represented in their interests, and 
 shoukl have an equal voice in the administration of 
 national authority ; and the state governments were 
 to be used as national agencies for accomplishing such 
 a result. They were already organized, and were 
 administering in that department of internal adminis- 
 tration which embraced subjects of a local and domestic 
 character. They were better adapted to that sphere of 
 administration than the general government possibly 
 could be. Therefore, there was no occasion for super- 
 17 
 
/x 
 
 130 GOVERNMENT. 
 
 seding tliem, for the purpose of instituting new agencies 
 to accomplish the same objects. For this reason, the 
 people of the nation, in the institution of their general 
 government, carefully preserved to the states the exer- 
 cise of such authority as was not needed for the general 
 safety and welfare of the nation ; and denied to the 
 states the exercise of such authority only as more 
 properly belonged to the general administration. 
 
 § 275. To the house of representatives thus consti- 
 tuted is committed the sole power of impeachment. 
 This is the manner in which one high in ofl8,ce, having 
 been guilty of a breach of his official trust, is arraigned 
 to answer before the people for such delinquency.^ Since 
 government is essential to the existence and well-being 
 of society, and can be administered only by intrusting 
 individuals with the exercise of the public authority, 
 those who are thus intrusted are under the highest obli- 
 gations to administer with sole reference to the public 
 good. Consequently, when such an one becomes faith- 
 less in the execution of his trust, and uses the public 
 authority to the detriment of society, he commits a 
 crime against the people, deserving the severest punish- 
 ment ; for he not only deprives society of the benefits 
 of a proper administration of his office, but he so uses 
 the power committed to him as to tend to the subversion 
 of the very interests he was placed there to jiromote. 
 His crime will be in proportion to the magnitude of 
 the public interests betrayed. But whatever it may 
 be, the safety and welfare of the pubhc require that 
 he be speedily removed, and the trust be committed to 
 worthier hands. 
 
 2 276. But to remove such officer, justice requires that 
 he should be tried before some proper tribunal, and 
 have an opportunity of vindicating his official conduct ; 
 that he should be found guilty before all the people, 
 and that the solemn judgment of an impartial tribunal 
 should pronounce his guilt. The nature of the crime 
 committed, the official position of the culprit, and the 
 importance of the proceeding to the public, require a 
 
 1 " An impeachment, as described in the common la-w of England, is a pre- 
 sentment by the liouse of commons, the most solemn and grand inquest of the 
 ■whole kingdom, to the house of lords the most high and supreme court of 
 criminal jurisdiction of the kingdom. The articles of impeachment are a kind 
 of bill of indictment found by the commons, and tried by tlie lords, who are, 
 in cases of raisdemeanors, considered not only their own peers, but as the 
 peers of the whole nation." "The object of prosecutions of this sort, is to 
 reach high and potent offenders, such as might be presumed to escape punish- 
 ment in the ordinary tribunals, either from their own extraordinary influence, 
 or from the imperfect organization and powers of those tribunals." (Story's 
 Com. on Const. U. S., 1 6S8 and notes.) 
 
LEGISLATIVE DEPARTMENT. 131 
 
 tribunal of peculiar construction ; one in which the 
 people, whose trusts had been betrayed, may be repre- 
 sented in the arraignment of the offender ; but one, 
 nevertheless, whose judgment cannot be biased by popu- 
 lar clamor. The public welfare demands, that official 
 misconduct should be punished; that those guilty of 
 maladministration in otfice should be removed ; that 
 fidelity to the public trust should, at all times and in all 
 I)laces, be maintained ; and it, therefore, requires that 
 the authority to impeach and try a public officer should 
 be intrusted only in the hands of a most responsible 
 tribunal ; one in which there is to be found the highest 
 wisdom, prudence, integrity and public virtue. It should 
 be a tribunal in which the power, the dignity and wel- 
 fare of the nation could, by no possibility, be betrayed. 
 % 277. Trials by impeachment have reference only to 
 public character and official duty. In general, those 
 offenses against society which can be committed alike 
 by private persons and public officers, are not the sub- 
 jects of im[)eachment. The constitution provides, " that 
 the president, vice-president, and all civil officers of the 
 United States, shall be removed from office on impeach- 
 ment for, and conviction of, treason, bribery, or other 
 high crimes and misdemeanors.^ That the house of 
 representatives shall hav^e the sole power of impeach- 
 ment,"^ and that "the senate shall have the sole power 
 to try all impeachments." ^ All offenses not immedi- 
 ately connected with office, except the two expressly 
 mentioned, are left to the ordinary course of judicial 
 proceedings ; and neither house can regularly inquire 
 into them exce[)t for the purpose of censuring or expel- 
 ling the member. But in respect to impeachment, the 
 ordinary tribunals are not precluded, either before or 
 after conviction, from taking congnizance of the public 
 and official delinquency.* 
 
 I Art. 2, §4. 2 Art. 1, ? 2, cl. 4, idem. 3 Art. 1, § 3, cl. 6, idem. < Rawle on the 
 Constitution, 204. See No. 65 Federalist, in appendix, p. — 
 
 Tlie term "impeachment" is introduced into the constitution as one of 
 known definition, and, therefore, recourse must be had to the common law 
 of England for the definition thereof. •' In England, the practice of impeach- 
 ment by the house of commons before the house of lords, has existed from 
 very ancient times. Its foundation is, that the subject intrusted with the 
 administration of public aflfairs, may sometimes infi-inge the rights of the 
 people, and be guilty of such crimes as the ordinary magistrate either dare 
 not or cannot punish. Of these, the representatives of the people, or house of 
 commons, cannot judge, because they and their constituents are the persons 
 injured, and can, therefore only accuse. But the ordinary ti-ibunals. would 
 naturally be swayed by the authority of so powerful an accuser. That branch 
 of the legislature which represents the people, therefore brings the charge 
 before the other branch " — the senate here, the house of lords in England — 
 "who are said not to have the same interests, or the same passions as tho 
 popular assembly." (Rawle on the Const., p. 198; 1 Bl. Com., 259.) It is not 
 strictly true, that the senators have not an equal interest with the representa- 
 
132 GOYEENMENT. 
 
 § 278. The house of representatives is properly 
 intrusted with this power of impeachment ; not as a 
 legislative body, but as a body of the representatives 
 of the nation, coming, as they do, from every part 
 thereof. As an ofiicial body, they are nearer the people 
 than any other. They feel more quickly the effects of 
 maladministration ; and they are, therefore, the proper 
 body to complain, and frame an accusation against the 
 alleged delinquent. It is not to be supposed that a 
 body composed like the house, of members from all 
 political parties, immediatelj^ representing the various 
 interests of the people, will be likely to accuse a high 
 officer, or present articles of impeachment against him, 
 without probable cause. It is not to be supposed that 
 any political party, from mere party spirit or strife, will 
 corruptly undertake to lay their hands upon a faithful 
 public officer, that they may make place for some 
 partisan favorite. The people would see in such a pro- 
 cedure the sure destruction of all governmental security 
 and x^rotection ; and would avail themselves of the 
 earliest opportunity to hurl from power such partisan 
 criminals, and put better men in their places. 'No party 
 will undertake to impeach a high officer of the govern- 
 ment, when the evidence of criminality is not sufficiently 
 clear to warrant a conviction, not only in the minds of 
 the senators, but also in the minds of the people. 
 
 g 279. Experience has proved that, however guilty in 
 the exercise of the trust committed to him the official 
 delinquent may be, it is extremely difficult to procure a 
 conviction on the trial of an impeachment. It proves 
 that the leading men of the political party to which the 
 delinquent belongs, will not be disposed to commence 
 the ijrosecution. There is a general sentiment that the 
 political party is responsible for the official misconduct 
 of those it elects to office ; and, therefore, there is a 
 disposition in the party to apologize for, or conceal the 
 delinquency, rather than to expose or x)unish the delin- 
 quent. For these reasons, impeachments are usually 
 prosecuted by the political opponents of the accused. 
 Consequently, the political friends of the delinquent are 
 liable to be influenced to make common cause against 
 the prosecution, and to defend with the zeal and reck- 
 lessness of a political party, on trial for its political sins. 
 
 tives in the fidelity of public officers; but it is true that the members of the 
 senate are selected from a senior class in society ; and the body is composed of 
 men wlio are supposed to be nriore emhient in native and acquire ability ; men 
 of more refinement and higlier culture, than those generally composing the 
 house. 
 
LEGISLATIVE DEPARTMENT. 133 
 
 Thus, the party lines may be closely drawn, and the 
 question of ^^iiilt or innocence be determined by party 
 discipline, rather than by the evidence submitted. And 
 it is seldom that either party can command the consti- 
 tutional majority requisite for a conviction. But even 
 when the requisite party majority exists, there often are 
 men of either ijarty who may be subject to influences 
 of divers kinds ; and the friends of the accused, when- 
 ever it becomes necessary, will be likely to find the 
 means of detaching a sufficient number from the side 
 of the prosecution to prevent conviction. 
 
 S 280. An attempt at impeachment, accompanied 
 with a failure to convict, is disastrous to political and 
 public morals. The evidence may disclose official mis- 
 conduct ; infidelity to the sacred trust committed to the 
 delinquent; the powers committed to him, to be exer- 
 cised for the public welfare, perverted to corrupt 
 individual or i^artisan purposes ; thus showing reck- 
 lessness, dishonesty and corruption. Yet the trial will 
 be likely to exhibit a great political party, excusing or 
 conniving at such official misconduct; making light of 
 it ; palliating it as not uncommon to political parties, or 
 oiiicial incumbents ; asserting, in effect, that strict fidel- 
 ity in official administration is not to be expected. 
 Then comes the acquittal, virtually sanctioning by its 
 judgment, official delinquency and party corruption ; 
 licensing those in office to be dishonest and corrupt ; 
 encouraging them to be so, by the respectability of 
 those who have con^mitted, or now apologize for and 
 excuse, such delinquency, thus sanctioned by the judg- 
 ment of the highest and most solemn tribunal of the 
 state or nation. The tendency and result in such case is 
 to make dishonesty and corruption in office respectable, 
 and venality the spirit and rule of official administra- 
 tion ; until, finally, the people cease to expect or require 
 fidelity on the part of those intrusted with the exercise 
 of governmental authority. 
 
 § 281. But notwithstanding all these dangers, courts 
 for the impeachment of high officials for crimes com- 
 mitted against society by the abuse of official powers, 
 are necessary. And it should be the constant aim of 
 those intrusted with the exercise of legislative authority 
 to provide certain and just means for bringing official 
 delinquents to a speedy accountability. There is wisdom 
 and power sufficient, and there are means competent to 
 be employed under the sanction of legislative authority, 
 
134 GOVERNMENT. 
 
 to hold to a strict accountability every oflQcial incum- 
 bent. The mass of society are sufficiently capable and 
 honest to know the necessity for fidelity on the part of 
 those intrusted with the administration of the govern- 
 ment, and to require of them the exercise of such 
 fidelity. Let honest, earnest, patriotic men take charge 
 of the primary assemblies, in which these corrupt 
 streams of maladministration have their origin, and 
 which are now usually controlled by venal and designing 
 politicians, and the mischief would soon be remedied. 
 The remedy should be applied at the root of the evil, if 
 a vigorous and healthy administration of tl^e public 
 authority is to be hoped for or expected. _) 
 
 g 282. A member of the house is elected for two 
 years, marking the period of congressional duration* 
 There have hitherto been two sessions, designated as 
 the first and second sessions of the particular congress; 
 and whenever, for any cause, a special session has 
 been called, then a third session has been held. The 
 organization at the first session continues through the 
 succeeding ones ; so that, notwithstanding there may 
 be several sessions of a particular congress, there is but 
 one organization of it. The term of two years was 
 unanimously agreed upon as the proper period of con- 
 gressional duration. A less period than two years 
 would have been too short for maturing many important 
 measures in respect to which legislation is required; 
 and as each successive congress is composed, to a large 
 extent, of new and inexperienced members, the labors 
 of a prior congress could not readily be continued in 
 the succeeding one, without involving a repetition of 
 their former labors. Besides, whatever may be the 
 ability of a new member, experience is necessary to 
 make him a practical and ready legislator. Two years 
 are scarcely sufficient to make one so familiar with the 
 routine of legislative duties as to constitute him a prac- 
 tical legislator ; and it is generally bad policy for the 
 X^eople to exchange a faithful and experienced represent- 
 ative for an inexperienced one. 
 
 § 283. It should be the object of every constitutional 
 government to secure men to administer in its several 
 departments, who possess wisdom to discern, and virtue 
 to pursue, the common good of society. And it should 
 provide every safeguard against a departure from these 
 principles, so that fidelity in the administration of the 
 public authority would be secured. Therefore, great 
 
LEGISLATIVE DEPARTMENT. 135 
 
 care should be observed in selecting men of ability, 
 intelligence and integrity to represent tbe people in the 
 bouse ; and by limiting their term of oflBce to two years, 
 they are held to an immediate responsibilitj'- for the 
 manner in which they discharge their duties. But 
 should a representative by his ability and fidelity, serve 
 faithfully his constituents, it would be wise and just on 
 their part, to elect him for a second, or even for many 
 succeeding terms. For while he continues faithful to 
 the trusts committed to him the longer he serves, the 
 more experience and practical ability will he acquire ; 
 and, consequently, tbe more efficient will he be in the 
 service of his constituents. It is bad policy for the people 
 to exchange a faithful and experienced representative 
 for an untried one, whatever may be his pretensions or 
 promise. Prudent men in the administration of their 
 own affairs, are never guilty of such folly. In demo- 
 cratic countries, no man has any personal claims for 
 office ; and whoever sets up such claim, evinces an 
 intention to serve himself, rather than to serve the 
 public ; and upon every principle of prudent precaution 
 his claims should be discarded. 
 
 § 284. It is better, however, that the term of office 
 of a member of the house should be limited to two 
 years, than to continue longer; and then, if the member 
 proves to be faithful and efficient, to reelect him for a 
 second term. In this way immediate responsibility is 
 secured, together with the benefits of an experience 
 incident to a longer term. The people would generally 
 adopt this practice, were they not influenced to the con- 
 trary by a class of ambitious men, who are constantly 
 setting up claims for office, and insisting that their turn 
 to serve the people is at hand. The cry of rotation in 
 office is often uttered by those who are impatient to 
 plunder the jjublic ; and when no other reason can be 
 asigned why an official incumbent should be dismissed 
 than that he has been in office a long time, the pre- 
 sumption is, the common welfare requires that he should 
 be continued. For if his administration has been so 
 faithful that no fault can be found, he is the man of all 
 others to continue ; and had it not been so, one anxious 
 to displace him would be likely to discover it, and 
 allege it as a reason why he should be dismissed. 
 
 § 285. Too much attention can scarcely be given by 
 the people to this subject. To secure responsibility 
 on the part of the representative, there should be short 
 
136 GOVERNMENT. 
 
 terms of office. To encourage fidelif^y and secure 
 efficiency in the discbarge of its duties, those who 
 have been faithful, and have evinced the proper and 
 necessary ability, should be continued by reelections ; 
 and, as a general principle, it should be understood that 
 the public welfare demands no change while the incum- 
 bent is competent and faithful to his official trusts. 
 Nothing tends more directly to drive honest and faithful 
 men from the field of political administration, than to 
 be obliged to come into competition with designing and 
 dishonest demagogues, and to deal with office as though 
 it were a political bone to be seized b}^ hungry dogs 
 starving for official pap. When, to obtain a nomination 
 for an office, or an election, money must be spent by the 
 candidate to buy up the influence of professional wire- 
 workers, or to corrupt the suffrage of the people, men 
 of real virtue and integrity of character will seldom be 
 found to be candidates for office ; and, as a result, the 
 tricky, dishonest and corrupt will be likely to bear sway 
 in the political arena; at least, such will be the ten- 
 dency ; the people will be swindled, and the ijublic 
 welfare betrayed. 
 
 g 286. The continuance of the official term of a mem- 
 ber of congress should be of longer duration than that 
 of a member of a state assembly. A member of con- 
 gress is required to become familiar with subjects of 
 international administration in resjDect to commercial 
 intercourse, etc. He is also to legislate, touching public 
 interests affecting all the states ; while a member of the 
 state legislature is only required to be familiar with 
 the habits, manners, institutions, occupations and laws 
 of his own state, to qualify him generally for a state 
 legislator. In a single state, the pursuits and occupa- 
 tions of the people are more homogeneous and uniform ; 
 and, consequently, it is less difficult to ascertain and 
 understand the legislation required to foster and protect 
 them ; and, beside, the people of a single state are more 
 familiar with the principles of their domestic adminis- 
 tration, because more immediately connected with them 
 in their daily application to the common pursuits. 
 Prom divers considerations of this character, it is appa- 
 rent that it is necessary to make the official term of a 
 member of the house of congress of longer duration 
 than that of a member of the corresponding branch in 
 the state legislature. 
 
LEGISLATIVE DEPARTMENT. ]37 
 
 % 287. A member of the house of representatives is 
 required, at the time of his election, to be an inhabitant 
 of the state from which he is chosen. The constitution 
 does not determine the length of time he must have 
 resided in the state prior to the election, nor in what 
 particular part of the state he should reside. These 
 questions are left to the determination of the people. 
 There can be no doubt that congress may, by law, 
 determine these questions, whenever it shall appear that 
 the general welfare requires them to do so. But as the 
 member is to represent the people of his particular state 
 in the congress, it is more in harmony with democratic 
 principles tQ permit the people of the several states to 
 adjust these questions according to their best judgment. 
 It would be wise to require that the member should 
 have resided in the state long enough to have become 
 acquainted with the interests and views of his particular 
 constituency ; and that he should be so located as to be 
 likely to understand their requirements, and to feel his 
 responsibility to them. But the question of particular 
 location should be left to the good sense of the people 
 of the district selecting a member. It may happen that 
 the man best suited to represent them resides in some 
 other district of the state; in which case they should be 
 permitted to return him as their member. And it not 
 unfrequently happens that good men, whose services are 
 required by the public, reside in districts adverse to 
 them in politics ; and, therefore, can be sent to congress 
 only b}'' the suffrages of some other district. In such 
 cases, the people should be permitted to select such, 
 without regard to the particular district in which they 
 reside, because they would thus best represent the 
 popular interests, and promote the general welfare of 
 the nation. 
 
 18 
 
138 GOVERNMENT. 
 
 CHAPTEE YIII. 
 
 THE LEGISLATURE — THE SENATE. 
 
 § 288. The senate of the United States is composed 
 of two senators from each state, chosen by the legis- 
 lature thereof, for six years; and each senator is entitled 
 to one vote. The constitution provides for dividing the 
 whole number of senators into three classes, in respect 
 to the time when the official term shall commence, and, 
 consequently, when the same shall expire. It declares 
 that, " immediately after they" — the senators — "shall 
 be assembled, in consequence of the first election, they 
 shall be divided as equally as may be, into three classes. 
 The seats of the senators of the first class shall be 
 vacated at the expiration of the second year; of the 
 second class, at the expiration of the fourth year ; and 
 of the third class, at the expiration of the sixth year." ^ 
 By this provision the senate is made a continuous body; 
 and is, in this respect, likewise, unlike the house, which 
 continues but for two years, when a new body is required 
 to be organized. 
 
 § 289. In the constitution of the senate as a political 
 body, two features are particularly prominent. First, it 
 is not a representative body. Second, it is a continu- 
 ing or perpetual body, intrusted with some duties not 
 strictly legislative, although it constitutes one branch 
 of the legislature. By not being a representative body, 
 is meant, the senate does not represent a popular con- 
 stituency. It is claimed, however, that it represents the 
 states in their political or organic existence ; and that 
 thus, through the senate, a quasi confederation of the 
 states exist as a part of the general government. And 
 an attempt to sustain this view is made by appealing to 
 the discussions in the convention which framed, and the 
 
 1 At the first session of congress under the constitution, the division of the 
 senators into tliree classes was made in the manner following : The senators 
 present were divided into three classes by name, the first consisting of six, the 
 second of seven, and the third of six. Three papers of equal size, numbered 
 one, two and three, were by the secretary rolled up and put into a box, and 
 drawn by a committee of three persons chosen for the purpose, in behalf of the 
 respective classes in which each of them was placed ; and the classes were to 
 vacate their seats in the senate according to the order of the numbers drawn 
 for them, beginning with number one. It was also provided, that when sena- 
 tors should take their seats from states which had not then appointed senators, 
 they should be placed by lot in the foregoing classes, but in such a manner as 
 should keep the classes as nearly equal as possible. (Journals of Senate, 1.5th 
 May, 1789, pp. 25, 26.) In arranging the original classes, care was taken that 
 both senators from the same state should not be in the same class, so that there 
 never should be a vacancy at the same time of the seats of both senators. 
 (Story's Com. on Const., § 726.) 
 
THE LEGISLATURE— THE SENATE. 139 
 
 several conventions which adopted, the constitution. 
 It is not denied that there were those who advocated 
 this feature in the constitution of the senate, upon the 
 ground that the senators were the representatives of 
 the states, as political bodies ; and that the security 
 of the smaller states demanded an equal representation 
 with the larger ones, in the senate ; and they insisted 
 upon such representation of the states. But such is not 
 the principle involved in the constitution of the senate, 
 as a branch of the national legislature, or as a repre- 
 sentative body of the states. 
 
 § 290. The senators are not the representatives of the 
 states as political institutions ; nor are they in any 
 essential particular the especial guardians of the political 
 rights of the states against the possible encroachments 
 of the general government. In that respect they have 
 no duty to perform not common to the members of the 
 house of representatives ; and it is no more the duty of 
 the senator to see to it that the general government, 
 in the administration of the powers committed to its 
 exercise, keeps strictly within its constitutional limits, 
 than it is the duty of the representative. Both are 
 sworn to obey the requirements of the constitution in 
 the exercise of their official trusts, and each are equally 
 bound to do so. 
 
 § 291. At the time the general government was insti- 
 tuted, the people of the United States, as represented 
 in their political discussions, felt the need of a national 
 government, to be intrusted with authority to administer 
 in all matters pertaining to the general welfare of the 
 nation. It was the almost universal conviction that 
 the states, as political institutions, could not be intrusted 
 with such administration. But there were serious appre- 
 hensions lest a great central government might be 
 formed, and all governmental authority be cousolidated 
 in it, by means of which the state institutions might 
 become absorbed, and the people be deprived of control 
 in the administration of their local and domestic affairs. 
 There were, likewise, apprehensions on the part of 
 others lest the people, jealous of power not within their 
 immediate control, and fearing the influence and oppres- 
 sions of a strong government, like the one from which 
 they had just emancipated themselves, should go to the 
 other extreme, and destroy the national unity by state 
 division and disintegration. Their discussions show the 
 presence of these two classes in the federal and state 
 
140 GOVERNMENT. 
 
 coiiventious. The one party was accused of being in 
 favor of a consolidation of all authority in the general 
 government, to the destruction of the states; the other 
 was accused of adhering to the rights of the several 
 states, to the destruction of the nation. 
 
 § 292. This difference of opinion was natural. The 
 ultimate effect of adopting the one or the other was 
 problematical ; for they were unaided by any historical 
 parallel. Here were people — citizens of thirteen inde- 
 pendent states, consolidated into one nation by a united 
 and successful effort at establishing their common inde- 
 pendence. They were a nation ; but to continue sucli, it 
 was necessary to institute a national government. That 
 necessity was immediate and imperative. And the gov- 
 ernment to be instituted must be supreme in the exercise 
 of its authority, or it could not secure the existence, 
 maintain the independence, and promote the welfare of 
 the nation. To make it, in its administration, dependent 
 upon the diverse, and perhaps adverse wills of others, 
 was to deprive it of the exercise of that authority 
 which was indispensable to the dignity and authority 
 of a government administering for a sovereign nation. 
 But, on the other hand, the people were already living 
 under state governments, instituted and administered 
 by themselves. These governments were intrusted with 
 the exercise of such authority as was necessary for the 
 administration of their local and domestic affairs, and it 
 was clear that no other government more general in its 
 administration, could possibly administer so well, and 
 secure to each citizen such exact justice. And, while 
 they admitted the necessity for a government to admin- 
 ister in national affairs, and were anxious to devise one 
 that could do so without danger to the states, the great 
 X)roblem to be solved was — how can such a government 
 be instituted? and what must be its constitutional 
 structure ? 
 
 § 293. The advocates of a strong national government 
 were not hostile to the continuance of the govern- 
 ments of the several states, within a sphere of authority 
 that would not endanger the necessary eiSficiency of 
 the government required for the stability, dignity 
 and prosperity of the nation. Nor were the advocates 
 of the continued independence and authority of the 
 state governments hostile to the institution of a 
 national government, upon a basis that would not 
 endanger the liberties of the people, secured by their 
 
THE LEGISLATURE— THE SENATE. 141 
 
 own administration of tlae state governments. They 
 were not only willing, but desirous to ascertain some 
 means of establisbiug a general government for the 
 nation, which, while it would be most efficient in admin- 
 istering the authority of the nation in all matters 
 pertaining to its security and welfare, would at the same 
 time be so limited, as to have no power to encroach upon 
 the people of the states in the administration of their 
 local and domestic affairs. And in all discussions of 
 these questions it is to be remembered, that with the 
 founders of the American governments the great desid- 
 eratum was, to ascertain a mode in which the principles 
 of self-government might be successfully applied to the 
 administration of national and state interests. 
 
 g 294. The founders of these governments were 
 embarrassed in attempting to establish a system of 
 national and state administration, by confounding the 
 authority of the government with the authority of 
 the people instituting it. And the difficulties experi- 
 enced by them in finding a true theory of administration, 
 arose out of the evident incompatibility between two 
 governments over the same territory, embracing the 
 same subjects, being each sovereign and absolute in 
 their authority. The feeling was, that both could not 
 be sovereign ; that one must be inferior to the other ; 
 or, at least, one must have a check upon the other, so 
 as to be able to prevent encroachments upon its rights. 
 Yet to make the general government supreme, was to 
 endanger the existence of the states ; to make the 
 states sovereign, was to cripple and ultimately paralyze 
 the nation. These difficuties were inevitable, upon the 
 hypothesis that there were two sources of authority in 
 the general and state governments. If there were two 
 sovereignties to be administered over the same people 
 and within the same territorial limits, the difficulties 
 were insuperable. They perceived the truth of the 
 doctrine of the revolution, that the authority to be 
 administered by the government is the authority of the 
 people, and that the government has no authority of its 
 own ; but they had not carefully applied it in detail, 
 in the institution and administration of government. 
 The minds of American statesmen had been occupied 
 more with vindicating their rights against the encroach- 
 ments of arbitrary power, than in theorizing upon the 
 best form of actualizing their principles in the structure 
 of a national government. After they had established 
 
142 GOVERNMENT. 
 
 their independence, and it had become necessary to 
 institute a government to perpetuate it, their attention 
 was then turned to this subject ; and the foregoing 
 views represent their first impressions. 
 
 g 295. But the fear lest the general government 
 would, if supreme and unchecked by the states, encroach 
 upon state authority and state rights, ceased, when 
 it was remembered, that the same people by whose 
 authority the general government was to be instituted 
 and to be administered, were also citizens of the 
 states, and equally interested in maintaining state 
 administration ; and the like fear lest the states should 
 usurp national authority, was perceived to be without 
 foundation, when it was remembered that the citizens 
 were, likewise, citizens of the nation, and equally 
 interested in maintaining the authority of the general 
 government. When, after much discussion, it was per- 
 ceived that the state and national citizens were one and 
 the same ; that their general and local interests centered 
 in the same individuals ; that the national citizen was 
 likewise a state citizen, and vice versa, the fear lest the 
 citizen of the nation should turn upon himself, as 
 the citizen of a state, and rob or destroy himself, seemed 
 absurd ; and, therefore, the fear of centralization of 
 power on the one hand, or diffusion of it among the 
 states on the other, ceased ; and thus the people were 
 enabled to establish a general government upon the 
 true democratic theory. Such were the comjjromises 
 of the constitution. 
 
 % 296. The compromises of the constitution, so called, 
 consisted in harmonizing the views of those entertaining 
 these opposite opinions, and in their agreement upon a 
 plan of government in accordance with the democratic 
 theory enunciated by the fathers of the revolution — 
 the theory that the people ^are the source of govern- 
 mental authority — that governments are instituted by 
 the people for the administration of their authority — 
 that there is but one source of authority to be adminis- 
 tered, either by the general or state governments, 
 although there may be several distinct administrations. 
 In short, by compromises is meant, one party renounced 
 consolidation on the one hand ; the other, national 
 disintegration; and both nnited in providing for the 
 administration of public authority, through the instru- 
 mentality of the general and state governments, allotting 
 to each the exact sphere in which it was to administer. 
 
THE LEGISLATURE— THE SENATE. 143 
 
 To the general government was committed the adminis 
 tration of the nation's authority in relation to subjects 
 pertaining to its common defense and general welfare. 
 To the state governments was commttted tlie exercise 
 of whatever authority remained essential to the internal 
 administration in respect to local and domestic interests. 
 And whatever was not committed to either, remained 
 with the people, to be exercised by them whenever 
 occasion might make it necessary. 
 
 § 297. When it is remembered that government as a 
 corporate institution, belongs to the people, and is an 
 instrument of administration merely, and can exercise 
 no authority not intrusted to it, and can exercise the 
 powers delegated only for the purposes prescribed, it 
 does not become a very complex question to assign to 
 it the true sphere of its duties and action. When the 
 sovereign authority to be administered is distinguished 
 from the authority of the administrator ; that is, when 
 the authority of the creature is distinguished from the 
 authority of the creator, there will be less liability to 
 err in treating upon the authority and powers of gov- 
 ernment. The general government of the nation as 
 instituted by the people of the United States, is but an 
 instrument in the hands of the nation for administering 
 its authority in the manner prescribed. For any other 
 purpose, it has no rights, interests, authority or exist- 
 ence. Let not the people be deceived, then, by speaking 
 of the general government as though it were an entity 
 aside from the purposes for which it was instituted. It 
 is the same, also, in respect to the state governments. 
 They are merely corporate rustitutions, created to be 
 used as instruments in the hands of the people for the 
 administration of the public authority in matters per- 
 taining to their domestic interests. For any other 
 purpose, they have no rights, interests, authority, or 
 even existence. Therefore, let no one be deceived by 
 supposing them to be institutions having an existence 
 and authority, independent of the purposes for which 
 they were created. State rights and state authority can 
 mean nothing other than the rights and authority of 
 the people of the states ; or the authority intrusted to the 
 exercise of these local institutions. Therefore, when it 
 is said, the senate of the United States is the representa- 
 tive body of the states as political institutions, it is to 
 be understood that the seuate represents the wisdom, 
 discretion, prudence, foresight and dignity of the people 
 
144 GOVERNMENT. 
 
 collectively, as a check upon the indiscretion, impulse, 
 haste and want of foresight, in the individual masses ; 
 otherwise, it means nothiug. 
 
 g 298. When, therefore, it is said that the senate as a 
 branch of the general government,- represents the states 
 therein, in a manner different from that in which they 
 are represented by the house of representatives, it should 
 be understood that the senate represents the collective 
 wisdom, virtue, prudence, foresight and dignity of the 
 state, as distinguished from that individual interest, 
 feeling, impulse and indiscretion, which is more immedi- 
 ately represented by the members of the house, coming, 
 as they do, from the immediate presence of a popular 
 constituency. The senator certainly does not represent 
 the state or its interests, as separate from the people 
 and their interests ; that is, he does not represent the 
 iustitution called a state government in respect to in- 
 terests, rights, authority and existence, separate from the 
 people, because the state has no such interest, rights or 
 existence to be represented in the general government, 
 or elsewhere. ^ 
 
 ,§299. It was the manifest design of the people in 
 dividing the legislative department of the government 
 into two distinct branches, and in giving to the Senate 
 a constitution distinct and dissimilar from the consti- 
 tution of the house of representatives, to give to the 
 senate the character and influence in the exercise of 
 governmental authority, which would naturally attach 
 to a body thus selected and constituted. The peo- 
 ple were to be equally represented in the house; but 
 they were not to be represented at all in the senate. 
 That body was, so far as legislation is concerned, insti- 
 
 1 In speaking upon the subject of the constitution of the senate, Mr. Gerry 
 said, " the evils we experience flow from tlie excess of democracy." (5 Lipp. 
 Ell. Deb., 136.) Mr. Mason thought the house of representatives ought to be 
 elected by the people, and be made the grand depository of the democratic 
 principle of the government. It was, so to speak, to be our house of commons. 
 It ought to know and sympathize with every part of the community, and 
 ought, therefore, to be taken from the different parts of the republic. (Id.) Mr. 
 Wilson advocated the same doctrine. Mr. Madison considered the popular 
 election of one branch of the national legislature as essential to every plan of 
 free governnaent. He was an advocate for the policy of refining the popular 
 appointments by successive flltrations, but thought it miglit be puslied too far. 
 He wislied the expedient to be resorted to only in the appointment of the 
 second branch of the legislature, &c. (Madison's Papers, 5 Lipp. Ell. Deb., pp. 
 136, 137.) Mr. Dickinson thought it essential that one branch of the legislature 
 should be drawn immediately from, the people, and that the other should be 
 elected by the state legislatures ; that in the formation of the senate, it ought 
 to be carried through such a refining process as would assimilate it as nearly 
 as might be to tlie house of lords in England. Mr. Pierce was for an election 
 by the people as to the first branch, and by the states as to the second branch. 
 Mr. Read thought there was too much attachment betrayed to the state gov- 
 ernments. He thought we must look beyond their continuance : that the 
 national government must soon swallow them up. Mr. Wilson saw no incohi- 
 patibility between the national and state governments, provided the latter 
 were restrained to certain local purposes, &c. (Id., pp. 163, 164.) 
 
THE LEGISLATURE— THE SEN" ATE. 145 
 
 tnted to aid the nation by the exercise of a judgment, 
 prudence, foresight and wisdom not supposed to be pos- 
 sessed by a body of men elected by a local popular 
 constitueucy. It was deemed wise to commit the selec- 
 tion of senators to the legislatures of the several slates, 
 because, it was argued, the legislatures will select their 
 candidates from a class of men of higher standing, and 
 better educated, than will the masses, if the selection be 
 committed to them. When the legislature, representing 
 the collected wisdom and dignitj^ of the commonwealth, 
 select men to represent that wisdom and dignity in the 
 senate of the nation, it is not to be supposed that it will 
 select those who are below its estimated standard of 
 ability and dignity suited to represent such body, but on 
 the contrary, that it will take care to select from a 
 class of men the most talented and distinguished in the 
 state, to exercise the x>owers and discharge the duties 
 pertaining to the highest deliberative body in the nation. 
 And this anticipation of the fathers has hitherto been 
 realized ; for it is safe and just to aflSrm of the United 
 States senate, that, as a deliberative body, it has never 
 been excelled in point of intelligence, ability and dignity, 
 by any other deliberative body in the world. 
 
 ^ 300. It has been said that the very structure of the 
 general government contemplated one partly federal 
 and jjartly national. If by federal is meant that the 
 state governments as political institutions, are repre- 
 sented in, or can exercise any authority over, the general 
 government, or that they have any authority of their 
 own to exercise in respect to the general government, 
 the proposition is denied. The argument that the people 
 recognized the existence of the state governments, as 
 sovereign and inde[)endent in respect to each other, and 
 that they continued them, proves nothing in favor of the 
 quasi federal theory. The people of the United States 
 as a nation had sovereign authority to establish for 
 themselves such government, and to authorize it to 
 exercise such powers as they thought proper, independ- 
 ent of the existence of state governments. And they 
 likewise had authority to take from these state institu- 
 tions the exercise of any or all powers, and to confer the 
 same upon the general government ; and the fact that 
 they did not do so, proves that they did not deem it 
 expedient; not that they did not possess the authority. 
 The same authority which instituted the general govern- 
 ment, and conferred upon it the powers enumerated in 
 
 19 
 
146 GOVERNMENT. 
 
 the national constitution, could have conferred upon it 
 all other governmental authority to the destruction of 
 state jurisdiction. But the people deemed it best to 
 institute the general government and confer on it the 
 exercise of such public authority as was required to pro- 
 vide for the common defense, security and welfare of 
 the people as a nation ; and to commit the exercise of the 
 residue of their authority, so far as the same was neces- 
 sary for domestic purposes, to the local administration 
 of the states. But in doing this, there was no acknowl- 
 edgment, either expressly or by implication, that the 
 states, as such, had any original inherent sovereignty, 
 or were in any manner, as political institutions, to have 
 a voice in the administration of the general government ; 
 nor did they, in fact, give them away. New York as a 
 state government is unrepresented at Washington, while 
 New York as a people or part of the nation, is fully rep- 
 resented there.^ 
 
 '§, 301. The argument entitled to the greatest consider- 
 ation in favor of giving to state legislatures authority 
 to choose their own senators in the manner prescribed, 
 had reference to the inevitable character of a body thus 
 selected and constituted. There were duties to be 
 devolved upon that body which required that the mem- 
 bers thereof should be men of great wisdom, experience, 
 discretion, judgment and dignity. These qualifications 
 were of more importance to the people than that the 
 members should come from any particular district or 
 state. The duties to be performed by that body had 
 respect to no particular locality within the nation. As 
 a branch of the legislature they were to supervise the 
 
 1 Says Story (Com. on Const., ? 69S) : " In the first place ttie very structure of 
 the general government contemplated one partly federal and partly national. 
 It not only recognized the existence of the state governments, but perpetuated 
 them, leaving them in the enjoyment of a large portion of the rights of sov- 
 ereignty, and giving to tlie general government a few powers. The general 
 government was, therefore, upon the acknowledged basis, one of limited 
 and circumscribed powers ; the states were to possess the residuary powers." 
 What does all this prove in favor of tlie federative theory ? The people of the 
 nation having sovereign authority, in virtue of tlieir existence as such, to 
 create such institutions for administrative purposes as they deem best, create 
 a national government, and confer on it jurisdiction over all matters pertain- 
 ing to tlie external admlnisti'ation of national authority, and also over such 
 matters pertaining to the internal administration, as local institutions were 
 not competent to administer ; but in respect to sucli other matters of internal 
 administration as pertain to the local and domestic interests of the people, 
 the nation leaves them to tiie adra.inistration of the state governments, assert- 
 ing, however, its authority over the whole subject. Now, where is to be found 
 the recognition of state sovereignty, or state authority even, as independent 
 of the nation? The idea that the states, as independent sovereignties, were 
 entitled to representation in the administration of the general government, 
 leads to constant error. The people of the states in respect to popular rights 
 and interests wei-e represented; wliat was tliere in tlie government, independ- 
 ent of the people, that required to be represented in the general government? 
 and how, practically, are the states politically represented by the United States 
 senators ? 
 
THE LEGISLATURE— THE SENATE. 147 
 
 action of the house, and bring to the test of superior 
 wisdom, great experience and calm judgment, the pro- 
 posed enactments of the house of re[)resentatives. The 
 senate was to constitute the liighest tribunal in the nation 
 for trying impeachments ; it was to be associated with 
 the president in making treaties with foreign nations ; 
 also in appointing embassadors and other public minis- 
 ters and consuls; judges of the supreme court, and other 
 ofhcers. For these reasons it was deemed important to 
 secure, as members of that body, the best men the 
 nation could produce. Therefore, the selection of them 
 was committed to the legislatures of the several states, 
 rather than to a popular constituency. And experience 
 has demonstrated that the state legislatures, in selecting 
 men for senators of the United States, have usually 
 sought them among those who, as a class, stood highest 
 in the state for ability, intelligence, culture, refinement, 
 worth and dignity ; and the character of the senate thus 
 composed is such, that the bestowal of its office confers 
 the highest honor upon the person receiving it.^ 
 
 ^ 302. He only can be deemed an honest and i)atriotic 
 citizen wlio seeks the highest good of his country by the 
 employment of every means in his power essential to 
 that end. Observation and reflection teach that there 
 are duties to be performed, essential to the well-being 
 of society, which require, in their performance, the 
 exercise of the highest qualities of the mind; qualities 
 which can be found only in a class of men, fitted by 
 natural endowment, and by the discipline of a liberal 
 education and long practice. Tiie relations of society 
 to the individual members thereof, impose duties of this 
 character upon every government, whether popular, 
 aristocratic, or monarchical. The good of society 
 requires wise legislation to adjust and apply the princi- 
 ples of justice to the numerous transactions of men, in 
 
 1 "The scheme of an election by the legislature flnallj' prevailed by a unani- 
 mous vote. The reasoning by whicli this mode of appointment was supported 
 does not appear at large in any contemporary debate. But it may be gathered 
 from the imperfect lights left us, that tlie main grounds were that it would 
 immediately connect the state governments with the national government, 
 and thus harmonize the wliole into one universal system." (Story's Com. on 
 Const., ?2 703, 701.) It is admitted that remarks of that character were made by 
 some of the members, but it seems impossible that any one should have been 
 influenced by them; for it is not true that the state governments are connected 
 with the general government through the senator elected by the state legisla- 
 ture. For example, in what respect is the governor, as the chief executive of 
 the state, connected witli the general government througli the senator elect? 
 In wiiat respect is tire legislature of the state connected with the general gov- 
 ernment through the senator elected by it? or in what respect is tlie judiciary 
 of the state thus connected with the general government? If neither tlie 
 executive, legislative or judicial departments of tlie state are connected with 
 the general government through the United States senator, then in what 
 respect is the government itself thus connected? 
 
148 GOVERNMENT. 
 
 tlie infinitude of their relations to, and bearings upon, 
 each other. The wisest and best cannot always fore- 
 judge the evil results which measures, apparently 
 innocent and simple, will produce if improperly imposed 
 upon society as law. Therefore, every government 
 approximating to a democracy, has found it necessary 
 to provide, as far as possible, for the presence of this 
 wisdom and discreet judgment, both in a branch of its 
 legislature and on the bench. The principles of popular 
 representation do not apply to either the senate, which 
 is a quasi judicial body, nor to the bench. The judge 
 upon the bench is required to know the law as obliga- 
 tory upon all ; and to ascertain the facts requiring its 
 application ; and then, honestly to pronounce the judg- 
 ment of the law upon the facts as ascertained. He is 
 to represent neither plaintiff nor defendant, neither 
 town, county, or state; except in the character of impar- 
 tial justice; bliud to every eonsideration except the 
 wise and just application of the law to the facts of 
 the case before him. He is not to know whether the 
 subject of his judgment be a wise man or a fool; a 
 saint or a sinner; a rich man or poor; dignified or 
 mean ; black or white, constituent or stranger. Be he 
 who or what he may, the duty of the judge to declare 
 the law as applicable to the facts is the same. With 
 what propriety, then," can a judge have a constituency ? 
 What can he do for them as their representative ? what 
 rights can he recognize in them, and award to them, 
 that a judge not a representative is not bound to 
 recognize and award? As a judge, is he to feel the 
 presence of the people on the bench? Is he to be 
 swerved from the discharge of his judicial duties by 
 their influence or clamor ? Is he to remember that he 
 owes his oflicial position to their suffrage? If so, by 
 every principle sacred to justice, he is unfit to be a 
 judge ; he deserves to be impeached, and be sent back 
 to the political arena from whence he came. The people 
 are their own worst enemies when they put politicians 
 on the bench. They subvert their own liberties, and 
 deprive themselves of the administration of exact jus- 
 tice, when they adopt a mode of selecting judges 
 which, from its nature, will not secure the wisest and 
 best men the profession can produce ; which, from its 
 nature, will put upon the bench men of quick sense to 
 snuff the popular breeze, and to trim their judicial sails 
 to catch its favor. 
 
THE LEGISLATURE— THE SENATE. 149 
 
 ^ 303. Similar considerations apply to the selection 
 of senators of the United States. The welfare of the 
 nation at large, as well as that of every citizen, requires 
 that the senate of the United States be couiposed of 
 men, who, from age, experience, ability, culture, dis- 
 cipline, and sound judgment, shall be equal to any 
 emergency that can arise. They are required to be 
 statesmen of the clearest and broadest vision. They 
 must be able to grasp and comprehend the scope of 
 every question that can arise in the administration of the 
 general government, both in respect to external or 
 international rights and duties, and also in respect to 
 those which pertain to the internal administration of 
 national authority. Every member should be thor- 
 oughly versed in the science of public and police law. 
 He should be qualified to determine all questions of 
 international law which are to be aided or modified by 
 the treaties he advises and ratifies. He should under- 
 stand the principles of political economy ; for by his 
 judgment aud vote the nation is to be prospered or 
 injured in all its fountains of wealth and prosperity. 
 The senator should have no constituency but that 
 of the highest wisdom, the most prudent discretion, the 
 clearest insight aud the most comprehensive judgment 
 of the state and nation. Such are the duties the consti- 
 tution imposes upon him, and consequently such should 
 be his qualifications. The founders of the general gov- 
 ernment, therefore, manifested great wisdom and fore- 
 sight when they provided for the election of senators by 
 the legislature of the state. By no other means could 
 they have secured the appropriate men to constitute the 
 highest deliberative body of the nation, qualified to 
 counsel the president, and take part with him in adjust- 
 ing the relations between the nation and foreign powers. 
 
 § 304. While the principles of popular or democratic 
 governments require that the people should be poten- 
 l^ially present in the legislature, and that their voice 
 should be heard, and their rights respected in the 
 making of laws, their own well-being, and the welfare 
 of society requires that no one should have a local con- 
 stituency, who is selected to administer in departments 
 of the government where the duties of the depart- 
 ment will not consistently permit the influence of such 
 constituency. Thus, the duties of the judicial oflfice 
 admit of no popular influence ; they are the same, inde- 
 pendent of all constituencies. To be in sympathy with 
 
150 GOVERNMENT. 
 
 any on the subject of adjudication is a disqualification. 
 The judge on the bench should feel that he belongs 
 to the commonwealth as the dispenser of impartial 
 justice to all. The principles of democracy requiring 
 the potential presence of the people in the legislature to 
 secure the enactment of laws just to all, require the 
 absence of their influence on the bench, that impartial 
 justice may be administered to all. Therefore, it is 
 contrary to the nature of the judicial office, and to the 
 spirit in which its duties are to be performed, that 
 the incumbent should feel himself the representative of 
 a constituency less numerous than the state at large. 
 Public interests, and public and private justice imper- 
 atively demand, that such method shall be adopted in 
 the selection of judges, as will secure the ablest, wisest 
 and best men for that ofiSce Avhich the state can pro- 
 duce ; and experience proves that the larger and wiser 
 the constituency, the more competent and responsible 
 will be the representative. Commit the selection of 
 judges to ward politicians, and ward politicians will be 
 found on the bench. Commit their selection to the state 
 legislature, and no man can be appointed who, in char- 
 acter, ability and intelligence, is not a fair representative 
 of the same qualities in the legislature. 
 
 § 305. Because the duties of the senatorial office 
 required in the senator qualifications of character and 
 ability, rather than those of a representative of a local 
 constituency, the number to be selected from each state 
 was determined with reference to the dignity and 
 character of the senate, and not with respect to the 
 principles of popular representation.^ Two from each 
 
 1 "Each state, whether more or less populous, appoints two senators— a 
 number which would liave been inconvenient if tlie votes in the senate were 
 taken, as in the former congress, by states, when, if the delegates from a state 
 were equally divided, the vote of tlie state was lost; and which, of course, 
 rendered an uneven number preferable. But in the senate a numerical vote 
 is taken in all cases, and the division of opinion among those who represent 
 particular states has no influence on the general result. If the senate should 
 be equally divided, the casting vote is given to the vice-pi-esident, whose office 
 it is to preside in the senate. The equality of states in this respect is not per- 
 haps defensible on the principle of representing the people, which ought 
 always to be according to numbers; but it was the result of mutual concession 
 and compromise in which the populous slates, enjoying the advantages of 
 proportional numbers in the house of representatives, by which they were 
 enabled to control the interests of the smaller states, yielded as a compensa- 
 tion the principle of equality in this branch of the legislatui-e, enjoying in 
 most respects equal, and in some respects greater powers. * * This composi- 
 tion of both houses is peculiar to our country, and has been found in practice 
 neither productive of schism nor deficient in energy. A perfect independence 
 of sentiment has been uniformly manifested by the members, and much 
 superiority to local interests and impressions particularly sought for in the 
 senate have always been found there." (Rawle on the Constitution, pp. 
 32, 33.) It seems strange tliat any one should mistake the real object for which 
 the senate of the United States was established. It is in no p®iitical or per- 
 sonal sense a representative body. It is representative only in the sense that 
 its members ought to be " representative men," in respect to talent, integrity, 
 intelligence and virtue. (Story's Com, on Const., § 702.) 
 
TPIE LEGISLATURE— THE SENATE. 151 
 
 state gave them a body of twenty-six members, to bo 
 l)residecl over by the vice-president'of the United States. 
 This secured to the government the services of an able 
 body of counselors, and tended to give to its adminis- 
 tration, dignity, and to secure confidence in its wisdom 
 and permanence. " It has not only been demonstrated 
 that the senate, in its actual organization, is well adapted 
 to the exigencies of the nation, but that it is a most im- 
 portant and valuable part of the system, and the real bal- 
 ance-wheel which adjusts and regulates its movements." 
 
 S 300. The number of senators should be sufficiently 
 large to insure that variety of knowledge, talent, expe- 
 rience and practical skill essential to the" discharge of its 
 various duties. No human genius or industry is ade- 
 quate to all the vast concerns of government, if it be 
 not aided by the power and skill of numbers. ^ Num- 
 bers are also important to give to the body suflQcient 
 firmness to resist the influence 'which the more popular 
 branch will be solicitous to exert over them. Numbers, 
 in many cases, confer power; and what is of equal 
 Importance, they present greater resistance to improper 
 influences. The senate being instituted as the conserv- 
 ative power or balance-wheel in the government, seems 
 admirably adapted to the end for which it was created. 
 
 § 307. The duration of the senatorial term is also 
 flivorable to the stability and dignity essential to that 
 body. From the classification of its members, one third 
 of their number retire every two years, and their places 
 are supplied with new members. It follows, therefore, 
 that two-thirds of their number will always have the 
 benefit of an experience, as members of that body, 
 varying from two to four years. This will preserve 
 great uniformity in its rules, familiarity witb the routine 
 of its duties, and will secure accuracy and precision in 
 all its movements. Thus, while the senate is made a 
 perpetual body as a branch of the government, there 
 is a continual change in the members composing it. 
 There is a perpetual sameness in all that is essential to 
 the end for which it was created ; but there are changes 
 in its members, sufficient to keep them in mind of their 
 responsibilities to the nation, and such, also, as to 
 deprive them of motives to usurp and concentrate 
 authority in their own hands ; yet its efficiency is not 
 weakened by the constant influx of new and inexpe- 
 rienced members. The system seems to be perfect in 
 
 ' story's Com. on Const., g 706, 
 
152 GOVERNMENT. 
 
 its adaptation to all the requirements of sucli a body, 
 connected with a popular government. 
 
 % 308. The qualifications proposed for senators as dis- 
 tinguished from those of the representatives, consist in 
 a more advanced age, and a longer i^eriod of citizenship. 
 A senator must be at least thirty years of age, and must 
 have been a citizen of the United States nine years. 
 The propriety of these requirements is explained by the 
 nature of the senatorial trast ; wh^ch, requiring greater 
 extent of information and stability of character, requires, 
 at the same time, that the senator should have reached 
 a period of life most likely to supply these advantages, 
 and which — participating immediately in transactions 
 with foreign nations — ought to be exercised by none 
 who are not thoroughly weaned from the prepossessions 
 and habits incident to foreign birth and education.^ 
 
 §309. The vice-president of the United States is 
 ex officio president of the senate ; but he has no voice 
 in their deliberations, and can vote only in case the 
 members present are equally divided. The senate are 
 authorized to choose their other officers, and, in the 
 absence of the vice-president, or while he shall be 
 engaged in exercising the office of president of the 
 United States, they are required to elect a president j>ro 
 tempore.^ Each house is made the judge of the elec- 
 tions, returns and qualifications of its own members ; 
 and a majority of each house constitutes a quorum for 
 general business ; though a less number may adjourn 
 from day to day ; and also are authorized to compel the 
 attendance of members, under such penalties as they 
 may severally provide. 
 
 g 310. The senate is a semi-judicial body — not that 
 it can exercise judicial powers over subjects properly 
 belonging to the sphere of judicial administration — 
 but tile power to try all impeachments against high 
 officials is, by the constitution, committed to its sole 
 exercise. In the exercise of that power it sits as a 
 high court, having authority to determine all questions 
 of law and fact involved in pronouncing the guilt or 
 innocence of the accused. When the president of the 
 United States is on trial, the chief-justice presides. 
 Ifrom the composition of the senate, it is a fit and 
 appropriate tribunal to try and determine all questions 
 of law and fact involved in the guilt of any public 
 officer of the United States ; for among its members are 
 
 1 Feaeralist, G2. 
 
THE LEGISLATURE— THE SENATE. 153 
 
 always to be found the ablest lawyers and jurists of the 
 nation. When trying an impeachment they are to be 
 upon oath or affirmation, combining the duties both 
 of the judge and jury, to hear and determine the law 
 and the facts touching the matters in hearing. 
 
 g 311. The congress thus constituted is required to 
 assemble at least once in every year ; and until congress 
 by law appoint a different day, that meeting is to take 
 place on the first Monday in December.^ When thus 
 assembled, they are independent of each other in their 
 organization and the government of their respective 
 bodies ; but neither house during the session can adjourn 
 for a period more than three days, without the consent 
 of the other body ; nor can they adjourn to any other 
 place than that in which the two houses are setting.^ 
 
 g 312. Each house is not only a judge of the election 
 returns and qualifications of its members, but it may 
 determine the rules of its proceedings, punish its mem- 
 bers for disorderly behavior, and, with the concurrence 
 of two-thirds, expel a member. The necessity for the 
 existence and exercise of this power is founded on 
 the principle of self-preservation. The constitution 
 confers the power to punish in express terms, only for 
 offenses committed by its members. But the same 
 necessity requires its exercise in respect to persons not 
 members ; and the supreme court of the United States 
 have held that the house have authority to arrest and 
 bring before it for punishment for contempt, other than 
 its members.^ This power to punish extends only to 
 imprisonment, which can continue no longer than the 
 authority which imprisons. The imprisonment neces- 
 sarily terminates with the adjournment or dissolution 
 of congress.'* 
 
 I Art. 1, ? 4, Const. U. S. s Id., art. 1, ? 5. 
 
 3 In Anderson v. Dunn (6 Wheat., 204), the supreme court of the United States 
 held that, " To an action of trespass against the sergeant-at-arms of the house 
 of representatives of the United States, for an assault and battery and false 
 imprisonment, it is a legal justification and bar to plead that a congress was 
 held and sitting during the period of the trespass complained of, and that the 
 house of representatives had resolved that the plaintiff had been guilty of a 
 breach of the privileges of the house, and of a high contempt of the dignity 
 and authority of the same, and had ordered that the speaker should issue his 
 warrant to the sergeant-at-arms, commanding him to take the plaintiff into 
 custody wherever found, and to have him before the said house to answer to 
 the said charge ; and that the speaker did accordingly issue such a warrant, 
 reciting the said resolution and order, and commanding the sergeant-at-arms 
 to take the plaintiff into custody, &c., and delivered the said warrant to the 
 said defendant. By virtue of which warrant the defendant arrested the plaint- 
 iff, and conveyed him to the bar of the house, where he was heard in his 
 defense touching the matter of the said charge, and the examination being 
 adjourned from day to day, and the house having ordered the plaintiff to be 
 detained in custody he was accordingly detained by the defendant until he 
 was finally adjudged to be guilty, and convicted of 'the charge aforesaid, and 
 ordered to be forthwith brought to the bar and reprimanded by the speaker 
 and discharged from custody, and after being thus reprimanded was actually 
 discharged from the arrest and custody aforesaid." 
 
 ■1 1 Kent's Com., 236 and note. 
 20 
 
154 GOVERNMENT. 
 
 § 313. The times, places, and manner of holding 
 elections for senators and representatives are to be 
 prescribed in each state by the legislature thereof; but 
 the congress may at any time, by law, make or alter 
 such regulations, except as to the place of choosing 
 senators,^ This provision of the constitution gives to 
 the general government full power to provide for main- 
 taining itself in both branches of the legislature, should 
 a state be disposed to subvert its constitutional exist- 
 ence. Congress could by law provide for the election 
 of members to the house of representatives, by fixing 
 upon the time and place for holding the election, and by 
 prescribing the manner of holding the same ; and could 
 make all laws necessary and proper for such purpose. 
 It could also, if necessary, determine by law the time 
 and manner of electing the senator ; and could, by 
 law, require the legislature of a state to come together 
 and elect a senator in accordance therewith ; and they 
 could make all laws necessary and proper to compel a 
 compliance with such requirement.^ The constitution 
 has imposed a duty npon the legislatures of the several 
 states, and made it supremely binding upon them. 
 They are required b}^ the same constitution to take an 
 oath of office to perform that duty ; and without taking 
 that oath they cannot qualify as members. Should the 
 members refuse to perform this duty as required by 
 the constitution and the laws of congress in respect 
 thereto, there is a supreme judiciary to apply the law, 
 and a supreme executive to enforce its mandate. 
 
 § 314. Each house is required to keep a journal of its 
 proceedings, and from time to time to publish the same, 
 excepting such parts as may, in their judgment, require 
 secrecy. The object of this requirement, in part, at 
 least, is to give the people an opportunity of examining 
 particularly into the official conduct of the members of 
 the congress, with a view of holding them to a strict 
 accountability, and to enable the constituent and nation 
 to know the position and action of each member npon 
 every important measure. A provision for entering the 
 yeas and nays of the members upon the journal at 
 the desire of one-fifth of the persons present, is also 
 inserted in the constitution.^ 
 
 g 315. The senators and representatives are to receive 
 a compensation for their services, to be ascertained by 
 
 1 Art. 1, § 4, Const. U. S. a Rawle on ttie Constitution, p. 42. 
 c Art. 1, § 5, Const. U. S. 
 
LEGISLATIVE POWERS AND DUTIES. 155 
 
 law, and paid out of the treasury of the United States. 
 Except for treason, felouy'aud a breach of the peace, 
 they are privileged from arrest duriug- their attendance 
 at the session of their respective houses, and also in 
 going to and returning from the same. Nor are they 
 to be called in question in any other place for any speech 
 or debate in either house. During the continuance of 
 the official term of either the senator or representative, 
 they may not be appointed to any civil office under the 
 authority of the United States, which shall have been cre- 
 ated, or*^ the emoluments of which shall have been 
 increased during such time ; and no person holding any 
 office under the United States can be a member of either 
 house during its continuance.^ 
 
 OHAPTEE IX. 
 
 LEGISLATIVE POWERS AND DUTIES. 
 
 § 316. All legislative powers granted to the general 
 government are vested in congress, and it is authorized 
 to make all laws necessary and proper for carrying into 
 execution all the powers vested by the constitution in 
 the government of the United States, or in any depart- 
 ment or officer thereof. The constitution has, in the 
 most general terms, instituted the several departments 
 of the government, and given guides to the proper 
 administration thereof. It has vested it with powers to 
 exercise all the functions of government over certain 
 specified subjects. But it requires the legislation of 
 congress to define and determine the mode of its action, 
 and the details of its administration; so that practically 
 every department and ofticer of the government, in the 
 exercise of the powers committed to either, are under 
 the direction and control of congress. The constitution 
 vests in a president of the United States the executive 
 powers of the government; and points out in general 
 terms the manner of his election, and induction into 
 office. But it is necessary for congress to regulate and 
 determine the mode of executive administration. The 
 constitution vests the judicial power of the United 
 States in one supreme court, and in such inferior courts 
 as congress from time to time may ordain and establish. 
 But the organization of the supreme court in all its 
 
 1 Art. 1, i 6, Const. U, S. 
 
156 GOVERNMENT. 
 
 details, is necessarily the subject of legislation, and 
 consequently these details are to be determined by con- 
 gress. All the several departments of tbe government 
 are to be administered according to law; and the laws 
 of their administration are to be determined by congress. 
 This necessity imposes upon the legislative department 
 the supervision of all the others ; and, although it is the 
 constitutional duty of the president to see that the laws 
 are executed, it is the duty of congress to see that he 
 has the necessary means, and that he performs his con- 
 stitutional duty. 
 
 g 317. The legislative department of a government, 
 more than any other, eminently represents the sover- 
 eignty of the people. It is necessarily required to be 
 present by its laws, in every other department, and to 
 provide for the faithful and just administration of the 
 duties thereof. It stands in the place of the people, and 
 must have their wisdom and unlimited discretion, in 
 respect to all subjects committed to its jurisdiction. It 
 must be a department with Argus eyes, seeing the 
 relations, dependencies, influences, and needs of society 
 in all its parts ; it must have wisdom to discover the 
 laws necessary to regulate and harmonize the jarring 
 and discordant elements; and discretion to adapt means 
 to that end. The true mission of the legislator is to 
 discover the natural laws incident to every condition 
 and relation which can exist in society ; and to devise 
 means by which such laws can have just sway without 
 interruption. For every individual being, as well as 
 every atom of matter, is the subject of natural law, and 
 can be regulated and controlled harmoniously only in 
 accordance with such laws. The Infinite Father and 
 Divine Architect of the universe is omnipresent in 
 every department of existence by the omnipotence of 
 his power, in the operations of these natural and neces- 
 ,sary laws, and the highest good of all requires that 
 these natural laws should be understood and observed. 
 Hence, the wise legislator, if he would regulate by law 
 the commerce and trade of society, will first ascertain the 
 natural laws pertaining to commerce and trade, and 
 then adapt his legislation thereto ; and thus it is in 
 respect to every branch of industr}' and every depart- 
 ment of business. 
 
 g 318. The legislative department of government is 
 necessarily intrusted with the exercise of a larger dis- 
 cretion than any other. It is impossible to foresee the 
 
LEGISLATIVE POWERS AND DUTIES. 157 
 
 powers which it may become necessary for the govern- 
 ment to exercise to preserve itself and the society over 
 whose interests it presides. For these reasons the legis- 
 lative department should be connected immediately with 
 the people, and should be in constant communication 
 with them. One branch, at least, should take its mem- 
 bers from every district in the state or nation, that the 
 observation, information, interest and discretion of 
 the people may be present in the legislature to suggest, 
 urge and act for the particular occasion. There are 
 certain rights of the individual and public which should 
 be so guarded by constitutional bulwarks that even the 
 legislature cannot invade them. There are certain 
 fundamental principles so essential to the welfare of the 
 individual and the well-being of society, that even 
 the people themselves should be deemed incapable of 
 disregarding them. The jurisdiction of each depart- 
 ment of the government should be well defined — that 
 of the legislature as well as of the others. But within 
 its assigned sphere or jurisdiction, and in respect to 
 proper subjects of legislative control or direction, it 
 should be permitted to exercise large discretion. Where 
 vested rights are not infringed, Avhere fundamental 
 principles are not endangered, and especially where the 
 common welfare demands legislative action, there 
 the maxim, saliis reipuMicce est suprema lex, applies, 
 and the legislature will be required to exercise all 
 necessary discretion within the limits of its assigned 
 jurisdiction. Its paramount duty is to see that the 
 commonwealth sustains no detriment, if it be within 
 the reasonable scope of its authority to prevent it by 
 proper legislation. The reason why the legislative 
 department of government should be permitted to 
 exercise such large discretion, is founded in the neces- 
 sity of the case ; and that is, it cannot perform the 
 necessary duties of its office in providing for the com- 
 mon security and general welfare of the people without 
 the exercise of a liberal discretion. 
 
 g 319. The reasons requiring the exercise of a broad 
 discretion by the legislative department of government 
 in administering within the sphere of its jurisdiction, 
 do not apply to other departments. In general, the 
 judiciary dei)artment is not called upon to act until 
 the legislature has acted. It is not called upon to 
 interpret and apply the law, until the legislature have 
 enacted the law to be applied. In fact the judiciary 
 
158 GOVERNMENT. 
 
 cannot exist or aot until created by legislative action 
 and direction. The duty of the judge is limited to 
 ascertaining the law as it exists, and applying it to the 
 facts as ascertained iu each particular case ; while 
 the duty of the legislator requires him to ascertain 
 what laws are necessary for the welfare of individuals, 
 and the well-being of society, and to enact them in 
 suitable form. The executive department like the 
 judiciary, has less occasion to exercise a large discre- 
 tion, than the legislative. In general, its duties are all 
 regulated and defined by law, so that there is little left 
 to executive discretion. Its duties begin when the 
 legislature or judiciary have completed theirs. When 
 required to execute an order, judgment or decree of the 
 court, the necessary directions are given by the legis- 
 lature or the court, or by both. When required to 
 execute the provisions of a statute without the inter- 
 I)osition of a court, the manner of its execution is 
 pointed out and determined by law. But the legislature 
 has no power or department to go before and prepare 
 its way, and make its paths straight. Hence, it must 
 always be very near the people, to learn from them and 
 their needs, the interpretation of its duties and powers 
 within the general limits assigned by the constitution. 
 
 § 320. From this ever-present necessity of liberal 
 discretionary powers in the legislative department, has 
 arisen the doctrine of the absolute supremacy of the 
 legislature over all other departments of government, 
 and, indeed, over all other authority. Says Sir Edwaed 
 OoKE, "the power and jurisdiction of parliament" — 
 the legislative department — "is so transcendant that 
 it cannot be confined, either for causes or persons, with- 
 in any bounds. It hath sovereign and uncontrollable 
 authority in the making, confirming, enlarging, restrain- 
 ing, abrogating, repealing, reviving and expounding of 
 laws, concerning matters of all possible denominations, 
 ecclesiastical or temporary, civil, military, maritime or 
 criminal, this being the place where absolute despotic 
 power, which must in all governments reside somewhere, 
 is intrusted by the constitution of these kingdoms. All 
 mischief and grievances, operations and remedies that 
 transcend the ordinary course of the laws, are within 
 the reach of this extraordinary tribunal. It can regu- 
 late or new-model the succession to the crown, as was 
 done in the reign of Henry YIII and William III. It 
 can alter the established religion of the land, as was 
 
LEGISLATIVE POWERS AND DUTIES. 159 
 
 done in a variety of instances in the reign of Henry 
 VIII and his three children. It can change and create 
 afresh the constitution of the kingdom and of parlia- 
 ment themselves, as was done by the act of union, and 
 the several statutes for triennial and septennial elections. 
 It can, in short, do everything that is not naturally 
 impossible, and, therefore, some have not scrupled to call 
 its power by a figure rather too bold, the omnipotence 
 of parliament. True it is, that what the parliament 
 doth, no authority upon earth can undo ; so that it is a 
 matter most essential to the liberties of this kingdom, 
 that such members be delegated to this important trust, 
 as are most eminent for their probity, their fortitude 
 and their knowledge." ^ 
 
 § 321. The authority ascribed by Lord Coke to par- 
 liament, as the depositary of absolute power for purposes 
 of legislation, according to the American theory, belongs 
 to the people in their original or national sovereignty, to 
 be exercised by them or by those to whom they have 
 delegated the authority to exercise it. The people as a 
 nation being sovereign and independent of all other 
 earthly authority, can, if they will, exercise the absolute 
 authority ascribed to parliament. They are above con- 
 stitutions, and what they do no other authority on earth 
 can undo, while they continue as a sovereign nation. 
 They can ordain and establish constitutions of govern- 
 ment ; and they can revoke them at pleasure. They 
 can set up constitutional barriers to the exercise of 
 legislative authority over particular subjects, and they 
 can remove them at pleasure. In the language just 
 cited, they have *' sovereign and uncontrollable author- 
 ity in the making, confirming, enlarging, restraining, 
 abrogating, repealing, reviving and expounding of laws 
 concerning matters of all possible denominations, 
 ecclesiastical or temporal, civil, military, maritime or 
 criminal." 
 
 g 322. It is not claimed that the general government 
 possesses this absolute and uncontrollable authority 
 concerning matters of all possible denominations. On 
 the contrary, the general government can exercise 
 authority over no subject not expressly or by implica- 
 tion, committed to its jurisdiction. But over subjects, 
 committed to its jurisdiction, it has the absolute 
 authority to legislate ascribed to parliament ; that is, it 
 Las the authority of the people, and the discretion and 
 
 ] Black. Com., pp. 160, 161; 4 Coke Inst., 36. 
 
160 GOVERNMENT. 
 
 power of the people to require and do whatever the 
 people themselves could require and do in the premises. 
 The constitution euumerates in general terms, the pow- 
 ers of congress over certain subjects; and leaves to it 
 the most unlimited discretion as to the manner of exer- 
 cising those powers within the meaning of the terms 
 " necessary " and " proper ;" and, lest there should be 
 any doubt as to the right of congress to exercise implied 
 IDOwers wherever and whenever they may be necessary 
 and proper to the discharge of duties imposed, or the 
 execution of. express powers given, it provides expressly 
 for their exercise. Congress, then, in the exercise of 
 the duties and powers imposed and conferred by the 
 constitution, is as absolute iu its authority and discre- 
 tion as are the people themselves ; subject only to such 
 restrictions and limitations as are contained in the con- 
 stitution. 
 
 g 323. In the institution of the general government, 
 the people assigned to it the subjects of its particular 
 jurisdiction, and left to it the exercise of tbeir author- 
 ity and discretion in legislating upon those subjects, 
 restrained, however, by certain important i3rohibitions 
 contained in the constitution ; which are, that in the 
 exercise of legislative authority, congress should make 
 no law respecting an establishment of religion, or 
 prohibiting the free exercise thereof; or abridging 
 the freedom of speech, or of the press ; or the right 
 of the people peaceably to assemble and to petition 
 the government for a redress of grievances. That the 
 right of the people to keep and bear arms should not 
 be infringed. That no soldier in time of peace, should be 
 quartered in any house without the consent of the owner, 
 nor in time of war, except in a manner to be prescribed 
 by law. That the right of the people to be secure in 
 their persons, houses, papers, and effects, against unrea- 
 sonable searches and seizures, should not be violated. 
 That no warrants should issue but upon probable cause 
 supported by oath or affirmation, particularly describing 
 the place to be searched, and the person or thing to be 
 seized. That no person should be held to answer for a 
 capital or otherwise infamous crime, unless on present- 
 ment or indictment of a grand jury, 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 ; 
 nor should any person be subject for the same offense 
 to be twice put in jeopardy of life or limb, nor compelled 
 
LEGISLATIVE POWERS AND DUTIES. 161 
 
 in any criminal case, to be a witness against himself, 
 nor be deprived of life, liberty, or properly, without due 
 process of law ; nor should private proi)erty be taken for 
 public use without just compensation. That in all 
 criminal prosecutions, the accused should enjoy the right 
 to a speedy and public trial, by an impartial jury of the 
 state or district wherein the crime was committed, which 
 district should have been previously ascertained by law ; 
 and to be informed of the nature and cause of the accu- 
 sation ; to be confronted with the witnesses against 
 him ; to have compulsory process for obtaining wit- 
 nesses in his favor, and to have the assistance of counsel 
 for his defense. That the right of trial by jury should 
 be preserved in suits at common law, when the value 
 in controversy should exceed twenty dollars, and that 
 no fact tried by jury should be reexamined in any court 
 of the United States, otherwise, than according to the 
 rules of common law. That excessive bj^l should not 
 be required, nor excessive fines be imposed, or cruel 
 and unusual punishment be inflicted. That the privi- 
 lege of the writ of habeas corpus shall not be suspended, 
 except where in cases of rebellion or invasion the public 
 safety might require it ; that no bill of attainder or 
 ex post facto law should be passed ; no capitation or other 
 direct tax should be laid, unless, in proportion to the 
 census or enumeration therein required ; that no tax or 
 duty should be laid on any article exported from any 
 state ; that no preference should be given by any regu- 
 lation of commerce or revenue to the ports of one state 
 over those of another ; nor should vessels bound to or 
 from one state be obliged to enter, clear or pay duties 
 in another ; that no money should be drawn from the 
 treasury but in consequence of appropriations made by 
 law ; that no title of nobility should be granted, &c. 
 Subject to these restrictions and prohibitions, congress 
 has all the authority and discretion of the people to 
 legislate upon subjects committed to its jurisdiction, 
 which in spirit, embraces every subject essential to 
 national existence, safety and welfare. 
 
 g 324. There is no danger to the public welfare to be 
 apprehended from an abuse of this legislative authority 
 committed to the congress — because, virtually, it is the 
 exercise of the authority of the y)eople themselves by 
 their immediate representatives, fresh from their pres- 
 ence, and instructed as to their duty. It is not to be 
 overlooked that the house of representatives is composed 
 21 
 
162 GOVERNMENT. 
 
 of members coming from every district in the nation, 
 by the expressed suffrage of the people, renewed every 
 two years, and yearly instructed in the wishes and needs 
 of their particular constituency : so that the people are 
 as fully represented in congress, and are as potentially 
 present there to legislate upon the subjects committed 
 to the jurisdisdiction of the general government, as 
 they were in the conventions which framed and adopted 
 the national constitution. To object to the exercise of 
 a liberal discretion by congress, in legislating for the 
 nation, is, virtually, to object to its exercise by the peo- 
 ple themselves. 
 
 g 325. In making laws the senate and house of repre- 
 sentatives possess equal authority. Each can originate 
 bills, except as to revenue bills. The constitution pro- 
 vides that all bills for raising revenue shall originate in 
 the house of representatives ; but the senate may pro- 
 pose or concj^ with amendments, as on other bills. ^ 
 There can belittle question as to the kind of bills to 
 which reference is here made. They are bills to levy 
 taxes upon the people ; and not such bills as may result 
 incidentally in creating a revenue. It cannot be sup- 
 posed that a bill to provide for the sale of the i)ublic 
 lands, or to sell public stocks, or to establish a post- 
 office or a post road is included in this prohibition, 
 although as a result, money may thereby come into the 
 public treasury. 
 
 g 326. Such being the meaning of the expression, 
 " all bills for raising revenue," the reason is obvious 
 why they should originate in that branch of the legis- 
 lature in which the people are fully represented. The 
 constitution is framed upon the hypothesis, that the 
 people are imminently present in the house of rep- 
 resentatives. That all occupations, professions and 
 interests have their guardians and advocates there. 
 That the needs, impulses and demands of every district 
 in the nation are fully represented. If a revenue is to 
 be raised by a levy upon the industry of the nation, who 
 can know so well how to equalize the burden as the 
 representatives of the people, coming from every dis- 
 trict, and familiar with every interest ? Who will feel 
 so immediately the responsibilities to be assumed in 
 levying a tax upon the industry and property of the 
 people, and will be able to indicate so perfectly the effect 
 of any proposed measure upon the branch of industry 
 
 1 Art. 1, 2 7, cl. 1, Const. U. S. 
 
LEGISLATIVE POWERS AND DUTIES. 163 
 
 he represents, as the immediate representative of the 
 people ? If the burden is to be imposed npon the peo- 
 jjle, they are the proper ones to say how much, and 
 how it shall be imposed. For reasons similar to these, 
 the British house of commons had the right and inivi- 
 lege that all grants of subsidies and parliamentary aids 
 should begin in their house. The reason assigned was, 
 that the supplies are raised upon the body of the people, 
 and, therefore, it was proper that they alone should have 
 the right of taxing themselves.^ 
 
 S 327. Although the senate cannot originate a revenue 
 bill, it can propose and concur in amendments. There 
 are reasons why the senate should participate in matur- 
 ing these, as well as other bills. They, too, are citizens 
 of the states and nation ; and are equally with the people 
 interested in all revenue bills. Being elected }\y the 
 state legislatures, they have no popular constituency. 
 Holding their office for the term of six years, they 
 are not so familiar with the mass of the people, and do 
 not feel so immediately their responsibilities to them. 
 Therefore, they cannot be supposed to be so intimately 
 and personally connected with every local district, or so 
 well acquainted with local interests as the immediate 
 representatives of these interests and districts. For 
 these reasons, the se^iators are not as well qualified to 
 suggest all the details of a tax bill which is to bear 
 equally upon all the localities of the nation. They are 
 not so familiar with all the interests to be reached, and 
 the i)articular burdens to be increased here or lessened 
 there. But while they are not qualified for the details 
 of such a bill, they are eminently qualified to discuss 
 the general principles to be observed in framing it; and, 
 being themselves a part of the people who are to bear 
 the burden to be imposed, it is wisdom to permit, and 
 it is their just right to be permitted, to participate in 
 maturing such bill, by suggesting and concurring in 
 amendments thereto. 
 
 g 328. Although all legislative power, granted to the 
 general government is, by the constitution, vested in 
 congress, yet, before a bill can become a law, after it has 
 passed both houses of congress, it must be presented to 
 the president for his approval and signature. If he 
 approve of it he signs it, and it becomes law. If he do 
 not approve it, he returns it with his objections to the 
 house in which it originated. The objections of the presi- 
 
 1 1 Black. Com., 169. 
 
164 GOVERNMENT. 
 
 dent are tlien required to be entered at large upon their 
 journal, and they proceed to reconsider the bill. If, 
 after such reconsideration, two-thirds of the house agree 
 to pass the bill notwithstanding the president's veto, it 
 is then sent, together with the objections, to the other 
 house by which it is required to be reconsidered. Then, 
 if approved by two-thirds of that house also, it becomes 
 law, notwithstanding the president's veto. In these 
 cases the votes of both houses are required to be by 
 yeas and nays, and the names of the members voting 
 for or against the bill are required to be entered on 
 the journal of each house respectivelj''. The president 
 has ten days to examine any bill before he is required 
 to return it. If he should not return a bill within teu 
 days, Sundays excepted, after it has been i)resented for 
 his approval, it becomes a law, the same as if approved 
 and signed by him. But, if congress should adjourn, 
 thereby i3reventing the return of such bill withiu ten 
 days, it would not become law.^ 
 
 g 329. Tliere are two principal reasons assigned why 
 this qualified veto power should be conferred on the 
 president of the United States, requiring after its exer- 
 cise, a two-third vote of each of the houses of congress 
 before the proposed measure can become law. The 
 first reason assigned is, that there is danger to be 
 apprehended from the encroachments of the legisla- 
 tive department upon the executive; and, therefore, 
 this qualified negative is necessary to enable the presi- 
 dent to protect his office in the discharge of its executive 
 duties. The second reason assigned is, that the rights 
 of the people will be more perfectly secured by intrusting 
 the exercise of this power to the president than they 
 would otherwise be, by permitting congress by a majority 
 vote to determine what measures shall become law. The 
 first theory of the existence and exercise of the veto 
 power is taken from the British constitution and govern- 
 ment, and has its origin and continuance in the peculiar 
 theory and practice of monarchical governments. 
 
 § 330. The theory and structure of the government 
 of the United States is so peculiarly its own, that it 
 requires reasons peculiarly its own to explain or justify 
 such provisions. The reasons why the king of England 
 should possess an absolute veto power over the pro- 
 posed laws of parliament, have not even a qualified 
 application to the general government of the United 
 
 1 Art. 1, § 7, cL 2, Const. U. S. 
 
LEGISLATIVE POWERS AND DUTIES. 165 
 
 States, ordained, established and administered by the 
 people themselves. In England the king is an essential 
 branch of the legislative department, and is neither 
 elected by, nor responsible to the people. The law 
 ascribes to him the attribute of sovereignty or pre- 
 eminence. He is said to have imperial dignity ; and 
 in charters before the conquest he is frequently styled 
 hasileus and imperator, the titles respectively assumed 
 by the emperors of the east and west.^ His realm is 
 declared to be an empire, and his crown imperial, by 
 many acts of parliament. He is declared to be the 
 supreme head of the realm in matters both civil and 
 ecclesiastical, and, of consequence, inferior to no man 
 upon earth, dependent on no man, accountable to no 
 man. " Under every monarchical establishment, it is 
 necessary to distinguish the ijrince from his subjects, 
 not only by the outward j)omp and decorations of 
 majesty, but also by ascribing to him. certain qualities 
 as inherent in his royal capacity, distinct from, and 
 superior to those of any other individual in the nation. 
 For, though a philosophical mind will consider the 
 royal person merely as one man appointed by mutual 
 consent to preside over many others, and will pay him 
 that reverence and duty which the principles of society 
 demand ; yet the mass of mankind will Ije apt to grow 
 insolent and refractory, if taught to consider their prince 
 as a man of no greater perfection than themselves. The 
 law, therefore, ascribes to the king, in his high political 
 character, not only large powers and emoluments which 
 form his prerogative and revenue, but likewise certain 
 attributes of a great and transcendent nature ; by which 
 the'4;;9eople are led to consider him in the light of a 
 superior being, and to pay him that awful respect 
 which may enable him with greater ease to carry on 
 the business of government." ^ 
 
 % 331. Beside this attribute of sovereignty, the law 
 also ascribes to the king, in his political capacity, abso- 
 lute perfection. The king can do no wrong ; that is, 
 whatever is exceptionable in the conduct of public 
 affairs, is not to be imputed to the king, nor is he answer- 
 able for it personally to his people; for this doctrine 
 would totally destroy that constitutional independence 
 of the cuown which is necessary for the balance of 
 
 1 " Rex est vicarius et minister Dei in terra ; omnis quidem sub eo est, ei ipse sub 
 nulla, nisi tantuni sub Deo. Bracton, L. 1, c. 8. 
 3 1 Bl. Com., 241. 
 
166 GOVERNMENT. 
 
 power in the British constitution. It also means that 
 the prerogative of the crown extends not to any injury ; 
 it is created for the benefit of the people, and, there- 
 fore, cannot be exerted to their prejudice.^ The inviola- 
 bility of the king is essentially necessary to the free 
 exercise of those high prerogatives which are vested in 
 him ; not for his own private splendor and gratification 
 merely, but for the security and preservation of the real 
 happiness and liberty of his subjects.^ The king is not 
 only incapable of doing wrong, but even of thinking 
 wrong ; he can never mean to do an improper thing ; in 
 him is no folly or weakness ; for the law will not cast 
 an imputation on that magistrate whom it intrusts with 
 the executive power, as if he were capable of intention- 
 ally disregarding his trust; but it attributes to mere 
 imposition those little inadvertencies, which if charged 
 on the prince, might lessen him in the eyes of his 
 subjects. 
 
 % 332. Another attribute of the king's majesty is his* 
 perpetuity. The king never dies. His personal death 
 is called a demise ; which merely signifies the transfer 
 of the royal character, prerogatives and imperial dig- 
 nity to his regal heir, who is, eo instanti, king, to all 
 intents and i)urp.os.es. These royal prerogatives invest 
 the king, thus considered in his kingly capacity, as all- 
 perfect and immortal, with such authorities and powers 
 as constitute the executive department of the British 
 government. This department is distinct from and 
 independent of the legislative ; and is not responsible 
 to the people for its existence or continuance. Accord- 
 ing to the theory of the British constitution, the execu- 
 tive powers are placed in the single hand of the Mrig, 
 for the sake of unanimity, strength and dispatch. That 
 if these powers were placed in many hands they wfeuld 
 be subject to many wills; that many wills being dis- 
 united and drawing diflferent ways, would create weak- 
 ness in a government ; and to unite them and reduce 
 them to one, would be a work of more delay than the 
 exigencies of state will afford. That, therefore, the 
 king is not only the chief, but properly the sole magis- 
 trate of the nation ; all others acting by commission 
 from, and in due subordination to him. These preroga- 
 tives and powers, which belong to the king as the 
 political head of the nation, are treated as individually 
 
 1 Bl. Com., 246. 
 
 s Christian's note to 1 Bl. Com., 247. 
 
LEGISLATIVE POWERS AND DUTIES. 167 
 
 and personally his ; because the mass are deemed to be 
 incai)able af distinguishing between his individual and 
 political character. Thus, according to the theory of 
 the British constitution, the executive powers of the 
 nation are vested in the king alone ; who is supreme, 
 who is perfect, and who never dies. And, although 
 theoretically and philosophically, these attributes only 
 j)ertain to the office, practically, they attach to the per- 
 son of the king, and become his personal attributes, 
 authority and powers. In theory, he reigns by divine 
 right ; Dei gratia, not iwimli gratia; and such, also, is 
 the theory of his responsibilities — not to the people, 
 but to God alone. The government is his, the people 
 are his subjects ; the regal style is, "my kingdom," 
 " my realm," " my subjects," etc. 
 
 § 333. The king, according to the British constitution, 
 being thus the immortal and perfect head of the nation, 
 and the sole executive of its authority and power, is 
 necessarily constituted a branch of the legislature of 
 the realm. Laws can be made and repealed only by 
 his authority. The powers of parliament are but a 
 limitation of those of the king, imposed as a check to 
 the despotic exercise of the royal will. It is true the 
 king can make no new law without the consent of par- 
 liament; but it is equally true that parliament can 
 repeal no existing law without the consent of the king. 
 His royal prerogatives and powers are his own, and he 
 can wrap them around his royal person as a garment, 
 and defy the constitutional powers of the British gov- 
 ernment to disrobe him. The king is made a branch 
 of the legislature, according to the British theory, for 
 the purpose of preserving the balance between the 
 executive and legislative departments of the govern- 
 ment. The total union of the two departments, it is 
 said, would be productive of tyranny ; the total dis- 
 junction of them would, in the end, produce the same 
 result. The legislative would soon become tyrannical, 
 by making continual encroachments, and gradually 
 assuming to itself the rights of the executive power. 
 Thus, the long parliament of Charles I, while it acted 
 in a constitutional manner with the royal concurrence, 
 redressed many heavy grievances, and established many 
 salutary laws. But when the two houses assumed the 
 power of legislation in exclusion of the royal authority, 
 they soon after, likewise, assumed the reigns of adminis- 
 tration, and in consequence of these united powers 
 
168 GOVERNMENT. 
 
 overturned both cliurch and state, and established a 
 worse oppression than any they pretended to remedy. 
 To hinder, therefore, any such encroachments, the king 
 is himself a part of parliament; and as this is the 
 reason of his being so, very properly, therefore, the share 
 of legislation, which the British constitution has placed 
 in the crown, consists in the power of rejecting, rather 
 than in resolving, this being sufficient to answer the end 
 proposed.^ 
 
 § 334. Here is the principle and the philosophy of the 
 veto power as it exists in the British constitution. But 
 neither the principle or philosophy have any possible 
 application to the American governments. According 
 to the theory of monarchy, the monarch is possessed of 
 all political authority and power in divine right. But 
 practically in the progress of governments, the lords or 
 chief men found it necessary to have some check upon 
 the arbitrary will and power of the monarch ; and a 
 parliament of the chief men was instituted tor that 
 purpose, which could not make laws, but which could 
 demand a voice in the making of them. Ultimately, 
 the people found it necessary to have some check upon 
 both monarch and lords; and the commons were insti- 
 tuted as a part of the legislature. The commons could 
 not make laws, neither could the commons and lords 
 together make them. They were instituted as a check 
 upon the absolute authority of the monarch. They 
 could propose the form and substance of a law as a sort 
 of petition to the king, and he could say, in virtue of 
 his sovereignty, yes or no, and it became a law or not 
 accordingly. The American theory is quite the opposite 
 of this. The peoi)le are sovereign, and the president 
 subject. The prerogatives belong to the nation, not to 
 their servants. The commons, aided by their peers in 
 the nation, constitute the law-giving power in America. 
 The legislative department is created by the people, and 
 the members thereof are continually coming from, 
 and returning to the people, taking their authority in 
 virtue of the office conferred, as a public trust, to be 
 exercised for the benefit of, and to be restored back, to 
 them. Thus, the office of legislation here is not exer- 
 cised by permanent incumbents, like the lords and king 
 of England, and hence there is no temptation on the 
 part of those administering for the time being to usurp 
 the powers of government, and absorb all authority in 
 
 ilBl. Com., 154. 
 
LEGISLATIVE POWERS AND DUTIES. 169 
 
 the legislative department, to be used by their successors 
 to oppress the people of whom they will then be a 
 portion. It is true the execntive office is permanent ; 
 but the incumbent is elected by the people for four 
 years. Unlike the king, the president can do wrong, 
 and may die. Consequently the executive incumbent is 
 not permanent. The people have the authority to 
 designate, once in four years, who shall administer in 
 that department. The reasons assigned why the king 
 should exercise the veto power in England have no 
 application here. In this country, the executive needs 
 no protection against the encroachments of legislative 
 authority. All are equally interested in having the 
 proper balance preserved, and they have the power to 
 compel its preservation without the veto power of a 
 Ijresident. 
 
 § 335. The second reason for intrusting the president 
 of the United States with a qualified veto power is, that 
 the rights of the people are more perfectly secured 
 by the exercise of this power, than they otherwise 
 would be if a mere majority of the two houses of con- 
 gress were to determine what proposed measures should 
 be law. This second reason has its basis in the assump- 
 tion that the president may more perfectly comprehend 
 the duties of a legislator upon a given question, or 
 may better understand the rights and interests of the 
 j)eople, than their more immediate representatives; or 
 the combined wisdom of the representative men of the 
 nation, who are placed in the senate to examine and 
 judge of the fitness and propriety of any proposed law ; 
 or upon the hypothesis that the president is less liable 
 to improper influences than a majority of each of the 
 two houses. Upon the soundness of these two latter 
 propositions rests the propriety of this constitutional' 
 provision, giving a qualified veto power to the president 
 of the United States. It is to be observed that the 
 effect of this provision is merely to require that a 
 measure shall receive the sanction of two-thirds of the 
 members of each house of congress, instead of a mere 
 majority when the objections of the president are not 
 interposed.^ 
 
 1 This qualified negative of tlie president upon tlie formation of laws, is 
 theoretically, at least, some additional security against tlie passage of 
 improper laws, through prejudice or want of due reflection; but it was prin- 
 cipally intended to give to the president a constitutional weapon to defend 
 tlie executive department against the usurpations of the legislative power. 
 (1 Kent Com., 210). This qualified negative of the president upon the acts and 
 
 22 
 
170 GOVERNMENT. 
 
 § 336. It is to be remembered tliat tlie exercise of 
 tliis power on the part of the president is liable to 
 abuse. Whatever may be the theory of the exalted 
 position and superior character of a president of the 
 United States, the fact practically is, and ever has been, 
 that the legislatures of the several states have uniformly 
 placed in the United States senate learned, talented and 
 patriotic men, who are every way as well qualified to 
 discharge the presidential duties as the incumbent of 
 that office ; and it is safe to affirm that every presi- 
 dential incumbent, from the organization of the general 
 government to the present, might have found in the 
 senate of the United States, senators from whom it 
 would be as appropriate to take advice as to give 
 it, respecting senatorial duties. It is exceedingly improb- 
 able that the many learned and patriotic men of congress 
 would be more liable to commit errors in respect to 
 measures of public importance, than the single incum- 
 bent of the x^i'esidential office. But since there is a 
 possibility of such error on the part of the congress, 
 which may be corrected at the suggestion of the presi- 
 dent, the power to require a reconsideration of the sub- 
 ject, and a two-third vote of the two houses respectively, 
 is wisely committed to the president, if he prove worthy 
 of the trust. A wise, discreet and prudent president 
 will very seldom exercise that power. The case must 
 be one where the error of congress is patent, and where 
 the public welfare imperatively demands interposition. 
 But in the hands of a partisan incumbent, or a president 
 
 resolutions of the two houses of the legislature, is Justified in the Federalist 
 (No. 73), as follows: "The propensity of the legislative department to intrude 
 upon tne rights and absorb the powers of the other departments, has been 
 already more than once suggested; the insufficiency of a mere parchment 
 delineation of the boundaries of each has also been remarked upon and the 
 necessity of furnisliing each with constitutional arms for its own defense has 
 been inferred and proved. From these clear and indubitable principles, 
 results the propriety of a negative either absolute or qualified in the execu- 
 tive, upon the acts of the legislative branches." See also the remarks of Judge 
 Story to the same effect. (Story on Const., g 881). With proper deference to the 
 opinions of these learned men, I must say there no where appears in any of 
 their arguments the assertion of any principle, or reference to any facts 
 sustaining their positions, Avhen applied to the theory and structure of the 
 American government. The congress is always composed of a changing body 
 of individuals. It seldom happens that in the house a majority of tlie old 
 members are continued through more than one succeeding term. They are 
 citizens of the states and nation, aqd are interested in preserving the exact 
 balance of power between the several departments. Their continuance in 
 congress is brief, and they become private citizens again. Now, it is obvious 
 that a legislative body of men thus constituted can have no motive to invade 
 the other departments, and assume executive powers. To do so would be 
 putting weapons into the hands of their successors to injure and oppress 
 themselves after their ten ure of office had expired. Reference to the British 
 constitution, and the practical operations of the British government, have no 
 possible application in this country. To apply the British theory of govern- 
 ment to our own, the pi'esident and senate sliould propose the laws, giving to 
 the people, as represented in the house, the absolute negative possessed by the 
 king. For according to the monarchical theory, the parliament is a limita- 
 tion upon the sovereignty of the king. &c. (See Ante, g § 329-333, inclusive). 
 
EXPRESS POWERS OF CONGRESS. 171 
 
 with an ideal policy of Ms own, one to which, he commits 
 all his power and patronage, this qualified veto is a 
 mischievous and dangerous power, and it may well be 
 questioned if the public interest has not suffered more 
 than has been gained by its exercise. 
 
 CHAPTER X. 
 
 THE EXPEESS POWEES OF CONGRESS. 
 
 § 337. The eighth section of the first article of the 
 constitution provides, that "the congress shall have 
 power to lay and collect taxes, duties, imposts and 
 excises, to pay the debts and provide for the common 
 defense and general welfare of the United States;" but 
 that " all duties, imposts and excises, shall be uniform 
 throughout the United States." There has been much 
 discussion as to the precise signification of this clause, 
 whether it should be understood that congress had the 
 power to lay and collect taxes, &c., in order that it 
 might pay the debts and provide for the common 
 defense and general welfare of the nation ; or, whether 
 there were two distinct and substantial powers given, 
 consisting, first, of the power to create the revenue ; 
 and second, of the power to provide for the common 
 defense and general welfare. It is immaterial which 
 construction is given to the clause, so far as the extent 
 of the expressed and implied powers thereby granted is 
 concerned. The general government was instituted 
 expressly for the purpose, among other things, of pro- 
 viding for the common defense, and promoting the 
 general welfare of the nation ; and this clause, at least, 
 affirms, that the general government shall have power to 
 raise the means by taxes, duties, imposts and excises, 
 to accomplish that purpose. Here is a specific adapta- 
 tion of a means to an end. Who, then, can deny that 
 the end sought is within the scope of the powers of the 
 government ; and, that it is the will of the people that 
 all power, necessary and proper for the accomplishment 
 of that end, shall be exercised? It is, consequently, 
 immaterial whether the clause be read, that congress 
 shall have power to lay and collect taxes, &c., for the 
 purpose of enabling it to pay the debts and provide for 
 the common defense and general welfare of the nation ; 
 or, that congress shall have the power to lay and collect 
 
172 GOVERNMENT. 
 
 taxes ; and also, to pay debts and provide for tlie com- 
 mon welfara The people, in the institution of the 
 general government, made it the duty of the govern- 
 ment to secure that end ; and charged congress, as the 
 legislative body of the nation, to provide, by law, 
 the means necessary and proper for such purpose. 
 Having the authority, they signified the intention ; and 
 hence, the general government has the requisite power. 
 g 338. The advocates of the difiereut constructions 
 which have been given to this clause, attached special 
 importance to the one or to the other, as affecting 
 materially the power therein granted.^ The one, that 
 the power to lay and collect taxes, &c., is limited to the 
 specific objects named, to wit, to pay debts and provide 
 for the common defense and general welfare. That this 
 limitation is secured, if the law be construed as giving 
 but one substantial power ; that is, the power to raise a 
 revenue for the purpose specified ; but that the power 
 to lay and collect taxes, &c., is unlimited, unless the 
 latter part of the clause be construed as a limitation 
 upon the former, &c. ^ On the other hand, the advocates 
 of the construction, which makes the clause contain 
 grants of two substantial powers, to wit, the power to 
 raise the revenue, and the power to pay debts and 
 provide for the common defense and general welfare, 
 insist that, by such construction, our government is 
 vested with unlimited power to provide for the defense 
 and welfare of the nation, which it would lack but for 
 such grant. But reflection, will satisfy any one that 
 there is little to be gained or lost, to the powers of 
 
 1 " Do the words, ' to lay and collect taxes, duties, imposts and excises,' con- 
 stitute a distinct and substantial power ; and the words, ' to pay the debts and 
 provide for the common defense and general welfare of the United States,' 
 constitute another distinct and substantial power? Or, are the latter words 
 connected with the former, so as to constitute a qualification upon them?" 
 This has been a topic of political controversy: and has furnished abundant 
 luiterial for popular declamation and alarm. If the former be the true inter- 
 pi-etation, then it is obvious, that under the generality of the words, " to provide 
 for tlie common defense and general welfare," tlie government of the United 
 States is, in reality, a government of general and unlimited powers, notwith- 
 standing the subsequent enumeration of specific powei's; if the latter be the 
 true construction, then the power of taxation only is given by the clause, and 
 it is limited to objects of a national character, "to pay the debts and provide 
 for tlie common defense and general welfare." (Story's Com. on Const. U. S., 
 g 907; see also, note to Story, § 908; see also. 2 U. S. Law Journal, April, 1826, p. 
 451 et seq.) This work contains (p. 207 ei seq.) a very elaborate exposition of the 
 doctrine. Mr. Jeffekson lias insisted that this was the federal doctrine; that 
 is, the doctrine maintained by the federalists as a party. (4 Jefferson's Corres- 
 pondence, 300.) Tlie assertion is incorrect, for the latter opinion was maintained 
 by some of the most strenuous federalists at the time of the adoption of the 
 constitution, and has since been maintained by them. (2 Elliot's Debates, 170, 183, 
 195; 3 id., 262; 2 Am. Museum, 434; 3 id., 338.) It is remarkable, that Mr. George 
 Mason, one of tlie most decided opponents of the constitution in the Virginia 
 convention, held the opinion, that the clause to provide for tlie common defense 
 and general welfare was a substantive power ; and that congress should have 
 the power to provide for the general welfare of the union. But he thought, 
 that the constitution should contain a clause in respect to all powers not 
 granted being retained, &c. 
 
EXPRESS POWERS OF CONGRESS. 173 
 
 the government, or to the security of the people, by the 
 adoption of the one or the other of these constructions. 
 One or the other is manifestly correct, and it matters 
 not which. If the power of taxation is unlimited by 
 the terms of the grant, as contained in this clause, it is 
 only the power of the people to tax themselves; for it 
 is to be remembered, that this government is to be 
 administered by the people, comiiig from every state, 
 and from every district of each state. If they lay and 
 collect the tax, they alone have to pay it ; and there is 
 little to fear from the powers of a government which 
 is never to be separated from the authority of the peo- 
 l)\e in its administration. The people will not be likely 
 to oppress themselves beyond their own endurance. 
 They will never have occasion to overthrow a govern- 
 ment of which they have the sole administration. 
 The lears and jealousies expressed, of the aggressions 
 of the government upon the people, presuppose the 
 separation of the government from the people, or its 
 independence of the people. The constitution having 
 secured to the people the administrative authority of 
 the government, the people can trust the government 
 as far as they can trust themselves. 
 
 g 339. On the other hand, adopt the theory of limita- 
 tion ; that the government can only lay and collect 
 taxes, &c. for the purpose of paying debts and providing 
 for the common defense and general welfare of the 
 nation ; and that the administrators of their govern- 
 ment, being the people of the nation themselves, have 
 the discretion to determine what debts shall be con- 
 tracted in providing for the defense and welfare thereof, 
 and the limitation is a check of little value. There 
 never will be an occasion to raise a revenue for any 
 other purposes than those specified as such limitation. 
 AVhen the wide range of subjects which may engage the 
 attention of government looking to the common defense, 
 and the general welfare of the nation come under con- 
 sideration, it will be found that every thing pertaining 
 to the duty of the government is necessarily included. 
 It is the whole duty of every civil government to so 
 exercise the powers committed to it, as to provide for 
 the security and welfare of the people, which is included 
 in the expression, " their common defense and general 
 welfare." The people of the nation were providing for 
 themselves a general government, which was to be 
 intrusted with the exercise of their authority for the 
 
174 GOVERNMENT. 
 
 special purpose of providing for tlie common defense, 
 and promoting the general welfare, and they were 
 securing to themselves the administration of that gov- 
 ernment, and they intended to clothe it with every 
 power essential to that end. The limitations of the 
 powers committed to the general government had par- 
 ticular reference to the subject of jurisdiction ; that the 
 line of administration between it and the several states 
 might be well defined, so as to avoid interference with 
 each other. It is not to be supposed that the people 
 had any misgivings as to their own ability to administer 
 their own government, under the general authority to 
 provide for the common defense and welfare of the 
 nation. They were then, and the people ever after 
 would be, the best judges of what measures were neces- 
 sary for such purpose. 
 
 g 340. It is to be observed that the limitations 
 imposed upon the general government, by the specifi- 
 cation of the subjects over which it shall have jurisdic- 
 tion, extend only to the subjects, and not to the extent 
 of its authority, or the manner of exercising it over 
 those subjects. The people of the nation who were 
 instituting the general government in their national 
 sovereignty, had authority over all subjects of govern- 
 mental administration ; as well over those of a local 
 and domestic character, as over those pertaining to the 
 general or national administration. They had authority 
 to take any and all subjects from state jurisdiction, and 
 to place the same under the jurisdiction of the general 
 government. It was a question of expediency, and not 
 one of authority. The questions discussed in adjusting 
 the powers of the general and state governments, were 
 questions of expediency. What powers are essential to 
 a complete administration of national authority over 
 subjects i)ertaining to national security and national 
 prosperity? Whatever those subjects were, they were 
 placed under the jurisdiction of the general government. 
 What subjects of a local and domestic character merely, 
 in respect to which the people of a particular state are 
 only interested, and in the administration of which by 
 the states, the security and prosperity of the nation will 
 not be jeopardized? Whatever those subjects were, 
 they were permitted to remain under state jurisdiction ; 
 ami the people specified the subjects to be committed 
 to the jurisdiction of the national government, because, 
 being of a general character, they were comparatively 
 
EXPRESS POWERS OF CONGRESS. 175 
 
 few, and easily enumerated. The national or general 
 government is limited in its administration in no other 
 sense, than in the enumeration of the subjects over 
 which it has jurisdiction. But in respect to such sub- 
 jects, for the purposes for which they were committed 
 to its jurisdiction, that government has plenary author- 
 ity ; that is, it has the unlimited authority of the nation 
 in administering upon them. It has the same authority, 
 and the same latitude of administration in respect 
 thereto, that the states have in respect to subjects left 
 to their local administration. 
 
 g 341. It is said the general government is one of 
 special powers ; and the state governments are those 
 of residuary powers ; by which it must be intended — 
 because such is the fact — that the subjects of which the 
 general government has jurisdiction are enumerated in 
 the constitution ; and the residue of subjects of govern- 
 mental administration are left to the jurisdiction of the 
 states, except so far as they are prohibited to them by 
 the constitution. The difference, then, in the limita- 
 tions of the general and state governments is simply 
 this. The general government is limited to subjects 
 enumerated in the constitution ; and the state govern- 
 ments are limited l)y the subjects enumerated therein ; 
 and in this respect, the one is as really a limited govern- 
 ment as the other. The difference in the practical 
 administration of the two governments consists in this : 
 the general government finds its jurisdiction in the sub- 
 jects enumerated ; and the state governments find their 
 jurisdiction in the subjects not enumerated. But it is 
 to be remembered, that this difference extends only to 
 subjects of jurisdiction, not to authority and modes of 
 administration. This is the same, whether applied to 
 the general or to the state governments. 
 
 § 342. The general government, then, has the same 
 powers over subjects committed to its jurisdiction as 
 the states have over subjects left under their jurisdiction, 
 to wit : all the governmental power and authority of 
 the nation in respect thereto. To this conclusion there 
 can be no valid objection, because these powers are to 
 be executed by the nation itself When they instituted 
 the general government, they did not commit their 
 admiuistrative authority to other hands ; they reserved 
 to themselves the right to administer, and they pro- 
 vided for the potential and constant presence of the 
 nation in its administration ; so that the same authority 
 
176 GOVERNMENT. 
 
 wliicli instituted and empowered, administers. The 
 states, likewise, administer in respect to tlieir domestic 
 aftairs by the same authority, to wit : by the authority 
 of the nation. The sovereignty of the states is to be 
 found in the authority by which they are constituted 
 their own administrators ; and also in the authority by 
 which they administer. In respect to all states insti- 
 tuted under the constitution, it is apparent that they 
 take their authority to administer by the incorporating 
 and enfranchising act of the nation. In respect to the 
 original thirteen, the same in effect will appear in a 
 subsequent chapter. 
 
 § 343. This view is fully sustained by the constitution 
 itself In the enumeration of subjects committed to 
 the jurisdiction of the general government, those sub- 
 jects only were specified whicli necessarily pertained to 
 the general administration ; and the powers of the gov- 
 ernment over those subjects were given in the most 
 general terms, as — " congress shall have power to lay 
 and collect taxes," «&c. — " shall have power to regulate 
 commerce" — "shall have power to define and ijunish 
 piracies and felonies committed on the high seas" — 
 "to raise and support armies" — " to provide and main- 
 tain a navy," &c., &c. The constitution proceeds thus 
 to enumerate subjects over which the general govern- 
 ment through its congress should have power; and then 
 concludes the section by providing that congress shall 
 bave power to make all laws necessary and proper for 
 carrying into execution the powers specified, and all 
 other powers vested by the constitution in the govern- 
 ment of the United States, or in any department or 
 officer thereof. The states certainly can have no higher 
 or fuller authority over subjects left to their jurisdiction 
 than is here committed to the general government over 
 subjects pertaining to its administration. What, then, 
 is to be understood by the term, "the limited authority, 
 &c., of the general government," as contradistinguished 
 from the general authority of the states ? 
 
 § 344. The proposition is a plain one, that the people 
 of the nation are as imminently present in the adminis- 
 tration of their authority through the instrumentality 
 of the general government, as the people of the state 
 are in the administration of the state governments. 
 And being thus present, they have full and perfect 
 power to exercise all governmental authority over sub- 
 jects committed to the jurisdiction of the general 
 
EXPRESS POWERS OF CONGRESS. 177 
 
 government, wliicli is the sovereign and absolute author- 
 ity of the nation. Being charged with the duty, and 
 being specifically authorized to acquire the means for 
 providing for the common defense and the general wel- 
 fare of the nation, they have ample authority for that 
 purpose, which is as unlimited and general as is the 
 authority by which the state governments administer in. 
 local and domestic interest. The proposition, also, is 
 plain, that the expression so common that the general 
 government is one of delegated xjowers, while the state 
 governments possess and exercise original authority, is 
 true only in the sense, that the subjects of national 
 jurisdiction are enumerated, while those of the states 
 are unenuraerated and residuary. And a third propo- 
 sition is equally plain, that both the general and state 
 governments are mere instruments of administration in 
 the hands of the people, possessing no inherent author- 
 ity of their own. 
 
 § 345. Says Judge Story, " the constitution was, 
 from its very origin, contemplated to be the frame of a 
 national government of special and enumerated powers, 
 and not of general and unlimited powers." ^ Tbis is 
 not denied. It was never proposed to commit to the 
 general government as a branch of its internal adminis- 
 tration, jurisdiction over subjects pertaining to the local 
 and domestic interests of the states. In that respect it 
 was intended to be, and is, limited to those interests 
 pertaining to the general welfare of the people as a 
 nation. And because it was necessary to enumerate 
 the powers committed to the exercise of the general 
 or the state governments, to avoid all uncertainty as 
 to the boundaries of their respective jurisdictions ; and 
 because from the nature of things, it would be impossible 
 to enumerate in an instrument of reasonable length the 
 multitude of subjects pertaining to the administration 
 of government in respect to the local and family or 
 domestic interests of society, the only practical defini- 
 tion of the subjects of state and national jurisdiction 
 which could be given, consisted in enumerating those 
 which were committed to the general government, and 
 thus defining the subjects of state jurisdiction as being 
 residuary. But this mode of defining the subjects of 
 general and local jurisdiction, is not to be construed as 
 giving liberal powers to the states to administer in 
 respect to local matters, and strict powers to the general 
 
 1 story Com. on Const., ? 909. 
 23 
 
178 GOVERNMENT. 
 
 government to administer in respect to national inter- 
 ests. On the contrary it is to be construed as giving 
 the same general powers to the general government to 
 administer in respect to subjects committed to its juris- 
 diction, as to the states, over matters of a local and 
 domestic character. 
 
 § 346. Judge Story continues : "If the clause ' to 
 pay the debts and provide for the common defense and 
 general welfare of the United States,' is construed to be 
 an independent and substantive x>ower, it not only 
 renders wholly unimportant and unnecessary the sub- 
 sequent enumeration of speciiic powers, but it plainly 
 extends far beyond them, and creates a general author- 
 ity in congress to pass all laws which they deem for the 
 common defense or general welfare. The enumerated 
 powers would tend to embarrassment and confusion, 
 since they would only give rise to doubts as to the true 
 extent of the general power, or of the enumerated pow- 
 ers." ^ The answer to this view is, that the enumeration 
 of subjects by which to define the jurisdiction of the 
 general and state governments, was as necessary to 
 ascertain the limits of state jurisdiction as to determine 
 the subjects of general jurisdiction. It was a question 
 of administration merely, not of authority to be admin- 
 istered. The general government was to have full 
 authority to administer in all matters pertaining to the 
 common defense and the general welfare, as distin- 
 guished from that which was local in its nature and 
 effect. And when it is considered that the people of 
 the nation and the people of the states are the same ; 
 that the national and state interests centre in the same 
 individuals; that each are equally present in the state 
 and national administration, by what principle of logic 
 or law, or common sense, are the people of the nation 
 to be denied the same liberal interpretation of powers, 
 in the exercise of their administrative authority, as is 
 accorded to the states in the administration of the same 
 authority ? 
 
 ^ 347. Says Judge Stoey: "One of the most com- 
 mon maxims of interpretation is, that, as an exception 
 strengthens the force of the law in cases not excepted, 
 so enumeration weakens it in cases not enumerated," ^ 
 The error committed by the learned author in the appli- 
 cation of the maxim above quoted, consists in supposing 
 that the powers of congress are enumerated. The sub- 
 
 1 story's Com. on Const., 909. 
 
EXPRESS POWERS OF CONGRESS. 179 
 
 jects in respect to Tvliieli the powers of congress are to 
 be exercised, are enumerated ; but the powers which 
 congress is to exercise in legislating upon tbose subjects 
 are not enumerated, but on the contrary, are committed 
 to their broad discretion. The constitution enumerates 
 subjects of jurisdiction only; giving congress power 
 over them in the most general terms ; and then it con- 
 cludes by declaring that congress shall have power to 
 make all laws necessary and proper for carrying into 
 effect those general powers, and all other powers by the 
 constitution vested in the general government or in any 
 department or officer thereof. 
 
 g 348. The grammatical and the logical reading of 
 the clause would clearly indicate that the authority to 
 lay and collect taxes, &c., was given for the purposes 
 specified, to wit: to pay debts, and to x>i'ovide for the 
 common defense, and to promote the general welfare of 
 the nation. But the power to create debts is unlimited. 
 The measures to be adopted to provide for the common 
 defense and the general welfare of the United States, 
 are committed to the discretion of congress, so as they 
 keep within the list of subjects enumerated as committed 
 to national jurisdiction; and as all the powers com- 
 mitted lO the general government are to be construed 
 with reference to that end, and are to be administered 
 by the people themselves, it is to be expected that they 
 will so administer as to see that the public sustain no 
 detriment; and that the common defense is provided 
 for, and the general welfare promoted ; and that such 
 latitude of construction be adopted as will enable them 
 so to administer. 
 
 § 349. If there are no other cases which concern the 
 common defense and general welfare, except those 
 within the scope of the other enumerated powers, the 
 discussion is merely nominal and friv^olous. If there 
 are such cases, who is at liberty to say, that, being for 
 the common defense and general welfare the constitu- 
 tion did not intend to embrace them ? The preamble 
 of the constitution declares one of the objects to be, to 
 provide for the common defense and to promote the 
 general welfare, and if the power to lay taxes is in 
 express terms, given to provide for the common defense 
 and general welfare, what ground can there be to con- 
 strue the power short of that object. One of the best 
 established rules of interpretation, one, which common 
 sense and reason forbid to be overlooked, is, that when 
 
186 GOVERNMENT. 
 
 the object of a power is clearly defined by its terms, or 
 avowed in the context, it ought to be construed so as to 
 obtain the object and not to defeat it. The circumstance 
 that the power so construed may be abused, is no 
 answer. All powers may be abused ; but are they then 
 to be abridged by those who are to administer them, or 
 denied to have any operation? If the people frame a 
 constitution it is to be obeyed. Neither rulers nor 
 judges have a right to cripple it, because, according to 
 their view, it is inconsistent or dangerous, unwise or 
 impolitic.^ 
 
 g 350. The term "taxes," used in the constitution, is 
 generical, and is thus used to confer plenary authority in 
 • all cases of taxation.^ Taxes are of two kinds, direct 
 and indirect.^ Direct taxes can only be apportioned 
 among the several states according to the census returns ; 
 as, representatives and direct taxes shall be apportioned 
 among the several states which may be included within 
 this union, according to their respective numbers.* 
 Direct taxes are properly capitation taxes and taxes upon 
 land. There seem to be no other subjects of taxation 
 upon which taxes can be apportioned among the several 
 states. Indirect taxes are such as affect expense or 
 consumption, and are increased or reduced as the con- 
 sumption is increased or reduced. Indirect taxes do not 
 admit of apportionment ; but they are to be uniform 
 throughout the United States on the subject taxed, as, 
 all duties, imposts and excises shall be uniform through- 
 out the United States.^ 
 
 % 351. It is fully settled that under the grants of the 
 constitution, congress has plenary power over every 
 species of taxable property within the United States 
 except exports. That there are but two rules prescribed 
 for their government in the exercise of this power; the 
 rule of uniformity in respect to indirect taxes, and 
 of apportionment in respect to direct taxes. Duties, 
 
 1 story's Com. on Const., § 924. 
 s Rawle on Constitution, p. 74. 
 
 3 1 Kent's Com., 255. 
 
 4 Art. 1, a 2, Const. ; also ? 9, cl. 2. 
 
 5 Art. 1, 1 8, Const. U. S. 
 
 Direct, and indirect taxation have been the subjects of judicial investigation 
 and adjudication. In the case of Hylton v. The Utiitecl States (3 Dallas, 171,) the 
 power of Congress relative to taxation was fully discussed. By the act of 5th 
 June, 1794, congress laid a duty upon carriages for the conveyance of persons ; 
 and the question was whetlier it was a direct tax, within the meaning of the 
 constitution. If it was not a direct tax it was properly laid within the grant 
 of the constitution, which declares that all duties, imposts and excises shall 
 be uniform; but if it was a direct tax, not being capable of apportionment 
 among the several states according to numbers, it would be unconstitutional 
 The court concluded and so held, that it was an indirect tax on expense oi 
 consumption, and, therefore, properly laid according to the rule of uniformity. 
 See 1 Kent's Com., p. 255, et seq. ; see also Loughborough v. Blake, 5 Wheat. 371.) 
 
• EXPRESS POWERS OF CONGRESS. 181 
 
 imposts and excises, constitute the three kinds of 
 indirect taxes, or taxes upon consumption or expense ; 
 and capitation tax, and taxes upon lands constitute the 
 direct taxes which are to be apportioned. And should 
 there be any other species of taxes not included within 
 the words, duties, imposts or excises, they would be 
 laid by the rule of uniformity or not, as congress in its 
 discretion might determine to be reasonable or proper.^ 
 
 § 352. Thus the constitution invests the general gov- 
 ernment with plenary authority over the persons and 
 property of the United States, for the purpose of pro 
 viding the means for its administration. No government 
 can be supported without the means of raising an ade- 
 quate revenue ; and it must possess this power within 
 itself, independent of all other authority. Of the 
 amount of revenue to be raised, congress is the sole 
 judge ; and well it may be, for in its halls the people 
 of the nation are present by their immediate represent- 
 atives, to declare what amount they may probably 
 need, and how much they are able to pay. The 
 authority to lay and collect taxes is one of the high 
 prerogatives of sovereignty ; and it can proceed from 
 that power only, which has authority to lay its hand 
 upon the title by which individuals hold their property, 
 and transfer it to others upon such conditions as it sees 
 fit to impose. It virtually says, there is so much money 
 laid upon that land, that horse, that carriage, to be paid 
 by the owner thereof by such a time, or the title thereto 
 will be transferred to the person who, according to the 
 forms of law, does pay it. So much money is laid upon 
 the head of each individual in the state or nation to be 
 paid for the support of the government, and if not paid 
 according to requirement, such and such penalties will 
 be imposed. Can more absolute authority be exercised 
 by any sovereign or despot ? The difference between a 
 despotism and a democracy is not to be found in the 
 sovereignty to command obedience, but in the will and 
 power which administers. The despot exercises this 
 absolute authority according to the dictates of his own 
 will, without consulting the interests or wishes of others 
 In democratic governments the people administer this 
 authority according to the popular will, having regard 
 to the public welfare. 
 
 S 353. Congress may lay and collect taxes, duties 
 imposts and excises, to pay the debts and to provide foi 
 
 1 1 Kent's Com., p. 255. 
 
182 GOVERNMENT. \ * 
 
 the common defense and general welfare of the United 
 States. This implies a broad discretion in congress as 
 to the purposes for which taxes, duties, imposts and 
 excises may be laid and collected. But large as the 
 discretion is, it is no larger than is safe and necessar}'- 
 to commit to the congress, charged as it necessarily is, 
 with providing for the security and welfare of the 
 nation. It is to be remembered that the nation has 
 no other institution intrusted with authority to provide 
 for its common defense, and to promote its general 
 welfare. So far as the state governments are con- 
 cerned, they were never competent for any other than 
 their own local and domestic administration. The laws 
 of a state were never of any binding force beyond its 
 own limits. It could pass no law, and make no pro- 
 vision which could extend to all national citizens. 
 "When, therefore, the people of the United States insti- 
 tuted the general government, and committed the safety 
 and welfare of the nation to its sole keeping, they 
 intended to make it efficient for all purposes for which 
 a national government was demanded. They intended 
 to limit the subjects of national administration to those 
 which, from the nature of things, were general and not 
 local. Thus, in the grant of power to lay and collect 
 taxes, the terms of the grant are broad enough to 
 include every kind and description of tax that can 
 be laid and collected ; to subject to this power every 
 species of taxable property, and every individual 
 inhabitant of the nation. In short the people intended 
 to include in the terms of the grant, the whole taxing 
 power of the nation for general or national purposes. 
 •As the nation is to administer the government, it is not 
 necessary to limit the discretion committed to congress 
 to lay and collect taxes, &c., either as to the amount, or 
 as to the purposes of its particular application. 
 
 g 354. It has been denied that congress has authority 
 to lay and collect duties, imposts and excises for any 
 other purpose than raising a revenue ; that duties laid 
 upon imports as a means of affording protection to 
 domestic industry are not within the letter or spirit 
 of the constitution, and, hence, that a protective tariff 
 is uncDnstitutional. The force of this objection rests 
 upon the broad assumption that the general welfare 
 of the nation can never require that its agricultural, 
 mechanical or commercial interests should be fostered 
 and protected against the competition of cheaper labor 
 
EXPRESS POWERS OF CONGRESS. 183 
 
 from abroad. For it cannot be denied that if the gen- 
 eral welfare requires such protection to enable the nation 
 to establish its industrial iudependence of foreign labor, 
 foreign production, and the like, under the j)owers to 
 regulate commerce, and to lay taxes, duties, imposts 
 and excises, for the purpose of paying the debts and 
 Ijroviding for the commou defense and general welfare 
 of the nation, congress has ample authority to make 
 such discriminations in laying duties, imposts and 
 excises as will incidentally afford protection to domestic 
 industry. And a nation that neglects thus to provide 
 for its industrial independence of foreign labor, manu- 
 facture and commerce, is liable to And itself weakened, 
 crippled, and perhaps ruined, when its peaceful relations 
 to foreign powers are disturbed by war. It is mani- 
 festly a duty which the administrators of government 
 owe to the i)eople, to establish as early as possible the 
 industrial and commercial independence of the nation. 
 
 % 355. Capitalists will not invest in any enterprise 
 ■where there is not a reasonable prospect of remuneration 
 for the capital invested. They will not employ labor 
 unless that labor be sufficiently remunerative to afford 
 a reasonable use for the capital necessarily invested in 
 its employment. It is the nature of capital in making its 
 purchases, to seek a market where it can buy the cheap- 
 est — in making its sales, to find the market where 
 it can realize the largest and surest profits. If it can 
 buy railroad iron in England at such a rate that it 
 can transi)ort it to this country and deliver it where it is 
 needed, for a less price than it can employ the labor 
 of this country to produce it, it will be certain to do so; 
 for capital knows no sympathy with the laborer, or 
 patriotism for the country. It is exceeding cunning and 
 supremely selfish. Hence, there is nothing to prevent 
 the pauper labor of the old world from coming into suc- 
 cessful competition with remunerative labor in America, 
 except a tax laid upon its ijroducts sufficient, at least, 
 to equalize in market, its price with the price of the like 
 articles produced at home, at a remunerative rate for 
 the capital and labor invested. 
 
 § 356. It is sometimes objected that this tax upon 
 imported articles laid with a view to the protection of 
 domestic industry against foreign labor, tends to a 
 monopoly in domestic manufacturers — that by such tax 
 they are enabled to demand, and the people are com- 
 pelled to pay, a higher price for a given article of 
 
184 GOVERNMENT. 
 
 foreign or domestic manufacture than would otherwise 
 be req[uired if the protective duty were not laid. There 
 can be no other monopoly than that which enures to 
 the benefit of the American laborer against the j)auper 
 labor of the old world, so long as the domestic produc-i 
 tion is open to the free competition of domestic capital 
 and domestic labor. The effect of the protective duty 
 is to eqalize foreign and domestic labor, so that remu - 
 nerative labor in America may successfally compete 
 with pauper labor in Europe, in its application to the 
 development of the natural resources of the country. 
 By this protection, a national industrial independence 
 will be established ; American labor will be employed 
 at remunerative prices in every possible department of 
 production ; the natural resources of the country will 
 be developed — and individual and public prosperity 
 will be promoted. And as the common defense and 
 general welfare of the people would be provided for 
 and promoted by such means, congress not only have 
 the power, but it is their duty to adopt such measures 
 as will naturally and necessarily secure to the people 
 such a result. 
 
 g 357. An industrial and commercial independence is 
 essential to the welfare of every nation. Political inde- 
 pendence can secure little safety or prosperity to a 
 people dependent upon foreign nations for their trade, 
 their commerce, or their manufactures. The proposi- 
 tion scarcely admits of argument, that every nation 
 should have the authority to impose a tax or tonnage 
 duty on foreign vessels, for the benefit of its commerce; 
 on the importation of the raw material, for the aid of 
 its agriculture ; on imported fabrics, for the aid of its 
 manufactures. It is the inherent right of every sover- 
 eign nation to foster and build up every branch of 
 industry, by such legislation as will enable its citizens 
 and subjects to compete with the subjects of other gov- 
 ernments in its own markets. If the subjects of other 
 governments under a home policy, are required to labor 
 for a few sous per day, and the products of their 
 labor are to come into competition with American labor 
 in American markets, certain results must follow. 
 Either congress must impose such duties upon imported 
 fabrics as will make their price equal to the cost of pro- 
 duction here ; or it must convert capital from its love 
 of gain, to "Christian charity"; or it must, in effect, 
 reduce the price of American labor to the standard of 
 
EXPRESS POWERS OF CONGRESS. 185 
 
 panper labor in other countries ; or the mamifacture 
 of such fabrics must be abandoned, and a condition of 
 industrial dependence be established. When the people 
 instituted for their common defense and general welfare, 
 the government of the United States, and gave it 
 authority to lay and collect taxes, duties, imposts and 
 excises, to pay the debts, and to provide for the common 
 defense and the general welfare of the nation, and gave 
 it authority also to regulate commerce with foreign 
 nations, it cannot be supposed that the commercial and 
 industrial interests of the people as a nation, were over- 
 looked. The authority of the congress to protect the 
 nation in its vital interests by laying discriminating 
 duties upon imported fabrics, can with no propriety 
 be questioned. It is a question of political economy, 
 and not of national authority. 
 
 g 358. Congress has power to borrow money on the 
 credit of the United States.^ This power is granted in 
 the most general terms ; and involves the broadest 
 discretion of the law-making power of the nation. 
 Borrowing money on the credit of the United States 
 involves the contracting of debts against the United 
 States, which may be provided for by the laying of 
 taxes, duties, imposts and excises ; so that congress has 
 the power to provide for the payment, as well as the 
 contracting of debts. This discretion is safely com- 
 mitted to the general government, because it is to be 
 exercised by the people themselves who administer it. 
 The power to borrow money is indispensable to the 
 existence of the nation. It is liable to be involved in 
 expenses, for the payment of which the immediate reve- 
 nues of the government will not be adequate. It may 
 be required to expend more in one year than could be 
 supplied by the revenues of many years. In the civil 
 war in which the government was involved in 1861 by 
 the general rebellion of the slaveholding states, and 
 which required the sacrifice of a quarter million of lives 
 and the expenditure of over three thousand millions of 
 dollars to subdue, this power to borrow money was 
 indispensable to the existence of the government and 
 the salvation of the nation. Giving to congress unquali- 
 fiedly this power to borrow money on the credit of 
 the United States and to provide for the payment of the 
 same, places in the hands of the general government 
 
 1 Art. 1, § 8, Const. U. S. 
 
 24 
 
186 GOVERKMEFT. 
 
 the means of providing for any contingencies in war or 
 peace that may arise, and is another of the many indi- 
 cations of the people to make the government of the 
 nation permanent and complete. 
 
 % 359. " Congress shall have power to regulate com- 
 merce with foreign nations, and among the several 
 states, and with the Indian tribes." ^ By this provision 
 the commercial intercourse of the nation, and of every 
 portion thereof, with other powers, is placed under the 
 absolute direction and control of the general govern- 
 ment. There has been much discussion as to the 
 meaning and extent of the term commerce, and of 
 the power to regulate it. It is to be remembered, that 
 what have usually been denominated " the enumerated 
 powers of the government," are more properly to be 
 considered the enumerated subjects of general jurisdic- 
 tion, over which the government has full powers. It is 
 manifest that the people of the United States in the 
 institution of the general government intended to com- 
 mit to the congress the entire subject of commercial 
 intercourse between the United States and other nations, 
 and to deny to the several states any authority over 
 the same. As a nation, sovereign and independent, it 
 was indispensable that it should have full authority 
 and power over the subject of commercial intercourse, 
 between its subjects or citizens and other nations and 
 their citizens or subjects ; and having this authority 
 and power, it was necessary that provision should be 
 made for its exercise. It would be a singular position 
 to assume, that the nation as such, has this sovereign 
 authority to regulate its own commercial intercourse 
 with others ; but has made no provision for its exercise. 
 There can be no doubt that the constitution confers 
 upon congress i)lenary power over the whole subject of 
 commerce, extending to every branch and department 
 of the same. " In the term commerce are included not 
 merely the act of buying and selling or exchanging 
 merchandise, but also the navigation of vessels and 
 commercial intercourse in all its branches. It extends 
 to vessels by whatever force propelled or governed, 
 and to whatever purpose applied." ^ Commerce as used 
 in the constitution is a unit, every part of which is indi- 
 cated by the term ;^ and the power conferred embraces 
 everything essential to its existence and control. 
 
 1 Art. 1, g 8, cl. 3, Const. United States. 
 
 2 Rawle on Constitution, p. 76. 
 
 3 Gibbons v. Ogden, 9 Wlieat., 1. 
 
EXPRESS POWERS OF CONGRESS. 187 
 
 S 360. The term commerce as applied to the nation, 
 must necessarily include all the dealings which the 
 members thereof have with those of a foreign jurisdic- 
 tion. In its broadest sense, it includes every transaction 
 of those within its jurisdiction which reaches beyond 
 into the jurisdiction of another power; and it includes 
 also the means by which such transactions are carried 
 on. The basis of this right to regulate and control 
 these transactions, rests upon the hypothesis that every 
 interest within the nation is subject to the use of the 
 nation when the public welfare demands it ; that society 
 as a whole is the lord and proprietor of all that makes 
 np society ; including the right to command and to dis- 
 pose of persons and things according as the highest 
 good of society requires. ^'Saliis reinibliccB est suprema 
 lex." This authority is asserted in the right to lay and 
 collect* taxes, duties, imposts and excises ; in the right 
 of eminent domain ; and in the many other assertions of 
 absolute authority on the part of the nation, so essential 
 to provide for the common defense and general welfare 
 of the people. It is as though the nation were the 
 common parent of all, and owner of everything within 
 its jurisdiction ; and that individuals were its benefici- 
 aries, individually enjoying the use of everything as far 
 as possible, consistent with the highest liberty and 
 equal rights of all and each. Society being a necessity 
 l^ertaining to every individual ; and government being 
 a necessity pertaining to society ; and this absolute 
 authority over all being a necessity pertaining to gov- 
 ernment, it is true that governments are ordained of 
 God, and have his warrant for the exercise of all need- 
 ful authority in the discharge of their duties and trusts. 
 
 § 361. From the nature of things, then, the nation 
 must be possessed of this absolute authority to regulate 
 and control all intercourse between its subjects and 
 those belonging beyond its jurisdiction. Its guardian 
 care over the interests of society requires it to provide 
 appropriate measures for the ijrotection and security of 
 its subjects at home and abroad. It is a duty which it 
 owes to every member to protect him in the exercise 
 and enjoyment of every natural and acquired right, 
 against everything which threatens its subversion. If 
 the citizen is required to serve his country with the 
 oifering of his property and life, if need be, the country 
 — government — can do no less than to protect the 
 property and life of the citizen by the exercise of all its 
 
188 GOVERNMENT. " 
 
 authority and power, if need be. If an oppressive gov 
 erument makes its subjects paupers, and puts pauper 
 labor into the market to compete with free labor, it is 
 as really the duty of government to prevent such com- 
 petitiou as to prevent any other species of wrong or 
 robbery. It may not have power to aid or protect the 
 foreign pauper, but it has the authority to protect its 
 own people in its relations and intercourse with pauper 
 communities. It cannot go beyond its own jurisdiction 
 to correct evils unless the public safety imperatively 
 demand it ; but it can close its doors to the admission 
 of such evils within its own domain, and throw the 
 mantle of its protection over all its subjects, by reg- 
 ulating the intercourse to be permitted with such 
 communities. 
 
 g 362. In discussing the powers of the general gov 
 ernment in this treatise, it is laid down as a fundamental 
 principle that the people of the nation, in the institution 
 of the general government, intended to provide for the 
 plenary administration of their authority over all sub- 
 jects, through the instrumentality of the general and 
 state governments ; that the constitution ordained 
 and established by them, divided the subjects of juris- 
 diction between the general and state governments, by 
 defining what subjects should be committed to the juris- 
 diction of the general government; that in the enumera- 
 tion of these subjects of general jurisdiction, they were 
 governed by what to them seemed appropriate and 
 necessary to the security, perpetuity and welfare of 
 the nation ; that in respect to the subjects of general 
 jurisdiction enumerated, they gave to the general gov- 
 ernment plenary powers of administration, and then 
 made themselves the administrators of the same, so 
 that, in effect, the power that instituted the general 
 government, and assigned to it the sphere of its admin- 
 istration, provided for its own potential and perpetual 
 presence in the administration of its own authority. 
 Upon this theory, the general government possesses the 
 entire authority of the nation over the subject of com- 
 merce; and the power of congress, as charged with the 
 exercise of the legislative authority of the nation over 
 this subject, is plenary, and can of right do what sover- 
 eignty itself can do; that is, what the people as a 
 nation can of right do. And why not ?— since the people 
 themselves as a nation, administer this authority for 
 their own security and welfare. 
 
EXPRESS POWERS OF CONGRESS. 189 
 
 § 3G3. The regulation of commerce extended not only 
 to the regulations of trade, but of every species of 
 intercourse extending to the emigration and immigration 
 of individuals. This appears to have been the under 
 standing of those framing and adopting the constitution 
 After xDrovidiug for the power of congress to regulate 
 commerce, it was deemed necessary to restrain for a 
 limited time the exercise of this power over a certain 
 class of subjects. Thus the constitution provides that, 
 the migration or importation of such persons, as any 
 of the states then existing might think proper to admit, 
 should not be i)rohibited by the congress j^rior to the 
 year one thousand eight hundred and eight ; but that a 
 tax or duty might be imposed on such importation not 
 exceeding ten dollars for each person. If the power 
 to regulate commerce did not extend to the authority to 
 exclude sucli persons from coming into the country as 
 the congress might prescribe, this prohibition in the 
 constitution was uncalled for; for congress had acquired 
 the authority thus restricted under no other i)rovision 
 than that which gave it authority to regulate commerce, 
 which, in this case, was construed to include the inhi- 
 bition of the specified subject. This, undoubtedly was 
 a correct construction of the grant. The nation had 
 delegated to congress all its authority upon the subject; 
 and that, as a sovereign nation, it had authority to pro- 
 hibit entirely the introduction of a particular class of 
 individuals into its jurisdiction, no one will i)retend 
 to deny. 
 
 § 364. Congress also has power to regulate commerce 
 among the several states. This power is as plenary in 
 respect to commercial intercourse among the several 
 states as in respect to intercourse with foreign powers ; 
 subject, however, to the restrictions contained in the 
 ninth section of the first article, which are, that no tax 
 or duty shall be laid on articles exported from any state; 
 and no ijreferences shall be given by any regulation of 
 commerce or revenue to the ports of one state over 
 those of another ; nor shall vessels bound to or from 
 one state be obliged to enter, clear or pay duties in 
 another. In respect to foreign nations, it is universally 
 admitted that the terms of this provision include every 
 species of commercial intercourse ; and this being the 
 admitted meaning of the provision as applicable to 
 foreign nations, the same must likewise attach to the 
 term in its application to the states. Commerce among 
 
190 GOVERNMENT. 
 
 tlie several states must be that kind of commerce affect 
 ing the interest of two or more states. The states as 
 political institutions are independent of each other, and 
 maintain, in that respect, a quasi sovereignty. But 
 being entirely local in their respective jurisdictions, they 
 have no other than strictly local authority ; and under 
 the constitution, they have no ijower to extend their 
 authority by treaty, compact, agreement or comity. 
 That is, a state government is merely a local institu- 
 tion, authorized to exercise local and domestic authority 
 over certain subjects within its own state limits ; but 
 beyond this it has no duty to perform, and no power to 
 act. It cannot be known to, or represented in, any 
 other government. It can enter into no treaty, alliance 
 or confederation with any other power. It can lay no 
 duties or imposts on any imports or exports, for any 
 other purpose than executing its inspection laws; and 
 even those are required to be for the use of the treasury 
 of the United States ; and its regulations in that respect 
 are continually subject to the revision and control of 
 congress. From this condition of the states it became 
 absolutely indispensable that there should be a common 
 authority to which their citizens respectively might 
 appeal to determine inter-state rights. There would 
 naturally and necessarily be commerce among the 
 citizens of the several states, which would require regu- 
 lation by an authority and power common to, and 
 supreme over all. This power could only exist in the 
 nation, to be exercised by the general government. 
 
 § 305. That commerce among the several states 
 which requires the authority of congress to regulate 
 must be of a character to affect more than one state. 
 The states are respectively competent to regulate the 
 intercourse of their own citizens so long as they con- 
 tinue within their respective jurisdictions. . Commerce 
 among the several states is not intended to include 
 such ordinary business transactions as are conducted by 
 citizens in their intercourse with each other under state 
 authority, or within the scope of state administration. 
 But when transactions necessarily require an authority 
 to supervise and enforce their observance, which a state 
 from its local jurisdiction cannot exercise, then the 
 authority of the general government is required to 
 regulate such intercourse. The exclusive internal com- 
 merce of a state between its citizens, is to be regulated 
 by the authority of a state itself; for it is the policy of 
 
EXPRESS POWERS OF CONGRESS. 191 
 
 all truly democratic governments to commit the admin- 
 istration of governmental antbority to those who are 
 only to be aifected by it. But where there are citizens 
 of thirteen separate states dealing with each otber, 
 carrying on trade which brings them within the jurisdic- 
 tion of several separate and distinct authorities during 
 a single transaction, each of which are liable to have 
 ditfereut laws and regulations affecting the same, it 
 becomes necessary that the regulation of such inter- 
 course should be intrusted to a power that can speak 
 and act with authority over all. Such is the character 
 of that commerce among the several states which is 
 comniitted to the regulation of congress by this i)ro- 
 vision of the constitution. 
 
 g 36G. These several state governments are created, 
 and exist only for the special purpose of administering 
 in those local and domestic matters which pertain 
 strictly to the locality of the particular state. For this 
 reason, they are not allowed to exercise authority over 
 subjects affecting generally citizens of the United States. 
 No state is permitted to regulate the trade between 
 itself and another state. A very material object of 
 this power is to protect the commerce of the people 
 of one state while passing through another with their 
 imports or exports. If each state were at liberty to regu- 
 late the trade between state and state, it would be impos- 
 sible to estimate the embarrassment that would inevitably 
 follow the exercise of such authority. The experience 
 of the states during the confederation, demonstrates the 
 disastrous consequences to inter-state trade and com- 
 merce, sure to follow under the stimulating influences 
 of local interests and the desire of petty advantage. 
 
 % 367. The power to regulate commerce among the 
 several states is necessarily exclusive in congress. The 
 reasons for conferring the power upon the general gov- 
 ernment are sufficient to require the exercise thereof to 
 be exclusive in congress. But aside from these reasons, 
 it has been judicially determined that the full power to 
 regulate a particular subject, implies the whole power, 
 and leaves no residuum ; that a grant of the whole is 
 incompatible with the existence of a right to any part 
 thereof in another ; that a grant of the power to regu- 
 late, necessarily excludes the action of others, who 
 would exercise the same authority.^ 
 
 1 See Gibbons v. Ogden, 9 "Wheat., 1, 198, 199, 200; also 12 id., 419, 445; see also 
 Story's Com. ou Const., g 1072 a; 1072 6; 1072 c/ 1072 d; 1072 e; 1072/; 1072 0, 
 1072 A; 1072 i. 
 
192 GOVERNMENT. 
 
 g 368. There have been able and learned discussions 
 touchiDg the authority of the states to impose regula- 
 tions upon masters of vessels, either from foreign ports 
 or from ports within the United States, touching the 
 landing of passengers, etc. But the questions discussed 
 were whether the regulations were matters of internal 
 police, belonging to the states, or whether they amounted 
 to a regulation of commerce, the power of which was 
 exclusively in congress. By a certain act of the state 
 of New York, concerning passengers of vessels coming 
 to the port of New York, the master of any ship arriv- 
 ing from a foreign port, or from one of the other states, 
 within twenty-four hours after its arrival, was required 
 to report to the mayor, in writing, on oath or affirmation, 
 the name, place of birth, last legal settlement, age and 
 occupation of every passenger brought in such ship to 
 the city of New York, or permitted to land at any place, 
 or put on board of any other ship with an intention of 
 proceeding to the city, under a penalty of seventy-five 
 dollars for every passenger, to be paid by the master, 
 owner or consignee. And further, each master was 
 required to give bond to the mayor, Avith two sureties, 
 in a sum not exceeding three hundred dollars for each 
 I)assenger not a citizen of the United States, to save 
 harmless the mayor, &c., and the overseers of the poor, 
 from all expense and charges which might be incurred 
 in the maintenance and support of such passenger, 
 under a penalty of five hundred dollars. It farther pro- 
 vided that the master or owner should, on the order of 
 the mayor, be compelled, under a heavy penalty, to 
 remove to the place of his last settlement, any passen- 
 ger, being a citizen of the United States, who should be 
 likely to become chargeable on the city.^ 
 
 g 369. lb seemed to be conceded in the adjudication^ 
 of this case, that if the provision above referred to was, 
 in effect, a regulation of commerce, the act would be 
 unconstitutional. But a majority of the court held 
 that the act was not to be considered as a regulation 
 of commerce ; that it was merely a police regulation ; 
 that jurisdiction over matters of internal police had not 
 been conferred upon the general government ; and that 
 therefore any legislation upon such matters was a con- 
 stitutional exercise of state powers ; that both the end 
 to be attained and the means used were within the pow- 
 ers not surrendered — not conferred — upon the general 
 
 1 See The City of New York v. Miln, 11 Pet. S. C, Rep., 102. 
 
EXPRESS POWERS OF CONGRESS. 193 
 
 government; the end being to prevent tlie state from 
 being burdened with foreign paupers ; the means bear- 
 ing a just, natural and api)ropriate relation to that end; 
 that while the state is acting within the legitimate scope 
 of its power as to the end to be attained, it may use 
 any means appropriate to that end, although they be 
 tbe same, or so nearly the same, as scarcely to be dis- 
 tinguishable from those adopted by congress, acting 
 under a different power ; subject only to the limitation 
 that in the event of coUision, the law of the state must 
 yield to that of congress ; that a state has the same 
 undeniable and unlimited jurisdiction over all persons 
 and things, within its territorial limits, as any foreign 
 nation, where that jurisdiction is not surrendered or 
 restrained by the constitution of the United States ; 
 that by virtue of this, it is not only the right but the 
 duty of the state to advance the safety, happiness and 
 prosperity of its people, and to provide for its general 
 w^elfare by any and every act of legislation which it 
 may deem to be conducive to those ends, where the 
 I)owcr over tbe particular subject, or the manner of its 
 exercise, is not surrendered or restrained ; that all those 
 powers which relate merely to municipal legislation, or 
 Avhat may be termed, internal iwlice, are not thus sur- 
 rendered or restrained ; and that, consequently, in. 
 relation to these, the authority of a state is complete, 
 unqualified and exclusive ; that any law comes within 
 this description which concerns the welfare of the whole 
 people of a state, or any individual within it, whether 
 it relate to their rights or their duties ; whether it 
 respect them as men or as citizens of the state; whether 
 in their public or private relation ; whether it relate 
 to the rights of persons or of property, of the whole 
 people of the state or of any individual within it, and 
 whose operation is within the territorial limits of the 
 state, and upon the jjersons and things within its 
 jurisdiction.^ 
 
 § 370. These propositions of the court, in the case 
 just referred to, seem to contain certain fallacies to 
 which attention is called. Tirst. That whatever meas- 
 ures are necessary for the perfect administration of the 
 domestic interests of the state, called internal imlice 
 reQ'uIation, they come within the authority of the state, 
 even though they do operate oppressively upon citizens 
 
 1 The City of New York v. Miln, supra. 
 25 
 
194 GOVERNMENT. 
 
 of other states, and other persons immigrating to the 
 United States, under the encouragement, aud even pro- 
 tection, of the laws of the nation. The principle upon 
 which this authority in the states is claimed, is, that the 
 states have never surrendered to the federal government, 
 and the constitution of the United States has not 
 restrained the states from, the exercise of this power ; 
 consequently that the states possess aud can exercise it, 
 even though in such exercise, the means adopted by 
 them be scarcely distinguishable from those adopted 
 by congress in the exercise of the powers conferred 
 upon the general government. It is to be remembered 
 that the powers to be exercised by the states are those 
 remaining after the enumerated powers or subjects of 
 the general government have been carved out of the 
 plenary powers of the nation; and after those which 
 are prohibited to the states are also deducted ; so that 
 each state derives its powers of administration from the 
 same fountain ; and so far as they are not restrained by 
 their respective constitutions, they are equal ; and what 
 one state can do, all can do ; what pertains to the inter- 
 nal police authority of one state, pertains to all states j 
 therefore, in determining the question whether a state, in 
 the exercise of a particular power, has transcended its 
 police authority, it is proper to inquire what would be 
 the effect if all the states should exercise the same 
 jjowers. Under the constitution of the United States, 
 every citizen of a state is likewise a citizen of the United 
 States ; and as a national citizen, he is politically and 
 potentially present in every i3art of the national domain ; 
 and he has the right to be personally present in any 
 state or territory, upon the same general conditions, 
 enjoying the same privileges and immunities as the 
 citizens of the state into which he seeks to come. Now, 
 any state regulation which interferes with his rights as 
 a national citizen, in manner and in effect different from 
 what it does with its own citizens, conflicts with his 
 constitutional rights ; whatever may be the pretense for 
 adopting such regulations. If by state regulation, New 
 York can x^revent immigration into its state, except 
 upon penal terms, every other state may do the same. 
 If New York can constitutionallj^ make exactions upon 
 the citizens of any particular state, such state can 
 retaliate by exactions upon the citizens of New York 5 
 and so every state may adopt its own regulations, and 
 make it impossible for a national citizen to leave the 
 
EXPRESS POWERS OF CONGRESS. 195 
 
 state in wliicli he was born, and deny to the government 
 of the nation the anthoritj^ to secure to the citizen of 
 each state the privileges and immunities of the citizens 
 of the several states.^ 
 
 § 371. The New York law authorized the mayor of 
 New York to compel the master of any vessel under a 
 heavy penalty to remove to the place of his last settle- 
 ment, any passenger, being a citizen of the United 
 States, who should be likely to become chargeable on 
 the city. It is manifest that New York could not 
 authorize the master, or any other person, to take a 
 citizen of the United States beyond her own limits. 
 She may legislate with respect to her own citizens 
 within her own limits, and may authorize or require 
 paupers to be removed from one town or county to 
 another within her state jurisdiction ; but when she 
 legislates in respect to the rights of national citizens 
 beyond her limits, she manifestly transcends her author- 
 ity as a state. If by legislation she may send citizens 
 of the United States beyond her lines into other states, 
 other states by the same authority may send them back, 
 and others beside them. For a state cannot by its 
 legislation fix responsibilities upon persons and x)laces 
 beyond its jurisdiction. Admit the authority of a state 
 to determine who may come within, or who must depart 
 
 1 To illustrate the consequences of permitting a state to exercise authority 
 extending to interests beyond her jurisdiction, take the following as an illus- 
 tration : In 17S7, New York, by an act (INlarch 19) granted to John Pitch a sole 
 and exclusive right to make and use every kind of boat or vessel impelled by 
 steam, in all creeks, rivers, bays and waters within the territory and jurisdic- 
 tion of New York, for fourteen years. In 179-^, on tlie suggestion that Fitch 
 ■was dead, or had withdi-awn from the state, without having made any attempt 
 to use his privilege, an act was passed repealing the grant to Fitch, and con- 
 ferring similar privileges on Robert R. Livingston, for the term of twenty 
 years, on a suggestion made by hinn that he was the possessor of a mode of 
 applying the steam engine to propel a boat on new and advantageous princi- 
 ples. On the 5th of April, ISO'?, another act was passed, declaring that the rights 
 and privileges granted to R. R. Livingston, by the last act, should be extended 
 to him and Robert Fulton, for twenty years from the passage of tlie act, etc. 
 And by an act of the 9th April, 1811, provisions were made for enforcing the 
 observance of the privileges granted, by the forfeiture of vessels, &c., found 
 navigating these waters. Thus, according to the laws of New York, no one 
 could navigate the bay of New York, the North or Hudson river — the sound — 
 t!ie lakes or any of the waters of the state, without a license from tlie grantees 
 of New York, under penalty of forfeiture of tlie vessel. Connecticut retaliated 
 upon this, by providing that no one could enter her waters witli a steam vessel 
 haviar/ sucli Ucense. New Jersev provided by law that should any citizen of that 
 state ^be restrained under the New York law from using steamboats between 
 the ancient shores of New Jersey and New York, he should be entitled to an 
 action for damages in New Jersey, with treble costs against the party restrain- 
 ing or impeding him under the law of New York. The New Jersey act was 
 called an act of retortion against the illegal and oppressive legislation of New 
 York, and was justified on the grounds of public law, justifying reprisals 
 between independent states. Thus, a steam vessel of any description going to 
 New York, is forfeited to the representatives of Livingston and P'ulton, unless 
 she have tlieir license. Going from New York or elsewhere, to Connecticut, she 
 IS pi-ohibited from entering the waters of that state, if she have such license. 
 If the representatives of Livingston and Fulton, in New York, carry intoeflect, 
 by juiUcial process, the provisions of the New York laws, against a citizen oi 
 New Jersey, they expose themselves to a statute action in New Jersey, for all 
 damages aiid treble costs. (See Gibbons v. Ogden, 9 Wheat., pp. 4-10,) . 
 
196 GOVERNMENT. 
 
 from, the limits of the state, and the power conferred 
 upon congress to regulate commerce with foreign 
 nations, and among the several states, is dead, so 
 far as immigration and emigration are concerned. If 
 the states have authority to impose conditions upon the 
 immigration of citizens or aliens, the nation has not. 
 But the nation has the express authority to regulate 
 this branch of commerce, and it alone can exercise it ; 
 for its jurisdiction extends beyond state lines. 
 
 g 372. The introduction of aliens or citizens of the 
 United States into a state under any sort of regulation, 
 is necessarily a regulation of commerce ; and it involves 
 the assertion of powers over persons not within the 
 jurisdiction of the state attempting such regulation. 
 Imposing any conditions of initiation into a state, 
 implies a right of exclusion ; and the rights of one 
 state in that respect being the rights of all, there is no 
 authority upon that subject left to the nation. Its 
 i;)Ower to regulate commerce, upon such theory, is 
 absorbed by the states. Its treaty stipulations with 
 Great Britain, by which the inhabitants of the two 
 countries are to be ijermitted freely and securely to 
 come with their ships and cargoes to all places, ports 
 and rivers in the territories of each country, to which 
 other foreigners are permitted to come, to enter into the 
 same, and to remain and reside in any parts of said 
 territories respectively ; to hire and occupy houses and 
 warehouses for the purposes of their commerce; and, 
 generally, to afford complete protection and security to 
 the merchants and traders of each nation respectively, 
 subject to the laws and statutes of the two countries, 
 could not be enforced by the nation, if this power to 
 impose conditions upon the immigrating alien can be 
 exercised by the states. The power to regulate com- 
 merce with foreign nations, and among the states, is 
 given to congress in the most unlimited terms; and, 
 therefore, a state cannot make a regulation of commerce 
 to enforce health laws, or any other police regulation, 
 because that power is committed exclusively to congress. 
 
 § 373. In the passenger cases, Mr. Justice Wayne, 
 in stating the decision of the court, among other things 
 holds the following : The acts of New York and Mas- 
 sachusetts imposing a tax upon passengers, either 
 foreigners or citizens, coming into the ports in those 
 states, either in foreign vessels or vessels of the United 
 States ; from foreign nations, or from ports in the 
 
EXPRESS POWERS OF CONGRESS. 197 
 
 Uaited States, are uncoustitntional and void, being in 
 their nature regulations of commerce, contrary to the 
 grant in the constitution to congress, of the power to 
 regulate commerce with foreign nations and among the 
 several states ; — that the states within the union cannot 
 coustitutionally tax the commerce of the United States 
 for the purpose of pajiug any expense incident to the 
 execution of their police laws ; — and that the commerce 
 of the United States includes an intercourse of persons, 
 as well as the importation of merchandise; — also that 
 the acts of Massachusetts and New York are uncon- 
 stitutional and void, being in conflict with treaty 
 stipulations between the United States and Great 
 Britain ; — and that such laws are in conflict with sun- 
 dry acts passed by congress at diff*erent times, admitting 
 foreigners with their personal luggage, and tools of 
 trade, free of duty or imposts, into the United States; — 
 that the law of a state imposing any tax upon foreigners 
 or immigrants, for any purpose whatever, whilst the. 
 vessel is in transitu to her port of destination, though 
 such vessels may have arrived within the jurisdictional 
 limits of such state, before the passengers had landed, 
 is in violation of such acts of congress, and therefore 
 void ; — that those acts so far as they imposed any obli- 
 gation upon the owners or consignees of vessels, or 
 upon the captains of vessels, or upon freighters of the 
 same, arriving in the ports of the United States within 
 the said state's— New York and Massachusetts — to pay 
 any tax or duty of any kind whatever, or to be in any 
 way responsible for the same, for passengers arriving in 
 the United States, or coming from a port within the 
 union, are unconstitutional and void ; being contrary 
 to the constitutional grant to congress of the power to 
 regulate commerce with foreign nations and among the 
 several states, and also to the legislation of congress 
 under the said power by which the United States had 
 been laid off into collection districts and ports of entry, 
 established within the same, and commercial regulations 
 prescribed, under which vessels, their cargoes and pas- 
 sengers are to be admitted into the ports of the United 
 States, as well from abroad as from other ports within 
 the union; — that the ninth section of the first article 
 of the constitution includes within it the migration of 
 other persons, as well as the importation of slaves, and 
 in terms recognizes that other persons as well as slaves 
 may be the subject of importation and commerce; — that 
 
198 GOVERNMENT. 
 
 the fifth clause of this nmth section, which declares 
 that " no preference should be given by any regulation 
 of commerce or revenue, to the ports of one state over 
 those of another state, nor should vessels bound to or 
 from one state be obliged to enter, clear or pay duties 
 in another," is a limitation upon the power of congress 
 to regulate commerce for the purpose of producing 
 entke commercial equality within the United States ; 
 and also a prohibition upon the states to destroy such 
 equality by any legislation i^rescribing a condition upon 
 which vessels bound from one state should enter the 
 ports of another; — that those acts of state legislation 
 imposing a tax upon passengers, are unconstitutional 
 and void, because each of them contravene the pro- 
 visions of the first clause of the eighth section of the 
 first article of the constitution, which declares that all 
 duties, imjDosts and excises shall be uniform through- 
 out the United States; — that such injanction of 
 uniformity is as obligatory upon the states in the 
 absence of legislation on the part of congress, as if 
 the uniformity had been made and established by 
 congressional legislation ; — that such constitutional uni- 
 formity is interfered with and destroyed by any state 
 imposing any tax upon the intercourse of i3ersons from 
 state to state, or from foreign countries to the United 
 States; — that the power of congress to regulate com- 
 merce with foreign nations and among the several states, 
 includes navigation upon the high seas, and in the bays, 
 harbors, lakes and navigable waters within the United 
 States ; and that any tax by a state in any way affect- 
 ing the right of navigation, or subjecting the exercise 
 of the right to a condition, is contrary'- to such grant to 
 congress. ^ 
 
 g 374. In the case of The City of New Yorlz v. Miln 
 before cited, the court remarked : " We think it as 
 competent and as necessary for a state to x^i'f^vide 
 precautionary measures against a moral pestilence of 
 paupers and vagabonds, and possibly convicts, as it is to 
 guard against the physical pestilence which may arise 
 from unsound and infectious articles imported, or from 
 a ship the crew of which may be laboring under an 
 infectious disease." It certainly is competent for a 
 state to exercise all needful power to protect its citizens 
 from moral and physical evils, provided she does not 
 adopt measures involving the rights of persons other 
 
 I See Smith v. Tamer, and Norris v. The City of Boston, 7 Ho-w. S. C, 283. 
 
EXPRESS POWERS OF CONGRESS. 199 
 
 tliau those over wliicli she has jurisdiction, in matters 
 purposely committed to the jurisdiction of the general 
 government. The states of the union may, in the exer- 
 cise of their police powers, pass quarantine and healtli 
 laws interdicting vessels coming from foreign ports, or 
 ports within the United States, from landing passengers 
 and goods ; prescribe the places and times for vessels to 
 quarantine, and impose penalties upon persons violating 
 the same. But such laws, though temporarily affecting 
 commerce in its transit, are not regulations of commerce, 
 prescribing terms upon which merchandise and persons 
 shall be admitted into the ports of the United States. 
 They are necessary precautionary measures to prevent 
 the introduction of disease into the ports to which ves- 
 sels are bound. And states may, in the exercise of such 
 police power, without any violation of the power in 
 congress to regulate commerce, exact from the owner 
 or consignee of a quarantined vessel, and from passen- 
 gers on board, such fees as are necessary to pay the 
 costs. and expenses of their detention, and of the purifi- 
 cation of the vessel, cargo and apparel of the persons 
 on board. ^ 
 
 g 375. How far a state possesses the authority to 
 obstruct by its legislation a navigable stream in which 
 the tide ebbs and flows, has been the subject of much 
 discussion. The principle involved would seem to be 
 this : If the stream be navigable in fact, and the quality 
 of navigability continues between two or more states, 
 the power to regulate commerce upon such stream 
 should be exclusive in congress ; because the states are 
 not competent, by any authority they possess respect- 
 ively, to regulate the commerce between themselves ; 
 and congress has plenary authority to do so. Accord- 
 ing to technical definition, a stream is said to be navi- 
 gable to the extent that the tides ebb and flow therein ; 
 though, in fact, such streams are not always navigable. 
 A stream lying entirely within a state, which in fact is 
 not navigable, even though the tide ebbs and flows 
 therein, is in no way connected with the commerce of 
 the nation, and there is no reason why the authority 
 of congress to regulate commerce with foreign nations 
 and among the several states, should give to the gen- 
 
 1 Although the court "was divided in opinion in tliese passenger cases (Smith 
 V. Turner, JS^orris v. The City of Boston, 1 How. S. C, 28:3), five of the judges — 
 McLean, Wayne, Catron, ^IcKinley and Grier— concurred in the doc- 
 trines herein stated. Four of the judges — Taney, Ch. J., Daniel, Nelsou 
 and WooDBUKY— dissenting therefrom. (See Story's Com. on Const., 2 1072 s-, 
 and note.) 
 
200 GOVERNMENT. 
 
 eral government commercial jurisdiction upon the banks 
 or over the bed of such non-navigable stream. In 
 respect to all such streams, or even navigable streams 
 in fact, beyond the point where navigation is possible as 
 a channel of commerce, there is no apparent reason 
 why the general government should exercise exclusive 
 or even any jurisdiction over them, or over that part of 
 them. Where a stream cannot be used in fact for com- 
 mercial purposes, there is probably no reason why the 
 rights of riparian owners along its channel should not 
 be left to the administration of the local or state gov- 
 ernment. To give congress authority over a particular 
 stream of water, it would seem that its navigable 
 character should be continuous beyond the jurisdiction 
 of the state ; that is, it should be navigably connected 
 with navigable waters extending beyond the limits of 
 the state. For where there are navigable waters entirely 
 within the territorial limits of a particular state, which 
 are disconnected with navigable waters beyond such 
 limits, such waters are not the subject of either inter- 
 state or international use ; and consequently the power 
 of congress to regulate commerce with foreign nations 
 and among the states would not reach to the navigation 
 of such isolated waters. ^ 
 
 g 376. A stream that is in fact navigable, and is used 
 as a channel of inter-state and international communi- 
 cation cannot be lawfully obstructed by the authority 
 of a state through which it passes, even though con- 
 gress has made no especial regulations in respect 
 thereto. By the constitution of the United States its 
 navigable qualities are placed under the exclusive regu- 
 lation of congress, and consequently the states have no 
 power to authorize the interruption of the full and 
 perfect enjoyment of the public easement therein. It 
 has been argued that the state might authorize an 
 obstruction, as the building of a bridge over a navigable 
 stream, where congress had passed no law expressly 
 prohibiting the same ; but the supreme court of the 
 United States held to the contrary. They held, that if 
 the law of the state of Virginia authorized the erection 
 of a bridge over the Ohio river in such a manner as to 
 obstruct the navigation, such law would be no defense 
 to the bridge company, although congress had passed 
 no act i)i^ol^i1^ifcii3S the obstruction of that river; for 
 
 1 See Veazie v. Moore, 14 Ho-w., 56S; United States v. Coombs, 12 Pet. S, C, 78. 
 Per SxoRY, Justice. 
 
EXPRESS POWERS OF CONGRESS. 201 
 
 they had exercised control over it by licensing vessels, 
 establishing- ports of entry, imposing duties upon mas- 
 ters and other oflQcers, &c.^ 
 
 g 377. The power of congress to regulate commerce 
 extends to the regulation of navigation, and to the 
 coasting trade and fisheries, within, as well as without 
 any state, wherever such navigation is connected with 
 the commerce or intercourse with any other state or 
 nation. The form of the grant is, congress shall have 
 power to regulate commerce with foreign nations and 
 among the several states. The power of regulating 
 this branch of commerce was committed to the general 
 government, because, from the nature of things, it was 
 a i)ower which could not be left with the several states. 
 No subject could be committed to state jurisdiction 
 which required the exercise of authority beyond its 
 limits. To regulate the commerce with foreign nations 
 or between the several states involved the exercise of 
 such extra-territorial authority, and for that reason that 
 subject was necessarily committed to the exclusive con- 
 trol of congress. But such reason would not extend to 
 the navigation of a stream lying wholly within a par- 
 ticular state, and disconnected with any other navigable 
 waters extending beyond state limits.^ The power to 
 regulate commerce extends to the regulation and gov- 
 ernment of seamen on board of American ships ; to 
 conferring privileges upon ships built and owned in the 
 United States, in domestic as well as foreign trade.^ It 
 extends to quarantine laws, pilotage laws, and wrecks 
 of the sea.* It extends as well to the navigation of 
 vessels engaged in carrying passengers, steam vessels 
 or others, as to the navigation of vessels engaged in 
 traffic and general coasting business.^ It extends to the 
 laying of embargoes both on domestic and foreign 
 voyages. ° It extends to the construction of light- 
 houses ; the placing of buoys and beacons ; to the 
 removal of obstructions to navigation in creeks, rivers, 
 sounds, bays, &c. ; "^ in short, everything essential to 
 the exercise of commercial intercourse and intercom- 
 munication between the people of the United States 
 and foreign nations, and also between the several states, 
 
 1 Slate of Pennsi/lvania v. The Wheeling and Belmont Bridge Co., 13 How.. 518. 
 Heart the dissenting opinion of Judge Taney in tliis case for the views of those 
 liolding a contrary doctrine. It may be found in a note by Judge Story in his 
 tliird edition of Com. on the Const., § 1073. 
 
 2 Veazie v. Moore, 14 How., 568. 3 1 Tuck. Black. Com., app., 232. * 9 Wheat., 
 233-208. 5 Id., 21i-221. 6 Id., 191, 192. ^ Story's Com. on Const., g 1075. 
 
 26 
 
202 GOVERN"MEKT. 
 
 seems to be included in the power given to congress to 
 regulate commerce. The people of the United States 
 in the institution of their general or national govern- 
 ment undoubtedly intended to make it an instrument, 
 by means of which they, as a nation, could exercise 
 authority over the whole subject of commercial inter- 
 course as fully and completely as any other sovereign 
 and independent nation could of right do. They com- 
 mitted the regulation of commerce with foreign nations 
 and among the several states to the exclusive control 
 of congress, and gave to it the plenary authority of the 
 nation, always to be exercised and administered by 
 themselves. 
 
 g 378. The power to regulate commerce with the 
 Indian tribes is exclusively in congress. Prior to 
 the revolution, this power was exercised by the British 
 government. During the confederation it belonged to 
 congress, except as to those tribes which resided within 
 the limits, or were considered as members, of any of the 
 states. At the formation of the constitution no objec- 
 tions were made to conferring this power upon the general 
 government through congress. In their tribal condition 
 the Indians have ever been dealt with as separate 
 nations, although dependent. Their territorial rights 
 and property have been respected by the government. 
 Their property in the soil, however, has not been deemed 
 such as to entitle them to the right to dispose of it to 
 foreign nations, or to any but the general government. 
 Their mode of occupation is such as only to require the 
 use of it for purposes of hunting and fishing. As indi- 
 viduals, generally, they attach no improvements, and 
 hence, make no individual appropriations of the land to 
 their respective uses. Therefore the government cannot 
 deal with them as individually having any property in 
 the soil, or as having any other rights thereto, except 
 its use for the purposes to which they have applied 
 it. Their use does not differ essentially from the use 
 made of it by the wolf, the bear, the deer, and other 
 denizens of the forest. It has long been a problem 
 demanding solution, what is to beconie of the red man 
 at last ? There can be but two answers to the question : 
 he must become a civilized being individually and 
 socially ; or he must cease to live upon the earth. If, as 
 a race, the Indians are incapable of becoming civilized, 
 and of entering upon that higher plane of civilization and 
 enlightenment awaiting humanity, as active, cooperat 
 
EXPRESS POWERS OF CONGRESS. 203 
 
 in,^ members, tliey must disappear. If the Autlior of 
 ali good in his wisdom, has ordained progress in the 
 birtli, development and decay' of races in the human, as 
 in the animal kingdom, then the saurians of the races 
 must pass away, by the advancement of those conditions 
 of life essential to the ushering in of that "good time 
 COMING," believed ii\ by many, and hoped for by all. 
 
 § 379. From the character and constitution of that 
 society of Indians known as a tribe, it is impossible to 
 accord to them the attributes of an independent sover- 
 eign nation ; nor can they in all respects be treated as 
 such. An Indian tribe, leading a nomadic life, may 
 have its king or chief, and its counselors ; but it is in 
 uo conditionto maintain that relation and intercourse 
 with other nations essential to true nationality. As a 
 society, they may be recognized and treated with as 
 having a corporate existence, and possessing certain 
 rights as incident to their nomadic condition. Since 
 the organization of the national government, the United 
 States have always treated with them as possessing a 
 dependent sovereignty — if such a condition be definable 
 
 as having rights original and inherent in themselves, 
 
 by which they can acquire and possess property and 
 dispose of the same under such supervision and restric- 
 tions as the general government feels in duty bound to 
 exercise. For this reason all trade or commercial inter- 
 course with them must be in accordance with the rules 
 and regulations imposed by congress. It has been 
 decided upon solemn argument by the supreme court 
 of the United States that, an Indian tribe is to be 
 deemed politically a state, so far as to be considered a 
 distinct political society capable of self-government; 
 but that it cannot be deemed a foreign state in the sense 
 of the constitution. Its stateship is one of pupilage, 
 and in the United States each tribe is the ward of the 
 nation. ^ 
 
 1 See The Cherokee Nation v. Georgia, 5 Pet., 1-17. 
 
204 GOVERNMENT. 
 
 OHAPTEE XL 
 
 POWEES OF CONGRESS — If ATUKALIZATION. 
 
 g 380. " OoxGEESS shall have power to establish a 
 imiform rnle of naturalization, and uniform laws on the 
 subject of bankruptcies, throughout the United States." ^ 
 As the United States were to be one nation, it was 
 necessary that there should be one uniform rale of citi- 
 zenship. Under the confederation the states each for 
 themselves exercised this authority, and the inevitable 
 consequence was, that there were many and dissimilar 
 rules of naturalization in the several states ; and as the 
 citizens or free inhabitants of each state were entitled 
 to all the privileges and immunities of citizens in all 
 the other states,^ it followed that a single state had the 
 power of determining the conditions of naturalization 
 afi'Bcting all the other states. For an alien might become 
 naturalized in a state requiring but a short residence, 
 and then he was, in effect, a citizen of the nation, and 
 he could claim in the other states the privileges 
 and immunities of their own citizens. By this provision, 
 the laws on the subject of naturalization of a single 
 state were rendered paramount to those of the other 
 states. But as the citizens of the state are likewise 
 national citizens, it is the right of the nation alone to 
 determine who shall politicall}^ and potentially become 
 members of the national society. The propriety of 
 committing the exercise of this power to the general 
 government was not questioned in the convention, and 
 has never since been questioned. Congress has the 
 exclusive power of determining upon what conditions 
 an alien may become a citizen of the United States. 
 
 § 381. In the United States there are two classes of 
 citizens; that is, two classes in reference to the manner 
 in which they became citizens. At the time of origi- 
 nating the American nation, the citizens of each state 
 became likewise citizens of the nation, and the rights 
 of citizenship attached to them. Therefore, after the 
 establishment of American nationality every person 
 born within the territorial limits of the United States, 
 whether his X-)arents were citizens or aliens, became a 
 citizen by birth, called a native born citizen. Under 
 the constitution, all such are entitled to all the rights 
 
 1 Art. 1, § 8, cl. 4, Const. U. S. 2 Articles of Confederation, art. 4. 
 
NATURALIZATION. 205 
 
 and privileges pertaining to membership of the national 
 family. The constitution in some respects distiiiguisbes 
 between native born citizens and others; thus, no person 
 is eligible to the otlice of president of the United States 
 unless be is a natural born citizen. So also to be quali- 
 fied as a member of the house of representatives, or of 
 the senate, be must bave been a citizen of the United 
 States a certain number of years. 
 
 S 382. Under a democratic government the sover- 
 eignty resides essentially and entirely with the people. 
 Those only who comprise the people and partake of this 
 sovereignty, are citizens, and are capable of exercising 
 political rights and powers. Therefore they bave the 
 authority to determine upon what terms and conditiogs 
 those who are alien to their society shall be admitted 
 to become constituent members thereof, and become 
 politically enfranchised. In a country where the people 
 are the administrators of their own governmental 
 authority, and where every one who is admitted to the 
 rights and i^rivileges of citizenship becomes an equal 
 jjarticipator in such administration, it becomes a ques- 
 tion of prime importance to fix upon a safe and just 
 rule of naturalization, suited to the growth and develop- 
 ment of the nation, and at the same time prudent and 
 safe to a faithful and just administration of govern- 
 mental authority. For by the act of naturalization a 
 foreigner, whatever bis moral and intellectual condition, 
 is made a citizen and clothed with all the authority and 
 I)owers of the most enlightened, moral and patriotic 
 citizen of the nation. If the conditions of conferring 
 citizenship are not reasonably stringent there will be 
 great danger of weakening the just administrative 
 power of the nation. For it should be remembered that 
 commercial intercourse exists between this and the most 
 unenlightened nations ; and the uniform rules of natu- 
 ralization apply as well to the ignorant, immoral and 
 vicious, as to the better classes of immigrants ; and that, 
 practically, every ignorant and vicious alien who is 
 made a citizen becomes a political tool in the hands of 
 the like class of native born citizens, and by his vote 
 he neutralizes the power at the polls of the most enlight- 
 ened and patriotic, so that virtually every ignorant and 
 vicious citizen which is added to the national society, 
 sinks the power of the like number of those upon whose 
 shoulders the pillars of the republic rest. 
 
206 GOVERNMENT. 
 
 % 383. There Lave been two classes of opinions 
 respecting the essential features of naturalization laws, 
 which may be deuoininated the liberal and the stringent. 
 One class have advocated the early admission of all 
 foreigners who desired it, to a full participation in the 
 political administration of the government ; affirming 
 that, generally, they were as well qualified to exercise 
 the right of suftrage immediately after becoming located 
 in the country, as a very large class of natural born 
 citizens are, or ever will be; — that by being permitted 
 to participate in the administration of the government 
 they will feel themselves identified with the interests 
 and general prosperity of the country, and will become 
 attached to its institutions ; — that, having the rights of 
 citizenship, they are subject to its duties and obligations ; 
 and that the nation will be enriched and strengthened 
 by an increase of its citizens. On the other hand, it is 
 claimed, that the character of any government depends 
 upon the character of those who administer it; — that, 
 whatever its form, it becomes free or oppressive accord- 
 ing to the character of those who exercise its powers; — 
 that a republican and democratic government can be 
 maintained only by the presence of intelligence and 
 virtue among the people; — that the mass of foreigners 
 are necessarily ignorant of the essential principles of a 
 free government ; are peculiarly liable to fall into the 
 hands of unprincipled men and demagogues, who will 
 not hesitate to approach them by the use of corrupting 
 and demoralizing influences ; who will mislead them as 
 to the real issues, and avail themselves of their support 
 for selfish and dishonest purposes; — that while it may 
 be true that the mass of foreigners are as intelligent 
 and virtuous as a certain class of native born citizens, 
 that the class of ignorant and vicious native born citi- 
 zens, who are entitled to the elective franchise, are 
 naturally as large as it is safe for any republican gov- 
 ernment to attempt to hold in check, without being 
 largely increased by the addition of an uneducated and 
 undisciplined foreign element ; and that, therefore, it is 
 the more prudent and safe policy to require a long resi- 
 dence in the country, in order that the foreigner may 
 become familiar with the practical operations of the 
 government ; with the character and habits of those 
 concerned in its administration ; in short, that he may 
 become politically acclimated before he attempts to 
 declare who shall administer the public authority, and 
 
NATURALIZATION. 207 
 
 to prescribe for the political welfare of the nation. 
 Practically it has been found, that that class of immi- 
 grants who come to this country to benelit their 
 physical and social condition by habits of industry and 
 honest living ; who immediately seek some honest 
 and honorable occupation, are abundantly qualified to 
 participate in the administration of the public authority 
 after the brief residence of five years. But that other 
 class who come hither because it was impossible, or, at 
 least impolitic, for them to remain at home ; who had 
 no honest or honorable occupation in the old world, and 
 who proposed to find none in the new ; whose highest 
 ambition it is to eat and to drink and to indulge in their 
 animal propensities ; who settle mostly in cities and the 
 larger towns, because of the facilities for dishonest and 
 dishonorable gains, have proved themselves dangerous 
 to the security and welfiire of society, and, so tar as 
 they have obtained political power, it has been used for 
 the lowest and basest purposes. They are ever ready 
 instruments in the hands of dishonest and gambling 
 politicians to place the political power of the country 
 in the possession of those who use it for purposes ot* 
 private emolument, regardless of what the .public wel- 
 fare demands. Experience has already taught, that the 
 greatest danger to the future of the commonwealth is 
 to come from this class, as aids to the demagogue and 
 trading politicians of the nation ; — that measures must 
 be taken to elevate this class to that standard of intelli- 
 gence and morality which will make it safe to intrust 
 them with political power, or they must be deprived of 
 its exercise. 
 
 § 384. The mode by which an alien may become a 
 citizen, and be invested with the privileges and immu- 
 nities of citizenship, is denominated his naturalization. 
 By its operation the political status of the alien is 
 changed in the eye of the law, and he is in a condition 
 to enjov all the advantages conferred by birth upon the 
 other class of citizens. The rights and privileges of 
 aliens, as mere residents of the states, differ in different 
 states. In general the United States leave to the state 
 administrations those regulations which aft'ect their 
 rights of property, and also the manner in which they 
 are to be exercised and enforced. But it cannot be 
 doubted that the alien is subject to the supervision and 
 control of the general government, should it become 
 necessary for it to exercise its authority. Thus, if a war 
 
208 GOVERNMENT. 
 
 should break out between the United States and the 
 country of which the alien is a citizen or subject, on 
 general principles, he would thereby become an alien 
 enemy, and would be liable to be sent out of the 
 country at the pleasure of the general government; or 
 to be laid under such restraints, while remaining within 
 it, as congress might deem to be reasonable and i)roper. 
 While the alien is the legal subject of the nation with 
 which the United States is at war, the presumption is 
 that he will be. true to the interests of his nation; and 
 will avail himself of every means to advantage her ; 
 therefore the right of self-defense justifies the govern- 
 ment in taking necessary measures to guard against any 
 injury he might be disposed to inflict in behalf of his 
 liege sovereign and country. 
 
 g 385. The duration of the character or quality of 
 citizenship, that is, of defeasible or indefeasible allegi- 
 ance, has been the subject of much discussion, and has 
 not been so definitely settled hitherto as to be beyond 
 even farther discussion. The doctrine of indefeasible 
 allegiance has, perhaps, deeper root in England than in 
 any other European country ; and, in discussing the 
 grounds upon which the doctrine of perpetual allegi- 
 ance is based, it becomes necessary to find their theory 
 of the source of governmental authority, or the sub- 
 ject of this indefeasible allegiance. 
 
 § 38G. Almost the entire real property of England is, 
 by the policy of its laws, supposed to be granted by, 
 dependent upon, and holden of some superior lord, in 
 consideration of certain services to be rendered to the 
 lord by the tenant or holder of the land. Thus all 
 the lands of the kingdom are supposed to be holden, 
 mediately or immediately, of the king, who is styled 
 the lord paramount. In this manner are all the lands 
 of the kingdom holden, which are in the hands of sub- 
 jects. All tenures being thus derived from the king, 
 those that held immediately of him, in right of his 
 crown and dignity, were denominated his tenants in 
 capite, or in chief. There were several species of ten- 
 ures, each characterized by the species of services or 
 renders due the lord from the tenants. Bracton divided 
 them into franlc-tenement and mllenage; and of frank- 
 tenements he says, some are held in consideration of 
 homage and Icmght service; others in free-socagc, with 
 the service of fealty only. And of villenages, some are 
 pure and others are privileged. He that holds in pure 
 
NATURALIZATION. 209 
 
 villenage shall do whatever is commanded him, and 
 always bo bound to an uncertain service. The other 
 kind of villenage is called villcin-socage, and these 
 villcin-.socnien do villein service, bnt snch as are certain 
 and determined. So, according to Bracton, the subjects 
 of England holding the lands were, first, those where 
 the service was free but uncertain, as military service 
 with homage; that tenure was i)er servilimn militare, 
 or by kniglib service. Second, where the service was 
 both free and certain, as by fealty only, or by rent and 
 fealty ; that tenure Avas called liberum socafjium, or free- 
 sociige. Third, where the service Avas in its nature 
 servile and base, and uncertain as to time and quantity; 
 this tenure was panim villenagium, absolute or pure 
 villenage. Lastly, where the service was base m its 
 nature; but certain in quantity, this tenure was viUana- 
 f/itim prlvUegiatmn. But whatever the tenure by which 
 he held, he was bound by oath of service to his superior 
 lord, from which obligation he had no right.or authority 
 to absolve himself. 
 
 g 387. The constitution of feuds had its origin from 
 the military j)olicy of the ISTorthern or Celtic nations, the 
 Goths, the Iluns, the Franks, the Vandals and the Lom- 
 bards,^ who i)Oured themselves into Europe at the 
 declension of the Roman Emi)ire. The feudal i)olicy was 
 not established in England until the reign of William the 
 Conqueror. The exact period of its establishment can- 
 not be ascertained; but, it was probably after the 
 threatened invasion from Denmark, in the nineteenth 
 year of King William's reign. The defenseless condi- 
 tion of the country at the time, was the occasion of the 
 calling of a grand council to enquire into the state of 
 the nation ; the immediate consequence of which was the 
 c()mi)iling of the great survey called domesday-book, 
 which was liuished the next year, and in the latter end 
 of the same year, the king was attended by all his 
 nobility at Sarum ; where all the princii)id landholders 
 submitted their lands to the yoke of military tenure, 
 became the king's vassals, and did homage and fealty 
 to his person. The law and the form of the oath, made 
 every man taking it, a tenant or vassal, the tenants 
 obliging themselves to defend their lord's territories and 
 titles against all enemies, foreign and domestic.^ This 
 
 1 2B1. Coin., 45. 
 
 2 " Statuirnus, ut omnes libcri homines foederc nt Sacramento affirmont, 
 quod intra et extra univer.suin retjnum Angliae, Willielnio rcgi doniine .suo 
 tidelis esse volunt; terras et lionores illius oihni lidelitate ubique servarecum 
 eo, et contra iuimicos et alieuigena defondere." (See 2 Bl. Com., 50.) 
 
 27 
 
210 GOVERNMENT. 
 
 new policy was imposed by the conqueror, says Black- 
 stone, but was nationally and freely adopted by the 
 general assembly of the whole realm. ^ Here will be 
 found the basis of that indefeasible allegiance so strenu- 
 ously contended for in England, as inseparable from the 
 British constitution. 
 
 § 388. Therefore, whatever repugnance may be felt 
 to the assertion of the fact, the present government of 
 England, in theory, is founded on conquest, the property 
 having been traUjSferred to the king by his subjects, to 
 be held by them afterward as tenants, and on conditions 
 of services and fealty. Afterward the oaths of fealty 
 and homage accompanied grants of land, and the oath 
 of allegiance necessarily accompanied that of fealty. 
 Certain consequences were understood to flow there- 
 from. The allegiance thus pledged could not be 
 withdrawn by the subject. It was a matter of contract 
 between him and the king, and was perpetually bind- 
 ing, unless the x^i'otection of his sovereign, which was 
 the consideration of his allegiance, became impracticable 
 or impossible. Hence, if the monarch was driven out 
 by a successful competitor, who took possession of the 
 throne, the allegiance of the subject was transferred, 
 and it became his duty to obey the reigning sovereign. 
 So also, when the king by treaty with a foreign power, 
 alienated an entire territory, and its inhabitants, the 
 allegiance was transferred to the new sovereign. From 
 this allegiance, original or transferred, the subject could 
 not withdraw himself: he was the subject of the king; 
 one in whom the king had a species of property, trans- 
 ferable at his sovereign pleasure, but not at the pleasure 
 of the subject. Snch is the basis of the doctrine of 
 indefeasible allegiance in England, and such the theory. 
 But it has no application to a country where the peoi)le 
 are sovereign, and where the allegiance arises from 
 the necessity of government and the rights incident to 
 such necessity. 
 
 S 389. In a democratic republican government, the 
 sovereignty of the nation consists in the authority of 
 the members of the national society taken together as a 
 whole. The government instituted by them is a mere 
 instrument for the administration of their authority 
 for purposes of individual protection, and for the com- 
 mon defense and general welfare of the whole society. 
 The allegiance which a member of that society owes 
 
 1 2 Bl. Com., 50. 
 
NATURALIZATION. 211 
 
 to the government, arises from the fact of membership 
 of the society, and the necessary condition of obedience 
 to all its requirements. The government is instituted to 
 protect each member in the enjoyment of his civil 
 liberty to tlie fullest extent, consistent with the like 
 rights and liberties in others. Naturally, every one has 
 the right, and is at liberty, to visit all parts of the earth 
 as the common heritage of man; and to select such place 
 for his home in any zone which pleases him. He is not 
 responsible to any one for his parentage, or for the i)lace 
 of his birth. Naturally, he is at liberty, as soon as able 
 to provide for himself, to seek such social and political 
 associations as he feels to be for his good. He can be 
 mider no possible obligations to live under the particu- 
 lar form of government, under which he chanced to be 
 boru. He may seek the highest and best his nature 
 and destiny demand; and, therefore, no society or 
 government has any just authority to restrain him of 
 such natural liberty, nor can it impose upon him obli- 
 gatious inconsistent with such liberty. He is obliged to 
 obey the requirements of the authority under which he 
 lives, or where he chooses to make his home ; and if 
 he sees fit to become an integral member of such society, 
 that he may claim its fullest protection, and enjoy its 
 largest privileges, he is bound to serve it in common 
 with the other members thereof, if need be, with his 
 in-operty and life. But if he deems it best for himself 
 to withdraw therefrom, and seek political and social 
 associations elsewhere, he releases society and govern- 
 ment from all further responsibilities on his account ; 
 and he should be freed from responsibilities to them. 
 The basis of allegiance to government and society, 
 is gone, when the relation between the citizen and it, is 
 dissolved and ended. 
 
 g 390. The theory of indefeasible allegiance is incon- 
 sistent with that natural liberty belonging to man, as 
 essential to enable him to seek his highest good and ulti- 
 mate destiny. Not being responsible to any authority 
 for his parentage and birth, and being liable to be born 
 under a government under which he cannot possess the 
 rights essential to the unfoldment and perfection of his 
 true manhood, it is his natural and inherent right to 
 migrate therefrom in search of those associations he 
 needs for his true development, and to make his home 
 under the fostering care of such a government as will 
 protect him in the enjoyment of that liberty which 
 
212 GOVERNMENT. 
 
 belongs to liim, and which he mnst possess or fail of his 
 birthright. But to enjoy the full advantages of citizen- 
 ship he must become a citizen. He must be at liberty 
 to pledge fall and undivided allegiance to the adopted 
 government, free from, the claims of any other ; and 
 thus to stand before the world, an equal citizen of such 
 government, entitled to equal protection and to equal 
 rights. Indefeasible allegiance is not consistent with 
 the doctrine that governments are instituted for the 
 benefit of the governed, and belong to the people. 
 When a republican nation opens wide its political arms 
 to receive and adopt as her own, the oppressed of other 
 countries, she must necessarily repudiate the doctrine 
 of indefeasible allegiance, or be unfaithful to her 
 adopted citizens. 
 
 g 391. Eawle, in his commentaries upon the consti- 
 tution, speaking of the indefeasible allegiance of the 
 native and adopted citizens, remarks that, "in the native, 
 his allegiance is coeval with his life ; in him who 
 migrates hither from another country, it commences as 
 a permanent duty, with his naturalization ; in both it 
 lasts till death, unless it is released by some x^rocedure 
 mutual on the part of both the state and the individ- 
 ual." But, he adds, " whether the individual alone can 
 relinquish it, is a question which in this, as well as other 
 countries, has been often discussed, and on which an 
 opinion cannot be given without diffidence, since it has 
 not yet received a decision in the highest tribunals of 
 our country." He contuiues : "in the first x>h^ce we 
 may dispose with little comparative difficulty, of the 
 case of the naturalized citizen. His accession is volun- 
 tary, and his engagement is, neither in terms nor its 
 nature, limited to any time. He, therefore, binds him- 
 self by contract for his life ; and the state, which, 
 differently from the doctrine of the English and other 
 monarchies, cannot afterward deprive him of the quality 
 thus acquired, which cannot again, by its own act, 
 convert him into an alien, is equally bound for the 
 same term," and he quotes Locke as an authority upon 
 this subject.^ With due deference to the learned com- 
 mentator, the argument is not satisfactory. Unless the 
 obligations of the adopted citizen are more permanent 
 and binding than those of the native born, the reason- 
 ing cannot be sound. If the native born citizen cannot 
 
 1 See Rawle on the Constitution, p. 85; see Locke on Civil Government, ch. 8. 
 
NATURALIZATION. 213 
 
 renounce his alleg'iance to liis government, lie cannot 
 assume the obligations of allegiance to a new nation or 
 sovereign; for it is quite clear that he cannot be under 
 obligations of allegiance to two independent sovereigns 
 at the same time. He can no more serve two masters 
 politically, than he can religiously; for politically he is 
 quite liable to be required to defend the one, and to 
 defeat the other. Therefore, the hypothesis that an 
 adopted citizen can be bound by an oath of allegiance to 
 be loyal and true as a citizen of his adopted country 
 implies that he can lawfully put off his native allegi 
 ance. And if one can lawfully put off his native 
 allegiance there is little ground for arguing that an 
 adopted citizen may not, in the same manner, put off 
 his adopted allegiance when he renounces the society 
 and protection of his adopted country to enter into, and 
 become the loyal subject of another. To deny this 
 right of changing allegiance by changing countries and 
 adopting a new home, implies that the sovereign or 
 government has a kind of property in the subject 
 or citizen; which doctrine is not recognized in America. 
 g 392. Whatever may be the theory as to the founda- 
 tion of a subject's obligation to be loyal and true to his 
 government, the real basis of this obligation is to be 
 found in that necessity which God has imposed as the 
 only condition of social existence, security, order and 
 public welfare. It; matters not whether man undertakes 
 to obey the requirements of law, and to be loyal to the 
 authority by which the society in which he resides is 
 governed ; it is indispensably necessary that he should 
 be obedient and loyal, while he continues a member of 
 such society ; and it matters little whether his obedience 
 be compelled upon the theorj^ of a contract, or upon the 
 fact of an imperative necessity. But if he withdraws 
 from such society, and goes beyond the jurisdiction of 
 its laws, and becomes a member of another and an 
 independent community, the same necessity is upon 
 him in relation to his new association. He must be 
 loyal to the government of which he becomes a citizen 
 or subject, and must obey its laws. Says Mr. Eawle : 
 "The compact created among the citizens by the 
 declaration of independence, was well understood by 
 themselves at the moment not to be of a temporary 
 nature, and in the power of the individual at pleasure 
 to dissolve. It was essential, not only to the perma- 
 nence, but to the formation of the new government, 
 
214 GOVERNMENT. 
 
 tliat every one, either taking an active part in its estab- 
 lishment, or giving evidence of his consent by remaining 
 within it, shonld be considered as bonnd to it so long as 
 it continued." ^ It will not be contended that the 
 inhabitants of the United States by their declaration of 
 independence, intended, individually to bind themselves 
 to forever surrender their right to emigrate to another 
 country, if health, business or inclination should, in 
 after life, prompt them to do so ; and that should tbey 
 find in another climate, and under another government., 
 a congenial home, that they would not be permitted to 
 accept and enjoy it because they had in early life united 
 in achieving the independence of the American nation. 
 The argument in favor of indefeasible allegiance drawn 
 from the implied compact of the people in declaring and 
 achieving their independence, is neither forcible nor 
 satisfactory. That they bound themselves together to 
 maintain and defend their common independence, may 
 be admitted ; but it is not thence to be inferred that 
 they deprived themselves of the liberty of seeking other 
 homes in other climes and under other governments. 
 
 § 393. Congress has power to establish uniform laws 
 on the subject of bankruptcies throughout the United 
 States. This power was given to congress as a means 
 of carrying out the declared objects of the people in 
 instituting the general government, to wit : to establish 
 justice, insure domestic tranquillity, and promote the 
 general welfare. Commerce, credit and confidence were 
 the particular things which did not exist under the old 
 eonfederatiou, and which it was a principal object of 
 the framers of the constitution to create and establish. 
 A vicious system of legislation, a system of paper 
 money and tender laws, had completely paralyzed _ 
 industry, threatened to beggar every man of property, 
 and nllimately to ruin the country. The relation 
 between debtor and creditor, always delicate and alwa.ys 
 dangerous whenever it divides society, and draws out 
 the respective x)arties into different ranks and classes, 
 was in such a condition in the years 1787, 1788 and 
 1789, as to threaten the overthrow of all government; 
 and a revolution was menaced more critical and alarm- 
 ing than that through which the country had then 
 recently passed. The object of the new constitution 
 was to arrest these evils ; to awaken industry, by giving 
 security to property ; to establish confidence, credit and 
 
 1 Rawle on the Const., pp. 86, 87. 
 
BANKRUPTCY. 215 
 
 commerce, by salutary laws, to be enforced by tlie power 
 of the whole community. The revolutionary war was 
 over; the country had peace, but little domestic tran- 
 quillity ; it had liberty, but few of its enjoyments and 
 none of its security. The states had struggled together, 
 but their union was imperfect ; they had freedom, but 
 not an established course of justice. The constitution 
 was therefore framed to form a more perfect union ; to 
 establish justice ; to secure the blessings of liberty, and 
 to insure domestic tranquillity.^ With respect to the 
 internal administration of the general government, 
 the objects of the constitution were, among other things, 
 commerce, credit, mutual confidence in matters of 
 l)ro])erty, and these required, among other means, a 
 uniform standard of value, or medium of payment. 
 Therefore, one of the first powers given to congress, is 
 that of coining money, and regulating its value ; and 
 fixing the value of foreign coins. And among the first 
 jjrohibitions to the states, is that of coining money ; 
 emitting bills of credit; making anything but gold and 
 silver a legal tender in payment of debts, or making 
 any law impairing the obligation of contracts. Thus 
 the powers conferred on congress, and the restrictions 
 imposed upon the states, clearly indicate the purpose of 
 the people, when they committed to congress the power 
 to make uniform laws on the subject of bankrujjtcies 
 throughout the United States. 
 
 § 39-1. The general object of all bankrupt and insolv- 
 ent laws is, on the one hand, to secure to creditors 
 an appropriation of the property of their debtor, to 
 the discharge of their debts 2^^^ tanto, whenever the 
 debtor is unable to discharge the full amount of the 
 same ; and, on the other hand, to relieve unfortunate 
 and honest debtors from perpetual bondage to their 
 creditors, either by unlimited imprisonment to coerce 
 l)ayment, or by a right to appropriate the subsequent 
 l)roperty of the debtor for that purpose. One of the 
 first duties of legislation, while providing for the obliga- 
 tion of contracts, is, to relieve the unfortunate and 
 meritorious debtor from a slavery of mind and body, 
 which deprives him in a great measure of the enjoyment 
 of the comforts of life and the common benefits of 
 society. But the power of affording this relief should 
 be intrusted to the administration of those who are 
 liable to be affected by it either as the debtor or creditor 
 
 1 See Webster's remarks in Ogden v. Saunders, 12 Wheat., 247, 248. 
 
216 gover:n^ment. 
 
 class. A local government should not possess the 
 authority to absolve a debtor from the legal obligations 
 to pay his debts contracted in another jurisdiction, for 
 the reason that the laws of a state can have no force 
 beyond its local jurisdiction. Thus, if 'New York by its 
 laws, can relieve a citizen of his legal obligation to pay 
 his debts or fulfill his contracts, entered into in other 
 states, and made legally binding by the law of the 
 place where the debt was contracted or the contract 
 was entered into — then, indeed, the obligations of con- 
 tracts are left to the legislation of the several states ; 
 and the question of validity and of enforcement depends 
 upon the place where the debtor is to be found when 
 the fulfillment of his obligations is demanded. Then a 
 valid contract entered into in New York may become 
 invalid by the act of the party removing into another 
 state, where such a contract is condemned, or deemed 
 to be against the public policy of the state. It is con- 
 sistent with the principles of republicanism to permit a 
 state to impose the conditions of legal obligation arising 
 out of the transactions of individuals within its terri- 
 torial limits ; it may prescribe what shall be essential to 
 the legal validity of any contract made within its juris- 
 diction touching any subject ; as, that contracts of a 
 certain description shall be in writing ; or shall be 
 sealed ; or shall be witnessed ; or shall be executed with 
 certain solemnities ; for these conditions are prescribed 
 by those who are to be affected by, and who are also 
 to administer the law. Bat a state has no authority to 
 prescribe these conditions of validity to contracts made 
 in other states, and valid by the laws of the state where 
 made. Thus, New York cannot sa-y that a contract made 
 in New Jersey and valid there by the laws of New 
 Jersey, shall not be valid against the parties wherever 
 they may be found ; because the contract when made 
 in isTew Jersey was not only morally but it was legally 
 obligatory upon the parties ; and it is not in the prov- 
 ince of any other state to say that such obligation shall 
 be destroyed or impaired by her local laws. 
 
 § 395. There is a wide distinction between a legal 
 obligation and a moral duty to fulfill a contract entered 
 into between two parties. The moral obligations of a 
 contract do not depend upon the law of the place where 
 the contract is made ; while the validity or legal obliga- 
 tions imposed thereby, do. The duty of performing a 
 contract entered into between parties where the subject 
 
BANKRUPTCY. 217 
 
 thereof is moral and just, rests on principles of univer- 
 sal law ; the obligation to perform it, rests upon the law 
 of the place where the contract is made. Thns, two 
 individuals may make a contract in a locality over 
 "which no law of society extends. If the contract be in 
 accordance with the principles of natural justice and 
 universal law, it may be enforced in the courts of law 
 in any civilized country; because being valid and obliga- 
 tory accordhig to the principles of natural law, and 
 there being no local law to prohibit the making of it in 
 the manner and form iu which the parties bound them- 
 selves, the legal obligation is perfect, and may be 
 enforced in any court of law where perfect obligations 
 are recognized. The prohibition of the constitution, 
 that no state should make a law impairing the obliga- 
 tion of contracts had undoubted reference to the legal 
 obligation of contracts depending upon the law of the 
 place where such contracts were made. The spirit of 
 the provision is this : A contract which is legally bind- 
 ing 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. 
 
 % 396. In accordance with these principles, the power 
 to make uniform laws on the subject of bankruptcies is 
 committed to the legislative department of the general 
 government, without any restriction of its authority 
 in that respect. The intention of the people is well 
 expressed by reading the constitution in this manner, 
 No state shall pass any bill or law impairing the obliga- 
 tion of contracts ; but congress may establish uniform 
 laws on the subject of bankruptcies, throughout the 
 United States. The general government has jnrisdic- 
 tion over all persons and i)roperty within the United 
 States, to execute the plenary power and authority of 
 the nation in respect to all subjects committed to its 
 jurisdiction. It can determine upon what conditions 
 and in what degree individuals may be released from 
 the complete fulfillment of their contracts. That is, 
 as the supreme authority upon that subject, congress 
 can by law determine the limit of legal obligations 
 arising out of every species of indebtedness, and can 
 prescribe the manner by which a party should proceed 
 to obtain legal absolution of his debts. This princii)le 
 recognizes the authority in the government to determine 
 what shall constitute a legal obligation, and what shall 
 cancel it. It recognizes the principle that legal obliga- 
 
 28 
 
218 GOVERNMENT. 
 
 tions as distiuguislied from moral, have their basis in 
 the will of society or government, and can only be 
 enforced by its laws; that society may determine by law 
 what shall be essential to the validity of any contract 
 upon any snbject, and the manner in wLjich legal obliga 
 tion shall be enforced. Thns sovereignty has authority 
 to prescribe the lex loci and the lex fori of the state ; and 
 every government intrusted with the exercise of sover 
 eign authority may exercise this power within the 
 limits of its jurisdiction. Upon this theory, the several 
 state governments, so far as they are not restrained by 
 the constitution of the United States, may exercise this 
 authority. This follows from the doctrine that there is 
 but one authority to be administered by the general and 
 state governments; and that is, the authority of the 
 people as a nation. Each has the subject of its juris- 
 diction assigned to it; the general government finding 
 its jurisdiction in the subjects enumerated in the consti- 
 tution of the United States; and the state governments 
 finding the subjects of their jurisdiction in what remains, 
 or in what are not enumerated or prohibited to them in 
 the constitution. 
 
 § 397. From the foregoing, it would seem that the 
 states may prescribe everything pertaining to the valid- 
 ity of contracts to be made within their respective 
 jiu-isdictions, so long as they do not interfere with any 
 law of congress upon that snbject, or with the prohi- 
 bitions of the constitution, and do not attempt to extend 
 the operation of their laws into other jurisdictions. That 
 is, a state may make any law which affects the validity, 
 the construction, the duration, the mode of discharge, 
 or the evidence, of any subsequent contract to be made 
 within its jurisdiction, and thus may impair the contract. 
 Thus, the law which declares that no action shall be 
 brought whereby to charge a person upon his agreement 
 "to pay the debt of another, or upon an agreement relat- 
 ing to lands, unless the same be reduced to writing and 
 signed by the parties, impairs a contract for that pur- 
 pose, made by parol. But when the state has by law 
 prescribe<l the manner in which contracts shall be exe- 
 cuted and evidenced, in order to be binding, the legal 
 obligation of the contract upon the parties depends upon 
 their compliance with these statutory requirements. If 
 such essential requirements are not complied with by 
 the parties, the contract does not become obligatory 
 upon them ; and, consequently, such law does not come 
 
BANKRUPTCY. 219 
 
 ■within the inhibitions of the constitution, prohibiting 
 tlie states from making laws impairing the ohUgatioiis 
 of contracts. Thus, the state may, by law, determine 
 what shall be essential to the validity oi* a contract made 
 witliin its jurisdiction; how the same shall be proved; 
 by what rules it shall be construed; how long it shall 
 continue to bind the parties thereto; and in what man- 
 ner its obligations shall cease or be discharged; but 
 such laws are applicable only to contracts made within 
 the same jnrisdiction, and subsequent thereto. Tor a 
 contract which has once become obligatory upon the 
 parties under the law of the time, and of the place of its 
 execution or performance, cannot be modified, limited 
 or restrained in its legal eft'ect or operation bv auv 
 state law.i . ' ^ ^ 
 
 % 3!)8. The power to make uniform laws on the sub- 
 ject of bankruptcies throughout the United States, 
 committed to congress by the constitution, is not limited 
 in its application to contracts made subsequent to the 
 enactment of such laws. The restrictions of the con- 
 stitution apply only to the states, leaving to congress 
 the unlimited authority of the nation, over such subject. 
 Congress, therefore, has plenary authority to pass a 
 bankrupt law which shall be binding throughout the 
 United States, affecting civil contracts of every charac- 
 ter within the department of commercial intercourse, 
 and determining upon what conditions, and in what 
 manner they may be discharged. Twice congress has 
 passed a bankrupt law; and permitted the same to 
 remain in force long enough to allow the most unworthy 
 class of debtors, who were ever ready to evade the obli- 
 gations of their contracts, to avail themselves of their 
 provisions; but they repealed those laws, before the 
 more meritorious class of debtors had concluded to seek 
 their aid. In general, honest men are averse to the avoid- 
 ance of their contracts ; and will struggle long to comply 
 with their obligations, before they will avail themselves 
 of either an insolvent or bankrupt discharge. Conse- 
 quently, they are usually the last to apply for thQ benefit 
 ot such laws, while on the other hand, men less scru- 
 pulous, are eager to avail themselves of every advanta<»'e, 
 and are usually iU first to appropriate to themselves 
 the benefits of insolvent and bankrupt laws. The brief 
 duration of the bankrupt laws hitherto enacted by con- 
 gress, has, in general, had the effect to do all the 
 
 I See Ogden v. Saunders, 12 Wheat., 213. 
 
220 GOVERN"MENT. 
 
 miscliief bankrupt laws are liable to do, without mncli of 
 their accompanying benefits ; for by the time the large 
 mass of those who were justly entitled to its aid had 
 concluded to ask for relief, the laws were repealed. 
 There can be no doubt that an efficient and just system 
 of bankrupt laws is demanded by the people of the 
 United States, and that it is the duty of congress to 
 l)rovide such a system. They should make it as perfect 
 as possible, and then amend its provisions fi'om time 
 to time as experience demonstrates the necessity. In 
 this way, a wise and just system would eventually be 
 adopted, which would establish justice and promote the 
 general welfare of the nation. 
 
 CHAPTEE XII. 
 
 POWER OE CONGEESS TO COIN MONEY, &0. 
 
 % 399. The congress shall have power to coin money, 
 regulate the value thereof, and of foreign coin, and fix 
 the standard of weights and measures.^ This power is 
 plenary and exclusive in congress. They have all the 
 l)ower over the subject of the currency possessed by 
 the nation ; and whatever they do in that respect is 
 done by the authority of the nation; because the con- 
 stitution has given them auilimited authority to coin 
 money, regulate its value, and the value of foreign coin. 
 Money is the universal medium by which all commer- 
 cial and exchange values are determined ; and it 
 represents the respective values of all commodities. 
 It is the measure by which the equivalents of com- 
 modities are ascertained. This power is one of the 
 l)rerogatives of sovereignty, and implies authority over 
 the property interests of the nation. The i)ower to coin 
 money and affix a value at which it shall be taken in 
 exchanges, or in satisfaction of debts, or of damages 
 to persons and property, belongs to that absolute sover- 
 eignty which can be found only in the nation, and Avhich 
 is responsible to no other earthly power. " As money 
 is the medium of commerce, it is the king's prerogative 
 as the arbiter of domestic commerce, to give it authority 
 and make it current. The coining of money is, in all 
 states, the act of sovereign power. The denomination 
 or value for which the coin is to pass current, is also in 
 the breast of the king." ^ 
 
 1 Art. 1, 2 8, cl. 5, Const, U. S. 2 1 Bl. Com., 276. 
 
POWER TO COIN" MONET. 221 
 
 ^g 400. To coin money and regulate its value as an act 
 of sovereignty, involves the right to determine what 
 shall be taken and received as money ; at what measure 
 or price it shall be taken ; and what shall be its effect 
 Avhen i)assed or tendered in payment or satisfaction of 
 all legal obligations. The act of coining money con- 
 sists in affixing to that which is to constitute money, 
 the stamp or seal of sovereign authority, by which it 
 may be recognized and known in market as being 
 authoritatively entitled to be received at the price or 
 value marked thereon. The authority which coins 
 or stamps itself upon the article, can select what sub- 
 stance it deems suitable to receive the stamp, and pass 
 as money; and it can affix what value it deems proper, 
 independent of the intrinsic value of the substance 
 upon which it is affixed. The usual substances which 
 have been selected for the purpose "of being used as 
 money, are the various metals, as silver, gold, copper, 
 Ji)rass and such alloys as the sovereignty in its pleasure 
 adopts. The currency value is in the stamp when used 
 as money, and not in the use of the metal, independent 
 of the stamp. In other words, the money quality is the 
 authority which makes it current, and gives it power to 
 accomplish the purpose for which it was created. i To 
 coin or stamp money, and regulate its value, includes 
 the whole power of sovereignty in respect to currency. 
 It includes the authority to select the substance to 
 receive the impression ; to determine what impression 
 shall be enstamped thereon ; what shall be its office 
 as a medium of exchange ; at what price it shall be 
 received; and what shall be the penalty to be inflicted 
 for discrediting, counterfeiting, or in any manner inter- 
 fering with its legal and authoritative value. Because 
 gold and silver have usually been selected as the basis 
 of currency, the popular idea of value attaches to the 
 metal rather than to the royal or sovereign authority 
 stamped upon it ; and while they recognize the author- 
 ity of the government to change the relations between 
 the intrinsic value of the metal and the current value 
 of the coin, they are slow to understand that such rela- 
 tion is arbitrary, and depends solely upon the will of 
 the sovereign. 
 
 g 401. By keeping constantly in mind that the quality 
 of money or legal currency, consists in the enstamped 
 authority of the government upon that which is used 
 as such • and that the authority to coin money and affix 
 
222 GOVERNMENT. , 
 
 its value, involves the wLole power of sovereignty over 
 the subject of legal currency — to select what substance, 
 affix what stamp, and ordain what value, it pleases — the 
 whole law upon the subject of money, as a currency, 
 and money as a commodity, becomes comprehensible. 
 But to confound the legal quality of money, with the 
 commercial value of that which is used to receive 
 the royal impression, begets infinite difficulty, because 
 there is no necessary relation between the two. Gov- 
 ernment, like the Spartan law-giver, may put its stamp 
 upon leather, and make that currency ; and so long as 
 it can provide against the counterfeiting of the same, 
 and thus can regulate the quantity in use, it can give 
 to its stamp upon leather the same money value, as if 
 put upon gold, or silver or any other substance. Thus 
 government may put its royal or sovereign stamp upon, 
 paper, affixing its money value, and if it limit the quan- 
 tity and provide fully against the counterfeiting of it, 
 it will have the same currency value as gold or silver,, 
 or any other substance. It must be remembered that, 
 legally speaking, money is not a commodity ; and com- 
 merce can make it such only by dealing with that upon 
 which the money quality is impressed. 
 
 g 402. Much has been said about paper monej', and 
 gold, silver and copper money; but all such language is 
 deceptive. There is no such thing legally as gold and 
 silver money and paper money. Money, as the measure 
 of price or value, is the sovereign authority impressed 
 upon, and attached to, that which is capable of taking 
 and retaining the impress of that authority. It is the 
 recognized presence of sovereignty in the market, and in 
 the court, applying the measure, and determining the 
 equality of exchanges of commodities between subject 
 and subject ; between peasant and prince ; between 
 crown and people. As a medium of exchange, as a 
 means to an end, it has no value but the sovereign will 
 recorded upon its face ; and in respect to its use its value 
 is as unchangeable as the authority that created it. It 
 measures all values by its own; and can know no other 
 measure of value. Its value being fixed by the will of 
 the sovereign, and not by the intrinsic qualities of that 
 upon which it is impressed, legally, it cannot vary. 
 Its relative proportion to other things may disturb their 
 relative values, but its legal value stands fixed and 
 immutable, while the price of commodities measured 
 
POWER TO COIN MONET. 223 
 
 by it, rise and fall. The pliilosoplier can explain the 
 reason, but be cannot change the law. 
 
 g 403. The act of coining money consists in impart- 
 ing to any substance this legal currency quality, by 
 which it can legally be used as a medium of exchange, 
 without permitting its value or authority to be ques- 
 tioned in the domestic market. That upon which the 
 stamp is placed is called coin; the act of stamping is 
 called coining ; and as the practice of all governments 
 using currency, has been, generally, to place its money 
 stamp upon metals of some kind, the common idea of 
 coin is, tbat it must be a metal, as a substance distin- 
 guished from other substances. But this rests solely 
 in the discretion of the sovereign or sovereignty; whether 
 the coin shall be metal, leather, parchment, paper, or any 
 other substance, is a question of expediency — of politi- 
 cal economy — and not of authority. The authority 
 selecting the substance to coin, if wise, will consider 
 the fitness, the adaptation, the economy, the necessity 
 for the public use. There is a need in every society for 
 a medium of exchange — for money. Hitherto no nation 
 or state has discovered the means of dispensing with it. 
 It is a public necessity as well as private; and should be 
 l)rovidedin.such a way as to subserve the public as well 
 as i^rivate use. There are times Avhen large expenditures 
 are required to be made, beyond the ordinary capacity 
 of the currency to represent them. There must neces- 
 sarily exist the authority to adapt the currency or 
 money to these public exigencies. The necessity which 
 requires that it should be used at all, requires that it 
 should be made adequate to any public emergency. 
 The sovereignty or sovereign is then authorized by 
 sovereign necessity, to coin the necessary amount of 
 money to answer as a means of making the purchases or 
 exchanges demanded. If that be neglected, the respon- 
 sibilities of a state or nation ruined, will attach. The 
 necessity which requires money as a medium of exchange 
 at all, requires that the public authority should make 
 the supply at least equal to the imperative demand 
 of the public welfare; and the government would be as 
 derelict in omitting this, as any other duty to the public. 
 
 S 404. The United States, as a nation, has the same 
 authority to coin money and regulate its value, as other 
 sovereign nations. It is subject to the same necessities, 
 and can adopt the same faciUties for adapting the cur- 
 rency to the needs of the nation ; and there is no earthly 
 
224 GOVERNMENT. 
 
 authority to call it to an account for so doing. In insti 
 tutiug the general governraeut for administering its 
 authonty in respect to all subjects enumerated iu the 
 constitution, and for the purposes therein named, it 
 conferred upon congress the unlimited authority to coin 
 money and regulate its value ; that is, it committed the 
 whole subject of creating and regulating the legal cur- 
 rency to congress; so that congress, as the national 
 legislature, is invested with j)lenary powers upon this 
 subject. It was the intention of the people that 
 this power should be exercised in such a manner as to 
 make the currency of the nation adequate for any 
 emergency that could arise. The government was 
 instituted, and the powers were conferred, that they 
 might be used iu such a manner as to make every 
 department of administration contribute to the declared 
 end the people had in view, to wit, to the establishment 
 of justice, to providing for the common defense, and 
 promoting the general welfare. For these, among other 
 I)urposes, congress was empowered to coin money and 
 regulate its value, and was further authorized to make 
 all laws necessary and ijroper for carrying into execu- 
 tion this power. The pretense for attempting to restrict 
 the powers of congress over subjects committed to its 
 jurisdiction, based upon the assumption that congress 
 is a body separate from the people, is without founda- 
 tion. The jjeople are as eminently and potentially 
 present in congress, to administer their own authority 
 by legislation, as they were in the conventions that 
 framed their government, and established the mode of 
 its administration. Therefore they may be as safely 
 intrusted with the exercise of their authority to coin 
 money and regulate its value, as they were to institute 
 the government, and ordain by whom that x)ower to 
 coin money, &c., should be exercised. 
 
 S 405. As the people of the United States conferred 
 upon congress plenary authority to coin money and 
 regulate its value, and denied to the states the exercise 
 of such powers, they thereby made it the duty of 
 congress to make all necessary legal provisions for 
 supplying the nation with money as a medium of 
 exchange. This proposition admits of no denial. As 
 a sovereign nation, the people had authority to provide 
 for the creation of a legal currency, which should be of 
 equal value as money, throughout the United States. 
 It was necessary that this authority should be exercised 
 
POWER TO COIN MONET. 225 
 
 by some one, to provide sncli currency. It could 
 be exercised by no authority not sovereign, and not 
 coextensive with the United States. It could therefore 
 be exercised by no other than the government of the 
 United States. In the distribution of subjects of juris- 
 diction between the general and state governments, 
 that of coining money and fixing its value, that is, that 
 of providing a legal measure of value or currency, was 
 committed to congress, not by limited or restricted 
 terms, but in the most liberal and unqualified ; so that 
 congress is vested with all the authority of the nation 
 in that respect. Congress is the only body authorized 
 to provide for this individual, state and national neces- 
 sity. The whole duty and responsibihty rests upon it, 
 to supply, under all circumstances, so much money or 
 currency, or to provide for the same, as the exigencies 
 of the public or nation may require. It is no excuse 
 that there is not gold enough, or silver enough in the 
 caiuitry to furnish or supply the amount. The authority 
 of the nation to supply itself with the amount of money 
 necessary for any emergency, is not confined to the use 
 of any particular metal, or to any metal at all. The 
 quality of money is neither gold nor silver nor any pre- 
 cious metal. It is simidy the sovereign authority of 
 the nation so impressed upon any substance as by its 
 presence to represent such authority in determining at 
 what price or value it shall be received in discharge of 
 legal obligations.^ 
 
 g 40G. The object of the grant of this power to con- 
 gress is to give uniformity of value as a standard of 
 price throughout the union. The power of coining 
 money is uniformly exercised by the sovereign author- 
 ity, for the pur[)ose of supplying a uniform currency to 
 the home market. The necessity for such a currency, 
 denominated money, is imperative; and, therefore, the 
 duty of the government intrusted with the exercise 
 of this authority is imperative. This duty requires it 
 to supply a currency of such quality and in such an 
 
 » As congress alone has the power to coin money and fix its legal value, that 
 is, has the power to determine what shall be received as money, and at what 
 price it shall be received, it must adopt such means in the exercise of such 
 power, as will enable it to accomplish the end for wliich such power was given. 
 During the recent civil war in tlie United States, the current expenses of tlie 
 government were much larger than could be met by tlie use of all the gold, 
 silver and copper coin in the country. Thus, for four years the average 
 expenditures of the government were about S*W,000,0:>0 per annum; yet the 
 whole amount of gold and silver coin in tlie countrv, north and south, was 
 less than S250,000,0:)0. Under these circumstances, the continuance of the gov- 
 ernment, required the exercise of the plenary powers of congress to supply 
 the nation witli tlae means of defending its existence, by a resort to a legalizea 
 paper currency. 
 
 29 
 
226 GOVERNMENT. 
 
 amount as to answer the imperative demands of the 
 public exigencies. It should also provide against the dis- 
 crediting, debasing, or the counterfeiting of the cur- 
 rency, or with interfering in any manner with its 
 authoritative value. Every civilized government has 
 found it necessary to provide itself with such cur- 
 rency, and to guard against its debasement, and the 
 counterfeiting thereof. The money thus created by 
 the government, and having its authority as to the price 
 at which it shall pass, stamped upon it, becomes a legal 
 tender in discharge of all legal demands for value, 
 under such regulations as the law-making power pre- 
 scribes. What shall be permitted to be offered or 
 tendered in discharge of such obligations, depends upon 
 the authority of positive law. ^ 
 
 § 407. Legal obligations are such as are created by 
 law ; and can only arise in accordance with the require- 
 ments of law. When the law declares that contracts 
 made for the loan of money reserving for its use an 
 amount greater than seven per centum per annum, are 
 usurious and void ; no legal obligation arises from the 
 making of such contracts. When it declares that all 
 contracts by which one man undertakes to answer for 
 the debt, default or miscarriage of another, to be valid 
 and obligatory, shall be in writing and be signed by the 
 parties ; a contract of that character by parol merely, 
 raises no legal obligation. And thus with every con- 
 dition which the law-making power sees fit to impose. 
 Inasmuch as the obligatiou is created by law, it can 
 also be discharged by law ; that is, it can be discharged 
 in any manner prescribed by law. For it is a principle 
 of general application, that the power which can create 
 an obligation can likewise discharge it. An obligation 
 which can be enforced by law is called a perfect obliga- 
 tion. Therefore, all perfect obligations are such as 
 the government undertakes to enforce. But it is in the 
 pleasure of the sovereignty to determine what shall be 
 essential to a perfect obligation, and upon whal^ con- 
 ditions that obligation may continue, and by what 
 
 1 " But on the great question, whether the government can make this money 
 —treasury notes— legal tender, the court will not fail to observe that the very 
 term. ' legal tender,'' imports that the subject is one, by the common under- 
 standing' of mankind, belonging in every sovereignty, to tlae law-making 
 power. It has been I'ecognized as such in every civilized nation. Gold and 
 silver have been a legal tender with us. Not so in Great Britain. Tliere, 
 except for small sum-;, it is gold, or the notes of the Bm'c of E.i^land. Not so in 
 France. Ttiere it is silver coin wid gooernment paper." (Bim:irks of Hon. John 
 K. Porter in the case of The MstroooUlan Bank et al., v. Van D.i/ke, Superintend- 
 ent of the Bank Department of the Stale of New York, before the Court of Appeals 
 June, 1863.) 
 
POWER TO COIN MONEY. 227 
 
 means it may be discharged. Hence arises the author- 
 ity of government to provide by law that a certain class 
 of contracts shall not be deemed legally obligatory; 
 to provide how contracts shall be executed to become 
 obligator}'-; to provide how they shall be established in 
 conrt to be entitled to judicial recognition; to deter- 
 mine by what rules they shall be construed, and their 
 purpose be ascertained ; and to provide by bankrupt 
 and insolvent laws, or by limitations, or otherwise, how 
 tliey may be discharged. It is said, that men may 
 make in respect to their own, what contracts the}^ 
 please, so long as they do not interfere with the rights 
 of other i)arties. That may be true ; and they may do 
 as they please about fulfilling them, unless they comply 
 with the requirements of the law in the making of them. 
 It is to be remembered that individuals do not make 
 the law, and cannot create the terms of legal obligation. 
 The public authority — the law-making power — creates 
 the conditions, and leaves each member to act his own 
 pleasure in assuming contract obligations. But it will 
 undertake to enforce no obligations not created by law. 
 The authority to determine what shall amount to a legal 
 obligation, involves the power to determine by what 
 means that obligation may be discharged. Every gov- 
 ernment exercising the powers of sovereignty, unless 
 restrained in that particular respect, has authority to 
 provide for a legal tender of performance which, if 
 rejected, discharges the obligation. That tender may 
 be money, labor, chattels, or anything the sovereignty 
 sees fit to prescribe. 
 
 § 408. The power to coin money, and to establish the 
 value thereof, being exclusive in congress, as the national 
 legislature, it has been doubted by eminent statesmen 
 whether the states can authorize the issuing of bank 
 paper to be circulated and used as cnrrencj^ Mr. 
 Webster, in his speech on the Bank of the United 
 States May 25 and 28, 1832, reasoned thus: " The states 
 cannot coin money. Can they, then, coin that which 
 becomes the actual and the almost universal substi- 
 tute for money? Is not the right of issuing paper 
 intended for circulation in the place, and as the repre- 
 sentative of metallic currency, derived merely from the 
 I)ower of coining and regulating the metallic currency ? 
 Could congress, if it did not possess the power of coining 
 money and regulating the value of foreign coins, create 
 a bank with power to circulate bills ? It would be diffi- 
 
228 GOVERNMENT. 
 
 cult to make it ont. Where, then, do the states, to 
 whom all control over the metallic currency is altogether 
 prohibited, obtain this power? It is true that, in other 
 countries, private bankers having no authority over the 
 coin, issue notes for circulation. But this they do 
 always with the consent of government, expressed or 
 implied ; and government restrains and regulates all 
 their operations at its pleasure. It would be a startling 
 proposition in any other part of the world, that the 
 prerogative of coining money held by the government 
 was liable to be defeated, counteracted or impeded by 
 another prerogative, held in other hands, of authorizing 
 a paper circulation," &c. It is to be remembered that 
 bank notes authorized by the states to be circulated by 
 banking associations or companies, are not, and cannot 
 be made, a legal tender for the discharge of legal obliga- 
 tions ; for the states are prohibited by the constitution 
 from making anything but gold and silver coin a tender 
 in payment of debts. Bank paper, therefore, is receiv- 
 able, or not, at the pleasure of each member of society. 
 But if he do consent to receive it as money, it shall 
 have the effect of money to bind him ; or to discharge 
 legal obligations to him, so far as they are created and 
 enforced by the state. This seems to be the extent of 
 the authority required to permit private banking, and the 
 issuing of bank notes to circulate as currency. Where 
 the general government does not interfere to pre- 
 vent the circulation of such paper as currency, it would 
 seem that the states are transcending no authority 
 on their part in authorizing such circulation, leaving 
 each citizen to exercise his own pleasure in receiving 
 and using the same. It may be a question of expe- 
 diency — of economy; but it would seem not to be a 
 question of authority. 
 
 § 409. Besides the power to coin money and regulate 
 its value, congress has also the power to fix the standard 
 of weights and measures- The whole clause together, 
 gives to congress the power to determine the measure 
 of all values, and of all quantities. This power is given 
 to the general government for the sake of uniformity so 
 essential to the convenience of commerce. The atten- 
 tion of congress has frequently been called to this 
 subject, but owing to the manj'- difficulties attendant 
 upon it, they have never fully exercised the power. 
 John Quincy Adams, as secretary of state, made an 
 able report upon the subject on the 22d of February, 
 
WEIGHTS AND MEASURES. 229 
 
 1821, which was referred to a select committee. Among 
 the recommendations of that committee were the follow- 
 ing : that the president should cause application to be 
 made to the English government to allow models of the 
 yard, the Winchester bushel, wine gallon and pound — 
 avoirdupois — to be procured from its offices; — that the 
 yard should be traced upon the rod of platina in the pos- 
 session of the department of state, on which the French 
 metre is traced; — that the models should be made with 
 the utmost accuracy that the art and science of England 
 can give, and if satisfactory to congress, should be 
 declared the standard yard, bushel, liquid gallon and 
 pound of the United States. The committee were of 
 the opinion that the standard of length and weight 
 should be of platina ; because of its very extraordinary 
 properties ; its unequaled specific gravity ; its infusi- 
 bility, its durability, its power of resistance against all 
 the ordinary agents of destruction and change.^ The 
 committee concluded their report by recommending 
 that the president of the United States be requested — 
 if the consent of the government of Great Britain 
 should be given — to cause to be traced on a rod of 
 platina the yard of the year 1601, which is kept in the 
 British exchequer; — that he cause to be made of platina 
 a pound of the weight in value of the English avoirdu- 
 pois pound; — that he cause to be made of whatever 
 material he shall deem best for standards of those meas- 
 ures, a vessel of the same capacity as the standard 
 Winchester bushel ; and also a vessel of the same 
 capacity as the standard wine gallon of England. They 
 also recommended that the president be requested to 
 cause to be made models of these weights and measures, 
 for distribution among the several states,^ but these 
 recommendations seem never to have been carried into 
 effect, and as yet each state exercises the authority of 
 fixing its own standard of weights and measures. 
 
 g 410. Congress shall have power to provide for the 
 punishment of counterfeiting the securities and current 
 coin of the United States. Under this provision, con- 
 gress has power to punish the act of counterfeiting 
 and also the bringing of counterfeited coin into the 
 country from foreign countries, and the passing and 
 uttering of the same.^ The authority to punish for the 
 
 1 Annals of Congress — First session XVIIth congress, vol. 2, p. 1251, 
 
 a Id., 1253. 
 
 3 United States v. Marigold, 9 How., 560. 
 
230 GOVERNMENT. 
 
 act of connterfeiting the coin of the United States is 
 exclusively in congress; but the states niay i)rovi(le 
 against the circulation of such coin within tlieir res[)ec- 
 tive jurisdictions, by penal enactments.^ The right of 
 the local government to punish for cheats and frauds 
 practiced within their respective limits is unquestion- 
 able, irrespective of the instrumentality by which it is 
 done. The authority to punish the act of counterfeiting 
 the coin of the United States, would seem to be inci- 
 dent to the power of coining money and regulating 
 its value. There would be little jjractical value in the 
 exercise of the power to coin money and regulate its 
 value, if the authority to protect the public against the 
 frauds incident to counterfeiting such coin or money, 
 was not also to attend the power. In truth, its value 
 could not be regulated to any practical purpose, while 
 counterfeiting thereof should be permitted. Bat as the 
 whole subject of currency is virtually committed to 
 congress, to them properly belongs the power to pro- 
 vide, by penalties, for the i)reservation of its character. 
 § 411. The principle underlying the distribution of 
 powers between the general and state governments, 
 determining what authority should be exercised by the 
 one or by the other, or concurrently, is this : Those 
 interests which were common to the whole ])eople as a 
 nation, and in the provisions for which, all parts of 
 the country were alike interested, were committed to the 
 supervision ajid control of congress, as the representa- 
 tive body of the nation, to be administered upon by all 
 the people. Those which were local in their character, 
 affecting only the local and domestic interests of each 
 particular state, depending upon local circumstances 
 and interests for the proper character of governmental 
 administration, were left to be exercised by those whose 
 interests were especially to be affected, and who knew 
 best what should be the special adaptations of adminis- 
 tration to those circumstances and interests. Those 
 powers which might be exercised concurrently with 
 safety to the local and general welfare, and without 
 conflict, were left to be concurrently exercised, until 
 congress, as the representative body of the nation, 
 should especially assume the exercise of such powers, 
 when they would then be deemed to be exclusive in con- 
 gress. Such are the general principles underlying the 
 distribution of powers to be exercised by the general 
 
 1 Fox V. State of Ohio, 5 How., 433; see also 14 id., 13. 
 
PUNISHMENT FOR COUNTERFEITING. 231 
 
 and state governments. In accordance with this rule, 
 the common currency of the country, and the uniform- 
 ity and stability of its value, are subjects in which all 
 parts of the country are alike interested ; also the pun- 
 ishments by which the counterfeiting of the coin and 
 the discrediting of the currenc}^ thereby are to be pre- 
 vented, are alike matters of importance to all sections 
 of the country. But the possessing of counterfeited 
 coin or currency with intent to pass the same ; or the 
 uttering and passing the same upon citizens or inhabit- 
 ants of the state, Avith intent to defraud them ; is also 
 an offense against the local and domestic welfare of the 
 l)eople ; and is properly the subject of local inhibition 
 and punishment. Keeping this rule in view, it is easy 
 to determine what powers ought to be deemed exclusive 
 in congress, and what may be safely treated as concur- 
 rent with the states. 
 
 § 412. As illustrative of this rule, the remarks of 
 Justice Daniels^ in the case of the United States v. 
 Marigold^ are pertinent. He said the stress of the 
 argument in the case of Fox v. The State of Ohio'^ was 
 to show, that the right of the state to punish the cheat 
 had not been taken away from her by the express terms, 
 nor by any necessary implication, of the constitution. 
 It claimed for the state neither the power to coin money, 
 nor to regulate the value of coin, as established and 
 regulated under the authority of congress. In illustra- 
 tion of this right in the state, and in order merely to 
 show that it had not been taken from her, it was said 
 that the punishment of such cheat did not fall within 
 the express language of those clauses of the constitu- 
 tion which gave to congress the right to coin money 
 and regulate its value, or to provide for the punishment 
 of counterfeiting the current coin. It was also said by 
 this court, that the fact of passing or putting off a base 
 coin did not fall within the language of those clauses 
 of the constitution, for this fact fabricated, altered or 
 changed nothing, but left the coins, whether genuine 
 or si)uuious, precisely as before. But this court have 
 nowhere said that an offense cannot be committed 
 against the coin or currency of the United States, 
 or against that constitutional power which is exclu- 
 sively authorized for public uses to create that currency, 
 and which, for the same public uses and necessities, is 
 authorized and bound to preserve it ; nor have they said 
 
 19 How., 560. 20 id., 433. 
 
232 GOVERNMENT. 
 
 that the debasement of the coin would not be as effect- 
 ually accomplished, by introducing and throwing- into 
 circulation a currency which was si)urious and simulated, 
 as it would be by the actually making counterfeits — 
 fabricating coin of inferior metal. On the contrary, we 
 think that either of these proceedings would be equally 
 in contravention of the right, and of the obligation per- 
 taining to the government to coin money, and to protect 
 and i)reserve it at the regulated or standard rate of 
 value. With a view to avoiding conflict, this court, in 
 the case of Fox v. The State of Ohio, have taken care 
 to point out, that the same act might, as to its character 
 and tendencies, and the consequences it involved, con- 
 stitute an offense against both the state and federal 
 governments, and might draw to its commission the 
 penalties denounced by either, as appropriate to its 
 character in reference to each. We think this distinc- 
 tion sound, as we hold to be the entire doctrines laid 
 down in the case above mentioned, and urged them as 
 being in no wise in conflict with the conclusion adopted 
 in the present case.^ 
 
 % 413. " Congress shall have power to establish post- 
 offices and post-roads."^ There has been much contro- 
 versy as to the extent of the powers granted by this 
 clause of the constitution. One party contends that the 
 power to establish jjost-offices and post-roads includes 
 only the power to direct where post-oflices shall be kept, 
 and on what roads the mails shall be carried; — that the 
 power to establish post-roads is simply the power to 
 designate what roads shall be mail roads, and to estab- 
 lish the right of passage or way along them when so 
 designated. President Monkoe, in his message to con- 
 gress of the 4th May, 1822, discussed this question at 
 length. He contended for the strict construction of this 
 power. His argument was, that the sense in which 
 words are commonly used is that in which they are to 
 be understood in all transactions between public bodies 
 and individuals; — that the intention of the parties is 
 to prevail ; and that the way to ascertain that intention 
 is to give to the terms used their ordinary import ; that 
 the import of the word establish, and the extent of the 
 grant which it controls, as understood by enlightened 
 citizens, is satisfied by giving to congress the power to 
 fix on the towns, court houses, and other places through- 
 out our union, at which there should be post-offices; 
 
 i 9 How., 560. 2 Art. 1, ? 8, cli. 7, Const. U. S. 
 
POST-OFFICES AND POST ROADS. 233 
 
 the routes by wliicli the mails sliould be carried from 
 0IW3 post-office to another, so as to diffuse iutelligence 
 as extensively, and make the institution as useful as 
 possible ; — to fix the postage to be paid on every let- 
 ter and packet thus carried, to support the establishment; 
 and to protect the post-offices and mails from robbery, 
 by punishing those who should commit the offense; — 
 tiiat the use of an existing road by the stage, mail carrier 
 or post boy in passing over it as others do, is all that 
 would be thought of, the jurisdiction and the soil 
 remaining to the state, with a right in the state, or 
 those authorized by its legislature, to change the road 
 at pleasure. The president further contended that the 
 intention of the parties was also to be inferred from 
 their action under the confederate government ; — that 
 there was a grant of power for the same purpose, 
 in these words: "The United States in congress assem- 
 bled, shall have the sole and exclusive right and power 
 of establishing and regulating i)ost-ofitices from one 
 state to another throughout the United States, and of 
 exacting such postage on the papers passing through 
 the same, as may be requisite to defray the expenses 
 of the said post-office;" — that the word establish, was 
 the ruling one in that instrument, and was there intended 
 and understood to give the power simply and solely to 
 fix where there should be post-offices ; — that post-offices 
 were made for the country, not the country for post- 
 offices; — that they are the offspring of improvement, 
 and never go before it; — that no example could be 
 given of a post-office being established without a view 
 to existing roads; — and that in no case prior to the 
 ado[)tion of the constitution, had a single road been 
 made for the sole purpose of accommodating a post- 
 office; — that in the grant of this power it was the 
 iutention to limit it to the same extent as had before 
 been practiced; — that these conclusions are further 
 confirmed by the object of the grant, and the manner 
 of its execution ; — the object was the transportation of 
 the mails throughout the United States — the manner 
 of executing it admitted of their being carried on horse- 
 back as had often been done; — that the object of the 
 graut, and the means of executing it were so sim[)le 
 that it would excite surprise if it should be thought 
 l)roper to appoint commissioners to lay off the country'- 
 on a great scheme of improvement, with the power to 
 shorten distances, reduce heights, level mountains, and 
 
 30 
 
234 GOVERNMENT. 
 
 pave surfaces; — that if the United States possessed the 
 power contended for in the grant, they might, in adopt- 
 ing the roads of the several states for the carriage of 
 the mail, assume jurisdiction over them, and prechide 
 a right to interfere with or alter them ; — they might 
 establish turnpikes and exercise acts of sovereignty 
 necessary to protect them from injury and defray the 
 expense of repairing them; — that in this way a large 
 portion of the territory of the state might be taken 
 from it. 
 
 g 414. President Monroe, like others of that class, 
 who contend for a strict construction of the powers 
 granted to congress, argues upon the hypothesis that 
 the people were parting with authority, by conferring 
 power upon the general government; that they were 
 nominating in the bond the x)recise amount of power 
 they were willing to surrender to the general govern- 
 ment, in consideration of the benefits the. government 
 was required to render in return; — that the nominations 
 of the bond carried only " the pound of flesh," but not 
 one drop of blood. But such hypothesis is untrue. The 
 people were proposing to surrender nothing ; they were 
 instituting a government by which to administer their 
 own authority in matters pertaining to the security and 
 welfare of the nation. The government they were insti- 
 tuting was their own; the congress they were empower- 
 ing to act was their own. It was to be a congress of 
 their own chosen men ; selected from among themselves 
 to administer for their benefit. The institution of the 
 general government was simply an act of the nation 
 providing the instrumentality by which they, as a 
 nation, could realize the benefits of nationality ; and 
 what is termed the " enumerated powers," in the consti- 
 tution, is rather an enumeration of subjects over which 
 the government is to exercise jurisdiction with the ple- 
 nary powers of the nation in respect thereto. Thus 
 congress — the national legislature — has power to estab- 
 lish post-offices and post-roads — by which is plainly 
 meant, the subject of post-ofiices and post-roads, is com- 
 mitted to the jurisdiction of the general government; 
 to be administered upon by the nation ; and congress 
 has power to make all laws necessary and proper for 
 such purpose. The terms, congress shall have power to 
 regulate commerce with foreign nations; and among 
 the several states; — to establish an uniform rule of 
 naturalization — and uniform laws on the subject of bank- 
 
POST-OFFICES AND POST-ROADS. 235 
 
 rnptcies — to coin money, regulate its value, and the 
 value of foreign coin — to establish post-offices and 
 post-roads, &c., simply mean, in effect, that these sub- 
 jects are committed to the jurisdiction of the general 
 government to be administered upon by the nation. 
 There is, then, no foundation for claiming a strict con- 
 struction of these powers ; on the contrary, the spirit 
 and reason of the instrument demand that the general 
 government shall exercise, to the fullest extent, the 
 authority of the nation, over these subjects, whenever 
 the safety and welfare of the nation demand it. There 
 is also the further idea, of antagonism between state 
 and national interests. "In this way," says President 
 Monroe, " a large portion of the territory of every state 
 may be taken from it." He seems to bave overlooked the 
 fact that the citizens of the states and of the nation are 
 identical. That the establishment of these i)ost-offices 
 and post-roads is for the benefit of these citizens, and 
 are to be established by themselves, for their own 
 convenience. That the congress thus empowered is 
 composed of their own chosen representatives, renewed 
 every two years; — that the nation instituting the gov- 
 ernment and committing to its jurisdiction these sub- 
 jects, was thereby providing for the administration of 
 this government, and the exercise of these powers by 
 themselves; — that they are as potentially present m 
 the administration, as they were in the institution of the 
 general government. That the idea of delegating 
 powers in the sense of parting with power is decei)tive, 
 and has arisen from the dangerous theory of absolute 
 sovereignty in the states, as essential elements of 
 national existence and authority. 
 
 § 415. When it is considered that, by the terms of the 
 grant, the whole subject of establishing post-offices and 
 ])OSt-roads is committed to the general government to 
 be provided for by the legislation of congress, it will be 
 'l)erceived that the questions discussed are questions of 
 express powers, not of implied ones. The express provi- 
 sions on this subject read thus : Congress shall have 
 power to establish post-offices and post-roads ; and to 
 make all laws necessary and proper for carrying into 
 execution such power. Everything legitimately con- 
 nected with the subject of establishing post-offices and 
 post-roads, and extending the benefits thereof to the 
 people of the United States, are subjects within the con- 
 trol of congress under the express powers of the grant. 
 
236 GOVERNMENT. 
 
 Says President Monroe in his message above quoted, 
 " whatever is absolutely necessary to the accomplish- 
 ment of the object of the grant, though not specified, 
 may fairly be considered as included. What, then, is 
 the true meaning of the words, " to estaMish post-offices 
 and post-roads " ? The generally received meaning of 
 the word " to establish " is, to settle firmly, to confirm, 
 to fix, to found, to build lirmly, to erect permanently. 
 Thus, treaties speak of establishing regulations of trade 
 laws speak of establishing navy hospitals, where land is 
 to be purchased, work to be done, and buildings to be 
 erected ; of establishing trading houses with the Indians, 
 where houses are to be erected ; congress is to establish 
 uniform rules of naturalization, and uniform laws on the 
 subject of bankruptcies. The constitution always uses 
 the word " to establish" in its general sense; thus the 
 constitution was ordained and estahlished by the people 
 of the United States, for the purpose, among other things, 
 of estahlishing j ustice : Congress is authorized to establish 
 courts of interior jurisdiction. It is plain that the term 
 is used in the sense of forming, creating and regulating 
 that to which it is applied. Thus in establishing a uni- 
 form rule of bankruptcies, and laws of naturalization, it 
 is expected that congress will form, enact, make and 
 construct laws on these subjects ; and as the judicial 
 power of the United States is to be vested in one 
 supreme court and such inferior courts as congress may 
 from time to time estaMish, it is expected that congress 
 will exercise this power in creating and organizing such 
 courts. 
 
 g 416. The only questions to be discussed are, had 
 the people, as a sovereign and independent nation, 
 authority to establish post-offices and post-roads V Had 
 they the same absolute and unqualified sovereignty over 
 all matters of internal administration, as other sovereign 
 and independent nations? Had they, as a nation, 
 authority to institute a general or national government, 
 and to assign to its jurisdiction such subjects of general 
 administration as they saw fit; and to confer upon the 
 several departments thereof, authority to exercise all 
 their powers as a nation, in administering upon those 
 subjects? Did the nation, in the institution of the 
 general government, provide for their own continual and 
 potential presence in the administration of the same? 
 Did the people, in the institution of the general govern- 
 ment, provide for surrendering to any one, their author^ 
 
AUTHORS AND INVENTORS. 237 
 
 ity ? or did they not rather provide for the means, and 
 establish the manner in which they could administer 
 their own authority ? Did the nation intend to deprive 
 themselves of the power to administer fully in respect to 
 every subject assigned to their general jurisdiction ; and 
 thus tie the hands of the nation lest they should abuse 
 their own authority ? Or did they not rather intend to 
 provide for the full administration of all powers through 
 the instrumentality of the general and state govern- 
 ments, giving to each jdenary powers over every subject 
 falling within its jurisdiction? The doctrine of derivative 
 authority as applied to the American nation, is an inver- 
 sion of the truth; and can result in nothing but constant 
 error and antagonism. It is the Cyclopean monster of 
 modern times: — the ^'monstrum horrendum, infonne, 
 ingens, cui lumen ademptum.'''' 
 
 % 417. Congress has power " to promote the progress 
 of science and useful arts, by securing for limited times, 
 to authors and inventors, the exclusive right to their 
 respective writings and discoveries." ^ This power is 
 confined to authors and inventors, and cannot bo 
 extended to those who merely introduce a new improve- 
 ment from abroad. This power is necessarily exclusive 
 in congress, because the objects sought to be secured, 
 cannot be obtained, if the several states are allowed to 
 exercise authority upon the subject. The writings, inven- 
 tions and discoveries belong naturally to the authors and 
 inventors thereof, as being the products of their labor 
 and skill ; and it is but just that they should be secured 
 in the beneficial enjoyment of the commercial value of 
 such labor for a limited period. 
 
 § 418. The authority of congress to constitute tribu- 
 nals inferior to the supreme court, will more properly 
 come under consideration in a subsequent chapter, when 
 the subject of the national judiciary, as provided for 
 by the first section of the third article of the constitu- 
 tion is considered. The judicial power of the general 
 government is vested by the constitution in one supreme 
 court, and in such inferior courts as congress from time 
 to time shall ordain and establish. This subject will be 
 fully considered in its order. 
 
 % 419. Congress also has power to define and punish 
 piracies, and felonies committed on the high seas; and 
 offenses against the law of nations.^ By this provision 
 
 1 Constitution U. S., Art. 1, ? 8, cl. 8. 
 a Art. 1, 1 8, cl. 10, Const. U. S. 
 
238 GOVERNMENT. 
 
 of the constitution, the subject of defining and punish- 
 ing piracies, is committed to congress, without any 
 limitation. It has the entire power of the nation in 
 that respect, inasmuch as it can declare by law, what 
 shall coustitute piracy, and how the same shall be pun- 
 ished. Under the confederacy the congress had the 
 exclusive i)ower to appoint courts for the trial of pira- 
 cies and felonies committed upon the high seas,^ but 
 they were not expressly authorized to define what 
 constituted piracy, or to declare what should be its 
 jjunishment; although congress did denounce the jjun- 
 ishment of death as the penalty for the common law 
 oftense, known as piracy.^ But every nation has 
 authority to define what shall constitute a crime against 
 society, and how such crime shall be punished. Piracy 
 is a crime against the universal law of nations, as well 
 as against the law of any particular society or nation, 
 for a pirate is deemed an enemy of the human race. At 
 common law, piracy consisted in committing robbery 
 on the high seas. By the act of May 15, 1820, congress 
 provided that any person who shall be guilty of robbery 
 in or upon any ship or vessel, or upon any of the ship's 
 company of any ship or vessel, or the lading thereof, 
 upon the high seas, or in any open roadstead, or in any 
 haven or harbor, basin or bay, or in any river where the 
 tide ebbs and flows, shall be guilty of piracy, and upon 
 conviction be punished with death. It also provides 
 that any persons engaged in a piratical cruise or enter- 
 prise, or being of the crew or ship's company of any 
 such enterprise, who shall land therefrom upon shore 
 and commit robbery, shall be adjudged a pirate. It 
 further provides that any citizen of the United States 
 who shall, upon any foreign shore, decoy or seize 
 negroes with intent to make them slaves, shall be 
 deemed guilty of piracy.^ 
 
 S 420. According to the law of nations, piracy is 
 incurred by depredations upon the high seas, or near 
 the sea, without authority from any prince or state. 
 " It is piracy not only when a man robs without any 
 commission at all, but when, having a commission, he 
 despoils those whom he is not warranted to fight or 
 meddle with ; such as are de ligeantia vel amicitia of that 
 
 1 Art. Confed., Art. 9. 
 
 2 Ordinance of April 5, 1781, 7 Jour. Congress, p. 76. 
 
 3 See also Ing. Digest, pp. 155, 156, 170, 171 ; 11 Wheat. 39 ; United Slates v. Palmer, 
 Sid. , 310, 326; also United States^, Klintock,b\6..,l^L\4S; Same v. I'urlona id.. 152. 
 IM, 192; Same y.Hohnes, id., il2,il6. 
 
PIRACIES. 239 
 
 prince or state which hatli given him his commission." ^ 
 Thus, if a man having the commission of letters of 
 reprisal against the Spaniards, commits, intentionally, 
 depredations against the French or any other i)e()i)le, 
 the guilt of piracy is incurred.^ But if these violations 
 of property be perpetrated by any national anthoiity, 
 they are the commencement of a public war; if with- 
 out that sanction, they are piracy. Such were the 
 sentiments and practice of antiquity, and the same 
 distinctions are observed in modern Europe. Of this 
 type or character were deemed the people of Algiers, 
 Tunis, and the other maritime states of Africa. They 
 have a fixed domain, public revenue, and form of gov- 
 ernment, and are treated with as nations by the Euro- 
 pean states. The Europeans, therefore, do not treat 
 them as jjirates ; but sometimes carry on war, some- 
 times treat for peace, with them as with other nations. 
 For these reasons, when a Bristol merchant ship, in the 
 reign of Charles II, was taken by the Algerines, and 
 was afterward driven on the coast of Ireland, with some 
 Turks and renegades on board. Sir Leoline Jenkins, 
 judge of the admiralty, certified to the king that in his 
 opinion, the native born Moors and Turks found on 
 board were to have the privileges of enemies in open 
 war, because the government of Algiers had been 
 acknowledged by several treaties ; by the establishment 
 of trade, and by the residence of consuls, by England 
 and other states.^ 
 
 g 421. By the law of nations, as understood in Eng- 
 land and some other European countries, it is held that 
 piracy cannot be committed by the subjects of states at 
 enmity; — that the subjects of either state may seize 
 and capture the enemy's ships and goods in time of 
 open hostilities without the sanction of special commis- 
 sion ; — that when there is a public demonstration of 
 war, that may be taken not only to authorize but even 
 to enjoin seizures of the enemy's vessels and goods ; — 
 that the solemnity of a commission may be omitted as 
 unnecessar}', as the intention of the supreme power is 
 manifested as plainly by actions as it could be by words, 
 provided such actions be unequivocal, and there be no 
 doubts as to a subsisting war. * But Vattel is of a 
 dift'erent opinion. He thinks that those who, without 
 
 J Sir Leoline Jenkins, vol. 1, xciv; 2 Wooddeson's Law of Eng., 2 31, p. 422. 
 » Woodcleson, supra. 
 
 3 Letter lltli Feb., 1H79, 1680; 2 Sir L. Jenk., 791; 2 Wooddeson, i 34, p. 423, 424. 
 
 4 See 2 Wooddeson, ? 34, p. 4;i2. . 
 
240 GOVERNMENT. 
 
 commission even in a time of open war, commit 
 violence or depredation on the adverse state, are to be 
 treated as robbers and banditti. There are reasons why 
 the doctrine as stated by Yattel should be maintained; 
 otherwise the prey upon the commerce of the adverse 
 state, may be carried on by the worst class of subjects, 
 with, a piratical and felonious intention, demoraiiziug- 
 those who engage in it, and ultimately converting them 
 to pirates and felons. Although England does not 
 denounce such uncommissioned acts as piracy, never- 
 theless she does not encourage them. Prizes taken by 
 such non-commissioned privateers, do not inure to their 
 benefit, but go to the admiralty through the crown.^ 
 
 § 422. As pirates are reputed to be out of the protec- 
 tion of all law and all privilege — as being enemies of 
 the race, they may be tried in any country or jurisdic- 
 tion where they are taken ; " eiim, qui sine legitimo 
 ^rincipis mandato hostile quid moliretur, punire posse a 
 quocunque principe, in cujus potestatem fuisset redactusy 
 Thus the captain of a French merchant ship having 
 put into port in Ireland was accused by his crew of 
 robberies on the seas. He fled, and his ship and goods 
 were confiscated as having belonged to pirates. The 
 French embassador presented memorials requiring the 
 cause to be remanded to the appropriate judge, as 
 he claimed, in France. But the king and his council 
 adjudged that he was sufiiciently founded in point of 
 jurisdiction to confiscate the ship and goods, and also 
 to try the captain capitally had he been taken, the 
 matter of renvoy being a thing quite disused among 
 princes.^ Such are some of the general principles of 
 the law of nations on the subject of piracies. But the 
 particular law of each sovereignty may change or 
 modify these general principles as applicable to their 
 own citizens or subjects within their own particular 
 jurisdiction ; and all the authority which any nation 
 possesses on this subject is committed to the exercise of 
 congress by the provisions of the constitution of the 
 United States.^ 
 
 g 423. If congress had not attempted to define what 
 acts would constitute piracy, but had simply provided 
 for the punishment of the same, the common law defi- 
 nition of the crime would have been sufficient for 
 determining what constituted it. The term piracy, as 
 
 1 2 Wooddeson, ? 34, p. 432. 
 
 2 2 Sir L. Jenkins, 714; 2 Wooddeson, supra. 3 Art. 1, § 8, cl. 10. 
 
FELONIES. 241 
 
 the technical name of a crime, was well understood by 
 those who framed and adopted the constitution ; and 
 the definition of the crime would have been found in the 
 term used. Thus, " the offense of piracy, by common 
 law, consists in committing those acts of robbery and 
 depredation upon the high seas, which, if committed 
 upon land, would have amounted to felony there." ^ 
 But it was deemed best to commit to congress the 
 power to determine what other acts or depredations 
 committed upon the high seas should be considered 
 piracies, so that the nation, through congress, could 
 exercise the sovereign authority of other nations upon 
 that subject. 
 
 g 424. But congress has power also to define and 
 punish felonies, and offenses against the law of nations. 
 At common law, that crime was deemed a felony whicl^ 
 occasioned a total forfeiture of either lands or goods, or 
 both ; and to which, capital or other punishment might 
 be superadded, according to the degree of guilt.^ Capi- 
 tal punishment does not necessarily enter into the 
 definition of felony, although the idea of felony is so 
 generally connected with that of capital punishment 
 that it is difficult to separate them. Hence, where the 
 English statute made a new offense felony, the law 
 implied that it was to be punished with death, as well 
 as with forfeiture, unless the ofiender was entitled, on 
 prayer therefor, to benefit of clergy.^ But whatever 
 may be the common law definition of a felony, or what- 
 ever may be the punishment annexed to the offense, the 
 whole subject is committed to the discretion of con- 
 gi;ess, which can both define the crime, and afiix the 
 I)enalty thereto. This provision of the constitution 
 clearly commits to the jurisdiction of the general gov- 
 ernment the subject of offenses committed on the high 
 seas. The term high seas embraces not only the waters 
 of the ocean at large, but also the waters along the 
 coast below low-water mark ; and also the waters within 
 the local jurisdictions of the several states lying along 
 the coast between high and low-water mark, as well 
 as below. The question of high and low-water mark as 
 affecting the jurisdiction. of the general government, is 
 applicable only to that part of the ocean which washes 
 the shores of foreign countries.* 
 
 1 2 East P. C, 796; 1 Russell on Crimes, p. 100 and notes; 1 Hawk. P. C, ch. 
 37, §4; 4BI. Com., 72. 
 
 2 4 Bl. Com., 95; see also 1 Hawk., ch. 25 ; 1 Russell on Crimes, 42. 
 
 3 4 Bl. Com., 93 ; 1 Russell on Crimes, 42. 
 
 •• Rawle on Const., ch. 9, p. 107; 1 Kent's Com,, 312; 6 Mason R., 290. 
 31 
 
242 GOVERNMENT. 
 
 .§ 425. Congress has power also to define and punish 
 ofienses against the law of nations. Nations are inde- 
 pendent sovereignties, having absolute jurisdiction in 
 all matters over the individual members thereof; there- 
 fore one nation cannot lawfully exercise its powers 
 within the jurisdiction of another, to punish those who 
 offend against it or its subjects. But justice, which is 
 the basis of all society, and the sure bond of all inter- 
 course between nations, requires that the rights of 
 society, and of the individual members thereof, should 
 be respected ; and that every one should be secure in 
 the enjoyment of that which is his own, against the 
 encroachments of the subjects of other jurisdictions, as 
 well as against those of his fellow subjects. The obli- 
 gation imposed upon all men to be just, has its basis in 
 the law of nature ; and may be taken as true, without 
 argument. All nations are therefore under obligations 
 to cultivate justice toward each other, and carefully to 
 abstain from anything which may violate it. From this 
 obligation which nature im^joses on nations, as well as 
 from the obligation which each nation owes to herself, 
 results the authority of every state to defend her rights 
 and the rights of each and all of her subjects ; for in 
 opposing the infliction of wrong either upon herself or 
 upon her subjects or citizens, she only act^ according 
 to her imperative duty ; and therein consists her right. 
 For it would be in vain for nature to prescribe to 
 nations, as well as to individuals, the care of self- 
 preservation, and of advancing their own perfection 
 and happiness, unless she also gave them the right to 
 preserve themselves from everything which might render 
 this care ineffectual. Man has a natural right to every- 
 thing which nature has made essential to his perfection, 
 and necessary to the discharge of his duties.^ There- 
 fore every nation, as well as every individual, has a 
 right to prevent others from obstructing its own self- 
 preservation, perfection and happiness; that is, every 
 nation has a perfect right to protect itself from all 
 injuries. From hence it follows, that private persons who 
 are members of national societies, are under the same 
 natural obligations to respect and observe the rights of 
 other national societies, and of all the members thereof, 
 which obligation is perfect and should be enforced. 
 Therefore, whoever offends a state, injures its rights, 
 disturbs its tranquillity, or does anything wrongfully to 
 
 I See Vattel, pp. 154, 155, 160, being i^ 40, 30, 63, 64. . 
 
OFFENSES AGAINST NATIONS. 243 
 
 its prejudice, exposes himself to just punishment ; and 
 there should be no authority to interpose any barrier 
 between such offense and the punishment it deserves. 
 A nation should not permit one of its members to com- 
 mit such a wrong upon a neighboring nation, or npon 
 any of its members, with impunity. Its duty to itself, 
 to its subjects, and to the family of nations, requires 
 that it should provide by law for punishing all such 
 offenders according to the nature of the oft'ense com- 
 mitted. And a nation which neglects to keep its citizens 
 or subjects within the rules of justice and peace, but 
 suffers them to injure other nations, either in body or in 
 its members, is guilty of a wrong for which she may 
 justly be held responsible, as though the wrong were 
 committed by herself. Therefore, it was proper and 
 just that the i^ower to define and punish offenses 
 against the law of nations should be conferred upon 
 congress ; and that thus the duty of maintaining good 
 neig-'hborliood with other nations should be imposed 
 upon the general government. Under this grant, con- 
 gress has all the authority of the nation npon that 
 subject ; and can pass any laws necessary and proper 
 to secure, on the part of citizens, fidelity to the rights 
 of mankind. 
 
 § 426. This duty of nations in respect to each other, 
 arises out of the obligations imposed by the law of 
 necessity. If one nation permit its subjects to prey 
 npon the subjects of a neighboring nation, then the 
 subjects of the neighboring nation will be led to retali- 
 ate by inflicting the like or worse injuries npon the sub- 
 jects of the offending nation ; and in this way the friendly 
 intercourse which nature has established between all 
 men as a necessity and duty, would be interrupted ; and 
 discord, strife and plunder would take its place. Where 
 the offenders are arrested within the jurisdiction of the 
 government whose subjects have been injured, they 
 may be made to atone for their crimes; but if they have 
 escaped again within the jurisdiction of their own 
 nation, they can be reached only through their own gov- 
 ernment. In such case the offended nation should 
 apply to such government to have justice done in the 
 premises ; and the government so applied to, is in duty 
 bound to compel the transgressor to make reparation ; 
 or to inflict upon him such punishment as the nature of 
 his offense requires; or to deliver him into the hands 
 of the offended authority to be dealt with according 
 
244 GOVERNMENT. 
 
 to the laws of the country which he has offended. If 
 the nation thus applied to refuse either to punish the 
 offender, or to deliver him into the hands of the offended 
 nation, she adopts and ratifies the offense, and it then 
 becomes a matter of public concern ; and it may become 
 a just cause of war between the two nations. It is the 
 imperative duty of every nation to demand and require, 
 by all its power, the doing of exact justice in such case, 
 at whatever cost ; for it should be the settled law of 
 nations that no public authority shall screen an offender 
 from the punishment due to his crimes, without being 
 held to answer for such an offense. 
 
 OHAPTEE XIII. 
 
 WAE POWEES OP THE GEifERAL GOYEENMENT. 
 
 § 427. CoNGEBSS shall have power to declare "war, 
 grant letters of marque and reprisal, and make rules 
 concerning captures on land and water; to raise and sup- 
 port armies ; to provide and maintain a navy ; to make 
 rules for the government and regulation of the land and 
 naval forces ; to provide for calling forth the militia to 
 execute the laws of the union ; to suppress insurrection 
 and repel invasion ; to provide for organizing, arm- 
 ing and disciplining the militia, and for governing such 
 part of them as may be in the service of the IJnited 
 States ; and to make all laws which shall be necessary 
 and proper for carrying into execution the foregoing 
 powers. By these provisions of the constitution con- 
 gress is intrusted with the exercise of all the authority 
 and powers in thi^ respect of the nation. The war 
 powers necessarily embrace all the powers of the nation, 
 over the persons and property of every citizen or sub- 
 ject thereof; and congress can by law hold the citizens 
 to the strictest obedience. So great is the exigency of 
 a public war, that the body intrusted with the defense 
 of the nation and the vindication of its rights, has 
 unlimited discretion in the exercise of the war powers. 
 A public war is that which takes place between nations 
 or sovereigns, and is carried on in the name of the 
 public power, and by its authority. Such wars are 
 either offensive or defensive. That power which is fore- 
 most in taking up arms, and attacking a nation which 
 before lived in peace with it, wages an offensive war ; 
 
WAR POWERS. 245 
 
 the one who takes up arms to repel the attack merely, 
 carries on a defensive war. An offensive war is carried 
 on to enforce some claim ; to vindicate some right ; to 
 punish for some injury inflicted ; or to prevent some 
 threatened danger. The authority to involve the nation 
 in war must proceed from the sovereignty ; — from that 
 authority which holds in its keeping, the lives, the lib- 
 erty and the property of every member of the national 
 family. Therefore, the right to declare war should be 
 intrusted to that department of the government in which 
 the nation is immediately and potentially present ; and 
 can, by its presence, exercise that unlimited discretion 
 so necessarj^ to be exercised in the midst of a great 
 public war, involving the safety, and perhaps existence 
 of the nation. In democratic or republican govern- 
 ments, this sovereignty is in the people. The authority 
 to declare war, and provide all necessary means for 
 prosecuting it, should then be coniided to the law- 
 making power; because in that department the nation 
 is fally represented. For this reason the full power of 
 the nation upon the subject of declaring and prose- 
 cuting war, is by the constitution committed to congress, 
 to be exercised by the nation itself, according to its own 
 discretion, and for its own safety and welfare. 
 
 § 428. The authority to be exercised by congress in 
 declaring war between the United States and any other 
 power, is as unlimited as the authority of any sovereign 
 or sovereignty; and, therefore, it can be exercised in 
 the same manner, for the same causes, and subject to the 
 same responsibilities, as when exercised by any sov- 
 ereign or sovereignty. The American nation being 
 sovereign in its national authority, has committed that 
 authority to be exercised by the general government 
 through congress, in which it is to be immediately pres- 
 ent througi;i its chosen representatives, to exercise such 
 powers as it deems necessary, both to declare war and 
 to provide the means for conducting it to a successful 
 issue. Congress, then, has the sole discretion to deter- 
 mine for what causes war shall be declared. The moral 
 right to make war belongs to the nation as the only 
 remedy against injustice; and should never be exer- 
 cised except in cases of imperative necessity. Says 
 Vattel : ^ This remedy is so dreadful in its effects, so 
 destructive to mankind, so grievous even to the party 
 who has recourse to it, that unquestionably the law of 
 
 I B. iii, ch. 4, g 51. 
 
246 GOVERNMENT. 
 
 nature allows of it only in the last extremity ; — that is 
 to say, when every other expedient proves ineffectual 
 for the maintenance of justice. The declaration of war 
 usually precedes, by a limited time, the commencement 
 of actual hostilities. It is due to justice and humanity, 
 that notice of a belligerent determination should be 
 given, that the private subjects of each sovereignty 
 may adjust their business relations and prepare for the 
 condition of war which is about to be thrust upon them. 
 The declaration of war being necessary to terminate 
 the differences between nations without the effusion of 
 blood by an appeal to the grave considerations incident 
 to a state of war, it should, at the time of its announce- 
 ment set forth the reasons which impel to such an 
 alternative. And such is the present practice of all 
 civilized nations. And if the offending party offers 
 equitable conditions of peace, which are made avail 
 able by proper security, then the right of making war 
 would, by the law of nations, cease.^ 
 
 g 429. The power to declare war may be exercised by 
 authorizing general hostilities ; or by authorizing only 
 partial hostilities. When, by an act of congress, war 
 between the United States and a foreign power is 
 declared to exist, then general hostilities are authorized ; 
 as by the act of 1812,^ congress enacted, " that war be 
 and hereby is declared to exist between the united king- 
 dom of Great Britain and Ireland and the dependencies 
 thereof, and the United States of America and their 
 territories." But in 1798 there was a qualified but pub- 
 lic war, carried on by the United States against France, 
 upon the high seas only. It was qualified, because it 
 was confined to the high seas ; but public, nevertheless, 
 because the whole nation was engaged in it. It was 
 founded on hostile measures authorized by congress 
 against France, because of her unjust aggressions upon 
 the commerce of the United States. It was carried on 
 without any other declaration of war.^ 
 
 g 430. As a war cannot be carried on without soldiers, 
 it follows that the authority to declare and make war, 
 involves the power of levying the necessary troops. 
 This power is expressly provided for in the constitution, 
 so as to leave no question as to the plenary authority of 
 congress over the whole subject of declaring, making 
 
 1 Vattel, D. iii, cli. 4, ? 54. 
 s Ch. 102. 
 
 3 See Rawle on Constitution, cli. 9, pp. 105, 106; 4 Dall., 37: Story's Com, on 
 Const., § 1174. 
 
WAR POWERS. 247 
 
 and carr3ing forward war. The authority to levy troops 
 belongs to sovereignty, and cannot be intrusted to sub- 
 ordinate authority. But the authority to levy troops 
 places every citizen under the direction of congress, or 
 of those to' whom congress shall intrust the exercise of 
 this authority. Congress can say how many troops 
 shall be raised ; for how long a time ; who shall be sub- 
 ject to be drafted ; what shall be their compensation ; 
 in what branch of the service they shall be placed ; 
 where they shall serve ; by what regulations they shall 
 be governed ; to what authority they shall be amena- 
 ble ; — in short, in this respect the authority of congress 
 over the persons of citizens is absolute to command, 
 requiriug implicit obedience. In former times in the 
 smaller states, immediately on the declaration of war, 
 every man became a soldier; all took up arms and 
 engaged in war. But in modern times, armies are com- 
 posed of picked men, leaviug the remainder to pursue 
 their usual avocations. In monarchical countries, stand- 
 ing armies — regular troops — are relied upon as consti- 
 tuting the necessary force.^ But in the United States, 
 able-bodied male citizens between certain ages, consti- 
 tute the class from which the great bulk of the national 
 army is to be taken. But congress has unlimited author- 
 ity to enlarge the class indefinitely, and cause it to 
 embrace as large a proportion of the citizens as it 
 deems proper. 
 
 g 431. The power to declare and make war and to 
 levy troops, also implies the power to command the 
 means by which to arm, equip and sustain them in 
 the service of the nation. This places at the disposal 
 of the government so much of the property of the 
 nation or of the members thereof as is deemed neces- 
 sary for that purpose. Congress can provide those 
 means by borrowing money on the credit of the Uni- 
 ted States ; or by laying and collecting taxes, duties, 
 imposts aud excises ; or it can create a currency on the 
 credit of the nation, and provide for its solvency ; or 
 for its circulation by making it to possess the authority 
 of money in payment of debts, and the discharge of 
 legal obligations. These powers are incident to that 
 sovereignty which can declare and make war, and 
 impose its authority upon the persons and property of 
 the individual members of the nation. The authority 
 that can create the emergency of war ;— that can put 
 
 • Vattel, b. iii, ?§.7, 8, 9. 
 
248 GOVERNMENT. 
 
 its hand upon the citizen and make him a soldier; — 
 that can take him from the civil, and put him under 
 martial jurisdiction ; — that can take his property by 
 taxation, by duties, by imposts, and by excises, or 
 by force if need be, and apply it to the use of the 
 natiou, must, in such respect, be sovereign to command 
 whatever is required by the exigencies of war. 
 
 g 432. The authority of congress to issue treasury 
 notes, and to make them a legal tender in payment of 
 debts, for the purpose of supplying the means for carry- 
 ing on war, has been gravely called in question. That 
 all the war powers of a sovereign nation are committed 
 to the discretion of congress, to be exercised as the 
 exigencies of war shall require, is not debatable. The 
 constitution has expressly provided that congress shall 
 exercise all powers necessary and proper for carrying 
 into execution the war powers of the nation ; and has 
 thereby conferred upon congress the full discretion of 
 sovereignty itself. What powers are necessary and 
 proper, congress alone can decide. Ever^^thing involved 
 in the issue of treasury notes, and in the authority to 
 make them a legal tender, is committed to the discretion 
 of congress. Under the exigencies of war, congress 
 can take the private property of every citizen and 
 appropriate it to the defense of the nation. It can levy 
 its exactions, if need be, to the last dollar, and can 
 legally require the levy to be paid. There is no species 
 of property within the limits of the nation which it 
 cannot reach. In the ^xercise of the sovereign author- 
 ity of the nation, it can convert every citizen to a 
 soldier, and compel him to be obedient to military 
 authority. It can create, and it can discharge, legal 
 obligations when necessary and proper to the execution 
 of its powers. It can borrow money on the credit of 
 the United States ; it can coin money by stamping the 
 authority of the nation upon what substance it pleases, 
 and can determine the value or price at which it shall 
 be taken ; it can exercise all the authority of the nation, 
 in this respect, for it is the nation itself exercising its 
 own authority in the only way possible. The act of 
 issuing the promises of the government, and requiring 
 them to be received and treated as money by those 
 whose persons and property are subject to the authority 
 issuing tliem, seems to be no very great stretch of 
 authority on the part of congress ; no very violent exer- 
 cise of the discretion committed to it. In the midst of 
 
WAR POWERS. 249 
 
 a war requiring the expenditure of $800,000,000 a year 
 to save tlie life of the nation ; witli a gold and silver 
 currency not adequate to one-fourth of such expendi- 
 ture ; with no alternative left but to create a currency 
 upon the credit of the nation adequate to the emer- 
 gency ; it would seem to be trifling with the subject to 
 deny to congress the authority to make that currency 
 legally current, by requiring it to be received as i^ay- 
 ment or in discharge of legal obligations. It was the 
 nation's currency ; created and issued as a necessary 
 and proper means to save the nation's life ; why, then, 
 should it not be received by the nation upon its own 
 credit, in discharge of its own obligations? 
 
 § 433. The United States as a nation is sovereign and 
 independent ; and as such, has all the authority incident 
 to such sovereignty. As a nation, she is liable to be 
 involved in war with other nations ; and to be required 
 to exercise all her authority and power in conducting 
 such war to a successful issue. By the constitution, the 
 people provide that the war powers of the nation shall 
 be exercised by the general government alone; — that 
 the several states shall have no authority to enter into 
 any treaty or alliance, or to grant letters of marque or 
 reprisal; — that they shall keep no troops or ships of 
 war in time of peace; and shall not engage in war 
 imless actually invaded, or in such imminent danger as 
 to admit of no delay .^ Thus, the people of the United 
 States have provided for the exercise of the war powers 
 of the nation, only through the general government. 
 But it will not be denied that the peojjle as a nation, 
 contemplated the possible exigency of war; and, con- 
 sequently, the liossible occasion for using all the powers 
 of a sovereign nation in prosecuting the same. In 
 assuming its position among the nations as free and 
 independent, the United States, with a full knowledge 
 of what was essential to maintain and defend nation- 
 ality, instituted the general government as the sole and 
 only means of asserting its authority and maintaining 
 its rights, under all circumstances. They, therefore, 
 provided for themselves a general government, as a 
 means by which the public authority could be exercised 
 over those subjects which were enumerated in the con- 
 stitution ; and as the nation was to administer the 
 government, no other restriction or definition was neces- 
 sary than that which pointed out clearly the subjects of 
 
 1 Art. 1, ? 10, Const. U. S. 
 
 32 
 
250 GOVERNMENT. 
 
 national jurisdiction, that the officers of the national 
 and state governments might not interfere in their 
 respective administrations. 
 
 g 434. Inasmuch as the general government is invested 
 with all the powers of the nation to declare war and 
 make peace; to raise and equip armies, and support 
 them iu the field ; to provide and maintain a navy ; and 
 to make all laws necessary or proper for carrying into 
 execution these powers, the extent of the war powers 
 of the general government can be ascertained by an 
 inquiry into the sovereign authority of the nation in 
 such respect ; and, as the American nation has the same 
 authority as other independent nations, the inquiry 
 becomes simple and easy to be answered. Congress' 
 has authoritj^ to declare war for any of the causes 
 known to the law of nations. Thus, a nation may be 
 attacked with a view to obtain that which is due, but is 
 unjustly withheld ; or to punish her for some injury com- 
 mitted to another nation or its subjects ; or to avert 
 threatened dangers. The sovereignty, or those intrusted 
 with its exercise in any country, are the sole judges of 
 what are sufficient causes for war. War being declared, 
 all powers essential to its vigorous prosecution and suc- 
 cessful termination can legitimately be exercised ; and 
 when the authority of the nation is vindicated, the 
 power to bring the war to a close by treaty stipulations 
 is as plenary as it was to declare and carry it on. 
 
 g 435. According to the peculiar doctrines of the strict 
 constructionists, serious questions have been raised 
 whether the nation had authority to acquire territory 
 from a foreign power.' The authority of sovereignty to 
 acquire and dispose of territory admits of no question. 
 There can be no such authority in any one which does 
 not come from the sovereignty. But the question was, 
 whether the nation had authorized the general govern- 
 ment to acquire such territory. Soon after the American 
 nation had organized a government, this question was 
 thrust upon them. Spain had ceded Florida and Louisi- 
 ana to France ; and France proposed to take possession 
 of the same. Thomas Jefferson was then President of 
 the United States. Mr. Livingston was the American 
 minister in France. On the 18th of April, 1802, Mr. 
 Jefferson wrote Mr. Livingston upon the subject. 
 He informed him that this proceeding on the part of 
 France had reversed all political relations of the United 
 States, and had formed a new epoch in her political 
 
WAR POWERS. 251 
 
 course; — that of all nations, Franct. iiitberto had oifered 
 the fewest points on which any conflict of right could 
 arise, and the most points for communion of interest; — 
 that for these causes, France had been considered the 
 natural friend of the United States; — but that there 
 was one point on the globe — one single spot — the i)os- 
 sessor of which was the natural and habitual enemy of 
 the United States; and that imint luas Neiv Orleans, 
 through which the products of three-eighths of the ter- 
 ritory of the American Union must pass to market; and 
 which, from its fertility, would soon yield full one-half of 
 the products, and contain one-half of the population, 
 of the United States; — that France, placing herself in 
 the door, assumed an attitude of defiance; — that the 
 impetuosity of the French temper, the energy and rest- 
 lessness of the French character, would there be placed 
 in a point of eternal friction with the United States ; — 
 that, in short, the day that France should attempt to 
 take possession of New Orleans, would fix the sentence 
 which would restrain her forever within her low-water 
 mark; — that the position of the United States would 
 permit no foreign power to occupy that outlet to the 
 Gulf of Mexico ;-— that persistence on the part of 
 France, would be a cause, and an occasion, of war 
 between the two nations. Here was a singular dilemma. 
 According to the doctrine of Mr. Jefferson himself, 
 the United States had no constitutional authority to 
 acquire territory, because the states had not expressly 
 delegated it to them. Yet here was territory which the 
 existence and safety of the nation would not permit 
 any other nation to occupy ; and, if necessary, the 
 United States would take possession of it by force, and 
 hold it at the risk and expense of a war with its old 
 friend and ally. Yet, according to Mr. Jefferson's 
 doctrine, had France offered to cede the whole Louisi- 
 ana country to the United States for the expense of 
 fixing its bounda^ries, they had no authority to accept 
 of it, even though they might be compelled to go to 
 war to acquire it. But notwithstanding the constitu- 
 tional scruples of Mr. Jefferson and his class of strict 
 constructionists, negotiations took place by which the 
 Louisiana territory was ceded to the United States, and 
 the supposed unauthorized act of the government was 
 made legal and constitutional by the higher laws of 
 necessity and acquiescence. This exigency should have 
 taught the true doctrine of the sovereign powers of the 
 
252 GOVERNMENT. 
 
 nation over all subjects of general jurisdiction, as 
 administered by themselves through the instrumentality 
 of the general government. 
 
 g 436. The advocates for derivative sovereignty in the 
 nation, and original sovereignty in the states, have ques- 
 tioned the authority of the nation to move the national 
 forces through the states, without the consent of the 
 government of the particular state through which they 
 are required to pass. It is a singular position that the 
 general government is required to protect every part of 
 the national domain from invasion, and is authorized 
 and required to raise and provision armies; or to call 
 the militia into service for such purpose, and yet it has 
 no authority to enter upon the territory invaded or 
 threatened, without the consent of the local government. 
 At the time of the inauguration of the great rebellion 
 in 1861, certain of the border states were much con- 
 cerned for the inviolability of state sovereignty ; and 
 remonstrated against the passing of the national armies 
 through their borders on their way to the field to put 
 down the rebellion. Kentucky not only had no sol- 
 diers for the defense of the nation, but she proposed to 
 become neutral ground between the nation and her 
 rebellious citizens ; and to exclude the armies of both 
 parties from her territory. The advocates of original and 
 inherent sovereignty in the states, overlooked the fact 
 that the authority of the nation extends over every inch 
 of the national domain ; and for the purpose of national 
 security, and welfare, is supreme over all ; that Ken- 
 tucky, as a 1 ocal government, exists only by che incor- 
 poraling and enfranchising act of the nation ; that 
 every national citizen, for national purposes, has as 
 mucii authority within the territorial limits of Ken- 
 tucky, as those born therein. The exigencies of civil 
 war soon revealed the essential fallacy of the doctrine of 
 inherent sovereignty in the states ; and settled the ques- 
 tion of national authority to occupy any territory 
 within the several states, required for the purpose of 
 securing obedience to the laws of the nation. 
 
 g 437. There are those who claim large war powers 
 for the president, because he is made, by the constitution 
 of the United States, ex officio commander-in-chief of 
 the army and navy — that is, the supreme command of the 
 army and navy is vested in the president. The duties 
 and powers of the president as the executive head of 
 the nation, and the duties and powers incident to his 
 
WAR POWERS. 253 
 
 command of the army and navy, are distinct and dis- 
 similar. As the executive bead of the nation, cliarged 
 witli tlie execution of the laws thereof, his duties are 
 prescribed by law, and are of a civil character. In 
 the exercise of those powers he acts according 
 to the direction of, and in obedience to civil author- 
 ity. If resisted in the performance of his executive 
 duties, he can call to his aid such assistance as the law 
 authorizes ; and in the manner in which he is author- 
 ized by law to do so. Beyond this he cannot go. 
 Whenever the resistance becomes such as to call for the 
 intervention of the army of the United States, and it 
 is leg'ally employed to put down resistance to the law, 
 then the president's authority as a military commander 
 begins, and may continue like the authority of any 
 other supreme commander of the army of a nation. 
 But the powers of the president as a civil officer, and his 
 powers as a military officer are very distinct. As a civil 
 officer the president has no x>ower not conferred and 
 regulated by the laws of the United States. In the 
 discharge of his executive duties merely, he is as strictly 
 accountable to the law as the humblest officer. He has 
 no authority to interpose the military power of the nation 
 in the execution of his civil duties except as provided 
 by law. Therefore it is clear, that as a civil officer he 
 has no war powers ; nor has he any authority to involve 
 the nation in war that he may exercise war powers. It 
 will be time enough for the president to commence the 
 exercise of war powers, after the exigencies of war shall 
 make it necessary. 
 
 S 438. As the executive head of the nation, it is made 
 his especial duty to see that the laws of the nation 
 are properly enforced; and congress not unfrequently 
 provide especially for the manner in which certain 
 requirements shall be enforced ; and by such xn'ovisions 
 give to the president large powers to be exercised under 
 a large discretion. The statute books of the United 
 States are full of examples of this character ; and the 
 president, in executing these laws, at times seems to be 
 possessed of unlimited authority. But careful attention 
 to the subject will show that he is acting in obedience to 
 the particular authority conferred upon his office by the 
 law-making power. It cannot be too strongly impressed 
 upon the public mind, that the President of the United 
 States is a mere officer of the law, intrusted with the 
 exercise of certain duties and powers attached to 
 
254 GOVERNMENT. 
 
 the ojfice, and not to the incumbent ; that as a civil offi- 
 cer he has no authority except that which is prescribed 
 by law. As a military officer his duties are as strictly 
 confined to military operations, conducted according to 
 principles of martial law, enlarged and restricted accord- 
 ing to the exigencies of the situation, the same as other 
 military officers in supreme command. 
 
 g 439. The duties and powers, of the President of the 
 United States, as the commander-in-chief of the army 
 and navy, do not extend beyond the well established 
 rules or "laws necessarily peculiar to the organization, 
 discipline and command of military bodies ; except so 
 far as by the laws of the United States, other duties 
 may have been imposed, or other powers may have been 
 conferred upon that office. As commander-in-chief, the 
 president has no occasion to exercise martial authority 
 except in connection with the operations of the army. 
 That which pertains to the country at large, and which 
 is not connected with the immediate presence of the 
 army, or with that which has to do with the organization, 
 discipline or efficiency of the army, does not properly 
 come within the scope of the president's powers as its 
 commander-in-chief. There have been grave questions 
 as to the authority of the president as commander-in- 
 chief, to proclaim martial law ; to suspend for the time 
 being the functions or powers of civil government over 
 any particular territory. The principle by which these 
 questions are to be answered would seem to be plain, 
 affording an easy solution of the problem. The reason 
 for the authority given to military commanders in the 
 exigencies that may be upon them, is found in the 
 necessity of the case. In the presence of an enemy 
 which is threatening not only the destruction of the 
 army, but likewise the destruction of the government, 
 which has intrusted its defense to the keeping of the 
 army, the commander may find it necessary to disregard 
 civil processes and civil authority altogether. The very 
 continuance of civil authority in the future may require 
 for the time being, that it be suspended in the present. 
 Under such circumstances, it would be the duty of the 
 commander-in-chief to disregard, if need be, all civil 
 authority until the emergency had passed, and both the 
 army and government were safe from impending danger. 
 This military power is accorded to the military com- 
 mander, because the civil authorities have neither the 
 time nor ability to act in the premises. Aside from these 
 
WAR POWERS. 255 
 
 military reasons based upon the necessity of the case, 
 the commander-in-chief has no rightful authority to dis- 
 regard the civil authority. If there are general reasons 
 affecting the whole country why martial law should be 
 proclaimed and the i)owers of civil government should 
 be suspended for the time being ; reasons applicable as 
 well to places not connected with the army as to those 
 in its immediate presence, it furnishes no occasion for 
 the exercise of the exigency powers of the commander- 
 in-chief. Where there is time for the people to act 
 through the legislative department of the government 
 without danger to the commonwealth incident to the 
 delay necessary, it is more in accordance with the prin- 
 ciples of republicanism, that civil authority should be 
 suspended by the action of the legislature than by the 
 authority of the commander-in-chief. It is only in 
 respect to the presence of war with its impending dan- 
 gers that the maxim, et silent inter leges anna, applies. 
 
 % 440. It has been asserted that because the constitu- 
 tion declares the president to be the commander-in-chief 
 of the army and navy of the United States — that is, 
 because the army and navy are subject to him as their 
 constitutional commander, therefore he is invested with 
 the war-making power, and can wield the army and 
 navy as he pleases, until resistance to the authority of 
 the pation ceases; that he can be restrained only by the 
 X^ower of congress, to be exercised in refusing to appro- 
 priate the means to pay the expenses, or to provide 
 for his levying troops. ^ This view is based upon the 
 hypothesis, that the president, being ex officio com- 
 mander-in-chief, possesses authority that a commander- 
 in-chief would not have were he not also President of 
 the United States. But examination and reflection will 
 show that the authority of commander-in-chief of the 
 army and navy of the United States is not at all aug- 
 mented by the fact, that civilly the same i)erson is also 
 president of the nation, and has civil and presidential 
 duties to i)erform in other departments of administra- 
 tion. His duties and powers as commander-in-chief are 
 the same they would be were he otherwise nothing but 
 a common citizen. So that the question of the powers 
 of the president as ex officio at the head of the army 
 and navy, is to be determined by the simple definition 
 of the powers pertaining to the office of commander-in- 
 chief. Suppose, then, that the lieutenant-general could 
 
 i Congressional Globe 1S61-2, March 4, 1862, 
 
256 GOVERNMENT. 
 
 become the captain-general or commander-in-chief, 
 instead of the presidential incumbent, could it be said 
 of him, that he was invested with the war-making 
 power ? that he could direct and control the army and 
 navy of the United States as he pleased ? that he was 
 not subject to the direction or control of congress ? that 
 the only power they could exercise over him would be in 
 withholding supplies, or making no provisions for levy- 
 ing troops? The people of the United States have 
 invested no commander-in-chief with such powers, to 
 override their will as expressed through congress, in the 
 laws by them enacted. The President of the United 
 States, as commander-in-chief Of the army and navy, is 
 as limited in his authority as would be any other com- 
 mander-in-chief ; he is as much subject to legislative 
 direction and control, as any other person occupying 
 that j)Osition would be. It is to be remembered that 
 the powers and duties pertain to the office of commander- 
 in-chief ; not to the person holding the office ; not to 
 any other office he may possess ; or to any other duties 
 and powers incident to such other office. The authority 
 of the president to proclaim martial law, or to suspend 
 the writ of habeas corj^us, or any other civil process, 
 depends upon the same exigencies as would authorize 
 any other person holding the office of commander-in- 
 chief to do so. For be it remembered that when the 
 president assumes the authority to proclaim martial, and 
 suspend civil law, he acts in virtue of the authority of 
 his military, and not of his civil office. Therefore, the 
 power of the president to suspend the writ of lidbeas 
 corpus would be justified, when, and to the extent, that 
 the exigency duties . of his military office require that it 
 should be suspended. To attempt to go beyond this 
 necessity as a military commander, is to usurp power; 
 and, consequently, to act without authority. 
 
 S 441. The power to proclaim martial law is one of 
 the war powers, and is to be resorted to only when the 
 safety and welfare of the public require it. The 
 language of the constitution is, " the privilege of 
 the writ of habeas corpus shall not be suspended unless, 
 when in case of rebellion or invasion, the public saftey 
 may require it." This supposes the presence of a force 
 which can be resisted only by military power. It sup- 
 poses a danger, to the removal of which civil authority 
 is not adequate ; and, therefore, it should not be permit- 
 ted to defeat the end of government by the assertion of 
 
WAR POWERS. 257 
 
 authority it could not execute. Now this danger may 
 be present, and yet be of such a character, that con- 
 gress can both ascertain the fact of its existence, and 
 provide for the remedy by its ordinary course of legisla- 
 tion. It may be a danger that pervades the entire 
 country, both in the presence and in the absence of the 
 military arm of the government. The very danger may 
 be iu the disloyalty of those intrusted with the adminis- 
 tration of civil authority. The courts armed with 
 judicial jjowers, may be composed of persons unfriendly 
 to the government : and this condition of things may 
 pervade a large extent of country, so that the authority 
 which should aid iu the enforcement of civil law, may 
 be used to overthrow the government. In cases of this 
 character, the authority to suspend the writ of habeas 
 corpus, would be more properly exercised by congress, 
 as expressing the will of the nation, looking to its pros- 
 pective dangers, and the means of providing against 
 them. But where the danger is local, is in the presence 
 of the army, and threatens to interfere with its efhc- 
 iency; where it is immediate and cannot be averted 
 except by prompt and decisive action ; when there is no 
 time to consult the legislature, iu short, where from the 
 necessity of the case, it must be left to the discretion of 
 the commander, then he not only has the authority, but 
 it is his duty, if need be, to suspend the writ of habeas 
 corpus, and all other civil jjrocesses, that the military 
 power may be used to save the army and government 
 from defeat and overthrow. 
 
 % 442. Mr. Sumner of Massachusetts, in the United 
 States Senate held the true doctrine. Said he, " there 
 are senators who claim these vast war powers for the 
 l)resident and deny them to congress. The president, it 
 is said, ascommauder-in-chief, may seize, confiscate, and 
 liberate, under the rights of war ; but congress cannot 
 direct these things to be done. Where is the limitation 
 upon congress? Read the text of the constitution, and 
 you will lind its powers as vast as all the requirements 
 of war. There is nothing which may be done anywhere 
 under the rights of war which may not be done by con- 
 gress. I do not mean to question the i)Owers of the 
 president in his sphere, or of any military commander in 
 his department. But I claim for congress all that belongs 
 to any government, in the exercise of the rights of war ; 
 I mean for an act of congress passed according to the 
 requirements of the constitution, by both houses, and 
 
 83 
 
258 GOVERNMENT. 
 
 approved by the president. The government of the 
 United States appears most completely in an act of 
 congress. Therefore war is declared, armies are raised, 
 rules concerning captures are made, and all articles of 
 war regulating the conduct of war are established by 
 act of congress. It is by the act of congress that the war 
 powers are at all put in motion ; when once put in motion, 
 the president must execute them. But he is only the 
 instrument of congress under the constitution. It is 
 true the president is commander-in-chief : but it is for 
 congress to make all laws necessary and proper for car- 
 rying into execution his powers, so that according to 
 the very words of the constitution, his powers depend 
 upon congress which may limit or enlarge them at 
 pleasure." ^ 
 
 g 443. During the discussions respecting the war 
 powers of the president and of congress, some spoke 
 of the constitution as being suspended ; that is, of its 
 authority as being in abeyance during the continuance 
 of the war, and the maintenance of martial authority 
 over certain sections of the country. This language 
 tended to beget erroneous ideas respecting the authority 
 of the constitution. The constitution is as really the 
 supreme law of the nation during the prevalence of 
 war, as in the time of peace. It is in itself an ordi- 
 nance of government ; that is, an ordinance instituting 
 a government for the nation in times of war as well as 
 in times of peace. It contemplates war and peace. It 
 provides for the exercise of war powers in times of war, 
 as fully as for the exercise of peace powers in times of 
 peace. It is as explicit in defining the duties and 
 powers of the government to be exercised and adminis- 
 tered at the one time as at the other. Congress is 
 acting as constitutionally in declaring war, and in 
 making all necessary provisions for carrying it on, as 
 when it is laying and collecting taxes, coining money, 
 or establishing post-offices and i)ost-roads, or exercising 
 any other of the peace powers of the constitution. The 
 president, in exercising the duties and powers of com- 
 mander-in-chief, at the head of the army and navy, is 
 as really a constitutional officer of the government, 
 engaged in the discharge of his constitutional duties, 
 and in the exercise of his constitutional powers, as when 
 he is sending his message to congress, approving of the 
 laws passed by it, or discharging any other civil duty 
 
 1 In U. S. Senate, June 27, 1862. 
 
WAR POWERS. 259 
 
 imposed upon liim. The constitution contemplates the 
 possible existence of war with all its stern realities; and 
 provides for an administration of authority under its 
 provisions suited to such exigencies. In times of peace, 
 congress is expected to exercise only the peace powers ; 
 except, ijerhaps, so far as it may be necessary to provide 
 against the accident of war, by making ready for it 
 whenever it may come. In times of peace, the presi- 
 dent is the simple executive and presidential head of 
 the nation ; having little occasion to exercise his military 
 powers as commander-in-chief. In times of peace, the 
 citizen is to be secure in the enjoyment of his civil 
 liberty and rights, according to the established forms 
 and usages of law. But the constitution contemplates 
 the possibility of a state of public danger arising 
 from the presence of a foreign or domestic foe, which 
 may render it expedient to suspend the writ of habeas 
 corpus, and hold in custody those who are deemed to be 
 dangerous to the public peace and security, without the 
 presence of an authority to inquire into the legality of 
 their detention. It contemplates the necessary suspen- 
 sion, for the time being and in particular localities, of 
 the civil functions of the government, that the martial 
 jjowers of the same may be efficiently exercised, for the 
 security and welfare of the nation. But that the martial 
 powers may be exercised, when, in the judgment of the 
 proper authorities it becomes necessary for the safety 
 of the nation, is as really in accordance with the pro- 
 visions of the constitution, as is the exercise of the civil 
 powers in times of peace. But the proper authority to 
 determine when and where any portion of the nation 
 shall be under martial rule, is to be found in congress, 
 in which the nation itself is ever present to exercise its 
 judgment and declare the law. It is proper, however, 
 that the commander of the army should suspend the 
 operations of the civil, by substituting the martial, 
 powers of the constitution whenever, for the time being, 
 the safety of the army and of the state requires that the 
 operations of the army should not be interfered with by 
 the obtrusion of civil process. These occasions may 
 be denominated the exigencies of war ; and the powers 
 thus exercised, " ilie exigencij jmwers.'' 
 
 g 444. The power of the president to suspend the writ 
 of habeas corpus was called in question by Chief Justice 
 Taney, during the progress of the civil war in the 
 United States. Orders had been issued by the presi- 
 
260 GOVERNMENT. 
 
 dent to military commanders in various sections of tlie 
 country to suspend, if necessary, tlie writ of luibeas 
 corpus within the limits of their respective commands. 
 The military commander of the district of Pennsylvania 
 and Maryland had caused to be arrested, as dangerous 
 to the peace and security of the nation, one Merryman. 
 A writ of habeas corpus was issued to bring him before the 
 chief justice. The officer refused to obey the writ. In 
 concluding bis remarks upon the subject. Chief Justice 
 Taney says : " The documents before me show that the 
 military authority in this case bas gone far beyond the 
 suspension of the privilege of the writ of luibeas corpus. 
 It has, by force of arms, thrust aside the judicial author- 
 ities and officers to whom the constitution has confided 
 the power and duty of interpreting and administer- 
 ing the laws, substituted military government in its place, 
 to be administered and executed by military officers. 
 There was no danger of any obstruction or resistance to 
 the action of the civil authorities, and therefore no reason 
 whatever for the interposition of the military. And 
 yet, under these circumstances, a military officer sta- 
 tioned in Pennsylvania, without giving any information 
 to the district attorney, and without any application to . 
 the judicial authorities, assumes to himself the judicial 
 power in the district of Maryland, undertakes to decide 
 what constitutes the crime of treason or rebellion, what 
 evidence is sufficient to support the accusation and jus- 
 tify the commitment ; and commits the party without 
 even a bearing before himself, to close custody in a 
 strongly garrisoned fort, to be there held, it would seem 
 during the pleasure of those who committed him. I 
 have exercised all the power, which the constitution and 
 laws confer on me, but that power has been resisted by a 
 force too strong for me to overcome. It is possible that 
 the officer, who has incurred this grave responsibility, 
 may have misunderstood his instructions, and exceeded 
 the authority intended to be given him. I shall there- 
 fore order all the proceedings in this case, with my 
 opinion, to be filed and recorded in the circuit court of 
 the United States for the district of Maryland, and 
 direct the clerk to transmit a copy under seal, to the 
 President of the United States. It will then remain for 
 that high officer, in fulfillment of his constitutional obli- 
 gation, to take care that the laws be faithfully executed, 
 to determine what measures he will take to cause the 
 civil process of the United States to be respected and 
 
WAR POWERS. 263 
 
 enforced." ^ The late chief justice overlooked the fact, 
 that this order of the president was issued to these 
 military commanders at the time when civil war had 
 been inaugurated, pervading the territory where this 
 arrest was made, and involving the existence of a civil 
 government loyal to the nation; when the rebel hosts 
 were marching upon the capital of the nation to capture 
 it, and to overthrow the government; and when, in 
 obedience to the call of the president, the loyal forces 
 marching to its defense, in passing through the city 
 of Baltimore, were met by the citizens of Maryland, 
 attacked in the streets, their progress obstructed, and 
 their blood shed ; when the civil authorities of Maryland 
 either could not or would not interpose to prevent such 
 interruption ; when for days after, the loyal men of the 
 north and east were not permitted to pass through 
 the city on their way to defend the national capital 
 from the insurgent army; and the only direct route to 
 Washington through Maryland remained closed to the 
 transportation of troops loyal to the government, until 
 it was opened by the martial authority of the nation. 
 The chief justice overlooked the fact that Maryland, as 
 a state was saved from going bodily into secession by 
 the arrest of the members of its legislature ; — that had 
 it not been for the loyalty of her governor, Maryland 
 would have early placed herself, in company with the 
 gulf states, in open rebellion against the authority of 
 tlie nation; — that treason was x^opular in Maryland, 
 and loyalty was contemned and despised; — that the 
 civil authorities of Maryland were plotting with rebels, 
 and with the rebel authorities south, to take the state 
 out of the union. In rebel parlance, she was called 
 " my Maryland." The exigencies of war were upon the 
 nation at the time the president issued his order to 
 the military commanders to proclaim martial law, if 
 deemed necessary, in their several departments. The 
 time of danger contemplated by the constitution, when 
 the civil should yield to the martial administration of 
 authority^ was in the midst of the nation ; and nothing 
 but the lirm, loyal, prompt and effectual action of the 
 president as commander-in-chief, saved the nation from 
 utter overthrow. The authority given by the constitu- 
 tion to suspend the privileges of the writ of habeas 
 corpus, was designed to be exercised on just such occa- 
 sions as those which called for the military order of the 
 
 1 Law Reporter, June, 1861. 
 
262 GOVERNMENT. 
 
 president ; and its exercise was as constitutional as 
 the exercise of civil authority in times of peace. The 
 thrusting aside of the judicial and civil authorities of 
 Maryland, in the emergency then upon the nation, was 
 a constitutional act, exercised in the sound discretion of 
 the officer in whom, by the constitution, the authority 
 was reposed. 
 
 g 445. Upon principle, it would seem that the com- 
 mander of a military district would be justified in the 
 interruption of the course of civil administration only 
 in cases of necessity; and then only to the extent neces- 
 sary. If the emergency be such only as that the course 
 of civil administration is adequate to its demands, there 
 is no reason for the interference of military authority. 
 But if the danger be so pressing that it will not admit 
 of the delay incident to civil proceedings ; or if the civil 
 authorities are disloyal, and will aid the enemies of the 
 government rather than the government, then the com- 
 mander-in-chief will be justified in resorting to the 
 martial powers of the nation. Thus, at ISTew Orleans, 
 when the civil authorities attempted to obtrude civil 
 process to the embarrassment of military operations in 
 the face of the public enemy, the proclamation of mar- 
 tial law by General Jacksois:, for the time being, had 
 its justification in the necessity of the case. Martial 
 law and success, or civil rule and ruin, seemed to be the 
 alternatives. " When martial law is proclaimed under 
 circumstances of assumed necessity, the proclamation 
 must be regarded as the statement of existing facts, and 
 not as the creation of the facts ; as in a beleaguered 
 city, the state of siege lawfully exists because the city 
 is beleaguered ; and the proclamation of martial law in 
 such case is only notice and authentication of the fact, 
 that civil authority has been suspended of itself by 
 force of circumstances, and that by the same force of 
 circumstances the military power has devolved upon 
 it." ^ In the states of continental Europe, the etat de 
 siege, which corresponds with the suspension of the 
 habeas corpus, or with martial law, is regulated by per- 
 manent law. In France it is defined to be " a measure 
 of public security, which temporarily suspends the 
 empire of the ordinary laws in one or more cities in a 
 province, or in an entire country; and then considers 
 them subject to the laws of war." ^ So by the constitu- 
 
 5 Opinions of Attorneys General, vol. 8, p. 373. 
 s Bouillet Dictionaire des Sciences, &c., p. 622. 
 
WAR POWERS. 263 
 
 tion of the 14th of January, 1852, as modified by the 
 senatiis consiiUus, reestablishing the imperial dignity, 
 " the emperor has the right to declare a state of siege — 
 etat de siege — in one or "more departments, subject to a 
 reference to the senate with the least possible delay." ^ 
 It provides that the state of siege can only be declared 
 in cases of imminent i)enl, for the internal or external 
 security ; and that the national assembly can alone 
 declare it, except that the president of the republic 
 may declare it during the prorogation of the assembly, 
 subject, in grave cases, to immediately convening the 
 assemblj^ ^ 
 
 § 446. The power to declare war would of itself have 
 carried with it, by necessary implication, all the other 
 powers necessary and proper for carrying it on, without 
 the particular enumeration of subjects which immedi- 
 ately follows this clause. Especially is this the case 
 when it is considered, that the enumerations of the 
 eighth section are rather enumerations of subjects than 
 of particular powers. The subject of war with foreign 
 powers is, by the constitution, committed to the juris- 
 diction of the general government ; and, consequently, 
 all powers necessarily connected therewith. But to 
 place beyond question the authority of the general gov- 
 ernment over the whole subject, the further enumera- 
 tion of subjects was made. The power to grant letters 
 of marque and reprisal, although incident to the power 
 to declare and make war may, nevertheless, be exercised 
 as a measure of peace, to prevent the necessity of 
 resorting to war. The law of nations authorizes the 
 sovereign or government whose subject has been injured 
 by the depredations of a foreign potentate or state, or 
 the subjects thereof, to grant to the injured party this 
 mode of redress, where justice has been denied him by 
 the state to which the party doing the injury belongs. 
 Letters of marque signify the passing, or the authority 
 to pass, the boundaries of the offending state, in order to 
 make reprisal by seizing the persons or goods of the 
 subjects of such offending state, wherever they may be 
 found, until satisfaction for the injury is made. This 
 right is granted, because the delay of making war may 
 sometimes be detrimental to individuals who have suf- 
 fered by such depredations ; and this method is resorted 
 to to enable them to obtain speedy justice.^ The prin- 
 
 1 Tripier, Code Politique, p. 389. 
 
 s Tripiev, supra ; see Lawrence, Wheat., p. 521 and notes. 
 
 3 See 1 Bl. Com., 25S-2GU. 
 
264 GOVERNMENT. 
 
 ciple involved is that of authorizing the injured party 
 to take the remedy into his own hands., and that the 
 government will be responsible for the consequences. 
 
 g 447. The whole subject of exercising war power is 
 committed to the exclusive jurisdiction of congress. 
 Thus, it is authorized to make rules concerning captures 
 on land and water, committing the admiralty jurisdic- 
 tion of the nation to the general government exclusively. 
 The power to raise and support armies is unlimited, 
 except as to the duration of the appropriations. That 
 is, the house of representatives is renewed every two 
 years, by members fresh from the people, and newly 
 instructed in their wishes, therefore they are not to 
 be bound by appropriations made for the support of 
 the army for a period longer than the official term of the 
 members making the appropriations. Thus, if one con- 
 gress had unnecessarily increased the army, and had 
 made provision for its support and maintenance, the 
 next congress can continue the appropriations, or not, 
 as they think proper. By this means the unlimited 
 power to raise and support armies is sufficiently within 
 the control of the people ; and their maintenance 
 depends upon new appropriations to be made every two 
 years. Congress is also to provide and maintain a navy ; 
 that is, the subject of jjroviding and continuing a 
 sufficient naval force for national exigencies belongs 
 exclusively to congress, and its authority over the whole 
 subject is as unlimited as sovereignty can grant. Con- 
 gress has the power of prescribing the rules by which 
 the land and naval forces are to be governed ; and also 
 to make such provisions as they please for calling forth 
 the militia for any purpose for which the military may 
 become necessary ; that is, either to execute the laws, 
 to suppress rebellion, or to repel invasion. It is also 
 authorized to provide for organizing, arming and disci- 
 plining the militia; and also for governing such portion 
 of them as are employed in the service of the United 
 States. 
 
 g 448. Congress shall have power to exercise exclusive 
 legislation in all cases whatsoever over such district — 
 not exceeding ten miles square — as may, by cession of 
 particular states and the acceptance of congress, become 
 the seat of government of the United States ; and shall 
 have power to exercise like authority over all places 
 purchased by the consent of the legislature of the state 
 in which the same shall be, for the erection of forts 
 
WAR POWERS. 265 
 
 magazines, arsenals, dock-yards, and other needful 
 buildings ; and shall have power to make all laws which 
 shall be necessary and proxjer for carrying into execu- 
 tion the foregoing powers. By the operations of this 
 clause, congress becomes the legislature of the District 
 of Columbia, for all purposes of internal police admin- 
 istration, and the authority of the general and state 
 government are united in the general government. This 
 was deemed necessary to avoid conflicts which might 
 arise between the local authorities of any state, and the 
 authorities of the nation. In the exercise of the powers 
 requisite for the protection of local and domestic inter- 
 ests, and for the administration of law to local and 
 domestic relations, congress has hitherto found it 
 impracticable to enter into the details of such legisla- 
 tion ; and has generally supplied this local necessity by 
 adopting the local laws of the state from which the par- 
 ticular territory was taken, as the law of such territory, 
 by reenacting it for such territory. In doing this it 
 has made such alterations or modihcations of the state 
 laws as it thought proper, and then i)rovided for the 
 administration thereof by national authority. 
 
 g 449. Congress shall have power to make all laws 
 which shall be necessary and proper for carrying into 
 execution the foregoing powers — meaning the powers 
 pertaining to the subjects enumerated in the eighth 
 section — and all other powers vested by this constitution 
 in the government of the United States, or in any 
 department thereof. By the provisions of this clause, 
 congress is vested with sovereign legislative authority 
 over the enumerated subjects, committed by the consti- 
 tution, to the jurisdiction of the general government, or 
 to any department thereof; so that whatever legislation 
 may be necessary to the exercise of plenary authority 
 over any enumerated subject committed to the jurisdic- 
 tion of the general government, congress has the express 
 authority of the constitution to supply. Thus, congress 
 shall have power to regulate commerce with foreign 
 nations, &c., and to make all laws which shall be neces- 
 sary and proper for carrying into execution such 
 power. Congress shall have power to provide and 
 maintain a navy; and to make all laws which shall be 
 necessary and proper for carrying into execution such 
 power. The president shall be commander-in-chief of 
 the army and navy of the United States ; and congress, 
 shall have power to make all laws which shall be neces- 
 
 34 
 
266 GOVERKMEKT. 
 
 sary and proper to carry into execution such power. 
 The judicial power of the United States shall be vested 
 in one supreme court and in such inferior courts as the 
 congress may from time to time ordain and establish ; 
 and congress shall have power to make all laws neces- 
 sary and proper for carrying to execution such power. 
 Thus this eighteenth clause of the eighth section of the 
 first article of the constitution gives to congress express 
 authority to legislate to any extent that legislation may 
 be necessary in administering the sovereign authority 
 of the nation in respect to all subjects committed to the 
 jurisdiction of the general government. Under this 
 clause, much that has been classed as belonging to the 
 implied power of the constitution is expressly granted. 
 In truth, under its just operation, there is little left to 
 implication. 
 
 CHAPTER XIY. 
 
 PROHIBITIONS AND RESTRICTIONS. 
 
 § 450. Sections nine and ten of the first article are 
 made up of prohibitions and restrictions imposed upon 
 the general government, and also upon the state gov- 
 ernments. These prohibitions and restrictions of power 
 become important as manifesting the understanding of 
 those who framed and adopted the constitution, as to 
 the extent of powers otherwise supposed to be granted. 
 For it is a plain proposition, that there existed no 
 occasion to limit or restrict the exercise of powers not 
 granted ; and the form of prohibition implies that those 
 making it, deemed it to be necessary. Thus, the first 
 clause of the ninth section of the first article of the 
 constitution provides, that the migration or importation 
 of such persons as any of the states now existing shall 
 think proper to admit, shall not be prohibited by the 
 congress prior to the year one thousand eight hundred 
 and eight ; but a tax or duty may be imposed on such 
 importation not exceeding ten dollars for each person. 
 Unless the authority to prohibit the migration or import- 
 ation of persons into the country had been conferred 
 upon congress by the constitution, there was no occa- 
 sion for inserting such prohibition. The only authority 
 conferred upon congress touching the subject of the 
 migration and of the importation of persons, is to be 
 
PROHIBITIONS AND RESTRICTIONS. 267 
 
 found in the third clause of the eighth section of the 
 first article, taken in connection with the eighteenth 
 clause of the same section. Thus, congress shall have 
 power to regulate commerce with foreign nations, and 
 among the several states, and with the Indian tribes ; 
 and shall have power to make all laws which shall be 
 necessary and proper for carrying into execution such 
 power. The construction put upon this provision of 
 the constitution by the inhibitions of the first clause 
 of the ninth section, imports that, according to the 
 understanding of those who framed and adopted the con- 
 stitution, congress had full authority over the subject 
 of intercourse between the United States and foreign 
 nations ; and also between the several states, extending 
 to the migration from state to state ; and also to the 
 importation of persons from abroad, into the United 
 States. The migration of persons has reference to the 
 right to pass irom state to state within the union ; 
 while the importation of persons has reference to bring- 
 ing tliem in from abroad. This prohibition extended 
 only for the term of twenty years; so that after the 
 year eighteen hundred and eight, congress had plenary 
 authority over the whole subject, and still has. In 
 short, the prohibitions of the ninth section imply, that 
 in the opinion of the authors of the constitution, the 
 whole authority upon those subjects was conferred upon 
 congress. It is not to be denied that the persons men- 
 tioned in this first clause of the ninth section, were 
 supposed to be slaves ; and that the effect of this prohi- 
 bition was to permit the continuance of the slave trade 
 in the United States for the term of twenty years. 
 That is, the general government had no authority to 
 prohibit the importation of slaves into the United 
 States prior to eighteen hundred and eight ; nor had it 
 authority over the coastwise and interstate trade in 
 slaves prior to that time. But as soon as that limitation 
 of the power of the general government ceased, the 
 subject of the foreign and domestic slave trade was 
 entirely within the legal control of congress, and the 
 traffic in slaves carried on between the slave-breeding 
 and the planting states, could have been prohibited at 
 any time thereafter. 
 
 § 451. This prohibition was a compromise between 
 the friends of the union, and the people of certain 
 states, who refused to become members of the proposed 
 union unless the right to bring in slaves from abroad 
 
268 GOVERNMENT. 
 
 for a limited time, was conceded to the states. The 
 public sentiment of the nation was against this. But 
 this concession seemed the only alternative to the forma- 
 tion of a national government, which would ultimately 
 have authority over the whole subject. The accusation 
 sometimes made against the United States, that by this 
 I^rovision they legalized for twentj^ years an act which 
 they afterward declared piracy, is not strictly just. It is 
 to be remembered that at the time of the institution of 
 the government, each state exercised authority inde- 
 pendent of the other, because there was no organizd 
 authority to supervise its political action; — that the 
 people of the several states, though a nation in fact, 
 had no organized government to represent them in their 
 national character as sovereign. Therefore, in the insti- 
 tution of the general government, it became necessary 
 to exercise a spirit of concession and compromise in order 
 to come to some basis of union ; and while the general 
 sentiment of the nation was in favor of the immediate 
 suppression of the traffic in slaves, there were certain 
 states which would not agree to it, and place themselves 
 under an authority with power to enforce such regula- 
 tion. To insist upon such condition was to defeat the 
 whole. Therefore, patriotic citizens concluded to con- 
 cede to the states the right to import slaves into the 
 country for the period of twenty years, when they would 
 get control of such power ; that such would be a 
 wiser policy than not to get control of it at all. They 
 acted upon the hypothesis, that it was better to begin- 
 with little even, than to reject all, because everything 
 could not be obtained at the commencement. But after 
 the government was instituted, congress lost no time in 
 interdicting the traffic in slaves as far as its power 
 extended, by prohibiting American citizens from carry- 
 ing it on between foreign countries ; and by prospective 
 legislation it abolished the whole traffic as soon as the 
 limitation of its authoritj^ in that respect, was at an end. 
 Mild and moderate penalties were found to be ineffect- 
 ual, and finally the slave trade was declared piracy, and 
 made punishable with death.^ 
 
 §452. The terms "migration" and "importation" are 
 of peculiar significance in this ninth section of the con- 
 stitution. Slaves were an article of commerce between 
 the several states ; and they were also brought in from 
 abroad. The clause conferring upon congress the power 
 
 1 Act 1820, ch. 113. . 
 
PROHIBITIONS AND RESTRICTIONS. 269 
 
 to regulate commerce with foreign nations and among 
 the several states, necessarily included the power to 
 control this commerce in slaves, not only from abroad, 
 but also among the states. Hence, the prohibition. 
 The migration — that is, the passing from place to place 
 within the United States — of such persons as any of 
 the states now existing shall think proper to admit, shall 
 not be prohibited by the congress prior to the year one 
 thousand eight hundred and eight. Nor shall the 
 importation — that is, the bringing in from abroad — of 
 such i)ersons as any of the states now existing shall 
 thiuk proper to admit, be prohibited by the congress 
 ])rior to the year one thousand eight hundred and eight. 
 The purpose of this provision being to extend to the 
 original thirteen states the right to supply themselves 
 with slaves either from abroad or from the neighboring 
 states, congress always had the power over this subject 
 except as to the original thirteen states. That is, any 
 of the states then existing, had a right to be permitted, 
 under this restriction, to bring into their jurisdiction 
 slaves from auy quarter. But it may be seriously 
 questioned, whether Florida, Alabama, Louisiana, Mis- 
 sissippi, Tennessee, Arkansas, Missouri or Kentucky 
 had any such right. They were not then existing states. 
 But since slavery has ceased as a legal condition in all 
 of the states, it is no longer a question of any impor- 
 tance to be considered. 
 
 g 453. " The privilege of the writ of liaheas corpus 
 shall not be suspended unless, when in cases of rebellion 
 or invasion, the public safety may require it." ^ The 
 constitution contemplates a state of peace and general 
 security, when the ordinary functions of civil govern- 
 ment will be adequate to every requirement. But it 
 also contemplates a condition of public danger when 
 the ordinary functions of civil government will not be 
 adequate to the exigencies of the times ; when the civil 
 administration will be obliged to give place to the mar- 
 tial administration of authority. But whether the civil 
 or military authorities administer, the authority admin- 
 istered is the same ; the end sought is the same ; and the 
 government administering is the same. It is only a 
 different mode of administration, suited to different 
 circumstances. In times of jjeace, all presumptions are 
 in favor of peace. It is presumed that every man will 
 obey the law ; and that every man has obeyed the law ; 
 
 1 Art. 1, 2 9, Const. U. 8. 
 
270 GOVERNMENT. 
 
 and, although the law be disregarded, every man is pre- 
 sumed innocent until his guilt is established. Every 
 subject is to be protected in the enjoyment of his natu- 
 ral liberty until he is accused of some delinquency ; and 
 then, his personal liberty can be interfered with only by 
 due process of law. When arrested, he can require to 
 be informed of the cause of his arrest, the nature of the 
 accusation, and demand a speedy and impartial trial. 
 If this be denied to him, the great writ of liberty — the 
 hcibeas corims — will come to his aid, and if illegally or 
 unjustly detained, restore him to liberty. The civil 
 administration of government is designed for peace. It 
 is cautious, deliberate, formal, exact, and governs gen- 
 erally by silent, unostentatious authority. It orders 
 and is obeyed without strife. Its power is the voice 
 of authority evidenced by the peaceful seal, silent, but 
 potential. In the institution of the general government, 
 the civil department was intrusted with the exercise 
 of the civil powers in time of peace. When no danger 
 threatened by invasion from without or rebellion from 
 within, all the presumptions in favor of peace, security 
 and innocence were to continue. The silent authority 
 of the law was to govern ; and no person was to be 
 interfered with except in due form of law. The consti- 
 tution contemplates this condition of peace as the natural 
 and ordinary condition of the nation, especially in the 
 internal administration of its authority. All its civil 
 provisions are designed to apply as the supreme author- 
 ity in the civil administration of its powers. Then it is 
 that all its forms of administration must be observed ; 
 that courts of justice must be open to all to hear their 
 complaints ; to give them its process ; to determine 
 their rights, and to execute the judgments of the law. 
 Then it is that the privilege of the writ of habeas corims 
 cannot be suspended; — that no soldier can be quar- 
 tered in any house without the consent of the owner; — 
 that the right of the people to be secure in their persons, 
 houses, papers and effects against unreasonable searches 
 and seizures, cannot be violated ; — that warrants must 
 be issued only upon probable cause, supported by oath 
 or affirmation, and particularly describing the place to 
 be searched, and the person or thing to be seized ; — 
 that no person can be held to answer for a capital or 
 otherwise infamous crime, unless upon presentment 
 or indictment of a grand jury, &c. All these, and 
 many other provisions of the constitution, refer to the 
 
PROHIBITION'S AND RESTRICTIONS. 271 
 
 civil administration of authority in time of peace, and 
 are supremely binding upon government and people. 
 But the civil administration of authority is limited to 
 times of peace and public security incident thereto ; 
 and is not suited or designed to apply to, the condi- 
 tion of war ; when it is said, et silent inter leges arma; 
 when civil courts are shut, and the voice of the law is 
 silent ; — then the privileges of the writ of liaheas corpus 
 may be suspended, because the public safety requires 
 it ; — then a soldier may be quartered in any house in a 
 manner prescribed by law, though the owner thereof 
 does not consent thereto; — then persons maybe seized, 
 their houses and papers may be searched, without 
 formal warrants supported by oath, &c. ; — then persons 
 may be held to answer for capital and other offenses 
 without presentment or indictment by grand jury, &c. 
 
 % 454. In general, it is a principle of civil administra- 
 tion, that the law can only take notice of delinquencies 
 which have already occurred ; can only punish offenses 
 committed ; and although it can, in certain cases, inter- 
 fere to prevent injuries, yet such is not the general 
 character of its administration. But it is otherwise in 
 a time of public danger, occasioned by the presence of a 
 rebellion or an invasion by an armed force ; when the 
 forms of law are discarded ; when its authority is 
 despised, and force bears sway; — then all the civil 
 presumptions applicable to a time of peace and quiet 
 submission to the authority of the law cease, because 
 the condition upon which the presumptions were based 
 have ceased. Then men were presumed to be obedient ; 
 now they are openly in rebellion ; — then they were 
 presumed to be loyal ; now they are known to be trai- 
 torous ; — then they were presumed to be supporters of 
 the public authority ; now they are known to seek its 
 overthrow. President Lincoln, in answer to a letter of 
 May 19, 1863, from the Hon. Eeastus Corning and 
 others, inclosing the resolutions of a public meeting held 
 at Albany, K Y., on the 16th of the same month, presents 
 the subject in forcible language: "Ours," says he, "is a 
 case of rebellion — so called in the resolutions before 
 me — in fact, a clear, flagrant and gigantic case of 
 rebellion; and the provision of the constitution that 
 ' the privilege of thQ writ of habeas corpus shall not be 
 suspended unless when, in cases of rebellion or invasion, 
 the public safety may require it,' is the provision which 
 
272 GOVERNMENT. 
 
 specially applies to our present case. This provision 
 plainly attests the understanding of those who made 
 the constitution, that ordinary courts of justice are 
 inadequate to cases of rebellion — attests their purpose, 
 that in such cases men may be held in custody, whom 
 the courts, acting on ordinary rules, would discharge. 
 Habeas corpus does not discharge men who are proved 
 guilty of defined crime ; and its suspension is allowed 
 by the constitution on purpose that men may be arrested 
 and held who cannot be proved to be guilty of defined 
 crime, ' when, in cases of rebellion or invasion, the 
 public safety may require it.' This is precisely our 
 present case — a case of rebellion, wherein the public 
 safety does require the suspension. Indeed, arrests by 
 process of courts, and arrests in cases of rebellion, do 
 not proceed altogether upon the same basis. The former 
 is directed at the small percentage of ordinary and 
 continuous perpetration of crime; while the latter is 
 directed at sudden and extensive uprisings against the 
 government, which, at most, will succeed or fail in no 
 great length of time. In the latter case, arrests are 
 made, not so much for what has been done, as for what 
 probably would be done. * * Of how little value the 
 constitutional provision I have quoted, will be rendered, 
 if arrests shall never be made until defined crimes shall 
 have been committed, may be illustrated by a few 
 notable examples : Gen. John C. BEECKiNEiDaE, Gen. 
 Egbert E. Lee, Gen. Joseph E. Johnstoist, Gen. John 
 B. Magrudbr, Gen. Wm. B. Preston, Gen. Simon B. 
 BucKNER and Commodore Franklin Buchanan, now 
 occupying the very highest places in the rebel war 
 service, were all within the power of the government 
 since the rebellion began, and were nearly as well 
 known to be traitors then as now. Unquestionably, had 
 we seized and held them, the insurgent cause would 
 have been much weaker. But no one of them had then 
 committed any crime defined in the law." 
 
 g 455. During the early part of the civil war — Feb- 
 ruary, 14, 1862 — the subject of making military arrests 
 was transferred to the war department, representing the 
 authority of the president as commander-in-chief, which 
 department in issuing an executive order in relation to 
 state prisoners, recited, in substance, that the break- 
 ing out of a formidable insurrection based on a conflict 
 of political ideas, being an event without precedent in 
 
PROHIBITIONS AND RESTRICTIONS. 273 
 
 the United States, was necessarily attended by great 
 confusion and perplexity of the public mind. Disloyalty, 
 before unsuspected, suddenly became bold, and treason 
 astonished the world by bringing at once into the field 
 military forces superior in numbers to the standing army 
 of the United States ; — that every department of gov- 
 ernment was paralyzed by treason ; defection appeared 
 in the senate — in the house of representatives — in the 
 cabinet — in the federal courts ; ministers and consuls 
 returned from foreign countries to enter the insurrec- 
 tionary councils, or land or naval forces ; commanding 
 and other oflQcers of the army and in the navy betrayed 
 the counsels, or deserted their posts for commands in the 
 insurgent forces. Treason was flagrant in the revenue, 
 and in the post-ofiice, as well as in the territorial 
 governments and in the Indian reserves. Not only gov- 
 ernors, judges, legislators and ministerial officers in the 
 states, but even whole states rushed one after another 
 with apparent unanimity, into rebellion. The capital 
 was besieged, and its connection with all the states 
 cut off. Even in portions of country the most loyal, 
 pofitical combinations and secret societies were formed 
 furthering the work of disunion ; while from motives of 
 disloyalty or cupidity, or from excited passions or per- 
 verted sympathies, individuals were found furnishing 
 men, money and materials of war and supplies to the 
 insurgent military and naval forces. Armies, ships, 
 fortifications, navy-yards, arsenals, military posts and 
 garrisons, one after another were betrayed or abandoned 
 to the insurgents. Congress had not anticipated, and 
 so had not provided for the emergency. The municipal 
 authorities were powerless and inactive. The judicial 
 machinery seemed as if it had been designed not to 
 sustain the government, but to embarrass and betray it. 
 Foreign intervention, oi^enly invited by the insurgents 
 and industriously instigated by the abettors of the 
 insurrection, became imminent, and was only x)revented 
 by the practice of strict and impartial justice, with the 
 most perfect moderation in our intercourse with nations. 
 The public mind was alarmed and apprehensive, though 
 fortunately not distracted or disheartened. In this 
 emergency the president felt it his duty to employ with 
 energy the extraordinary powers which the constitution 
 confided to him in cases of insurrection. To the extent 
 it seemed necessary, he substituted the martial for the 
 
 35 
 
274 GOVERNMENT. 
 
 civil powers of the government, that lie might avert 
 the public danger. ^ 
 
 § 456. In time of war or rebellion, when the danger 
 is present in the midst of the people, and when the 
 forms and rules of law as applicable to a time of peace, 
 can be made an instrument of danger, rather than of 
 security ; when force must repel force, and the machina- 
 tions of the enemy must be thwarted by the seizure 
 of all instruments of mischief, of whatever character, 
 and wherever found, then the martial administration 
 of authority is demanded, and the obtrusion of civil 
 authority to arrest or hinder the eflSciency of the mili- 
 tary arm must not be permitted. The suspension of 
 the privilege of the writ of hcibeas corpus implies, that 
 in time of rebellion or invasion, when the public safety 
 requires it, the civil functions of government are to 
 cease to any extent necessary ; and that those charged 
 with the exercise of this power are to determine when 
 that necessity occurs.^ It is to be remembered that, 
 under the constitution, the same congress which exer- 
 cises supreme legislative authority in time of peace, 
 also remains supreme in time of rebellion or war. The 
 same executive head of the nation in time of peace, 
 remains the head of the nation in time of war. In 
 time of peace he executes the authority of the nation 
 by due process of law, subject to the supervision of 
 those civil tribunals authorized to supervise his civil 
 administration. But in time of rebellion or war he 
 executes the same authority of the nation ; not civilly, 
 as the executive head of the nation, but by martial 
 power, as the commander-in-chief and military head of 
 
 1 See executive order in relation to state prisoners, dated War Department, 
 February 14, 1862. 
 
 2 Opinion of Judge Stewabt, on the application of Senator Pugh to the 
 Circuit Court of the United States at Cincinnati, May 5, 1863, for a writ of 
 habeas corpus, to bring before said Circuit Court Clement L. Vallandigham, 
 who had been arrested by order of Gen. Burnside, and ordered for trial before 
 a court-martial. Said Judge Stewart: " Men should know and lay the truth 
 to heart, that there is a course of conduct not involving overt treason, and not 
 subject, therefore, to punishment as such, which nevertheless implies moral 
 guiit and a gross oflfense against the country. Those who live under the pro- 
 tection, and enjoy the blessing of our benignant government must learn that 
 they cannot stab its vitals with impunity. If they cherish hatred and hostil- 
 ity to it, and desire its subversion, let them withdraw from its jurisdiction, 
 and seek the fellowship and protection of those with whom they are in sym- 
 pathy. If they remain with us, while they are not of us, they must be subject 
 to such course of dealing as the great law of self-preservation prescribes and 
 will enforce. And let them not complain if the stringent doctrine of military 
 necessity should find them to be the legitimate subjects of its action. I have 
 no fear that the recognition of this doctrine will lead to any invasion of the 
 personal security, or personal liberty of the citizen. It is rare indeed that 
 the charge of disloyalty will be made on insufficient grounds. But if there 
 should be an occasional mistake, such an occurrence is not to be put in com- 
 petition with the preservation of the nation ; and I confess I am but little 
 m^oved by the eloquent appeals of those who, while they indignantly denounce 
 violation of personal liberty, look Avith no horror upon a despotism as unmiti- 
 gated as the world has ever witnessed." 
 
PROHIBITIONS AND RESTRICTIONS. 275 
 
 the nation in actual war. But whether the president 
 administer the authority and power of the nation, 
 either as chief executive, or as commander-in-chief, he 
 administers in virtue of the authority of the consti- 
 tution, a-s regulated and controlled by the supreme 
 legislative authority of the nation. And whether he 
 employ the civil agencies of administration in times of 
 peace, or the martial agencies in times of rebellion or 
 war, it is the same government, administering the same 
 authority, according to the forms, and in the manner, 
 prescribed by the people themselves. The president pro- 
 claiming martial law, and putting on the robes of power 
 as commander-in-chief, when the presence of rebellion 
 or war requires it, is performing as much a constitutional 
 duty as when administering civilly according to estab- 
 lished legal forms in times of peace. It is his duty to 
 see that the laws are faithfully executed — as well the 
 martial, in times of public danger arising from the pres- 
 ence of rebellion or war, as the civil, in times of public 
 security and peace. It is his duty to change the civil 
 to the martial functions of power, whenever and wher- 
 ever, in his judgment, the public safety demands it. 
 
 S 457. In the midst of a civil war, the commander-in- 
 chief of the loyal forces can, undoubtedly, whenever 
 the public safety demands it, suspend the administration 
 of civil authority, and substitute martial law in its 
 place ; and this may be done whenever and wherever it 
 is necessary. But it is more in accordance with the 
 genius of the American government, to provide by law 
 for the substitution of martial for civil authority, when 
 it is likely to be necessary to extend the operation of 
 martial law over a large extent of territory, and to 
 continue it for any considerable time. Accordingly, con- 
 gress in the winter of 1863, during the great rebellion, 
 gave to the president authority, during the continuance 
 of the war, "to declare the suspension of the writ of 
 1iol)eas corims, at such times, and in such places, and 
 with regard to such persons as in his judgment the 
 public safety may require." Under this authority 
 the president caused many evil disposed persons to be 
 arrested in the loyal states, and to be confined in forts 
 and military prisons. For exercising this necessary 
 power, he was denounced as a tyrant, and his authority 
 to make such arrests in places remote from the army, 
 and from the insurgent states, was warmly contested. 
 Under the guise of devotion to the " union and the 
 
276 GOVERNMENT. 
 
 constitution," public meetings were called, and resolu- 
 tions were passed, denouncing the president for causing 
 disloj^al persons in the loyal states to be arrested. In 
 reply to resolutions of this character sent to him by the 
 chairman of a democratic meeting held in the city of 
 Albany on the 16th day of May, 1863, he remarks : 
 *' By the third resolution the meeting indicate their 
 opinion, that military arrests may be constitutional in 
 localities where rebellion actually exists ; but that such 
 arrests are unconstitutional in localities where rebellion 
 or insurrection does not actually exist. They insist that 
 such arrests shall not be made ' outside of the lines of 
 necessary military occupation, and the scenes of insur- 
 rection.' Inasmuch, however, as the constitution itself 
 makes no such distinction, I am unable to believe there 
 is any such constitutional distinction. I concede that 
 the class of arrests complained of can be constitutional 
 only when, in cases of rebellion or invasion, the public 
 safety may require them ; and I insist that in such cases 
 they are constitutional wherever the public safety does 
 require them, as well in places to which they may pre- 
 vent the rebellion extending, as in those where it may 
 be already prevailing ; as well where they may restrain 
 mischievous interference with the raising and supplying 
 of armies to suppress the rebellion, as where the rebel- 
 lion may actually be ; as well where they may restrain 
 the enticing of men out of the army, as where they 
 would prevent mutiny in the army ; equally constitu- 
 tional at all places where they will conduce to the public 
 safety, as against the dangers of rebellion or invasion." ^ 
 
 1 Letter of President Lincolk to Erastus Corning and others, June 13, 1863. 
 In this letter the president continues : " Take the particular case mentioned 
 by the meeting. It is asserted, in substance, tliat Mr. Vallandigham was, by 
 a military commander, seized, tried, and for no otlier reason than words 
 addressed to a public meeting, in criticism of the course of tlie administration, 
 and in condemnation of the military orders of tlie general. Now if tliere be 
 no mistake about tliis ; if this assertion is the trutli, and the whole truth; if 
 there was no other reason for tlie arrest, then I concede tliat the arrest was 
 wrong. But tlie arrest, as I understand, was made for a very different reason. 
 Mr. Vallandighaixi avows liis hostility to the war, on the part of tlie union, 
 and his arrest was made because he was laboring with some effect to prevent 
 the raising of troops; to encourage desertions from tlie army; and to leave tlie 
 rebellion without an adequate military force to suppress it. Pie was not 
 arrested because he was damaging the political prospects of the administra- 
 tion, or the personal interests of the commanding general; but because he 
 was damaging the army, upon the existence and vigor of which the life of the 
 nation depends. He was warring upon the military, and this gave the mili- 
 tary constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham 
 was not damaging the military power of the country, then this arrest was 
 naade on mistake of facts, whicn I would be glad to' correct on reasonably 
 satisfactory evidence. I understand the meeting whose resolutions I am con- 
 sidering, to be in favor of suppressing the rebellion, by military force — by 
 armies. Long experience has shown tliat armies cannot be maintained unless 
 desertions shall be punished by the severe penalty of death. The case requires, 
 and the law and the constitution sanction this punishment. Must I shoot 
 a simple-minded soldier boy who deserts, while I must not touch a hair of a 
 wily agitator who induces him to desert ? * * If I am wrong on this question 
 Of constitutional power, my error lies in believing that certain proceedings 
 
PROHIBITIONS AND RESTRICTIONS. 277 
 
 S 458. It is a great error to suppose that the constitu- 
 tion has provided for the same mode of administration 
 in times of i)ublic danger, occasioned by the presence 
 of rebellion, general insubordination, or invasion, and 
 iu times of peace and public security. It is not that 
 the constitution itself is different in the time of insur- 
 rection or invasion, from what it is in times of peace ; 
 but it has provided for modes of administration, differ- 
 ent under the dangers of war, and the security of peace. 
 When there is nothing to interfere with the silent, yet 
 potent authority of the law, then the civil mode of 
 administration is constitutional ; but when, by reason 
 of rebellion or invasion, the civil administration becomes 
 ineffectual to public security, then the martial mode of 
 administration is constitutional ; and whether the one 
 mode or the other shall be adopted is left to the deter- 
 mination of either the president or congress, according 
 to the nature of the exigency calling for their determin- 
 ation. When the danger is not imminent, and it is 
 safe to await the action of congress, then it would be 
 better to leave the question to the action of that body. 
 But if, by any sudden invasion or rebellion the public 
 safety should demand more speedy action, then there 
 can be no doubt it is the constitutional duty of the 
 president to proclaim martial law, and apply that mode 
 of administration contemplated by the constitution 
 during the existence and i)resence of rebellion or inva- 
 sion. The fears lest civil liberty should be overthrown 
 by the suspension of the privileges of the writ of haheas 
 corims during the great rebellion, had no just founda- 
 tion ; nor were they sustained by facts or logic ; and the 
 history of the times as interpreted and understood in 
 the future, will reveal the opposition to the measures 
 of the administration, in this respect, as having its 
 foundation in the craft of the mere politician, and not 
 in the judgment of the statesman or patriot.^ 
 
 are constitutional when, in cases of rebellion or invasion, the public safety 
 requires them, which would not be constitutional when, in the absence of 
 rebellion and invasion, the constitution does not require them; in other 
 words, that the constitution is not, in its application, in all respects the same 
 in cases of rebellion or invasion involving the public safety, as it is in times 
 of profound peace and public .security." 
 
 1 To the meeting held at Albany. May 16, 1863, Governor Seymottr writes as 
 follows: "If this proceeding " — speaking of the arrest of Vallandlgham — "is 
 approved by the government, and sanctioned by the people, it is not merely a 
 Btep toward revolution — it is revolution. It will not only lead to military 
 despotism — it establishes military despotism. In this aspect it must be 
 accepted, or in this aspect rejected. * * The peope of this country now wait 
 with the deepest anxiety the decision of the administration upon these acts. 
 Having given it a generous support in the conduct of tlae war, we pause to see 
 what kind of a government it is for which we are asked to pour out our blood 
 and our treasure. The action of the administration will determine in the minds 
 
278 GOVERNMENT. 
 
 g 459. No bill of attainder or ex post facto law shall 
 be passed. Bills of attainder are defined to be signal 
 exertions of penal justice, and adapted to exigencies 
 unprovided for in the penal code. They are such special 
 acts of the legislature as inflict punishment upon per- 
 sons supposed to be guilty of high offenses, such as 
 treason and felouy, without any conviction in the ordi- 
 nary course of judicial proceedings. In England, if the 
 special act inflicted capital punishment, as in cases of 
 treason or felony, it was denominated a Mil of attainder; 
 but if it inflicted a milder punishment, it was more 
 properly, a dill of pains and penalties. In Mils of attain- 
 der the legislature assume the judicial magistracy, 
 weighing the enormity of the charge, and the evidence 
 adduced in support of it ; then they decide the political 
 necessity and moral fitness of the penal judgment. 
 These legislative sentences of condemnation have the 
 force of law, but are applicable only to the particular 
 delinquent, and expire as to their chief or positive 
 effects, with the occasion of their enactment. ^ Thus, 
 persons were, by act of parliament, attainted of treason 
 after death ; and Lord Ooke says many such acts have 
 been made. ^ These attainders were such as affected 
 either the crime, the evidence, or the punishment. As 
 affecting the crime, it was usual in England in times of 
 domestic rebellion to pass acts of parliament inflicting 
 penalties of attainder on j)ersons by name, who had 
 levied war against the king, and had fled from justice, 
 provided they should not slirrender by a day prefixed. 
 The neglecting to surrender by the appointed day, 
 constituted, or rather, consummated, the new treason 
 against which the attainder was directed. Until that 
 time, it was inchoate and unripe for the operation of 
 
 of more than one-half of the people of the loyal states, whether this war is 
 waged to put down rebellion at the south, or destroy free institutions at the 
 north." The meeting for which tliis letter was written, and at which it was 
 read, was denominated a meeting of the democratic party, and it pledged the 
 party to its views. Similar meetings of the same party were held throughout 
 the north, breathing forth the same spirit. And particularly wei-e such meet- 
 ings held in New York city and Philadelphia. On the 11th of June, a state 
 convention of tlie democratic party was held at Columbus, Ohio, and Vallan- 
 digham was their nominee for governor. It was well known to these men 
 — that is, to the leading ones — that at the very time they were holding 
 these political meetings, and denouncing the administration for making these 
 arrests, that a secret conspiracy existed throughout the western, middle and 
 eastern states, against the government of the United States, and in the interest 
 of the rebellion ; — that they boasted of an efficient, organized band of over 
 three hundred thousand strong, scattered throughout the north, ready to rise 
 at a preconcerted signal, and involve the north in bloodshed and civil strife :— 
 that the boldness of many of those who were arrested was owing to the 
 fact, that they believed the Lincoln government, as they called it, was about 
 to be overthrown. 
 
 1 2 Wooddeson, pp. 621, 622. 
 
 a 4 Inst., 36, 37. 
 
PROHIBITIONS AND RESTRICTIONS. 279 
 
 the particular statute.^ The acts of attainder passed 
 against domestic rebels were enforced in a summary 
 manner. No indictment was preferred to a grand jury; 
 but the statute was certified into chancery by the clerk 
 of the parliament, in pursuance of writ directed to him 
 for that purpose ; it was then removed into the king's 
 bench, where the whole proceeding was entered upon 
 the record, and the prisoner was asked what he had to 
 allege why execution should not be awarded against 
 him. These bills of attainder in their operation in 
 respect to crime, sometimes determined things to be 
 treason which by no prior law had been so declared.^ It 
 is probably for this reason, that ex i)ost facto laws are 
 prohibited in this connection. Thus, " No bill of attain- 
 der or ex 2)ost facto law shall be passed." A bill of 
 attainder as affecting the evidence, was passed in the 
 case of Sir John Fenwick, changing the law as to 
 the evidence in his case. The statute requiring two 
 witnesses in the more atrocious kinds of high treason, ^ 
 the bill in Fen wick's case was sustained upon the testi- 
 mony of a single witness, not upon oath, by allowing 
 written evidence not competent in ordinary trials ; and 
 by hearing proof of what had been sworn when Sir John 
 Fenwick was not a party, nor present ; and of things 
 transacted by his wife, which could not legally excul- 
 pate or convict her husband. " Such are the nature of 
 bills of attainder which are prohibited by the constitu- 
 tion. By ex post facto law, in the constitution, is meant 
 only those acts which are of a criminal or penal charac- 
 ter. The supreme court define an ex post facto law thus : 
 " It is one which renders an act punishable in a manner 
 in which it was not punishable when committed." ^ The 
 supreme court have also decided that the term ex post 
 facto laiv does not apply to civil laws, or civil pro- 
 ceedings. ^ 
 
 .§ 4G0. It is a rule of constitutional government, that 
 the legislative and judicial ofiice shall be separate, and 
 one body shall not exercise the functions of both. The 
 constitution of the United States, which provides that 
 the judicial powers of the nation shall be vested in one 
 supreme court, and in such inferior courts as the con- 
 gress may from time to time ordain and establish, in 
 
 1 2 Wooddeson, pp. 625, 626. 
 
 2 Statute 16 Chas. I, ch. 1; 9 Pari. Hist., p. 288; 2 Wooddeson, p. 631. 
 
 3 7 W. Ill, c. 3, g 2. 
 
 4 2 Wooddeson, 635. 
 6 6 Cranch, 138, 
 
 6 8 Peters, 110. 
 
280 GOVERNMENT. 
 
 spirit makes it impossible for con.2:ress to pass bills of 
 attaiuder without this special prohibition. IsTevertheless, 
 the special prohibition was properly inserted, showing 
 in express terms, that the founders of the American 
 government repudiated that species of judicial legisla- 
 tion tending to a subversion of that liberty, and of those 
 rights of the subject, which the government was insti- 
 tuted to protect and preserve. Says Dr. Palet: "This 
 fundamental rule of civil jurisprudence is violated in 
 the case of acts of attainder or confiscation, in bills of 
 pains and penalties, and in all ex post facto laws what- 
 ever, in which parliament exercises the double office 
 of legislature and judge. And whoever either under- 
 stands the value of the rule, or collects the history of 
 those instances in which it has been invaded, will be 
 induced to acknowledge that it had been wiser and 
 safer never to have departed from it. He will confess, 
 at least, tliat nothing but the most manifest and imme- 
 diate peri] of the commonwealth will justify a repetition 
 of these dangerous examples. If the laws in being do 
 not punish an offender, let him go unpunished ; let the 
 legislature, admonished of the defect of the law, i)ro- 
 vi^e against the commission of future crimes of the 
 same sort. The escape of one delinquent can never 
 produce so much harm to the community, as may arise 
 from the infraction of a rule upon which the purity of 
 public justice and the existence of civil liberty essen- 
 tially depend." 
 
 g 461. While considering the subject of dills of 
 attainder, and ex post facto laiv, another provision of the 
 constitution comes appropriately under consideration. 
 Section three of the third article provides, that "trea- 
 son against the United States shall consist in levying 
 war against them, or in adhering to their enemies, 
 giving them aid and comfort. That no person shall 
 be convicted of treason unless upon the testimony of 
 two witnesses to the same overt act ; or on confession 
 in open court. That congress shall have power to 
 declare the punishment of treason; but no attaiuder 
 of treason shall work corruption of blood, or forfeiture, 
 except during the life of the person attainted." These 
 restrictions upon the constituents of treason, the evi- 
 dence requisite to a conviction, and the punishment to 
 be denounced against it, had reference to certain legal 
 abuses or enormities practiced under the constitution of 
 the English government, In England treason consisted 
 
PROHIBITION'S AND RESTRICTIONS. 281 
 
 in any act whicli the government saw fit to dcnonnco 
 as such. The term treason imported betrayal, treachery, 
 or breach of faith. It was a general appellation made 
 nse of by the law to denote not only oifenses against 
 the king and government, bnt also that accumulation 
 of guilt which arises whenever a superior reposes confi- 
 dence in a subject or inferior, between whom and him- 
 self there subsists a natural, civil or even a spiritual 
 relation ; and the inferior so abuses that confidence, so 
 forgets the obligations of duty, subjection and allegiance, 
 as to destroy the life of any superior or lord. This was 
 looked upon as proceeding from the same principle of 
 treachery in private life, as would have urged him who 
 harbors it, to have conspired in public against his liege 
 lord and sovereign: and, therefore, for a wife to kill 
 her lord or husband, a servant his lord or master, an 
 ecclesiastic, his lord or ordinary, these being breaches of 
 the lower allegiance of private and domestic faith, are 
 denominated j>eJii treason. But when disloyalty so 
 rears its crest, as to attack majesty itself, it is called by 
 way of distinction, high treason.^ By the ancient com- 
 mon law there was great latitude left in the breast of the 
 judge to determine what constituted treason, whereby 
 the creatures of tyrannical princes had opportunity to 
 create abundant constructive treasons : that is, to raise by 
 forced and arbitrary construction, offenses into the crime 
 and punishment of treason which never were suspected 
 to be such, But to prevent these inconveniences arising 
 from the multitude of constructive treasons, the statute 
 of 25 Edward III, ch. 2, was made, which defined what 
 oifenses only should, for the future, be held to be 
 treason. This statute comprehended all kinds of trea- 
 son under seven distinct branches. 
 
 1- Where a man should compass or imagine the death 
 of the king, his queen, or their eldest son and heir. 
 
 2. Where a man violates the king's companion, or 
 eldest daughter unmarried, or the wife of his eldest 
 son, and heir. 
 
 3. Where a man levied war against the king in his 
 realms. 
 
 4. Where a man is adherent to the king's enemies in 
 his realm, giving to them aid and comfort in the realm 
 or elsewhere. 
 
 5. Where a man countefeits the king's great or privy 
 seal. 
 
 1 4 Bl. Com., 75. • 
 
 36 
 
282 GOVERNMENT. 
 
 6. Where a man counterfeits the king's money, or 
 brings false money into the realm, counterfeit to the 
 money of England, knowing the money to be false to 
 merchandise and to make payment withal. 
 
 7. If a man slay the chancellor, treasurer, or the 
 king's justices of the one bench or the other, justices 
 in eyre, or justice of the assize, and all other justices 
 assigned to hear and determine, being in their places 
 doing their offices.^ 
 
 But this method of defining what should constitute 
 treason ^as not sufficient, to satisfy; so the act pro- 
 ceeded, "Because other like cases of treason may 
 happen in time to come which can not be thought of 
 or declared at i3resent, it is accorded that if any other 
 cause, supposed to be treason which is not above speci- 
 fied, doth happen before auj judge, the judge shall 
 tarry without going to judgment of the treason till the 
 cause be shown and declared before the king and his 
 parliament, whether it ought to be judged treason or 
 other felony. In consequence of this power, constitu- 
 tionally inherent in every subsequent parliament, new 
 treasons could be declared at any time, and persons 
 could be made subject to the punishment of treason 
 by bills of attainder, and ex ])ost facto laws, at the pleasure 
 of the parliament. This omnipotent power of parlia- 
 ment to define an act as treason, and to denounce the 
 penalties of treason after the act had been committed, 
 is an abuse of legislative x)ower which the constitution 
 seeks to avoid: and therefore provides, that no Mils of 
 attainder or ex post facto laiv, shall be passed; and goes 
 further, and declares what acts alone shall be neces- 
 sary to constitute treason, to wit, "treason against the 
 United States shall consist only in levying war against 
 them, or in adhering to their enemies, giving them aid 
 and comfort."- 
 
 g 462. Under the British constitution the transcend- 
 ent powers of the legislature or parliament are such, that 
 no act can bind a subsequent parliament to its definition 
 of treason ; as for example ; under the reign of Ei chard 
 II, the legislature was exceedingly liberal in declaring 
 new treasons, so much so that in the first year of his 
 successor's reign an act was passed reciting " that no 
 man knew how he ought to behave himself, to do, speak 
 or say, for doubt of such pains of treason ; and therefore 
 
 1 Const. II., s. art. 3, § 1. 
 
 2 4 Bl. Com., pp. 7G— 85. 
 
PROHIBITIONS AND RESTRICTIONS. 283 
 
 it was accorded that in no time to come any treason be 
 judged otherwise than was ordained by the statute of 
 King Edward the Third.^ This, says Blackstone, swept 
 away at once the whole load of extravagant treasons 
 introduced in the time of Richard 11.^ But again 
 between the reigns of Henry IV, and Mary, the spirit of 
 inventing new treasons was revived, such as offenses 
 of clipping money, breaking prison or rescue, when the 
 prisoner was committed for treason ; burning houses to 
 extort money ; stealing cattle by Welshmen ; execrations 
 against the king ; calling him opprobrious names by 
 public writing, &c.^ The principle to be noticed is, that 
 this power to abuse legislative authority creating new 
 treasons ad libitum, as it exists under the British consti- 
 tution, is taken away by the American constitution. 
 The constitution of the general government has defined 
 what acts shall be necessary to constitute treason, and 
 congress has no power to extend the definition. The 
 Supreme Court of the United States has placed its con- 
 struction upon it.^ Said the court, to constitute that 
 specific crime, war must be actually levied against the 
 United States. However flagitious may be the crime of 
 conspiring to subvert, by force, the government of our 
 country, such conspiracy is not treason. To conspire to 
 levy war, and to levy war, are distinct offenses. The 
 first must be brought into open action by the assemblage 
 of men for a purpose treasonable in itself, or the fact of 
 levying war cannot be committed. * * * it is not 
 the intention of the court to say that no individual can 
 be guilty of this crime, who has not appeared in arms 
 against his country. On the contrary if war be actually 
 levied, that is, if a body of men be actually assembled 
 for the purpose of effecting by force a treasonable 
 purpose, all those who perform any part, however 
 minute, or however remote from the scene of action, 
 and who are actually leagued in the general conspiracy', 
 are to be considered traitors. But there must be an 
 actual assembling of men for the treasonable purpose, 
 to constitute the levying of war." There is considerable 
 latitude left to the court in determining the treasonable 
 purpose, as well also as what constitutes adhering to the 
 enemies and giving them aid and comfort. During the 
 civil war in the United States, the Governor of Virginia 
 
 1 Hen. IV, ch. 10. 
 
 2 Bl. Com., 86. 
 
 3 4 Bl. Com., 76-8.5. 
 
 4 Ex parte Bellman, 4 Cranch, 126. See also U. S. v. Burr, 4Cranch, 469. 
 
284 GOVERNMENT. 
 
 proposed to Mr. Hinckman, of New York, agent of the 
 Kew York and Yirginia Steamsliip Company, payment 
 for two steamers of that line which had been seized for 
 the rebel service. Mr. Hinckman was informed that an 
 acceptance of that offer by him would be treated as 
 an act of treason against the United States. Mr. Seward 
 stated the point thus : " An insurrection has broken out 
 in several of the states of this Union, including Yir- 
 ginia, designed to overthrow the government of the 
 United States. The executive authorities of that state 
 are parties to that insurrection, and so are public ene- 
 mies. Their action in seizing or buying vessels to be 
 employed in executing that design is not merely without 
 authority of law, but is treason. It is treason for 
 any person to give aid and comfort to public enemies. 
 To sell vessels to them which it is their purpose to 
 use as ships of war, is to give them aid and comfort. 
 To receive money from them in payment for vessels 
 which they have seized for those purposes, would be to 
 attempt to convert the unlawful seizure into a sale, and 
 would subject the party so offending to the pains and 
 penalties of treason, and the government would not 
 hesitate to bring the offender to punishment.'' Although 
 the constitution thus defines the constituents of treason, 
 there is great latitude of construction to determine what 
 acts shall amount to levying war ; and what to giving 
 aid and comfort to the enemy. 
 
 ^ 463. Another evil incident to the power of parlia- 
 ment to define or create new treasons was their power 
 to receive what species of evidence they pleased, and to 
 determine upon what amount to convict of treason. 
 Thus, in the reign of William III., Sir John Fenwick 
 was indicted for treason upon the oaths of two wit- 
 nesses. Sir John obtained a delay of his trial, and in 
 the mean time one of the witnesses departed from the 
 realm ; and, as the statutes^ then required two witnesses 
 to convict of high treason, it became necessary for par- 
 liament to provide for his c^se. For this cause a bill 
 of attainder was introduced, which brought into the 
 house of commons a formal trial. Upon this trial, the 
 rules of evidence and the requirements of the statute 
 were departed from. A single witness was examined, 
 not upon oath, because such was the custom in the 
 house of commons ; written evidence not admissible 
 in common trials was introduced ; what had been sworn 
 
 1 Edw. VI., cli. 12; 5 and 6 do., ch. 11; 1 and 2 Ph. & M., ch. 10 ; 4 Bl. Com., 356. 
 
PROHIBITIONS AND RESTRICTIONS. 285 
 
 to in a case in which Sir John was not a party, and 
 when he was not present, was given in evidence ; and 
 testimony of things transacted by his wife, which could 
 neither exculpate nor convict the husband, were ad- 
 mitted. In this manner he was convicted, and suffered 
 the penalties of treason, except the king remitted all 
 the corporal severities which form a part of the ordinary 
 judgment, except decapitation.^ Abuses of this charac- 
 ter instructed the American people to make it a part of 
 the fundamental law of the nation that no person should 
 be convicted of treason unless on the testimony of two 
 witnesses to the same overt act, or on confession in open 
 court. 
 
 g 464. The next abuse incident to the English system 
 of creating new treasons ad libitum, which the people 
 sought to provide against, was the effect and conse- 
 quences of an attainder of the crime. According to the 
 English theory, there were certain results following 
 the judgment upon conviction of treason, as being 
 necessarily incident thereto. The penalty of the law to 
 be executed upon the person of one convicted of treason 
 was rigorous in the extreme. He was required to be 
 put to death with circumstances of unusual cruelty. 
 His bowels were to be taken out while he was yet alive, 
 and burned in his presence. He was to be quartered, 
 decapitated, etc. But in addition to the penalty to be 
 inflicted upon the person of the convict, certain inci- 
 dents also attended the judgment upon conviction of 
 high treason.^ Forfeiture to the king of all his lands 
 and tenements of inheritance, whether fee-simple or fee- 
 tail, with all his rights of entry on lands or tenements 
 which he had at the time of committing the treason, or 
 at any time afterwards, to be forever vested in the 
 crown. This forfeiture related back to the time the act 
 of treason was committed, so as to avoid all intermediate 
 sales and incumbrances. The natural justice of this 
 forfeiture, says Blackstone, is founded on this consider- 
 ation ; that he who hath thus violated the fundamental 
 principles of government, and broken his part of the 
 original contract betweeh king and people, hath aban- 
 doned his connection with society, and hath no longer 
 any right to those advantages which before belonged 
 to him purely as a member of community ; among 
 which social advantages the right of transferring or 
 
 22 Wooddeson, pp. 634, 638; 7 W. III., ch. 3, § 2; Com, Jour., 25 Nov. 1696: 
 Lord's Jour., 23 Dec, 1696. 
 
286 GOVERNMENT. 
 
 transmitting property to others is the chief; and further 
 he adds, " Such forfeiture, moreover, whereby his pos- 
 terity must suffer as well as himself, will help to restrain 
 a man, not only by his sense of duty and dread of per- 
 sonal punishment, but also by his passions and natural 
 affections, and will interest every dependent and rela- 
 tion he has, to keep him from offending in such man- 
 ner.^ These forfeitures, consequent upon the attainder 
 of treason, differ from those pronounced, or rather cre- 
 ated, by the statutes of j^rcEmunire and others in this : — 
 the latter forfeitures are made a ]}art of the judgment 
 and penalty inflicted by the respective statutes ; and they 
 do not follow as mere consequences of the attainder. 
 Besides the forfeiture of all estate in lands, the convict 
 also forfeits all goods and chattels, with this distinc- 
 tion : — Lands are forfeited upon attainder, and not be- 
 fore ; goods and chattels are forfeited by conviction ; 
 because in many cases, where goods are forfeited, there 
 never is any attainder, which happens only where judg- 
 ment of death or outlawry are given. The distinction 
 between conviction and attainder is this : — The conviction 
 may happen without judgment of death or outlawry ; 
 but judgment of death or outlawry cannot take place 
 until after conviction. When the judgment of the law 
 is pronounced, and final action had, then attainder takes 
 place. The forfeiture, relating back to the commission 
 of the act of treason, instantaneously takes place ; in- 
 heritable blood ceases to connect the attainted with the 
 past or future, and nothing remains for him in this 
 world but the fearful execution of the death sentence, 
 with its attendant horrors. 2. The remaining incident 
 of attainder of treason, is that of the corruption of 
 blood. It is the immediate consequence of the judg- 
 ment of attainder; and this corruption of the blood 
 proceeds both upward and downward, so that the 
 attainted person can neither inherit lands or other heredi- 
 taments from his ancestors, nor retain those already in 
 possession of, nor transmit them by descent to, any heir ; 
 but the same escheat to the lord of the fee, subject to 
 the King's superior right of forfeiture ; and he also ob- 
 structs all descents to posterity wherever they are 
 obliged to derive title through him to a remote ancestor. 
 § 465. When sentence of death, the most terrible and 
 highest judgment known to the laws of England, is 
 pronounced, the immediate, inseparable consequences 
 
 1 4 Bl. Com., 381. 
 
PROHIBITIONS AND RESTRICTIONS. 287 
 
 from the common law is attainder. For -when it is now 
 clear beyond all dispute that the criminal is no longer 
 fit to live upon the earth, but is to be exterminated as a 
 monster and a bane to human society, the law sets a 
 note of infamy upon him, puts him out of its protection, 
 and takes no further care of him, than barely to see him 
 executed. He is then called attaint ; attinctiis, stained 
 and blackened. He is no longer of any credit or repu- 
 tation; he cannot be a witness in any court; neither is 
 he capable of performing the functions of another man, 
 for by an anticipation of his punishment, he is already 
 dead in law. This is after judgment', for there is a great 
 difference between a man convicted, and attainted, though 
 they are frequently, through inaccuracy, confounded 
 together. After conviction only, a man is liable to none 
 of these disabilities, for there is still, in contemplation 
 of law, a possibility of innocence. Something may be 
 ofiered in arrest of judgment : the indictment may be 
 erroneous, which will render his guilt uncertain, and 
 thereupon the present conviction may be quashed : he 
 ■mnY obtain a pardon, or be allowed the benefit of cler- 
 gy, both of which suppose some latent sparks of merit 
 which plead in extenuation of his fault. But when 
 judgment is once pronounced, both law and fate conspire 
 to i)rove him completely guilty, and there is not the 
 remotest probability left of anything to be said in his 
 favor. Upon judgment, therefore, of death, and not 
 before, the attainder of a criminal commences; or upon 
 such circumstances as are equivalent to judgment of 
 death; as judgment of outlawry on a capital crime pro- 
 nounced for absconding or fleeing from justice which 
 tacitly confesses the guilt. For these reasons, either 
 upon judgment of outlawry, or of death for treason or 
 felony, a man is said to be attainted.^ 
 
 g 466. It was in view of the law on the subject of 
 treason, as it then existed in England, that these 
 provisions of the constitution were framed. The con- 
 stitution not only confined the subject of treason to the 
 act of levying war against the nation, and in adhering 
 to its enemies, giving them aid and comfort ; and fixed 
 upon the nature and quantity of evidence which should 
 be indispensible to conviction ; but it went further, to 
 abolish or make impossible those incidents of attainder 
 of treason already described. It gives to congress, in 
 the broadest terms, the power to declare the punishment 
 
 1 4 Bl. Com. 3S0, 381. 
 
288 GOVERNMENT. 
 
 of treason ; that is, coDgress may impose what penalty 
 it thinks j)roper to be inflicted upon the person of the 
 criminal, or upon his property ; but whatever is inflicted 
 upon him or his, must be a part of the penalty prescribed 
 by law ; and shall not follow as the inevitable conse- 
 quence of the judgment by which he becomes attaint. 
 It is to be remembered, that the consequences of the 
 attainder are no part of the penalty denounced against 
 the criminal. They follow inevitably, the condition in 
 which the criminal is placed in the eye of the law, as 
 soon as by the judgment of the court all possible hope 
 is extinguished, and the guilty one becomes attainted. 
 Then the blood is corrupted, connecting with neither the 
 past or the future. Then forfeiture takes place, because 
 there is in him nothing of manhood left to which it can 
 attach. He is without ancestor or heir ; and what he 
 possessed at the time to which the attainder relates, goes 
 to the king by forfeiture. In this view the language of 
 the constitution is simple and appropriate ; congress 
 shall have iDOwer to declare the punishment — afiix the 
 penalty — of treason ; but no attainder of treason — that 
 is, no tainted condition of the criminal resulting from 
 the judgment of condemnation — shall work corruption 
 of blood or forfeiture, except during the life of the per- 
 son attainted. 
 
 g 467. There have been two classes of construction 
 placed upon the last clause of this provision, which 
 cause their advocates to arrive at very different results 
 as to the effect to be given to it. One party insists that 
 it is a limitation upon the penalty which congress is 
 empowered to denounce as the punishment for treason ; 
 that owing to this provision congress can not make an 
 absolute forfeiture of real estate to the government a 
 part of the penalty of the crime ; but can extend its 
 effect only during the life of the traitor.^ The other 
 party insist that it has no reference to the penalty which 
 congress is authorized to declare as the punishment for 
 treason ; that it refers only to the period during which 
 the party shall be liable to be attainted ; that is, the 
 attainder shall take place during the life of the person 
 attainted. There is a third view which seems to be more 
 in accordance with the legal meaning of the language 
 used, and the purpose the people had in view at the 
 time than either of the foregoing constructions, and it 
 excludes both of the others ; that is, it affirms that the 
 latter clause of this provision is neither a limitation upon 
 
PROHIBITIONS AND RESTRICTIONS. 289 
 
 the power of congress to declare the pnnishment of 
 treason, nor upon the time during which the person 
 shall be attainted ; but that it means, as its language 
 imports, that there can be a condition in the criminal 
 known as attainted ; produced, as in law, it only can be 
 produced, by pronouncing the judgment of the law upon, 
 the convicted felon ; and that the incidents of that 
 attainder, corruption, of blood and forfeiture can follow 
 as in England, but only during the life of the person 
 attainted. After death the attainder shall cease ; that 
 is, the corruption of blood and forfeiture shall be at an 
 end, and as to all that come after him as heirs they may 
 take through him as though his blood had never been 
 corrupted. Each of these constructions will be consid- 
 ered in their order, premising first, that no liglit is to be 
 obtained from the debates in the convention framing, or 
 the conventions adopting the constitution ; nor has the 
 Supreme Court of the United States yet put its con- 
 struction upon that clause. 
 
 g 468. The theory that the clause under consideration 
 is a limitation upon the power of congress to declare 
 the punishment of treason is objectionable for at least 
 two reasons. First, the language of the clause forbids 
 such construction. To suppose it to be a limitation 
 upon the power of congress to affix by law, the pen- 
 alty for treason, is to give to the word *' attainder " a 
 meaning and an office which, has no warrant in any 
 former use. Attainder, as used in law, implies the 
 imparting of a state or condition to the person by the 
 pronunciation of the sentence which the law denounces 
 upon the convicted felon or traitor. Attainted, implies 
 the state of the felon produced by the judgment, bereft 
 of civil life, of human sympathy and connections ; with- 
 out the protection of law, awaiting only to be executed. 
 Corruption of blood, and forfeiture are the immediate 
 and inseparable consequences of this attainted condition, 
 wrought out by the condition itself. Hence the expres- 
 sion, "no attainder of treason shall ivork corruption of 
 blood or forfeiture except" for a limited time. The 
 penalty of the law enters in to make the judgment. 
 The judgment of the law produces the attainted condi- 
 tion ; and corruption of blood and forfeiture result from 
 that condition as an inseparable consequence. It would 
 therefore be a most unwarrantable interpretation of the 
 language used to make this clause a limitation upon the 
 power of Congress to declare the punishment for trea- 
 37 
 
290 GOVERNMENT. 
 
 son. Second, if the language used would admit of such 
 interpretation consistently with any former use of the 
 same, the provision would so limit the power of 
 Congress in denouncing the penalty, as to virtually 
 protect the property of the traitor from contiscation or 
 even use for any considerable length of time, unless the 
 government should preserve the life of the traitor for 
 the sake of keeping the use of his property. In all 
 governments the penalty of treason, that is, of that 
 species of treason which aims at the life of the state or 
 government, is death. And after conviction and sen- 
 tence, it is not usual to defer for a long time, the period 
 of execution. If, then, the extent to which Congress 
 can subject the property of the traitor to forfeiture, is 
 limited to the period between sentence and execution, 
 the life estate, 'per autre vie — during the life of the felon 
 — would be of little value. Ordinarily, if justice should 
 be done by the speedy execution of the law, upon the 
 guilty, the tenant would have little time to raise and 
 gather his crops. The estate would commence at the 
 moment of judgment, and end on the day of execution. 
 Such cannot be the true construction of that clause. 
 
 % 469, The theory that the clause under consideration 
 is a limitation upon the period during which it shall be 
 lawful to convict, adjudge and attaint a traitor, is objec- 
 tionable for two reasons. First, because the structure of 
 the sentence must be distorted to adapt it to the expres- 
 sion of such idea or limitation. Had the authors of 
 that instrument intended to express such a limitation 
 they would probably have said, " but there shall be no 
 attainder of treason except during the life of the person 
 attainted, which shall work a corruption of blood, or for- 
 feiture." But even under this form of sentence, or any 
 other form which can be given to it, except as it stands 
 in the constitution, the word attainder cannot be used 
 in its strictly legal sense, and sustain the hypothesis that 
 it is either a limitation upon the penalty for treason or 
 upon the time for trying the accused. A second objec- 
 tion to this interpretation or construction is, that the con- 
 stitution had before provided against the exercise of any 
 such authority to attaint a jjerson after his death, so that 
 if such be its real meaning, this clause is without value. 
 Under the greatest latitude practiced in England, crea- 
 ting new treasons, passing bills of attainder, and ex post 
 faeto laivSf it never happened that the courts of England 
 went through the formality of trying, convicting and 
 
PROHIBITIONS AND RESTRICTIONS. 291 
 
 denouncing the penalty of the law upon a dead person. 
 When the party denounced for treason or other felony 
 was dead, it required the omnipotent power of parlia- 
 ment to attaint him by bill : and therein is one of the 
 advantages, that they could deal with the dead as though 
 they were still living. But the constitution of the United 
 States had provided against proceedings after the death 
 of the accused, by the provision that "No bill of attain- 
 der or exjwst facto Imv shall be passed." Therefore it 
 was unnecessary to insert the clause under consideration, 
 if the end sought was to make impossible the attainting 
 of a person after his death. 
 
 The remaining theory, and the one which seems most 
 free from objection, is that which interprets this clause 
 to be a limitation upon the duration of the corruption 
 of blood and forfeiture incident to the condition of 
 attainder. The language implies that there is such a 
 condition as that of attainder of treason, and that such 
 condition has the power to ivorli a corruption of Mood and 
 forfeiture. In legal parlance, attainder is the immediate, 
 inseparable consequence of the judgment denouncing 
 the penalty of the law upon the convicted felon, whether 
 by parliament or court. In like parlance, corruption of 
 blood and forfeiture are the work or result of attainder, 
 and form no part of the penalty. Thus, again, the pen- 
 alty of the law enters into, and becomes the judgment 
 of the court, whether it extends to life, limb, liberty, or 
 property. The attainder resulted from this judgment, 
 and the corruption of blood and forfeiture, from the 
 attainder. This clause of the constitution, then, is to be 
 construed as meaning that no attainder of treason shall 
 work corruption of blood or forfeiture, except during the 
 life of the person attainted, that is, except for a limited 
 period, measured by the life of the felon. Such being 
 the interpretation, congress has full x^ower to denounce 
 what penalty it sees proper, as the punishment for trea- 
 son, extending to life, limb, liberty, or property. It can 
 do every thing except extend the period of corruption of 
 blood and forfeiture incident to the attainted condition 
 of the criminal. It can limit the forfeiture, or take 
 it away entirely; it can limit the effects of the cor- 
 ruption of blood, or remove it entirely. Under the 
 English system, the attainted felon is forever a broken 
 link, and can never be the means of connecting heir 
 with ancestor. Under the American constitution, this 
 broken link continues but a few days. It reaches only 
 
292 GOVERNMENT. 
 
 from judgment to execution, when the corruption ceases, 
 by the termination of the attainted condition, and, 
 therefore, the forfeitures cease. It is not to be objected, 
 that the forfeiture amounts to nothing, if it continue no 
 longer than from judgment to execution. Congress has 
 authority to provide by penalty what shall constitute 
 the judgment against the traitor, and it need leave 
 nothing to be operated upon by forfeiture. According 
 to this construction, the full force and eifect is given to 
 the language used ; the harshness and injustice of the 
 English law on the subject of treason is removed. Con- 
 gress has full power to declare, without limitation, the 
 punishment of treason, and most clearly the end in- 
 tended by this clause is fully secured. By this con- 
 struction, the traitor, convicted and sentenced to death, 
 becomes attainted, and his attainder works corruption 
 of blood and forfeiture, not forever, but for a limited 
 period, during the life of the felon. That is, while liv- 
 ing, the traitor, under sentence of death, is a broken 
 link,; he is stained and blackened by his ascertained 
 crime, and is disconnected with ancestor or heir, cut off 
 from human sympathy, from human aid, from credit, 
 reputation, capacity, and, in anticipation of punishment, 
 in law, already dead. 
 
 " No capitation or other direct tax shall be laid, unless 
 in proportion to the census or enumeration, hereinbefore 
 directed to be taken." The part of the constitution 
 here referred to is the third clause of the second section 
 of the fifth article, which provides that representatives 
 and direct taxes shall be apportioned among the several 
 States in the Union, according to their respective num- 
 bers. It also provides the means and manner in which 
 such numbers shall be ascertained. This subject was 
 considered in the tenth chapter^ of this treatise, to which 
 reference is made. 
 
 § 472. No tax or duty shall be laid on articles exported 
 from any state. No preference shall be given, by any 
 regulation of commerce or revenue, to the ports of one 
 state over those of another ; nor shall vessels bound to 
 or from one state be obliged to enter, clear, or pay 
 duties in another. The object of this prohibition is to 
 avoid as far as possible, in equality of burdens imposed 
 by the general government upon the people of the dif- 
 ferent states. It was the purpose of those instituting 
 the general government to treat with impartiality the 
 
 1 Ante, p. 171, 1 337 et seq. 
 
PROHIBITIONS AND RESTRICTIONS. 293 
 
 people of the nation without respect to the particular 
 states in which they chanced to reside. The constitu- 
 tion commits the subject of regulating commerce to 
 congress; under which general power they have the 
 sovereign authority of the nation, to be exercised accord- 
 ing to their discretion. Without some restrictions 
 imposed upon the exercise of this power, they can do 
 what sovereignty itself could do, in its exercise: for the 
 terms of the grant are absolute and unqualified, giving 
 the regulation and control of commercial intercourse to 
 congress. To guard against such an exercise of this 
 power as would operate oppressively upon particular 
 states, this provision was inserted, prohibiting the levy- 
 ing of an export duty upon articles exported from any 
 state. This prohibition has been understood generally 
 as excluding from congress, authority to levy export 
 duties; in-as-much as all exports are from the several 
 states. If congress were allowed to lay an export duty 
 from any one state, it might unreasonably injure or per- 
 haps destroy the staple productions or common articles 
 of that state. Thus, some of the states have nothing 
 but agricultural products for exportation ; others have 
 manufacturing products; others still, derive their re- 
 sources mainly from the fisheries. Now a duty laid on 
 any of these classes of exports would operate unequally 
 upon the people of the different states living by such 
 diverse pursuits. Such is the character and extent of 
 the constitutional objection to the authority of congress 
 to levy export duties. It rests upon the hypothesis that 
 the state, as a political institution, has a corporate and 
 vested interest in the products of the industry of the peo- 
 ple residing within its territorial limits, and that, therefore 
 it should be provided for, by guarding against all possi- 
 ble encroachments by the nation upon its corporate and 
 vested rights and interests. The language of this pro- 
 hibition does not necessarily extend beyond denying to 
 congress authority to levy export duties upon the pro- 
 ducts of a particular state: that is, forbidding congress 
 in the levying of duties, to regard state lives. But if 
 the ijrohibition is to be extended to the exclusion of all 
 power in congress to levy export duties by reason of 
 the inequality of the operation of any law which could 
 be made, then the same reason would be applicable to the 
 levying of import duties: for while it would be true that 
 the inhabitants of the several states are generally 
 engaged in different pursuits, and produce for market 
 
294 GOVERNMENT. 
 
 • 
 
 different articles; it is also true, that the inhabitants of 
 the several states generally import different articles for 
 home consumption ; and investigation will show nearly 
 as great a diversity in the local character of imports, as 
 there is in the local character of exports. But beside 
 this, the local character of exports or imports is not at 
 all determined by state lines. Whether a locality shall 
 engage in any particular enterprise as that of agricul- 
 ture, manufactures, mining, fishing or commerce, does 
 not depend upon state lines ; and there exists no reason 
 why the particular prohibition under consideration 
 should be construed as intended to avoid inequality of 
 burden by prohibiting duties upon exports, in any other 
 sense than that the exports from a particular state 
 should not be made the subject of a local export duty. 
 In other words, the spirit of the entire clause is, that 
 in the regulation of commerce, congress shall pay no 
 heed to state lines; but shall so exercise its powers 
 that they shall operate equally upon all citizens, in 
 the same manner as though the political division known 
 as states, did not exist. 
 
 g 473. As a historical fact the convention which pre- 
 pared the draft of the constitution, intended by this 
 clause to deny to congress the power to lay export duties. 
 This is very clearly manifested in their discussions upon 
 ,that subject. This prohibition was insisted upon as a 
 protection to the staple states, as they were called. 
 Thus, General Pinckney was alarmed at the remarks of 
 Gouverneur Morris, who had spoken of laying taxes on 
 exports, because South Carolina had, in a single year, 
 exported to the amount of £600,000 sterling, allot which 
 were the fruits of the labor of her blacks.^ Again Mr. 
 Pinckney reminded the convention that if the committee 
 should fail to insert some security to the Southern States 
 against an emancipation of slaves, and taxes on exports, 
 he should be bound in duty to vote against their report.^ 
 Again Mr. Mason urged the necessity of connecting 
 with the power of laying taxes, the prohibition, that no 
 tax should be laid on exports. He hoped the IlsTorth- 
 ern States did not intend to deny to the Southern, this 
 security.^ Mr. Elsworth claimed there were solid reasons 
 against congress laying taxes on exports. First, it 
 would discourage industry, as taxes on imports would 
 discourage luxury. Second, the produce of different 
 
 1 Madison's Debates in Congress, 302 ; 5 Elliott's Debates by Lippencott, 1866. 
 » Id., p. 357. 
 8 la., p. 432. 
 
PROHIBITIONS AND RESTRICTIONS. 295 
 
 states is such as to prevent uniformity in such taxes. 
 Third, the taxing of exports would engender incurable 
 jealousies.^ On the other hand, Mr. King objected to 
 the position in which the general government would be 
 placed by not allowing it to prohibit the importation of 
 slaves, or to tax exports. He inquired, " is this reasona- 
 ble ? what are the great objects of the general system ?" 
 First, defense against foreign invasion ; secondly, 
 against internal sedition. Shall all the states then be 
 bound to defend each, and shall each be at liberty to 
 introduce a weakness which will render defense more dif- 
 ficult ? Shall one part of the United States be bound to 
 defend another part, and that other part be at liberty, 
 not only to increase its own danger, but to withhold the 
 compensation for the burden ? If slaves are to be impor- 
 ted shall not the effects produced by their labor supply 
 a revenue the better to enable the general govern- 
 ment to defend their masters ? There was no such 
 inequality and unreasonableness in all this — that the 
 people of the northern states could never be reconciled 
 to it ; — no candid man could undertake to justify it to 
 them.^ The clause as it now stands in the constitution, 
 was the result of the discussion and compromises of the 
 convention ; and it cannot well be questioned that they 
 intended so to frame the draft of this prohibition, as to 
 deprive congress of the power to tax exports. But here 
 arises a more serious question. The intention of the 
 /ramers of the constitution has nothing to do with the 
 legal interpretation of the instrument itself. It can- 
 not give a meaning to it differing from the natural 
 import of the language used. It is not a question, what 
 were the views of those who made the draft of the instru- 
 ment but what were the views of those who ordained it. 
 If the language used by them be such as to render it nec- 
 essary to resort to interpretation, then resort may be 
 had to such principles of interpretation as well estab- 
 lished rules will permit ; but in no case can the motives 
 and purposes of those who prepared the draft of the in- 
 strument be inquired into, with the view of ascertaining 
 the intention of another body who adopted it. If the 
 expression, " no tax or duty shall be laid on articles ex- 
 ported from any state," require an interpretation other 
 than that which the natural import of the language 
 used implies, then a resort to the established rules of 
 interpretation is required ; and no one is authorized to 
 
 1 Madison's Debates in Congress, p. 45i. 2 Id., p. 391. 
 
296 GOVERNMENT. 
 
 depart from sucTi rules ; because all instruments are con- 
 structed Tvith the view of disclosing- the intention of 
 the parties to the same, as it shall appear when inter- 
 preted according to such rules. The first principle of 
 construction requires that the words used shall be 
 understood according to their usual and most known 
 signification. If the meaning is still dubious, then resort 
 to the context shall next be had, by which is included an 
 examination of the preamble ; or of other acts passed 
 by the same legislature ; as statutes in ijciri materia are 
 to be construed in reference to each other. If the mean- 
 ing is still uncertain, then reference to the subject 
 matter is next in order ; and the meaning still remaining 
 doubtful, the last resort is to the reason and spirit of the 
 law ; or the motive which led the legislature to enact 
 it.^ Tried by any or all of these modes of ascertaining 
 the legal meaning of the above clause, and there is but 
 one conclusion ; and that is, that in the exercise of its 
 power over commerce, and in the regulation thereof, 
 congress should pay no heed to state lines, but should 
 so exercise its powers, that they should operate equally 
 upon all citizens, in the same manner as they would if 
 the political division known as states, did not exist. 
 If congress cannot levy export duties without violating 
 this principle, then it is prohibited from doing so. 
 
 g 474. The remaining portion of the fifth clause of 
 the ninth section has the same end in view, to wit : that 
 congress, in the exercise of its power to regulate com- 
 merce, should act upon the hypothesis that all are 
 members of one government, and that there is but one 
 authority in that respect to be obeyed. Thus, " no prefer- 
 ence shall be given by any regulation of commerce or 
 revenue to the ports of one state over those of another ; 
 nor shall vessels bound to or from one state be obliged 
 to enter, clear, or pay duties in another." The eftect 
 of this prohibition is, that congress, as the national 
 legislature, shall make no law touching the subject of 
 regulating commerce, which shall not apply with equal 
 force to all parts of the nation ; that is, its laws regii- 
 lating commerce shall be general, and not local. That 
 when a ship has entered, cleared, or paid duties in any 
 port of the United States, it has discharged its duty, 
 in that respect, to the government, and shall not be 
 required to do it again, because it may be bound to or 
 from any other state. 
 
 1 1 Bl. Com., 59, CO ; ante p. 12S and notes. 
 
PROHIBITIONS AND RESTRICTIONS. 297 
 
 S 475. " No money sball be drawn from the treasury 
 but in consequence of appropriations made by law ; 
 and a regular statement and account of the receipts and 
 expenditures of all public money shall be published from 
 time to time." The object of this provision is to bring 
 under the inspection and authority of congress all 
 expenditures of money by the nation, or for and on 
 its behalf. The provision requiring an exhibit of the 
 receipts and expenditures of all public money from time 
 to time, is designed as a sure means of enlightening 
 the public ; that they may, through their representa- 
 tives, know what appropriations are required ; and the 
 means on hand by which such requirements are to be 
 met. That is, this provision is based upon the hypothe- 
 sis that the law-making power is in the hands of the 
 people ; and that all payments of money shall be by 
 their authority; and that they shall have the means of 
 correct information, that they may act understanding! y 
 upon that subject. 
 
 § 476. " No title of nobility shall be granted by the 
 United States." That is, the general government has 
 no authority to create classes or class distinctions among 
 the people ; — that all its laws shall be enacted upon the 
 hypothesis that all men are created equal, and are 
 equally entitled at the hands of their government; — 
 that government is an institution of the people, created 
 for the sole and only purpose of administering their 
 authority, to the end that each and all may be secure in 
 the enjoyment of civil liberty ; and that equal and 
 exact justice maybe administered to all ; and that those 
 who are intrusted with the administration of the public 
 authority, may not be influenced to betray their trust, or 
 to administer under a foreign influence, all persons 
 holding an oflice of profit or trust under the general 
 government, are prohibited from accepting any present, 
 emolument, office or title of any kind whatever from 
 any king, prince, or foreign state, without the consent 
 of congress.^ 
 
 1 Const. U. S., art, 1, ? 9, cl. 7. 
 38 
 
298 GOYERNMENT. 
 
 GHAPTEE XV. 
 
 OF THE STATES AS POLITICAL OEOANIZATIONS — THEIR 
 ' OFFICE, DUTIES AND POWEKS. 
 
 § 477. AccOEDiNG to the American theory, govern- 
 ment has no original authority. It is an institution of 
 the people, designed onlji^ as an instrument of adminis- 
 tration ; and all the power it possesses and can properly 
 exercise, is a mere trust for the common good. Govern- 
 ment is imposed upon society by the law of necessity. 
 Thus, the public authority must be applied to the regu- 
 lation and control of the public acts of the individual 
 members of society; and also to the regulation and 
 control of their private conduct, so far as it affects the 
 legal rights of others. But this can be done only 
 through the instrumentality of a political organization, 
 created for the purpose of exercising such public author- 
 ity, and duly authorized to exercise it. Such political 
 body becomes a corporation, or an artificial person, hav- 
 ing the qualities and attributes, in law, of a person, with 
 an understanding, will and power, to be exercised within 
 the limits of the authority conferred, called its jurisdic- 
 tion ; and for the purposes for wliich it was created and 
 endowed, called its administration. Thus, government 
 proper is a creature of the public authority. It is an 
 instrument of administration, by which alone the ijublic 
 authority is to be made known ; or by means of which, 
 duriug its continuance, the public authority is to be 
 represented. In treating of government, it is necessary 
 to remember that it possesses powers to be exercised ; 
 but that all such powers are trusts, and can be exercised 
 only in accordance with the authority given, and for 
 the purposes for which the powers were given. Thus, the 
 general and state governments are mere instruments of 
 administration, each intrusted with the exercise of cer- 
 tain powers, over certain subjects or classes of subjects, 
 for specific purposes. In either case, the authority by 
 which they administer, as well as the authority adminis- 
 tered, by them or either of them, is the authority of the 
 public or nation, and not the authority of the govern- 
 ment or institution. 
 
 g 478. The government, whether of the state or of 
 the nation, is a body corporate and politic, created 
 by the people, to be intrusted with the exercise of their 
 
OF THE STATES. 299 
 
 authority over matters committed by them to its jnris- 
 dictiou. Its corporate governmental character consists 
 of oflices, to which certain powers and duties are inci- 
 dent ; authorizing the incumbent to exercise those 
 powers, and requiring him to perform those duties, in 
 the manner prescribed, and for the ijurposes for which 
 the offices were created. And it is to be remembered 
 that the rights possessed, the duties enjoined, and the 
 powers conferred, pertain to tlie office alone ; and 
 the incumbent is the instrument designated to adminis- 
 ter the office, and for the purpose for which it was 
 created. It is also to be remembered that there is but 
 one source of authority, and hence but one authority, 
 to be administered by the government. All govern- 
 mental authority must be rooted and grounded in 
 sovereignty ; that is, it must have its basis in preroga- 
 tive, whether that be found in the monarch or in the 
 people. In all forms of government the absolute right 
 to command obedience must be found somewhere ; and 
 wherever that is found, there is prerogative — there is 
 sovereignty. Therefore, under all forms of government, 
 and in all gradations of authority, that power only 
 which comes from sovereignty expressly or by implica- 
 tion, has the right to command obedience — has authority 
 to govern. Sovereignty may delegate powers of admin- 
 istration, and distribute administrative rights through 
 many gradations of office, from the national to the 
 municipal government, or even to the family ; and it 
 may map out the subjects of jurisdiction, and the limita- 
 tions of authority to each particular gradation, but it 
 does not by so doing, divide itself, or create diverse 
 sovereignties. There is present in every subordinate 
 jurisdiction the same authority to administer, and the 
 same authority to be administered ; and that is the sov- 
 ereignty which created the jurisdiction and authorized 
 administration therein. The authority of the humblest 
 magistrate in the discharge of his official duties, is as 
 absolute as the authority of the king. Belonging to an 
 inferior jurisdiction, his action may be subject to review 
 by a superior jurisdiction. But until reviewed and 
 reversed, it has all the authority committed by sover- 
 eignty to that jurisdiction ; that is, it has the authority 
 of sovereignty itself in what is officially done within 
 the assigned jurisdiction. 
 
 § 479. Sovereignty is essential to the establishment 
 and maintenance of government, whatever may be the 
 
SOO GOVERNMENT. 
 
 form of its admiDistration. It is as essential to a demo- 
 cratic as to a monarcliical government. There must be 
 an ultimate authority ; an authority from -which there is 
 no appeal ; an authority to command in the last resort ; 
 subject to no legal restriction — to no authoritivo stay. 
 This sovereignty, as the fountain from which all govern- 
 mental authority proceeds, can have no superior — can 
 have no equals within its sphere of authority. It must 
 be prerogative and alone. Every independent nation 
 must, from necessity, i)ossess this sovereignty — this 
 prerogative power — as an essential attribute of its 
 existence. As a nation, it cannot be inferior in author- 
 ity to any other ; and within its limits, it can have no 
 equals. The people of the United States as a nation 
 possess this absolute sovereignty ; and there is no politi- 
 cal power on earth to question the nation's sovereign 
 authority to govern itself in such a manner as pleases it. 
 But this sovereignty i)ertains to the people as constitu- 
 ent elements of the nation, in their original character as 
 members of the national society ; and it necessarily 
 includes all governmental authority within the limits of 
 the nation. For there cannot be two independent sover- 
 eignties within the same limits, having jurisdiction over 
 the same territory and x^eople. The right of command- 
 ing in the last resort can come from but one source, and 
 be exercised by but one authority, within the nation. 
 The people of the United States constituting but one 
 nation, possess this absolute sovereignty to be exercised 
 in such a manner, and in respect to such subjects as 
 they, in their pleasure, ordain and determine ; and no 
 other governmental authority can exist or be adminis- 
 tered within the nation, except that which comes, 
 expressly or by implication, from the national fountain. 
 The principles of democracy are seen in the source, and 
 in the administration, of governmental authority. In 
 the source, by ascribing to the people in their largest 
 civil association, sovereignty. In the administration of 
 this authority, by committing to those only who are to 
 be affected by it, the rights of administration. Thus, 
 in respect to all matters pertaining to the common 
 defense and the general welfare of the nation, the 
 administration of the public authority is committed to 
 the nation. In respect to all matters pertaining to local 
 and domestic interests alone, the administration of the 
 public authority is committed to the people of the state. 
 In respect to all matters pertaining to the interests 
 
OF THE STATES. 301 
 
 of the municipality, tlie administration of tbe public 
 authority is committed to the municipality. Tbe prin- 
 ciple to be noticed is this : there is but one source of 
 this governmental authority, by -whomsoever and "in 
 ■whatsoever department administered. And the right to 
 administer this authority, like all other political rights, 
 is conferred by the same sovereignty. The rights of 
 administration, in their origin, must have the same 
 source as sovereignty itself. That is, the authority to 
 govern may determine by whom its authority shall be 
 administered ; at least, it has the rightful authority to 
 determine by whom it shall be administered. Thus, if 
 any particular class of people are disqualified from the 
 exercise of that patriotism, that judgment and dis- 
 cretion which is essential to the character of one quali- 
 fied to administer the public authority, such class may 
 be excluded from the exercise of such powers. The 
 very necessity which calls for the existence and main- 
 tenance of government, demands the exercise of proper 
 authority to determine by whom the public authority 
 shall be administered. The right to determine by whom 
 governmental authority shall be exercised, pertains to 
 sovereignty alone. 
 
 g 480. The administration of governmental authority 
 through the instrumentality of the general and state 
 governments, furnishes ample illustration of the one 
 SOURCE of authority in the sovereignty of the nation ; 
 and of the divers modes of administering that author- 
 ity, through the instrumentality of these several cor- 
 porate institutions, called the general, and the state 
 governments. In the institution of the national govern- 
 ment, the people of the United States, as members of 
 the civil society constituting the one nation, exercised 
 their inherent authority to establish for themselves such 
 an agency or government for executing their authority 
 as they thought proper. In the exercise of this author- 
 ity, theij acted in virtue of their potvers as men and not 
 as members of any organised government or society. 
 They occupied a plane above political constitutions, and 
 exercised the authority which makes constitutions 
 and founds governments. They exercised the preroga- 
 tive authority to say, that a national or general govern- 
 ment should be instituted for certain purposes ; and 
 should have authority to exercise full powers over a 
 certain class of subjects. They determined that for cer- 
 tain purposes, the existing state governments should bo 
 
302 GOVERNMENT. 
 
 continued ; and should be intrusted with the exercise 
 of the pubhc authority over such local and domestic 
 matters as pertained to their local and domestic inter- 
 ests ; and as were not, by them, committed to the 
 jurisdiction of the general government. But in deter- 
 mining the limits of the general and of the local juris- 
 diction of these governments, the people consulted their 
 own pleasure and judgment, and exercised their inherent 
 authority ; and they defined the several jurisdictions of 
 these governments in virtue of their sovereignty alone. 
 They took from the states, and conferred upon the gen- 
 eral government, the right to exercise authority over 
 such classes of subjects as, in their opinion, the safety 
 and welfare of the people required them to do. And in 
 the constitution which they then ordained and estab- 
 lished, they provided for amendments thereof, to be 
 made in such a manner as to assert in the most unquali- 
 fied form the sovereign authority of the nation to take 
 from the states, whenever it should be the pleasure of the 
 nation to do so, all administrative authority whatever. 
 Thus, congress, whenever two-thirds shall concur in the 
 measure, can propose amendments to the constitution, 
 which become valid to all intents and purposes as parts 
 of the same whenever ratified by the legislatures of 
 three-fourths of the states ; or by conventions therein, 
 as congress shall determine. In this way, any state 
 may be deprived by national authority of all adminis- 
 trative rights without the consent of its people ; because 
 the authority to do so is in the nation, and there is no 
 authority in its particular government or people to 
 forbid it. This illustration is sufficient of itself to dem- 
 onstrate the subordination of state administration to 
 the authority of the nation. It is no answer to this 
 view to affirm that the people of the several states 
 would never consent to such amendments of the 
 national constitution as would deprive them of state 
 administration. The people of the several states are 
 citizens of the United States, and, as such members of 
 the nation, they have authority to assent to such 
 amendments; and that sustains the position that the 
 authority Is in the nation, and may be exercised when- 
 ever they think proper. 
 
 g 481. The questions of governmental administration 
 belong to the sovereignty. The authority to institute a 
 government, can determine by whom that government 
 shall be administered, and those who are intrusted with 
 
OF THE STATES. 303 
 
 tlie powers of such admiDistration, exercise them in 
 virtue of the authority conferred upon them by the 
 sovereignty, and not in virtue of any inherent right in 
 themselves. Thus, the questions pertaining to the 
 administration of the general government were deter- 
 mined by the sovereignty which instituted that govern- 
 ment. All questions as to what powers should be 
 committed to the general government; what should 
 be the structure of that government ; in what manner 
 and by whom it should be administered; how the 
 officers thereof should be selected ; who should be 
 authorized to participate in the selection of the same ; 
 what should be their duties, powers and responsibilities, 
 were determined by the authority which instituted the 
 general government ; and the same authority can revise, 
 modify or abolish the whole or any part thereof at 
 pleasure. The authority which took from the states, 
 both as political institutions and as people, any part of 
 the subjects of their jurisdiction, and placed the same 
 under the jurisdiction of the general government, could, 
 had it so pleased, have taken every subject from state 
 jurisdiction and have abolished state administration 
 entirely. That they did not do it, was a question of 
 expediency, and not of authority. The absolute author- 
 ity of the inherent sovereignty of the nation underlies 
 all other civil authority in the United States, both as to 
 the powers to be administered, and the authority by 
 which they are to be administered. If the states, as 
 political organizations, are allowed to participate in any 
 degree in the administration of the general government, 
 it is in virtue of the authority conferred by the consti- 
 tution of the United States, and not in virtue of any 
 authority inherent in them. Thus, the state legislatures 
 may apportion among the citizens of their respective 
 jurisdictions, the districts from which their members to 
 to the house of representatives in congress shall be 
 elected ; but they can do it only in virtue of the author- 
 ity conferred by the constitution, and that privilege is 
 liable to be taken from them, at the pleasure of congress. 
 The state legislatures can elect, each two senators to 
 represent them in the United States senate ; but they 
 do so because authorized by the national constitution. 
 The same authority which authorized the legislature to 
 select these senators, could have given the authority 
 to the people at large ; or could have withheld it alto- 
 gether. The same is true of all power conferred upon 
 
304 GOVERNMENT. 
 
 the states to participate in the national administration. 
 That power has its authority in national, not state sov- 
 ereignty, and is to be exercised as a right or privilege 
 conferred, not as a right or privilege inherent in the 
 state ; and it is to be exercised as a trust, and not as 
 possessed in the right of him or it which administers. 
 
 g 482. The people, in the exercise of their inherent 
 sovereignty in the institution and endowment of the 
 general government, recognized the continued existence 
 and use of state governments as instruments of internal 
 administration; but they recognized them as subordi- 
 nated to the authority of the nation; and they used 
 them oply as thus subordinated. They parceled out the 
 subjects of administration between the general and 
 state governments, by enumerating what should belong 
 to the general, and declaring that the rest should remain 
 with the state administrations. Thus, the states then 
 existing virtually took their future or continued exist- 
 ence and authority at the hands of the nation; and they 
 became instruments of internal administration of such 
 powers as were assigned to them by national sover- 
 eignty ; and they now hold such powers in trust merely 
 at the pleasure of the nation ; for whenever it shall be 
 the pleasure of the people so to amend their national 
 constitution as to withdraw from the states any portion 
 of their present powers, they will be obliged to submit 
 to such determination. This subordination of state 
 institutions to the sovereignty of the nation is more 
 clearly apparent in the institution of new states. Since 
 the assertion of national sovereignty in the United 
 States over the subjects of civil administration, by the 
 institution of the national government, some twenty- 
 three new states have been created within the national 
 limits. These states have been erected within territories 
 of the United States, portions of which have been 
 acquired by the nation since its civil organization as a 
 government, but all of which was subject to the abso- 
 lute and unrestricted jurisdiction of the United States 
 in all matters pertaining to civil administration prior to 
 the erection of these states. While remaining territo- 
 ries, no civil or criminal jurisdiction could be exercised 
 therein except by the authority of congress, as the 
 national legislature. This authority of congress over 
 the territories is usually based upon the second clause 
 of the third section of the fourth article of the consti- 
 tution, which provides that congress shall have power 
 
OF THE STATES. S05 
 
 to dispose of, and make all needful rules and regulations 
 respecting the territory, or other property belougiug to 
 the Uuited States. But, aside from the authority con- 
 tained in this clause, the power to exercise jurisdiction 
 over, and provide for the government of any territories 
 which the nation might acquire, would necessarily 
 inhere in congress, as being the body to which the exer- 
 cise of all legislative authority over national subjects is 
 committed. If, as an incident of sovereignty, the nation 
 has authority to acquire such contiguous territory as its 
 safety and welfare demands ; and if such authority is 
 committed to the proper departments of the general 
 government, to be exercised in its sound discretion — as 
 it undoubtedly is under the war powers — then the 
 acquisition of such territory draws with it, not only 
 the property therein and the right of possession thereof, 
 but likewise the sovereignty over the same; that is, the 
 authority to extend its jurisdiction both civil aiid crimi- 
 nal, over such territory. To hold the converse of this 
 would be an absurdity. For if the nation, through the 
 agency of the general government, can acquire territory 
 from any foreign power, it must either acquire the right 
 of exercising the sovereignty of the nation over the 
 same, or that right remains in the foreign power. Thus, 
 when the territories of New Mexico and California were 
 acquired by the United States from Mexico, the right of 
 sovereignty, or to exercise sovereign authority over 
 the same, was incident to the transfer, and vested in the 
 nation with the title to such territory. To hold the con- 
 trary would leave the right of sovereignty in Mexico, 
 which cannot be admitted. The sovereignty over such 
 territory vesting in the United States, no one can exer- 
 cise jurisdiction there not derived from, or recognized 
 by the United States. That is, the authority of the 
 nation over such territory is absolute, unless qualified 
 by the terms of the grant. No government can be 
 established there but by the authority of the nation, and 
 upon such terms and conditions as the nation in its 
 sovereignty sees fit to impose. Such has been the 
 authority exercised by the nation in respect to all its 
 territories. The people of any territory desiring to 
 become a state corporation for purposes of civil admin- 
 istration, have never been supposed to be able to vest 
 themselves with the rights, powers and duties of a state 
 government ; nor have they been supposed to be able 
 to exercise, in their own right, any public authority. 
 
 39 
 
306 GOVERNMENT. 
 
 Whatever political power has been exercised by them as 
 inhabitants of the territory, has been under the enabling 
 power of the nation as conferred by the legislation of 
 congress. It matters not what may be the number and 
 character of the inhabitants of a territory ; or what may 
 be their qualifications to administer civil authority, as 
 inhabitants of a territory of the United States, they 
 have not, nor can they acquire any political authority 
 except through the enabling authority of the nation 
 through congress. All territorial legislation derives its 
 sanction from the sovereignty of the nation ; all terri- 
 torial administration derives its authority from the same 
 source. Whenever the inhabitants of a territory desire 
 to be enfranchised with the political powers and rights 
 of a state, that they may be authorized to administer in 
 respect to their own local and domestic matters, they 
 are obliged to take their charter — state constitution — 
 upon such terms and conditions as congress, exercising 
 the legislative authority of the nation, i)rescribes. The 
 people of the territory may draft the form of their 
 proposed constitution — may submit the same to the 
 approval of the inhabitants — and they may approve 
 of the same ; it is still without political life or power 
 until the sovereign authority of the nation by its incor- 
 porating and enfranchising act, gives it political exist- 
 ence and administrative authority. Colorado has been 
 asking enfranchisement, Nebraska has been asking the 
 same, but the charters presented by them did not please 
 congress, and they prescribed the terms to which they 
 must accede before they could be incorporated and 
 enfranchised as political states, and become vested with 
 political powers as state citizens. 
 
 % 483. To create a new state within the union, requires 
 the exercise of national authority, incorporating the 
 inhabitants within a certain territory over which the 
 United States has exclusive authority, and the general 
 government has exclusive jurisdiction, into a body 
 politic ; thereby vesting them with such powers as by 
 the national constitution are confided to state, adminis- 
 trative authority, subject, nevertheless, to such further 
 inhibitions and restrictions as the terms of its own con- 
 stitution or charter may impose. ^ By this national act 
 of incorporation, the political state is created ; and the 
 franchise of state citizenship is conferred ; and the cor- 
 poration known as a state becomes, in the hands of its 
 
 J See Appendix : admission of states. 
 
OF THE STATES. 807 
 
 citizens, an instrument for exercising the autliority of 
 the nation in respect to all subjects committed to state 
 jurisdiction. The effect of this act of incorporation is 
 twofold. It commits to the inhabitants of such territory 
 the right exercised by citizens of the United States, 
 residing beyond its limits, to participate in the adminis- 
 tration of governmental authority in matters purely 
 local and domestic within its limits ; and consequently 
 it confers upon such inhabitants the right to exercise 
 exclusive jurisdiction in all matters of administration 
 over such subjects. Before such state was created, the 
 inhabitants thereof had no administrative authority ; by 
 such political incorporation, the inhabitants have exclu- 
 sive authority politically, over their own local and 
 domestic interests ; and a right to participate in the 
 administration of the public authority touching matters 
 of a national character, through the instrumentality of 
 the state and general government, in the manner pre- 
 scribed by the'constitution of the United States. By 
 the act of political enfranchisement creating a new 
 state, the inhabitants of the territory included within 
 the limits of the new state are invested with adminis- 
 trative privileges merely. Their rights civilly, were the 
 same while they were mere inhabitants of the unorgan- 
 ized territory. As American citizens they were entitled 
 to that protection in the exercises of their civil rights, 
 which the government could extend to them in their 
 remoteness from its administrative power. Their right 
 to participate in the administration of the public 
 authority, through the instrumentality of the general 
 government, so far as they possessed the requisite quali- 
 fications, might have been ijerfect, provided they had 
 placed themselves within the reach of means by which 
 that participation could be effected. But so long as 
 they resided outside the corporate limits of a state those 
 means could not be made available ; and they were 
 necessarily denied the exercise of such rights. There- 
 fore, by the act of state incorporation, the inhabitants 
 acquire the right to participate in the general adminis- 
 tration ; and, by such act, the means of exercising such 
 power is brought within their reach. 
 
 §484. What, then, constitutes a state under the con- 
 stitution, and within the limits of the United States? 
 By the authority of an act of congress, the people 
 inhabiting the territory included within the limits of 
 the proposed state» are incorporated into a political 
 
g08 GOVERNMEKT. 
 
 society for the purpose of exercising governmental 
 powers over matters of a local and domestic character, 
 within the limits of the described territory; subject, 
 however, to such limitations and prohibitions as the 
 constitution of the United States, and their own consti- 
 tution prescribe. The effect of this incorporating and 
 enfranchising act of the nation is, to institute a local 
 government, to be intrusted with the exercise of sover- 
 eign authority over such subjects as are committed to 
 its jurisdiction ; which authority is to be administered 
 by the citizens of such local territory, in virtue of the 
 franchise conferred upon them by the act creating them 
 a political body. Beside, being citizens of the United 
 States, such state citizens are likewise invested with 
 such other political franchises as pertain to other citizens 
 of the United States, under the provisions of the 
 national constitution applicable to state citizens. There- 
 fore, a state government as a political society in the 
 United States, may be defined to be a corporation of 
 officers, instituted by the nation, to provide for the local 
 administration of governmental authority in respect to 
 local matters, which authority is to be exercised by the 
 citizens or inhabitants of the territory over which its 
 jurisdiction is extended. A state, as a portion of the 
 national domain, is that territory over which the local 
 jurisdiction of the political corporation known as a 
 state, extends. A state, as embracing a portion of the 
 citizens of the United States, consists of those citizens 
 residing within the territorial limits of the political state 
 who are so enfranchised as to be permitted to participate 
 in the administration of the public authority committed 
 to the local jurisdiction of such state, and through its 
 constitutional agency, to participate in the administra- 
 tion of the general government. Thus, a state, as a 
 political body or corporation, has no inherent or original 
 sovereignty. It is a mere institution or political instru- 
 ment, to be used as a means of exercising authority ; 
 not as a sovereign imparting authority. Sovereignty is 
 present giving life and power to the institution ; lend- 
 ing authority to the exercise of its legitimate powers ; 
 but it is not the sovereignty of the institution ; nor of 
 the people of the state to whom the exercise of local 
 authority is committed ; but it is that one undivided 
 sovereignty of the nation which created the state and 
 enfranchised its citizens, and set the boundaries to their 
 powers of administration. It is that sovereignty which 
 
OF THE STATES. 309 
 
 alone can institute governments ; can endow them with, 
 power to make and execute laws, and can compel obedi- 
 ence thereto against all opposing authority. 
 
 g 485. The sovereignty which institutes state govern- 
 ments in the United States, fixes the limits of their 
 jurisdiction and of their administrative authority. While 
 it creates a state as a corporation, and confers certain 
 powers to be exercised by it, it also imposes restrictions 
 upon them, which it could not do, were the states, as 
 l)olitical.institutions, sovereign. The people of the United 
 States in the institution of the general government, 
 designed it as the instrument by means of which the 
 interests of the people as a nation could be protected and 
 preserved. In providing for the institution of the state 
 governments, they were designed to be merely local in 
 their powers ; and were restricted in the administration 
 of their authority to those interests which were of a 
 local character. For this reason they are confined 
 entirely to affairs among the inhabitants thereof, and to 
 interests within their respective limits. Hence the pro- 
 hibition, " No state shall enter into any treaty, alliance, 
 or confederation ; grant letters of marque and reprisal." 
 "JSTo state shall, without the consent of congress, lay 
 any duty of tonnage; keep troops or ships of war in 
 time of peace; enter into any agreement or compact 
 with another state, or with a foreign power ; or engage 
 in war, unless actually invaded, or in such imminent 
 danger as will admit of no delay." ^ It is important to 
 remember that the authority conferred is exclusively of 
 an administrative character, to be exercised as a trust, 
 for the benefit of the inhabitants of the state. The 
 authority administered by the state is not its own, but 
 the authority of the nation ; and while the state keeps 
 within the limits of its prescribed authority to adminis- 
 ter, its action is as valid and binding as that of the 
 general government, or of sovereignty itself. The dis- 
 tinction between the authority administered by the 
 general government and that administered by the states, 
 extends only to the subjects of administration. The 
 general government has to do Avith and for the United 
 States as a nation ; and exercises its authority in pro- 
 viding for the safety and welfare of the nation in respect 
 to other powers. In its internal administration, it 
 has to do with all the people of the nation j in respect 
 
 1 Art. 1, 1 10, Const. U. S. 
 
SIO GOVERNMENT. 
 
 to those rights and interests for which the local govern^ 
 ments are not competent to provide. 
 
 g 486, There is also this distinction between the 
 administrative authority of the general government and 
 that of the states. The jurisdiction of the general 
 government extends over every portion of territory 
 within the limits of the nation, and its administrative 
 authority is exclusive within such limits, until a new 
 jurisdiction is created by its own action or permission, by 
 which administrative authority is conferred upon others. 
 Thus, the general government extends its jurisdiction 
 under the constitution, to every inch of territor}^ included 
 within the several states, and within all the territories 
 of the United States. This brings every inhabitant of 
 the state and of the territories under the jurisdiction 
 of its administrative authority. The general government, 
 therefore, is as omnipresent throughout the nation as is 
 sovereignty itself. Every citizen of this government 
 is, therefore, in the eye of the law, politically present 
 by the authority of this government in all the states 
 and territories of the union. A national citizen exer- 
 cising administrative authority, has no other locality 
 than the nation. The authority by which he is repre- 
 sented in the national government, applies to every part 
 of the national domain, and reaches to every subject of 
 national administration. The representative in con- 
 gress from the humblest district in the humblest state, 
 legislates as well for every part of the nation as for that 
 which he especially represents. The senators from IsTew 
 York legislate for Louisiana, and the senators from 
 Louisiana do the same for New York. The national 
 citizen residing in Delaware has as much governmental 
 authority over questions of national interest belonging 
 to New York, as has a national citizen residing in New 
 York. It is important to remember that national admin- 
 istrative authority knows no state lines. Until a state 
 government is instituted for the inhabitants of a par- 
 ticular territory, the administrative authority of the 
 general government over the citizens or inhabitants of 
 such territory, is necessarily exclusive. It extends as 
 well to those interests of a local and domestic character, 
 as to those which extend alike to all the citizens of the 
 nation. Under such circumstances, every citizen of 
 the United States has authority, through his representa- 
 tive in congress, to administer in respect to the local 
 and domestic interests of such territory. But whenever 
 
OF THE STATES. g^l 
 
 such territory is erected into a state, by the incorpo- 
 ratiug and enfranchisiug act of congress, then such 
 admiuistrative authority over the local and domestic 
 altairs ot the inhabitants ceases in all except those to 
 whom the exercise of such authority has been com- 
 mitted, showing this change. Congress as the repre- 
 sentative of the nation, and of every member thereof 
 has committed to the inhabitants of the particular terri- 
 tory the exercise of that authority over their local and 
 domestic interests, which before was exercised by the 
 nation at large ; so that by the institution of the new 
 state, the inhabitants thereof acquire, and the nation at 
 large parts with, this administrative authority. But it 
 IS to be observed that the nation parts only with the 
 exercise of so much administrative authority as pertains 
 to the local jurisdiction of the state. In respect to all 
 matters ot a general or national character, pertaining 
 to such territory or to the inhabitants thereof, the natioS 
 parts with nothing; but in the eye of the law is per- 
 petually and potentially present to assert its authority 
 and compel obedience. 
 
 S 487. Under the national constitution the general 
 government is intrusted with all governmental powers 
 necessary and proper for the common defense and o<en- 
 eral welfare of the nation ; and among the powers to be 
 exercised by it, is that of governing the territories, and 
 of admitting new states into the Union, supervising 
 the form and character of their governments. In other 
 words, the general government possesses, and can right- 
 fully exercise all governmental authority within the 
 limits of the nation, except so far as such authoritv is 
 committed to the states. But state authority is limited 
 to the exercise of such powers as are confined in their 
 operation to interests of a local and domestic character • 
 that IS, to such interests as do not extend into other 
 jurisdictions, and are not subject to other administrative 
 authority. The authority of a state citizen as such 
 does not extend beyond the right to participate in the 
 adinimstration of the state government as applied to 
 rights and interests within the state. He has no politi- 
 cal authority or power beyond such limits. Laws 
 enacted by the state legislature are confined in their 
 legal operation to persons and subjects within their local 
 jurisdiction. In any other state or territory, they have 
 no force and can create no legal obligation. As state 
 governments, they can afford citizens no protection 
 
812 GOVERNMENT. 
 
 beyond the lines whicli bound their respective territories. 
 Their authority or powers cannot be extended by com- 
 ity, or compacts, for they have no capacity to make 
 them.^ But the citizens of the states are likewise citi- 
 zens of the nation ; and as national citizens they have 
 authority co-extensive with the nation. As national 
 citizens they are members of a political society possess- 
 ing inherent and absolute sovereignty; from which their 
 rights and authority as state citizens are derived ; and 
 to which they are subordinated. Prior to the American 
 revolution, they had such rights of government as their 
 colonial charters gave them ; but as subjects of the Brit- 
 ish crown, the royal prerogative extended over them, and 
 they acknowledged its rightful authority. When driven 
 by oppression to unite in resisting the tyranny of the 
 British government, and finally, in proclaiming for them- 
 selves independence, they then acknowledged no civil 
 authority above them. Each colony had its own gov- 
 ernment independent of the others ; and consequently 
 there was no organized government with authority to 
 supervise them. Although by their union for the pur- 
 poses of protection and independence they became a 
 national society, and were entitled to a national govern- 
 ment to execute their united authority, they did not 
 organize such government until compelled bj^ necessity 
 to do so to preserve their existence. During the continu- 
 ance of their struggle with Great Britain, their common 
 interest and common danger supplied, in a great degree, 
 this demand for a national government. The danger to 
 be provided against, took the place of governmental 
 authority to compel the necessary action. But when 
 these dangers were past, and peace had become estab- 
 lished, want of national authority became alarmingly 
 apparent, until it became manifest to all, that the nation 
 could not be preserved without an organized government 
 to administer its authority. The presence of this neces- 
 sity compelled the people of all the states to unite in 
 their national character, for the purpose of instituting a 
 national government ; and the result of their union was 
 the establishment of the national constitution, and the 
 consequent institution of the general government. 
 
 § 488. The inevitable consequence of establishing a 
 national government extending its jurisdiction, that it 
 might execute national authority, throughout the nation, 
 was the necessary subordination of the state govern- 
 
 . I Art. 1, § 10, Const. U. S. 
 
OF THE STATES. 81^ 
 
 ments to such authority. The nation alone couhl be sov- 
 ereign within the national domain ; and it could admit 
 of no equal authority therein. These inchoate states 
 had never been sovereign in any national sense. When, 
 by severing the political ties which bad bound them to 
 Great Britain, they ceased to be connected witli other 
 nations, they had no other ties to connect them with 
 nationality, except their union as members of the 
 American nation. None of the separate states were 
 recognized as a nation by any government, not even by 
 themselves. They had no claim to independent nation- 
 ality, either by nature, necessity or acquirement. None 
 of them could, from their situation or their numbers, 
 have established or maintained an independent national 
 existence. Consequently, they never had, nor could they 
 ever have, t\iQ irrerogative potvers and rights of sovereignty. 
 They had independence, until a government was organ- 
 ized to supervise and control their authority in all 
 matters pertaining to independent nationality. When 
 that occurred, and the inhabitants of these states became 
 citizens of a sovereign and independent nation, and a 
 government was instituted by the people to exercise 
 their sovereign authorit5% then, necessarily, their local 
 institutions became subordinated, and the partial author- 
 ity of the citizens of the state, became subordinated to 
 the sovereign authority of the citizens of the nation. In 
 this manner, and for these reasons, the original thirteen 
 states occupy, necessarily, the same status as the new 
 states which have been created since the institution of 
 the general government. These states, as political insti- 
 tutions, take their inferior position within the limits of 
 the nation, from necessity : because, in the nature 
 of things, they cannot occupy a higher one, while the 
 nation is sovereign and independent. Their position is 
 incident to the office they have to perform. Their duties 
 and powers are necessarily local, and they are limited 
 accordingly. Until the interests and rights of the Ibwn 
 become superior or equal to the interests and rights of 
 the state, the like interests of the state, cannot become 
 superior or equal to the rights,' interests and powers of 
 the nation. The argument of Mr. Jefferson in demand- 
 ing possession of the mouth of the Mississippi for the 
 use and benefit of the United States, because, from its 
 position in reference to the nation, no other authority 
 could be permitted to possess it, is based upon the 
 hvpothesis, that the rights of the nation are superior to 
 
 40 
 
314 GOVERNMENT. 
 
 those of any local or state character. If France, as a 
 nation, could not be permitted to own and occupy New 
 Orleans, as against the United States, much less could 
 the state of Louisiana possess and exercise rights and 
 authority over that territory superior to the rights 
 and authority of the United States over the same. It is 
 based upon that principle in nature, which requires the 
 necessities of the special and particuhir to yield to 
 the lilie necessities of the universal. 
 
 % 489. This subordinated position and office of the 
 state or local administration, applies as well to the 
 original thirteen states, as to tliose which have been 
 established since the organization of the national gov- 
 ernment. This subordinated position and ofiBce of state 
 administration is inevitable. Sovereignty can admit of 
 no superior, or equal, within its jurisdiction. If state 
 citizenship differs from national citizenship either in its 
 character, or the source of its authority, it must inevita- 
 bly be subordinated thereto. When the people of the 
 United States, having established their nationality, 
 proceeded to organize a government as a means of 
 asserting their sovereign authority as a nation through- 
 out the national domain, that act of itself necessarily 
 assigned to these local governments their several juris- 
 dictions; — placed the boundaries of their authority as 
 mere administrative institutions, beyond which they 
 could not pass. The people of the original thirteen 
 states, in the institution of the general government, 
 acted in virtue of their inherent authority as national 
 citizens, and not in virtue of any authority conferred 
 by the state governments. The powers conferred upon 
 the general government; were derived from the people 
 of the nation as possessing original and inherent sov- 
 ereignty, and not from them as members of these local 
 institutions. ^ 
 
 § 490. Since the state citizen as such, derives his 
 power to ijarticipate in the administration of govern- 
 mental authority, through the enabling and enfranchising 
 act of the national legislature, his rights of adminis- 
 tration as such state citizen, are derivative, and not 
 original and inherent. His right to administer, or to 
 participate in the administration of governmental 
 authority in respect to matters of state interests, origi- 
 nated in the institution and organization of the state 
 government. It is a political right derived from the 
 
 1 See Appendix, p. 
 
OF THE STATES. 315 
 
 prerogative powers of sovereignty itself ; and is not a 
 natural or inherent right of the individual. It is 
 a right conferred by sovereignty, by some act of enfran- 
 chisement, upon certain classes of citizens or subjects, 
 to be exercised in a manner prescribed. When a state, 
 as a political corporation, is created by an act of 
 national sovereignty, and the inhabitants thereof are 
 created state citizens, with powers to administer gov- 
 ernmental authority over matters purely local and 
 domestic, their political rights attach as a franchise; 
 to be held and exercised by them, in trust for the public 
 welfare. But the state citizen acquires no property in 
 such franchise ; nor can he have any vested interest in 
 the same. He acquires it as a trust ; and the authority 
 creating the trust, can revoke it whenever the public 
 welfare demands that it should be revoked. Thus, those 
 intrusted with the exercise of governmental authority 
 can lawfully determine to what class or classes these 
 political rights shall extend; who may, and who may not, 
 exercise them ; for what causes they shall be forfeited ; 
 and upon what conditions they may be restored. This 
 could not be, if political rights were natural and inherent, 
 or if the citizen could acquire a vested interest in the 
 same. It follows, therefore, that the franchises con- 
 ferred by the institution of a state government may be 
 forfeited by the citizens of the state, and all political 
 rights and powers possessd by them may cease to be 
 theirs. The principle of forfeiture is as applicable to 
 'political, as to other franchises. When the rights and 
 powers conferred for a particular purpose are perverted 
 and abused ; when those franchises which were conferred 
 as a trust to be exercised for the public good, become 
 perverted to instruments of mischief, it is the duty of 
 those exercising the prerogative powers of sovereignty, 
 to reclaim the trust, and disfranchise the unworthy or 
 criminal party perverting or abusing it. When a class of 
 citizens, who have been enfranchised with political rights 
 to aid in the maintenance and administration of govern- 
 mental authority, for the safety and well-being of society, 
 band themselves together and so use the franchise as to 
 subvert and destroy society, there can be no question, 
 as to the right and duty of those charged with the 
 exercise of the prerogative powers of sovereignty, to 
 disarm such guilty citizens by disfranchising them. 
 When the citizens of a state repudiate the charter or 
 constitution under which they have been created a polit- 
 
816 GOVERNMENT. 
 
 ical corporation, and have been endowed with political 
 rights; and renonnee their political connection with, and 
 allegiance to, the anthorit}^ which gave them political 
 existence ; and levy war upon it that they may over- 
 throw and destroy it, and establish themselves upon its 
 ruins, there can be no question tjbat their political 
 franchises are forfeited, and they are left at the mercy 
 of that sovereignty which they attempted, but failed, 
 to destroy. 
 
 ^ 491. Thus, in the recent rebellion, certain states 
 assumed to renounce their political connection with, and 
 allegiance to, the people and government of the United 
 States ; recalled their senators and representatives from 
 the congress of the union ; threw up their constitutions 
 or charters under which they existed and exercised 
 political rights in respect to state and national interests; 
 adopted Qther constitutions upon their own assumed 
 authority; expelled by force from their limits, all those 
 who attempted to exercise the authority of the United 
 States therein ; tore down the flag of the union, and 
 hoisted the flag of rebellion in its place; made war 
 upon the nation ; and exerted their utmost power to 
 destroy it ; claimed, and were recognized as having 
 belligerent rights ; carried on the war for four years, 
 until overcome and subdued by the power of the nation 
 they renounced and warred against ; and only laid down 
 their arms because they were conquered and utterly 
 subdued. Under such circumstances, there remains no 
 question, even in their own minds, that all political rights 
 and franchises conferred upon them by the act incorpo- 
 rating them into political states, and endowing them 
 with political franchises, are forfeited. The treason 
 committed by them against the authority of the nation, 
 is, in its nature, political death. The rights of citizen- 
 ship and of the hostile rebel, cannot co-exist in the same 
 individual. The real existence of the one character 
 necessarily extinguishes the other. It would be a species 
 of insanity and madness, of which no government could 
 ever be presumed to be afflicted, to continue in the 
 traitor, the right to exercise the franchise pertaining to 
 loyal citizens. It would be such an assumption, as even 
 treason itself never had the eftrontery to demand. 
 
 g 492. The condition of a state, poUticaUy, which has 
 thus repudiated its allegiance to the authority of the 
 nation, is necessarily one of political death. Its exist- 
 ence and life consist in the authority conferred upon its 
 
OF THE STATES. 317 
 
 inhabitants to exercise certain political rights, by means 
 of which they can administer all necessary govern- 
 mental authority over their own local and domestic 
 interests, and can participate in the administration of 
 the national government by the means afforded them 
 under their state constitution. When, therefore, they 
 have repudiated their charter; have destroyed the 
 means by which they could possess and exercise politi- 
 cal rights under the national constitution ; have put 
 off the character of loyalty and put on that of rebel- 
 lion, there remains no foundation upon which a loyal 
 political state can exist. It must cease with the ces- 
 sation of those conditions out of which it arose, and 
 by means of which alone it could continue. Much 
 has been said about states with political functions 
 and rights suspended ; as though a corporation could 
 continue, divested of all its franchises and powers ; 
 as though that which constitutes the legal artificial 
 person could be stripped away, and leave a legal per- 
 sonality remaining. Such language may be applied to 
 a natural person, who has been invested with political 
 rights and franchises ; but it cannot properly be applied 
 to a corporation, where its personality consists in the 
 possession of such rights and franchises. A political 
 state which ceases to possess the rights and franchises 
 of a political state, ceases to be a state. The very term 
 "state" is applied to these corporate rights and fran- 
 chises, as representing the legal condition of a body of 
 people possessing and exercising them. Its name 
 implies the political state or condition of the people 
 constituting the enfranchised body. To destroy that 
 Ijolitical condition of the x>eople, is to destroy the state. 
 % 493. The state of Louisiana was created by that 
 act of sovereignty whch gave the people thereof a legal 
 and an authoritative constitution of government. Prior 
 to that act of the nation through its legislative body, 
 the inhabitants of the Louisiana territory had no political 
 existence or rights either as a state, or as a portion of the 
 national family. The sovereignty of the nation extended 
 over the i)ersons, and the territory of Louisiana ; but 
 the inhabitants thereof had neither been incorporated 
 or enfranchised, until by the act of congress they were 
 created a political state, and thereby vested with the 
 rights and franchises of state citizens, under the national 
 constitution. After the acquisition of that territory by 
 the United States, the sovereign authority of the nation 
 
818 GOVERNMENT. 
 
 for all civil and political purposes over siicti territory 
 was absolute. The people of the nation, through con- 
 gress as their legislature, had plenary authority over all 
 matters of internal administration within such territory. 
 The people of the nation had purchased the same with 
 their common treasure, and they were bound to defend 
 it with their common blood. The territory of Louisiana 
 had been incorporated into the national domain for the 
 purposes of national welfare and security, to the end 
 that the authority of the nation over it might be abso- 
 lute and unquestioned. When the political state of 
 Louisiana was created, and the inhabitants thereof 
 were enfranchised, the nation yielded nothing of its 
 sovereignty over the inhabitants, or the territory thereof. 
 The only effect was to extend to the citizens of such 
 territory the political franchises and rights incident to 
 state citizenship under the national constitution. As 
 a state government politically, it consisted of the offices, 
 rights and franchises conferred upon the inhabitants of 
 that territory, with such limitations and restrictions as 
 their own, and the national constitution, imposed. 
 These political franchises conferred upon certain classes 
 of the inhabitants of such territory, the sole right to 
 administer in respect to public interests of a local and 
 domestic character ; to participate in the manner pre- 
 scribed, in the administration of the national govern- 
 ment, and to be protected in the exercise and enjoyment 
 of their civil liberty as citizens of the United States. But 
 all these franchises and privileges were conferred to be 
 held and exercised in loyalty to the authority of the 
 nation. Every officer of the state in the exercise of 
 the duties and powers of his office, was required to take 
 an oath to support the constitution and government of 
 the United States in the discharge of his official duties 
 and trusts. When, therefore, the people of the state of 
 Louisiana overthrew the political charter under which 
 they had derived their political franchises and rights ; 
 when they substituted another and foreign one in its 
 place, and raised their arms in rebellion against the 
 nation, their political existence as a state, and their polit- 
 ical rights as state citizens under the constitution of the 
 United States, ceased ; and the administrative authority 
 of the nation necessarily became absolute and unquali- 
 fied over the people and territory of Louisiana. 
 
 g •194. This view has been objected to by some as 
 being equivalent to admitting that the people of a state 
 
OF THE STATES. §19 
 
 have authority to dissolve the union. But this objec- 
 tion has no valid or rational existence. The union 
 constituting the nation, consists in the political union of 
 the people of the states, and not in the political union 
 of the states themselves. The nation remains the same 
 politically and authoritatively, whether there are thir- 
 teen or thirty-six political institutions within its borders 
 known as states ; whether there are three millions or 
 thirty-three millions of citizens. The sovereignty of the 
 nation, or the prerogative powers by which it estab- 
 lishes and administers government, does not depend 
 upon the existence of any particular number or proi)or- 
 tion of political states within its territorial domain, or 
 upon the political status of any number or proportion 
 of its inhabitants. The public authority of the nation 
 exercised in the manner prescribed in the organic and 
 fundamental act of government, is prerogative, whether 
 participated in by the inhabitants of the rebellious states 
 or not. That power alone, which can so divide and 
 distract the people as to overthrow and destroy their 
 political unity as a nation, can dissolve the union. 
 A political state may be created, and it may cease to 
 be, without affecting the status of the nation. Its crea- 
 tion adds nothing to, and its death can take nothing 
 from, national existence or sovereignty. 
 
 S 495. To secede fi-om the union in the sense of 
 excluding the sovereign authority of the nation over 
 any portion of the people or territory of the United 
 States, while the nation maintains its political existence, 
 and has poAver to assert and maintain its authority, is 
 a simple impossibility. When the people of the United 
 States constituting the nation, consent to a separation 
 of a portion of its territory from the national domain, 
 or of a portion of its citizens from the body of the 
 nation, then such separation can legally take place, 
 by such voluntary consent. But until such assent is 
 obtained, there is no other means left except by revolu- 
 tion. By the constitution of the nation, each national 
 citizen is politically present in every part of the 
 national domain, and has a voice through his repre- 
 sentative, in determining by what laws each national 
 citizen shall be governed. As a national citizen repre- 
 sented in the national legislature, he speaks and acts 
 for all sections of the nation with equal authority. He 
 has a right to claim the protection of the national gov- 
 ernment, and to enjoy the privileges of citizenship in 
 
820 GOVERNMENT. 
 
 any and every state in the union ; and lie cannot be 
 depriv^ed of these rights and privileges except by for- 
 feiture, consent, or force. Therefore, the inhabitants 
 of one state have no authority to assume the political 
 right to deprive the inhabitants of another state of 
 the benefits of national citizenship in any state within 
 the union. 
 
 S 496. Since a state within the union is a jjolitical 
 corporation created by national authority for the purpose 
 of local administration, and as a means of providing 
 for the participation of its citizens in the administra- 
 tion of the general government, it follows, that neither 
 as people or as a political corporation, can they possess 
 authority to withdraw from, or place themselves in 
 rebellion against, the union. The people of the state, 
 in their individual and in their corporate character, may 
 levy war against the nation, and may seek to overthrow 
 its authority; but in doing so, they act without author- 
 ity, and incur the penal and political consequences 
 of treason. Thus, when the people incorporated as a 
 state, resolve to separate themselves and their territory 
 from the nation, and actually levy war upon it to 
 accomplish such purpose, using all their political and 
 physical resources to that end, their political existence 
 and authority in the union must cease; — not in virtue 
 of their authority over the nation ; but in virtue of the 
 authority of the nation over them; — not in virtue of 
 their authority to take themselves away from the juris- 
 diction of the nation ; but in virtue of the authority of 
 the nation to exercise its jurisdiction over them, to pro- 
 claim the forfeiture and denounce the punishment due 
 to their crimes. It is no answer to say, they had no 
 authority to secede, and, therefore, they could not 
 change the political status of the state or people. An 
 individual has no authority to secede, or change his 
 status ; nevertheless, an individual can commit treason 
 without authority; and that of itself changes Jiis status. 
 He can deprive the government of no right or power 
 over him ; but he can deprive himself of all authority 
 and all rights under the government. While he can 
 cause no forfeiture on the part of the government, he 
 can forfeit everything on his own part. It is the same 
 with the people of a state as a political corporation ; 
 while they cannot deprive the nation of the right to 
 exercise national authority over them and their territory, 
 they can, by their treason, forfeit all political rights. 
 
OF THE STATES. 32X 
 
 powers and franchises. But by siicli forfeiture the 
 nation loses nothing political ; they lose everything. 
 
 % 497. While the states, as political corporations, are 
 not constituent elements of the nation, and do not in their 
 creation or extinction, affect the political status of the 
 nation, yet they have their value as instruments of 
 administration. As a state, each is the political equal 
 of the other ; and under the national constitution there 
 can be no political inequality between them. Each 
 state corporation is created by the same authority, for 
 the same purpose, and is intrusted with the exercise of the 
 same duties and powers. If South Carolina is to-day a 
 state, politically, under the national constitution, she 
 possesses the essential incidents of stateship. Her citi- 
 zens necessarily possess the rights and privileges incident 
 to such citizenship in other states. For the citizens of 
 each state are entitled to all the privileges and immu- 
 nities of our citizens of the several states,^ and there is 
 no authority under the constitution to withhold from 
 them such rights and privileges. Being a state within 
 the meaning of the constitution, congress can impose 
 no conditions to her right of representation or partici- 
 pation in the general government. The right of congress 
 thus to interfere with the liberties of citizens in the 
 exercise of their political franchises, while the state is in 
 true political relation under the constitution, cannot be 
 admitted. When the people of a particular territory 
 have been incorporated and enfranchised by the nation, 
 so as to become politically a state under the coiistitu- 
 tion, they cannot be subjected to other conditions 
 unknown to the constitution, except in a manner pre- 
 sented thereby. When the people are once incorporated 
 and enfranchised as a state, under the national consti- 
 tution, their political rights and privileges are determined 
 beyond the power of congress to disturb them. What 
 the citizen then claims, he demands as his right, which 
 cannot legally be denied to him ; a right secured by the 
 faith and power of the nation. It therefore becomes a 
 question of grave moment, is South Carolina politically 
 a state within the meaning of the constitution ? Are 
 her citizens entitled to the guarantees of the national 
 constitution ? Have they the same political status as the 
 citizens of the loyal states, who have never assumed to 
 repudiate their allegiance to the authority which gave 
 them political existence as state citizens? If by the polit- 
 
 1 Art, 4 2 2, cl. 1, Const. U. S. 
 41 
 
322 GOVERNMENT. 
 
 ical action of the people of South Carolina, as a corporate 
 body, through the various departments of government — 
 in severing their political connections with the nation — in 
 renouncing their allegiance to its authority — in overturn- 
 ing the government by which they had maintained their 
 political connection thercAvith — in organizing a govern- 
 ment foreign and alien thereto ; — and finally, in levying 
 war upon the government and people of the United 
 States, to the end that they might utterly subvert and 
 destroy it — in claiming to be recognized, and in being 
 recognized as belligerents to the United States as a 
 nation, — she did not lose her political rights, privileges 
 and franchises, as a political corporation, under the consti- 
 tution of the United States, then she can claim for her 
 'citizens equality of political rights with the citizens of 
 the loyal states. But, it would be difiQcult to satisfy 
 South Carolina herself, that she was a state, politically 
 connected with the United States, and entitled to rep- 
 resentation in congress, while she was carrying on the 
 war of the rebellion, and doing all in her power to sub- 
 vert and destroy the government, of which it is now 
 claimed by some, that she is a constitutional member. 
 But, if there was a moment during which the citizens 
 of South Carolina ceased to possess the rights, privi- 
 leges and immunities of citizens of the United States 
 under the national constitution, they never can regain 
 those lost rights and privileges, without the incorpo- 
 rating and enfranchising act of the nation, creating 
 them a new state, and again conferring upon them the 
 privileges and immunities of citizenship. 
 
 § 498. But the people of those states, which, as political 
 corporations, went into rebellion, were thereby, in the eye 
 of the law, politically responsible ; and became, before the 
 world, political rebels. As individuals, state citizens 
 might remain loyal while the corporate mass went into 
 rebellion. But as members of the political corporation 
 receiving and exercising their political rights through 
 its agency or instrumentality, the political character 
 of the state citizen must abide the political character of 
 the state corporation. If it remain loyal, the politi- 
 cal status of the unconvicted citizen, is that of loyalty ; 
 but if it raise the standard of rebellion, it gives the taint 
 of rebel, politically, to all its citizens ; and they must 
 abide its political fate. When South Carolina, as^ a 
 political corporation, m&nt into rebellion, politically, she 
 carried all her Gitizim& mth her ; and their political 
 
OF THE STATES. 323 
 
 rights, privileges and franchises, as citizens of the nation, 
 ceased. When Kentucky and Maryland, as political 
 corporations, were prevented from going- into rebellion, 
 the political status of their citizens, was preserved, 
 although the spirit and acts of rebellion therein, were 
 flagrant and undisguised. But, in dealing with the 
 political riglits of communities, government deals only 
 with classes, and not with individuals. Thus, in cre- 
 ating a political state, or enfranchising the inhabitants 
 thereof, it knows only classes, not individual members 
 of the class. And, as the government enfranchises only 
 by classes, so likewise, it disfranchises by classes. An 
 individual becomes disfranchised, by becoming a mem- 
 ber of a disfranchised class. As an individual, no man 
 has any vested right or property, in a political franchise, 
 farther than is especially provided by law. Therefore, 
 the government, in dealing with political franchises, can 
 confer, withhold, or reclaim them, whenever the public 
 welfare requires. When a political state, by going into 
 rebellion, carries with her, politically, the citizens thereof, 
 their political rights cease as a class, without any inquiry 
 iuto the loyalty or disloyalty of any particular portion 
 of the citizens. They acquire their political rights as a 
 class by the act of political enfranchisement, and they 
 may lose them, as a class, by an act of political disfran- 
 chisement. But, it is otherwise, in respect to individual 
 and vested rights. When the consequences of treason, 
 are to be visited upon the individual, and his life, liberty 
 or pronerty are to answer for his individual acts, then 
 each citizen or inhabitant, will stand or fall upon his own 
 merits or demerits. In such case the citizen is not civilly 
 responsible for the political action of the state of which 
 he chances to be a member. In such case he is to be pre- 
 sumed to be innocent until proved to be guilty. ^ 
 
 § 499. As political conditions of the individual citizen, 
 treason and loyalty are incompatible with each other. 
 
 1 Political rights are mere trusts conferred by the public authority upon its 
 citizens or subjects, to be held and exercised exclusively for the public welfare. 
 Therefore, the citizen acquires no vested interest in the exercise of such fran- 
 chise- and the same authority which conferred the trust may modify, or 
 revoke it at pleasure. The right to do so is one of legislative discretion, not 
 of judicial determination. While the trust continues, the court will protect 
 the citizen in the exercise of the same. But when, by legislative authority, it 
 has ceased, courts of justice will look no farther than to ascertain the legisla- 
 tive will in respect thereto. (See Luther v. Borden, 7 Plow. S. 0.. Hep., 1 ; see 
 argument of attorney-genet al in State of Georgia v. Grant, Stanton', et al.) In the 
 case of Conner v. The Mayor, &c., of Nciu York, 5 N. Y., 285, the- court held, that 
 the Incumbent of an office had no property rights in the^sanie, or in the pros- 
 pective salary, or other emoluments thereof; that the right of the officer to 
 compensation grew out of the services rendered; cviad not out of a:ny contract 
 between the government and the officer, that services should be rendered by 
 liim. See opinion of Ruggles, J., on page 296. 
 
824 ■GOYERN'MENT. ' 
 
 That is, the presence of a treasonable purpose in the sub- 
 ject, is conclusive evidence of the absence of loyalty in 
 him. But, political privileges, or franchises, have their 
 existence only in loyalty to the enfranchising power. 
 Therefore in all countries and under all forms of govern- 
 ment, the inevitable consequence of treason, is political 
 death ; that is, the traitor possessing any political franchise 
 whatever, is, by the act of treason, deprived of it. Politi- 
 cal rights are conferred as trusts, to be exercised only 
 for the public good, by sustaining and defending the 
 public authority, in its just and benign administration. 
 Hence, the very end to be subserved, by conferring 
 political rights and privileges, is destroyed by treason. 
 Such is its nature, and such the inevitable consequences 
 thereof, that the ascertainment of the treason, is, of 
 itself, a judgment of forfeiture. That is, any act which 
 proclaims the treason, i)roclaims, also, the political death 
 of the traitor. When the government of the United 
 States was compelled to declare the people of certain 
 states, as political corporations, in a state of rebellion 
 and civil war, such proclamation carried with it, the 
 sentence of political death, in respect to such corpora- 
 tions, and the members thereof^ 
 
 § 500. Whatever have been the theories of men 
 respecting the political status of those states which 
 went into rebellion against the government of the Uni- 
 ted States, they, practically, have arrived at the same 
 result in adjusting their political relations. The citizens 
 of these states have been treated as deprived of their 
 political rights and franchises. They have been made 
 
 1 This principle is illustrated in all the action taken by the government of the 
 United States toward the citizens of the rebellious states. President Johnson, 
 in his proclamation of the 29th May, 1865, respecting North Carolina, asserts, 
 among other things, that the rebellion has deprived the people of tht\jt state of 
 all civil government; and that in order to enable the loyal people of the state 
 to organize a state government, he appoints William W. Holden, provisional ■ 
 governor, whose duty it is to malye regulations, enabling the loyal citizens 
 to elect delegates, &c. It provides furtlier, as to the qualifications essential to 
 become a delegate or an elector. This proclamation is based upon the hypothe- 
 ses that the inhabitants of North Cai'olina have forfeited their political rights 
 by the rebellion, and that the executive has the authority to prescribe the 
 manner in which they may be again invested Avith them. It distinctly pro- 
 poses that none but loyal citizens shall participate in the organization of the 
 new government of the state. 
 
 So far as President Lincoln attempted any movement in the direction of 
 reconstruction, he proceeded upon the hypothesis, that unpardoned rebels had 
 no political rights, and should be permitted to exercise no political authority. 
 In virtue of his powers, under the constitution, and special laws enacted for 
 that purpose, he. issued his proclamations of amnesty on the 8th December, 1863, 
 and the 26th March, 1864, in which he released the penalties incurred, and 
 restored the rights of citizenship to certain classes of those who had been in 
 rebellion, and who had complied with the prescribed conditions. To sucli, and 
 to those who had remained loyal to the nation, he confined the exercise of 
 political rights in the rebellious states. Congress have, likewise, observed a 
 similar rule. In all their legislation upon the subject, they have claimed and 
 exercised the authority of treating the inliabitants of those states as being 
 destitute of political rights ; as being subject to any conditions looking to their 
 future enfranchisement which coijgrgss inay see fit to impose. 
 
OF THE STATES. 325 
 
 the subjects of executive pardons from time to time.^ 
 Early after the downfall of the rebellion, the president 
 issued his anuesty proclamation, excepting therefrom 
 certain classes of the inhabitants of these insurgent 
 states. In all official intercourse between the general 
 
 1 By the provisions of the act of congress of July 17, 1862 (? 13), the president 
 was authorized at any time thereafter, by proclamation, to extend to persons 
 who liad participated in the existing rebellion in any state or part thereof 
 pardon and amnesty, with such exceptions, and at such time and on such con- 
 ditions as he might deem expedient for the public welfare. In accordance 
 with this provision. President Lincoln, on the 8th Decembe-, 1863 and an-aiu 
 on the 2(5th March, 1804, issued a proclamation of amnesty, but without ettect. 
 On tlie 29th day of May, ]8(i5. President Johnson issued the following. After 
 relerring to the amnesty proclamations of President Lincoln, and stating that 
 many who had lailed to avail themselves of the benefits thereof, were then 
 desirous of obtaining amnesty and pardon, he proceeds: "To the end, there- 
 fore, that the authority of the government of the United States may be restored 
 and that peace, order and freedom may be re-established, I, Andrew Johnson 
 President of the United States, do proclaim and declare that I hereby grant to 
 all persons who have directly or indirectly participated in the existing rebel- 
 lion, except as hereinafter excepted, amnesty and pardon with restoration of 
 ail rights of property, except as to slaves, and except in cases where legal pro- 
 ceedings under the laws of the United States providing for the confiscatioii 
 of property of persons engaged in rebellion, have been instituted : but on 
 the condition nevertheless, that every such person shall take and subscribe the 
 lollo\ying oath or affirmation, and thenceforward keep and maintain said oath 
 inviolate, and which oath shall be registered for permanent preservation, and 
 shall be of the tenor and effect following, to wit: I do solemnly swear- 
 er affirm — in the presence of Almighty God, that I will henceforth faithfully 
 support and defend the constitution of the United States and the union of the 
 states thereunder; and that I will in like manner abide by and faithfully sun- 
 port all laws and proclamations which have been made during the existino- 
 rebellion with reference to the emancipation of slaves, so help me God 
 
 "The following classes of persons are excepted from the beneflts'of this 
 proclamation: 
 
 1. AH who are or shall have been pretended civil or diplomatic officers or 
 otherwise domestic or foreign agents of the pretended Confederate gove'rn- 
 
 o- ^H '^^° left judicial stations under the United States to aid the rebellion 
 
 3. All who shall have been military or naval officers of said pretended Con- 
 federate government above the rank of colonel in the army or lieutenant in 
 the navy. v. cixi, m. 
 
 4. All who left seats in congress of the United States to aid the rebellion 
 
 5. All who resigned or tendered resignations of their commissions in the 
 army or navy of the United States to evade duty in resisting the rebellion 
 
 6. All who have engaged in any way in treating otherwise than lawfully as 
 prisoners of war. persons found in the United States service as officers soldiers 
 seamen, or m other capacities. ' 
 
 7. All persons who have been, or are, absentees from the United States for 
 the purpose of aiding the rebellion. 
 
 8. All military and naval officers in the rebel service who were educated bv 
 the government in the military academy at West Point, or the United States 
 Naval Academy. 
 
 9. AH persons who held the pretended offices of governors of states in insur- 
 rection against the United States. 
 
 «/n,f"TT,'?fiH°cf 7'^°^^^^"^®^''^^°"^°'''^^^^^^'^ the jurisdiction and protection 
 ol the United States and passed beyond the federal military lines into the 
 so called Confederate states for the purpose of aiding the rebellion 
 
 }l-. ^\ P.e/spns who have l)een engaged in the destruction of the commerce 
 uJaU.^'j^i'ltf^fZl''^?'' "'f. ^i-'? seas and all persons who have made rafds 
 into the United States from Canada, or been engaged in destroying the com- 
 merce of the United States upon the lakes aSd rivers which separate the 
 British provinces from the United States. vvuii^u separaie uie 
 
 12. All persons who, at the time they seek to obtain the benefits hereof by 
 taking the oath herein prescribed, are in military, naval or civil confinement 
 of thf u'^?;}.';!" 'il'ntl^n°."'^' °^ *^^ ""'V^' military 6r naval authorities or Igents 
 nnviM^^^?thar ti<?.,i^ prisoners of war. or persons detained for oflfenses of 
 an.\ kind, either before or after conviction 
 
 ^Jt'i;v.-^llrJni',',!f3''°,^''''^®.^°H^?t''"^yi^''^»'ticipated in said rebellion, and the 
 estimated value ot whose taxable property is over twenty thousand dollars. 
 11. All persons who have talven the oath of amnesty as prescribed in the 
 
 ^^Z\i^'^S\^'7f.''''}f'-V\li^.^^^^^ an oath of'allegiance to the 
 
 goyeinment ot the United States since the date of said proclamation, and who 
 ha\ e not thenceforward kept and maintained the same inviolate. 
 
 1 rovided, that special application may be made to the President for pardon 
 hT.o Ti^'^^T^V^^^"""^^ t^th® excepted classes, and such clemency will be 
 i!«n^ii?'i'^-'^"^f®'^ ^m'^^t^ be consistent with the facts of the case and the 
 peace and dignity of the United States.' 
 
326 GOVERNMENT. 
 
 government and these states and their people, they have 
 not been recognized as jjossessiug any political rights ; 
 or as having any authority to re-construct the govern- 
 ment of their states, or to re-invest themselves with 
 political rights. The mayors of their cities, and the 
 governors of their states have been subject to removal 
 by the authority of the nation. While some contended 
 for the political death of these states; others for the 
 doctrine that they are still states, with all j)olitical fnnc- 
 tions suspended, others still that they are states in full 
 life and power, because they had not authority to secede, 
 yet all agree that the government and people of the 
 nation, had just authority to impose suitable conditions 
 to their return as political associates and equals as 
 members of the national family. 
 
 CHAPTER XYI. 
 
 OF THE OFFICE OF PEESIDEKT AND OF VIOE-PEESIDENT 
 — THEIR DUTIES AND POWERS. 
 
 § 501. The president and vice-president of the Uni- 
 ted States hold their respective offices during the 
 term of four years, and are elected in the manner 
 following. Each state appoints, in such manner as the 
 legislature thereof direct, a number of electors equal to 
 the whole number of senators and representatives 
 to which the state may be entitled in the congress. 
 The electors so appointed are required to meet in their 
 respective states and vote by ballot for president and 
 vice-president, one of whom must not be an inhabitant 
 of tlie same state with themselves. The ballot must 
 designate the i)erson voted for as president ; and there 
 must be a distinct ballot for vice-president. The electors 
 are theu required to make out a distinct list of all persons 
 voted for as president, and of all voted for as vice-pres- 
 ident and of the number of votes for each, which list 
 they are required to sign, 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 is required to open these certificates in the 
 presence of the senate and house of representatives and 
 to count the votes ; and the person having the greatest 
 mimber of votes for president, when such number is 
 a majority of the whole number of electors, is elected 
 
OF THE PRESIDENT, ETC. 327 
 
 president. But if no person has sncli majority, then 
 irom the persons receiving the highest numbers— not 
 exceeding three — on tlie list of those voted for as presi- 
 dent, the house of representatives are required to choose 
 immediately by ballot, the president. But in making 
 this choice the state, by its representation, has but one 
 vote ; and to constitute a quorum for such purpose two- 
 thirds of the states must be represented. If the house 
 of representatives should fail to elect a president when 
 the duty devolves upon them, by the fourth of March 
 following, then the vice-president is required to act as 
 president, as in case of death or other constitutional 
 disability of the president. The person having the 
 greatest number of votes as vice-president is elected to 
 that office provided the number be a majority of the 
 whole number of the electors appointed ; but if no 
 person have such majority, then from the two highest 
 on the list, the senate choose the vice-president. A 
 quorum for such purpose consists of two-thirds of the 
 whole number of senators ; and a majority of the whole 
 number is necessary to a choice.^ 
 
 g 502. Congress determines bylaw, the time for choos- 
 ing the electors for president and vice-president, which 
 time the constitution requires should be uniform through- 
 out the United States. The time fixed by congress is 
 the second Tuesday of ISTovember." 
 
 § 503. No person, except a natural born citizen of the 
 United States, is eligible to the office of president or 
 of vice-president. ]N"or is any person eligible who has 
 not attained the age of thirty-five years, and who has not 
 been fourteen years a resident within the United States. 
 These are the only constitutional qualifications prescribed 
 as essential to the incumbent of the office of president 
 or vice-president.^ 
 
 3 504. In case of the removal of the president from 
 his office, or in case of his death, resignation or inability 
 to discharge the powers and duties of the said office, 
 they devolve upon the vice-president. Congress is 
 authorized to provide by law for the case of removal, 
 death, resignation or inability, both of the president and 
 vice-president, declaring what officer shall then act as 
 president : which officer so designated is authorized and 
 required to act accordingly, until the disabilit}^ be 
 removed, or a president be duly elected. The presi- 
 
 > Art. 2, ? 1, Const. U. S. • and twelfth amendment of the Constitution. 
 
 2 Art. 2, § 1, el. 4, Const. tJ. S. 
 
 » Art. 2, § 1, cl. 5, 12th amendment to the Constitution, 3d clause. 
 
328 GOVERNMENT. 
 
 dent is to receive a stated salary wliicli can neither be 
 increased or diminished during the term of his office ; 
 and he is not to receive within that period, any other 
 emolument from the United States, or from any of them. 
 Before entering upon the execution of the duties of his 
 office, he is required to take the following oath or affir- 
 mation : "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, pro- 
 tect and defend the constitution of the United States."^ 
 g 505. The powers and duties which attach to the office 
 of president of the United States, may be denominated 
 executive, military and presidential. The constitution 
 provides that the executive power shall be vested in a 
 president of the United States ; whereby the president 
 is constituted the executive head of the nation, and it is 
 made his especial duty to take care that the laws are 
 faithfully executed. As the executive, he is simply a 
 civil officer, whose duties are prescribed by law ; and 
 his authority in the discharge of the duties of his office, 
 is as strictly limited to the means or measures i^rescribed 
 by law, as is the authority of any executive officer, in 
 the discharge of executive duties. That is, the presi- 
 dent has none of the prerogative powers sometimes 
 exercised by the king, who is the executive head under 
 the British constitution.^ His duties and jjowers, as the 
 
 1 Art. 2, ? 1, clauses 6, 7, 8 and 9, Const. U. S. 
 
 2 Says RuTHERFORTH : " If we continue to speak of the legislative and execu- 
 tive power in the abstract, it will be difficult to explain rightly what is meant 
 by prerogative. It cannot properly be called discretionary executive power; 
 because the executive power, in the nature of the thing is not discretionary in 
 any part. Whenever it acts as discretion, this privilege, unless it arises from the 
 necessity of the case, as in the heat of military action, comes from the legisla- 
 tive, either by original establishment, or by long usage and custom, or by 
 occasional permission. We shall be better able to understand what prerogative 
 is, if we speak of the legislative and executive power, not in the abstract, but 
 as lodged or intrusted by the state, in the hands of some one or more persons. 
 Where the person, so intrusted with the executive power, is left, by the legisla- 
 tive, to act in any instance, at his own discretion, to direct by his own under- 
 standing, the public force which is naturally under the direction of the public 
 understanding, such a discretionary power in him is called prerogative. Thus, 
 in penal cases, if the legislative forbid the public force to be put in motion for 
 the punishment of any action till the fact itself is pi-oved to the public under- 
 standing in such a manner as the law appoints, and these will not suffer this 
 force to be used but under the conduct of the law, so as to inflict only the legal 
 penalty ; thus far there is no prerogative or discretionary power in him who 
 is intrusted with the executive. But if the legislative, instead of reserving to 
 itself the right of judging whether such legal punishment is to be suspended, 
 or whether the criminal is to be wholly pardoned, leaves it to him to pardon 
 or not as he thinks proper, such a discretionary power intrusted with him is 
 called prerogative." (Institutes, B. 2, ch. 3, §8.) But this kind of prerogative 
 power in the individual, is prerogative only in administration, not in source 
 or origin. His discretion in such case, is derived from a higher authority, 
 which is prerogative over him, and he is exercising the authority of another 
 power, not his own. But the king has original prerogative power, not only 
 prerogative in administration, but prerogative in source. There are now 
 many limitations upon the king's prerogative, by acts of parliament, which 
 involve the king's assent. But in the absence of such limitation, his preroga- 
 tive is absolute ; that is there is no higher authority on earth to restrain or 
 prohibit the exercise thereof. 
 
OF THE PRESIDEJ^T, ETC. 329 
 
 chief executive, require that lie should appoint and com- 
 mission such officers under him — and in the manner 
 prescribed by the constitution and the laws, — as are 
 necessary and proper to carry into effect the laws of the 
 United States, in every department of internal adminis- 
 tration. To this end the subjects of national administra- 
 tion are divided by law into several departments ; at 
 the head of each is placed a chief officer, as secretary 
 of such department or bureau ; such as, the secretary of 
 state, the secretary of war, the secretary of the navy, 
 the secretary of the treasury, the secretary of the 
 interior and postmaster-general. These officers are 
 nominated by the president, and by the advice and con- 
 sent of the senate, are appointed as the heads of these 
 executive departments. These officers, thus appointed 
 and commissioned by the president, constitute the chief 
 executive officers of the nation. As such chief officers 
 they reside at the capital and become the constitutional 
 advisers of the president, in whose name, and by whose 
 official authority they act in their several departments. 
 The names of these seveial departments sufficiently 
 indicate the class of executive duties they are severally 
 required to perform. In this manner every law of the Uni- 
 ted States, touching every subject of general administra- 
 tion, falls naturally, under the administration of some 
 one or more of these departments to be administered 
 with or without the judicial aid of the national courts, 
 as circumstances may require. These several depart- 
 ments by their chief officer representing the official 
 authority of the president, or some times by the direc- 
 tion of the president himself, appoint such subordinate 
 officers as are necessary to the faithful performance of 
 the duties, and the execution of the powers, pertaining 
 to such departments, throughout the United States ; such 
 as postmasters, revenue and custom house officers ; 
 assessors ; collectors ; registers and receivers at the 
 public land offices, and the like. In this manner pro- 
 vision is made for the discharge of the executive duties 
 and powers of the president in every district of the 
 United States. But from the executive head to the last 
 and least officer required to administer in the executive 
 departments of administration, all are subject to such 
 direction and control as congress, exercising the pre- 
 rogative powers of the nation, under the constitution, 
 prescribes. 
 
 42 
 
330 GOVERNMENT. 
 
 % 506. In the execution of the laws of the United 
 States through the intervention of the national judici- 
 ary, another class of officers are required, who act 
 ministerially in the general department of executive 
 administration. Of these officers, are the official or jjub- 
 lic attorneys, whose duty it is to investigate and advise 
 the several departments on all questions of law which 
 may arise under their respective administrations ; and 
 also to apear in court and prosecute or defend before 
 such tribunals, the rights and interest of the nation, 
 whenever necessary ; of them also are the marshals and 
 the deputy marshals, whose duty it is to execute the 
 process of the court, whether mesne or final; who in so 
 doing, act in the name and by the authority of the 
 president of the United States, as the executive head 
 of the nation. These officers — the marshals — act by 
 authority of the special mandates or warrants i^laced in 
 their hands, evidenced by the certificate of the proper 
 officer, under the official seal of the nation. The duties 
 to be performed by this class of executive officers are 
 ministerial and are prescribed by law. The thing to 
 be done or the powers to be executed by them are to be 
 found in the process or warrant of authority placed in 
 their hands. The manner of executing such j)rocesses, 
 and the general powers with which they are invested, to 
 enable them to execute the same, are the subject of 
 legal regulation and direction, which cannot here be 
 considered. 
 
 g 507. Such is a general view of the framework of 
 the executive department under the ])resident as chief 
 executive, in the internal administration of the public 
 authority of the United States. But he is also the 
 executive head in the external administration of the same, 
 so far as the laws of the United States are capable of 
 being enforced beyond the limits of its territory. By 
 and with the advice and consent of the senate— r two- 
 thirds of the senators present concurring — he is 
 empowerd to make treaties, and to nominate, and with 
 the like advice and consent, appoint embassadors, and 
 other public ministers, and consuls ; and also to recieve 
 embassadors and other public ministers, and to take care 
 that the laws be faithfully executed.^ Under the consti- 
 tution he is the proper officer to be intrusted with the 
 executive administration of all laws and regulations 
 prescribed by congress, whether referred to in the consti- 
 
 1 Art. 2, g? 2 and 3, Const. U. S. 
 
OF THE PRESIDENT, ETC. 331 
 
 tiition or otherwise. But in all this the president acts 
 only as an officer of the law in the civil department of 
 administration. It is the anthority and power of the 
 office, and not of the individual, he is required to exe- 
 cute. Being: only the legal administrator of the duties 
 and powers incident to the office created by the 
 constitution and laws of the United States, he can exer- 
 cise no ])rero(jative authority or power whatever. In 
 determining what pertains to the office of president as 
 the civil executive of national authority, care must be 
 exercised not to confound his official position with that 
 of the king' under the British constitution. The king 
 X)Ossesses iirerogative power ; in theory, he is sovereign ; 
 he is the source and fountain of authority and lawr 
 and the executive powers are not unfrequently strength- 
 ened and enlarged by the supposed presence of pre- 
 rogative power in the British executive. In studying 
 British precedents, therefore, great care must be exer- 
 •cised to keep this distinction in view. What would be 
 legitimate for the king to do under the British consti- 
 tution, might be usurpation in the president, under the 
 American constitution. 
 
 g 508. As the civil executive of the nation, the presi- 
 dent has only executive authority and i)ower. Such 
 authority and powers can only exist in the presence of 
 law, by which they are created, or out of which they 
 arise. When, therefore, the constitution vests in the 
 president as an officer, the executive authority of the 
 nation, it only implies such duties and powers as are 
 created by, and arise out of the law. By this provision 
 the president is only made the agent or instrument 
 of the law, to do whatever the prerogative power of the 
 nation requires of him. He is thereby made the subject 
 of law ; and is placed under its obligations as the servant, 
 not the sovereign of the nation. The authority is iqwn 
 him, not from him ; and he is required to act for the 
 public, not for himself; he is required to carry out, or into 
 execution, the policy of the nation, as expressed in the 
 laws of congress, which are the constitutional exponents 
 of the national prerogative and will ; and is not author- 
 ized to impose a policy of his own upon the nation. As 
 the national executive, he has no duty or power outside 
 of the constitution and the laws of the nation. As a 
 citizen, he is at liberty to entertain and express opinions 
 of economy and policy ; but as an executive, he has no 
 authority to compel their adoption ; or to attempt to use 
 
332 GOVERNMENT. 
 
 the patronage and powers of his office to enforce them. 
 It is an impeachable offense for a high public officer to 
 prostitute the patronage and powers of his office, to pur- 
 poses of personal gain, or political advantage. As an 
 executive officer, his whole power and duty consists in 
 executing the law according to his best understanding 
 and ability. The common sentiment that the president is 
 authorized, and therefore justified, to use the great pow- ' 
 ers and patronage of that high office, as though they 
 were his personal perquisites, to be used in influencing, 
 and buying i3opular favor or partisan support, is corrupt- 
 ing and demoralizing in the extreme. It calls about 
 him a class of men whose sole influence is to corrupt, 
 • demoralize and debauch any honest or just purposes, 
 feelings or sentiments he might otherwise entertain. 
 It commits him to the influence and control of a class 
 of politicians whose highest virtue is, "not to leave 
 undone, but keep unknown" in their raids upon the 
 public treasury, and in their prostitution of the public 
 authority to their ijrivate purposes. So universal has 
 this been, that experience has created the public senti- 
 ment, that the conduct of the mere politician is not to 
 be supposed to be either honest or patriotic. 
 
 g 509. As the civil executive of the nation, the x)resi- 
 dent has i)ower to grant reprieves and pardons for 
 offenses against the United States. A reprieve sus- 
 pends the execution of the sentence for the time being, 
 still leaving the offender subject to the punishment 
 denounced against him. A pardon remits the penalty, 
 and, if unconditioned, sets the offender free from the 
 legal consequences of the offense committed. The pro- 
 priety of pardoning a criminal after he has been convicted 
 of a crime against the public has been seriously ques- 
 tioned by learned and able men. It has been contended 
 that while clemency is a virtue, and one of the noblest 
 prerogatives of the throne, that its exercise is a disap- 
 l^robation of the laws made for the public good ; and as 
 a virtue, belongs to the legislator rather than to the 
 executor of the laws — a virtue which ought to shine in 
 the code rather than in the private judgment. That to 
 show mankind that crimes are sometimes pardoned, 
 and that punishment is not the necessary consequence, 
 is to nourish the flattering hope of impunity, and is the 
 cause of their considering every punishment inflicted 
 an act of injustice and oppression. That the prince, in 
 pardoning, gives up the public security in favor of an 
 
OF THE PRESIDENT, ETC. 333 
 
 individual, and, by Ms ill-jndged benevolence, proclaims 
 a public act of impunity.^ To which it is replied : 
 " Were it possible in every instance to maintain a just 
 proportion between the crime and the penalty, and were 
 the rules of testimony and the mode of trial so perfect 
 as to preclude mistakes or injustice, there would be 
 some color for the admission of this plausible theory. 
 But even in that case, i)olicy would sometimes require a 
 remission of a punishment strictly due for a crime cer- 
 tainly ascertained. The very notion of mercy implies 
 the accuracy of the claims of justice." ^ While the end 
 of punishment in all civilized and enlightened govern- 
 ments is to protect the public and individuals from the 
 selfish, sensual and malignant acts of wicked and per- 
 verse persons, as well as to reform the offender ; and 
 while nothing so Aveakens the restraints of the law as 
 the hope of escaping its penalties, every practice in the 
 administration of the public authority which tends to 
 render uncertain the infliction of the punishment due 
 to crime, endangers the public security, and wrongs the 
 individual members thereof — even those who are dis- 
 l)osed to commit criminal acts. There are those in 
 society so under the control of their appetites, passions 
 and propensities, that nothing but the prospect of cer- 
 tain punishment restrains them from the commission of 
 crimes. To all such, this exercise of mercy becomes a 
 license, wronging themselves and their victims. It may 
 well be questioned whether the extending of the par- 
 doning clemency to unquestioned criminals is not an 
 unmitigated evil. When there has been a mistaken 
 conviction, or where the guilt of the prisoner is ques- 
 tionable, even after conviction, it is proper that the 
 130wer to reprieve or even pardon should exist, that an 
 unmerited penalty may be avoided. But when there is 
 unquestioned guilt, where the application is for mercy 
 to the individual, and not for justice, the public has too 
 much at stake to make the sacrifice. If the penalty be 
 clearly too severe for the technical offense committed, 
 the power of reprieve might be exercised, that the law- 
 making power might adapt to the offense the proper 
 penalty ; but an appropriate penalty should, in all cases, 
 be sure to follow a clearly ascertained crime. 
 
 § 510. But a grave question arises under the lan- 
 guage of the constitution as to the extent of the power 
 
 * Beccaria on Punishments, ch. 46. 2 1 Kent's Com., lect. 13, p. 265. 
 
S34 GOVERNMENT. 
 
 of the president to grant pardons for offenses against the 
 United States. That the people of the United States 
 had unlimited authority over this snbject, cannot be 
 questioned. They could have authorized the president 
 to pardon as well before, as after conviction ; but the 
 question is, did they so authorize him to exercise such 
 power. Mr. Justice Wayne, in delivering the opinion 
 of the court in ex ijarte Wells,^ said, that the word par- 
 don meant forgiveness, release, remission. Forgiveness 
 for an offense, whether it be one for which the person 
 committing it is liable in law or otherwise. Eelease from 
 pecuniary obligation, as where it is said, I pardon you 
 your debt. Or it is the remission of a penalty to which 
 one may have subjected himself. * * In the law it 
 has different meanings which were as well understood 
 when the constitution was made, as any other legal word 
 in the constitution now is. Such a thing as a pardon 
 without a designation of its kind is not known in the 
 law. Every pardon has its peculiar denomination. 
 They are general, special or particular, conditional or 
 absolute. * * It — the constitution — meant that the 
 power — to grant reprieves and pardons — was to be used 
 according to law ; that is — as it had been used in Eng- 
 land and these states when they were colonies ; not 
 because it was a prerogative power, but as an incident of 
 the power to pardon, i)articularly when the circumstance 
 of any case disclosed such uncertainties as made it 
 doubtful if there should have been a conviction of the 
 criminal ; or when they are such as to show that there 
 might be a mitigation of the punishment without less- 
 en! ug the obligations of vindicatory justice. Without 
 such a power of clemency to be exercised by some 
 department or functionary of government, it would be 
 most imperfect and deficient in its political morality, and 
 in that attribute of deity whose judgments are always 
 tempered with mercy. And it was with the fullest 
 knowledge of the law upon the subject of j)ardons, and 
 the philosoi)hy of goverment in its bearing upon the 
 constitution, when the court instructed Chief Justice 
 Marshall to say^ : " As the power has been exercised 
 from time immemorial by the executive of that nation, 
 whose language is our language, and to whose judicial 
 institutions ours bear a close resemblance, we adopt 
 their principles respecting the operation and effect of a 
 pardon, and look into their books for the rules prescrib- 
 
 1 IS How. S, C. R., 307, 2 United States v. Wilson, 7 Pet., 1G3. 
 
OF THE PRESIDENT, ETC. 335 
 
 mg the manner in whicli it is to be nsed by the person 
 who would avail himself of it." 
 
 g 511. But in determining what pertains to the office 
 of president as the civil executive of national authority, 
 care must be exercised not to clothe him with preroga- 
 tive powers ; nor must such a construction be put upon 
 the language of the constitution as would include those 
 powers of the king which were exercised by him, not as 
 the executive of the British nation, but as possessing 
 prerogative power, independent of his executive office. 
 We are to suppose the people used language in accord- 
 ance with the structure and character of the American 
 constitution of government, and not in accordance with 
 the structure and character of the British constitution, 
 wherein it difiered from the American. The British 
 king and the American president, though both chief 
 executive officers of their resi^ective governments, were 
 nevertheless very diifereut officers in respect to the 
 theory of the source and limitation of their official 
 powers. AVhile the king, as the mere executive of the 
 nation, was limited to the enforcement of the laws as 
 they existed, yet as possessing prerogative powers, until 
 subjected to the limitations of parliament, he could go 
 further and declare a new, or abrogate the effects of the 
 old law. But it is otherwise with the president. He 
 has, in such respect, only executive powers, by which 
 he is required to execute the law upon the guilty 
 offender, when the offense has been determined, and the 
 sentence of the law has been pronounced. To j^ardon 
 or reprieve an individual, implies that he has become, in 
 the eye of the law, the subject of punishment to be 
 inflicted upon him. It irax)lies that the law has pro- 
 nounced him guilty, and denounced upon him the 
 penalty. The executive, as an officer of the law, can 
 know nothing of the guilt or innocence of a party, or 
 of his need of a reprieve or pardon, until his guilt has 
 been judicially ascertained. No reprieve or pardon can, 
 in law, be granted until there be that from which a 
 reprieve is needed, or for which a pardon is demanded. 
 Under the genius of American institutions, the law 
 holds all persons to be innocent until their guilt has 
 been judicially ascertained. How, then, can the legally 
 innocent be the subject of a legal reprieve or jjardon. 
 The king as the source and fountain of sovereignty and 
 the law, formerly could do what, under the American 
 theory, the legislature alone can do — to wit: he could 
 
836 GOVERNMENT. 
 
 absolve individuals from their liability to punishment 
 for acts committed by tliem against the peace and 
 dignity of the realm. The principle asserted was, he 
 made the law, and therefore has authority to suspend 
 or repeal it. For it is a ijrinciple, that the authority 
 which creates, can modify or destroy at pleasure that 
 which it has created. The legislative authority which 
 creates an offense or crime, and denounces its penalty, 
 can repeal or modify the law at pleasure ; can excuse 
 the delinquent upon such conditions as it sees fit to 
 impose. But this authority has its foundation in pre- 
 rogative, not in executive power. It can be exercised by 
 the sovereign, not by the mere executive} 
 
 g 512. The ijrinciple which calls for the existence of 
 the reprieving and pardoning power in the executive 
 does not extend to pardoning classes or individuals 
 before conviction and sentence. It will be in season 
 to remit a fine or penalty, after it has been judicially 
 ascertained that the individual is subject thereto. The 
 imperfection of the rules of law, or modes of trial by 
 reason of which mistakes are liable to occur, and injus- 
 tice is liable to be done, as reasons for the exercise of 
 the pardoning power, can apply only to those who have 
 been improperly convicted on trial ; not to those who 
 are liable to be tried and convicted, and whom the law 
 holds to be innocent until judicially condemned. There 
 may be cases where whole classes need to be excused 
 from the consequeues of their criminal acts — as in case 
 of rebellion — without going through the formality of a 
 trial, conviction and pardon. Public acts of amnesty 
 may be necessary and proper for the future welfare 
 and peace of society. But such acts should proceed 
 
 1 The king himself condemns no man. That rugged task he leaves to his 
 courts of justice. Tiie great operation of his scepter is mercy. His power of 
 pardoning was said by our Saxon ancestors to toe derived a lege suce dignitatis; 
 and it is declared in parliament by statute (27 Plen. VIII, c. 24), that no other 
 person hath power to pardon or remit any treason or felonies whatsoever; but 
 that the king hatli the whole and sole power thereof united and knit to the 
 Imperial crown of the realm ; and this power belongs only to the king de facto, 
 and not to the king de jure, during the time of usurpation. In monarchies, 
 the king acts in a superior sphere, and, though he regulates the whole govern- 
 ment as the first mover, he does not appear in any of the disagreeable or invidi- 
 ous parts of it. Whenever the nation see him personally engaged, it is only 
 In works of legislation, magnificence, or compassion. To him, therefore, the 
 people look up as nothing but the fountain of bounty and grace; and these 
 repeated acts of goodness coming only from his own hand, endear the sover- 
 eign to his subjects, and contribute more than anything to root in their hearts 
 that filial affection and personal loyalty which are the sure establishment of a 
 prince. The king may pardon all offenses merelj'' against the crown or the 
 public, except, by the habeas corpus act of 31 Car. II, c. 2; the committing any 
 man to prison out of the realm is made prceniunire, unpardonable even by the 
 king. Nor can the king pardon where private justice is principally concerned, 
 in the prosecution of offenders. Nor can he pardon a common nuisance while 
 it remains unredressed. Nor can he pardon an offense against a popular or 
 penal statute after information brought, because the informer has acquired a 
 private property in a part of the penalty. (4 Bl. Com., pp. 397, 398.) 
 
OF THE PRESIDENT, ETC. 337 
 
 from the prerogative powers of sovereignty, and not from 
 an assumption of authority by a mere executive officer. 
 If the operation of the law is to be suspended, it is the 
 province of the law-making authority to suspend it ; not 
 of him who is iustrusted with the exercise of mere 
 executive powers, with the attendent authority to 
 reprieve or pardon those who are condenmed and put 
 into his hands to receive the penalty. The question of 
 general amnesty is one of policy affecting the state ; and 
 not of clemency affecting the individual. There are no 
 reasons to be assigned in favor of conferring upon an 
 executive otlicer merely, the authority to reprieve or 
 pardon persons who have not been tried, convicted and 
 sentenced. There is nothing in precedent to sustain 
 such a policy.^ It would be exceedingly dangerous 
 to create a power in the hands of a single'individnal, to 
 stand between society and those who prey upon it, 
 to protect them from the consequences of their crimes. 
 Whether an individual needs or merits a pardon for a 
 murder or other crime alleged against him, cannot be 
 known to society until his conduct has been investigated, 
 and the quality of his actions ascertained. It cannot 
 for a moment be admitted that a president of the United 
 States can stand by and see a gigantic rebellion organ- 
 ized, and say to the insurgents, if you are unsucessful 
 I will pardon you, and thus save you from the legal 
 consequences of your rebellious acts. No executive 
 officer as such, ever can possess, and under an enlight- 
 ened government, no mere executive officer ever will be 
 possessed of, such a power of pardon. The genius of 
 the American government, the theory of the source and 
 limitation of its authority, and the policy of all laws for 
 the protection and preservation of society under its 
 
 1 It is no precedent for the American president to be able to show that the 
 Kings or sovereigns of monarchical countries have exercised the power of par- 
 doning before conviction. The theory in monarchical countries — that is 
 
 acknowledged in everything where, by the law of nature or tlie restraints of 
 parliament sanctioned by his assent, he is not prohibited from the exercise 
 thereof. He, therefore, as the sovereign exercising absolute prerogative power, 
 can pardon in all cases where by act of parliament he has not constitutionally 
 bound himself not to do so. The difference between the authority of the presi- 
 dent and the authority ot the king is this: the president, as executive, can 
 grant pardons only m cases authorized by the constitution; the king, as sov- 
 ereign, can grant pardons in all oases not prohibited by the constitution. The 
 theories of the source and limitation of authority iii the president, and the 
 same m the king, are diameti-ically opposed each to the other; therefore, 
 the exercise of the rights of sovereignty by the king furnishes ao safe prece- 
 aeut to be followed by a repuliUQan executive. 
 
 43 
 
S38 GOVERNMEKT. 
 
 administration, forbid sucli an interpretation to be put 
 upon the clause, " the x>i'esident sball bave power to 
 ^rant reprieves and pardons for offenses against tbe 
 United States." 
 
 S 513. Tbe power in tbe president to grant reprieves 
 and pardons for offenses against tbe United States, will 
 provide for all proper cases of executive clemency if 
 confined in its application to persons convicted of such 
 offenses. Wben tbere bas been no trial or conviction 
 of an offense, tbere can be no pressing emergency 
 demanding a reprieve or pardon at tbe band of tbe 
 president. Tbe executive as sucb, can only be called 
 upon to exercise bis clemency after tbe offender bas 
 come under bis jurisdiction ; tbat is, after notbing 
 remains to be done, but to execute tbe sentence of tbe 
 law upon bim. Before conviction tbe executive bas no 
 jurisdiction over bim as a criminal, nor can be gaiu any 
 but by conviction and sentence. Upon wbat bypotbesis 
 tben, can tbe mere executive officer reprieve or pardon 
 a person unconvicted of crime. If be can do it before 
 conviction, be can use tbis power as a license to the 
 commission of crime. To suppose tbat an unconvicted 
 person can require tbe exercise of tbe reprieving or 
 l)ardoning power of tbe executive is an absurdity. Tbere 
 may be cases as in rebellion or civil -war, wbere a large 
 class of citizens may need, and public policy may require, 
 an amnesty in tbeir bebalf. But sucb exigency addresses 
 itself to tbe legislative, not to tbe executive department 
 of government. It calls for tbe exercise of prerogative 
 power, not executive clemency. Tbe people bave a 
 rigbt to be consulted as to tbe safety or i)ropriety of 
 admitting to political power tbose wbo bave sougbt tbe 
 destruction of i)ublic security, and tbe overthrow of tbe 
 public authority. 
 
 g 514. Under this provision of the constitution tbe 
 president may grant a conditional pardon. This ques- 
 tion was raised in ex i)arte Wells.^ Tbe prisoner bad 
 been convicted of murder and sentenced to be bung. 
 President Fillmore bad granted bim a conditional pardon 
 substantially as follows : " For divers good and suf- 
 ficient reasons I bave granted, and do hereby grant 
 unto bim, tbe said William Wells, a pardon of tbe 
 offense of whifcb be was convicted — upon condition that 
 be be imprisoned during his natural life ; that is, the 
 sentence of death is berebj commuted to imprisonment 
 
 » 18 How. S. C. R., 807. 
 
OF THE PRESIDENT, ETC. 339 
 
 for life iu the penitentiary of Washington." Tliis par- 
 don was accepted in these words : " I hereby accept the 
 above and within pardon with condition annexed." 
 Afterward the prisoner made an application to the cir- 
 cnit court of the District of Columbia for a writ of 
 habeas corpus. It was rejected, and an appeal was taken 
 to the supreme court. No statute had been passed 
 regulating the i)ardoning power of the president, con- 
 sequently the president acted under the power as 
 expressed in the constitution. It was contended that 
 the pardon was valid, and remitted entirely the sentence 
 of the court; and that the condition was void ; — that 
 the president athxing a condition to his pardon assumed 
 a power not conferred by the constitution; — that, in 
 effect, he legislated a new j)unishment into existence. 
 But the supreme court held otherwise : that according 
 to the English law on the subject, the general authority 
 to grant pardons included every denomination of pardon 
 known to that law ; such as special or particular, con- 
 ditional or absolute; — ^ that the same meaning must 
 be given to the word as prevailed iu the colonies and in 
 England at the time it found jjlace in the American 
 constitution.^ 
 
 % 515. The power to grant pardons does not extend to 
 impeachments. Trials by imi)eachmeut have reference 
 only to ])ublic character and official duty. It is the mode 
 by which one high in office, having been guilty of a 
 breach of his official trust, is arraigned before the people 
 to answer for his delinquency. By the terms of the 
 constitution, the president, vice-president and all civil 
 officers of the United States, may be removed from office 
 on impeachment for, and conviction of, treason, bribery, 
 or other high crimes and misdemeanors. It would, 
 therefore, have been highly improper to have allowed the 
 president to interfere by executive clemency either to 
 prevent the impeachment or conviction of a faithless 
 public officer. For similar reasons the king of England 
 cannot interfere to protect his high officers from impeach- 
 ment and conviction, although it is held that he can 
 pardon after conviction.^ De Lome, however, thinks it 
 doubtful whether the king has power to remit the punish- 
 ment of one condemned in consequence of impeachment. 
 
 1 See Uniicd States v. Wilson, 7 Pet., 182. 
 
 2 See Cathcarl v. Robinson, 5 Pet., 261: see also 8 Watts &. Sergeant, 197; 
 4 Black. Com., 401. 
 
 3 4 Bl. Com., 399, 400; 12 and 13 Wm. Ill, o. 2; Rawle ou Const., cU. 17, p. 17G; 
 1 Tuck. Bl. Coxa., apiD., 331. 
 
340 GOVERNMENT. 
 
 He says "I once asked a gentleman very learned in the 
 laws of their country, if the king could remit the pun- 
 ishment of a man condemned in consequence of an 
 impeachment, of the house of commons. He answered 
 me : the tories will tell you the king can ; and the whigs, 
 that he cannot." But it is not perhaps very material that 
 the question should be decided : the great public ends are 
 attained when a corrupt minister is removed with dis- 
 grace; and the whole system of his proceedings unveiled 
 to the public eye.^ But whatever may be the authority 
 of the king in this respect, the president possesses no 
 such power.^ 
 
 g 516. There is also one other offense, which, from its 
 nature, the president cannot pardon. The constitution 
 has committed to each branch of the national legislature 
 the authority to punish for contempts, or for the dis- 
 orderly behavior of its members. This authority is 
 essential to the existence and independence of that body; 
 therefore, the executive cannot be permitted to interfere 
 between either house and the person offending. To con- 
 fer upon the president or any other officer, the authority 
 to interfere by the i)ower of pardon, with the author- 
 ity of either house to protect itself from such disturbance 
 as would tend to interrupt its proceedings, would be to 
 endanger the independence thereof, and thus to place 
 the rights of the people in perpetual jeopardy.^ 
 
 g 517. By the provisions of the constitution the pres- 
 ident is also created commander-in-chief of the army 
 and navy of the United States ; and also of the militia 
 of the several states when called into the actual service of 
 the United States.* But the powers and duties of the 
 president as commander-in-chief of the army and navy, 
 are separate and distinct from his powers and duties as 
 the simijle executive head of the nation ; and neither of 
 those functions of the i^residential ofdce derive any 
 strength from the other. As the chief executive of the 
 nation, he takes no authority from the military depart- 
 ment of his office: and as commander-in-chief, he gets 
 no aid from the civil department of the same. That 
 is, his authority as commander-in-chief is the same as it 
 would have been, had it been an office separated from, 
 and independent of, the office of president of the United 
 States. Had the constitution provided for the appoint- 
 
 ' De Lome on British Constitution, p. 95, note a. 
 
 2 Art. 2, § 2 of Const. U. S. ; 2 Story's Com, on Const., § 1503. 
 
 3 See Story's Cora, on Const., § 1503. 
 
 4 Art. 2^2, clause 1, Const. U. S. 
 
OF THE PRESIDENT, ETC. 341 
 
 ment of some other person tliau tbe presidential incum- 
 bent to that office, the powers and duties of the office 
 would have been the same. Therefore in discussing- 
 the limitations of the authority of the president, or the 
 extent of the same, it becomes important to ascertain 
 and keep in mind, the particular character in which it is 
 supposed he acted or proposes to act. If the power to 
 be exercised, or the duty to be performed, belong to the 
 military department, then the authority of the president 
 to act in the premises, comes either from special legis- 
 lation, or from his constitutional office as commander-in- 
 chief. But if it pertain only to the civil side of the office, 
 his authority must be found in the laws authorizing him 
 to act in the premises for the purpose of executing some 
 existing law, or enforcing some judgment or decree of 
 the court. As commander-in-chief, the x)resident is 
 amenable to the laws of congress in performing the 
 duties and exercising the functions of that office. 
 Although he is, by the terms of the constitution, the 
 commander-in-chief of the army and navy, and of the 
 militia of the several states when called into the actual 
 service of the United States, yet congress has author- 
 ity to make rules concerning captures on laud and water; 
 to provide for the raising and supporting of the army and 
 navy ; and to make rules for their government ; to pro- 
 vide for calliug the militia into the national service, and 
 for organizing, arming and disciplining the same.^ 
 
 § 518. How far the president of the United States 
 had authority to re-adjust the political relations of the 
 revolted states, and of the inhabitants thereof, to 
 the nation, and to the general government, has been the 
 subject of grave discussion. Shortly after the over- 
 throw of the military power of the rebellion, and the 
 surrender of the insurgent forces, the president was 
 assassinated ; and the vice-president became the acting 
 president. Instead of calling together the congress or 
 legislature of the nation to provide by law for the 
 reconstruction of governmental institutions in the insur- 
 gent states, the acting president attempted the task 
 under the authority and powers of the presidential office. 
 By his proclamation of May 29, 1865, in relation to the 
 state of North Carolina, he saj^s, the constitution of 
 the United States guarantees to every state a republi- 
 can form of government, and protection against invasion 
 and domestic violence — that it is the duty of the presi- 
 
 1 Art. 1, 1 8, els. 11, 12, 13, 14, 15, 16, Const. U. S. 
 
S42 GOVERNMENT. 
 
 dent to take care that the laws be faitlifnlly executed; 
 lie then asserts that the rebellion has depiiv^ed the 
 people of ]N"orth Carolina of ail civil government; and, 
 therefore, to enable the loyal people of the state to 
 organize a state government, he appoints William H. 
 Holden provisional governor, whose duty it shall be, as 
 early as possible, to make regulations enabling the loyal 
 citizens of the state to elect delegates to a convention 
 for the purpose of forming a constitution. No person 
 was to be i)ermitted to be a delegate unless he should 
 first take the oath required in the proclamation of 
 amnesty,^ and should be a voter according to the laws 
 of the state existing before the date of the act of seces- 
 sion ; that the convention or legislature thereafter to be 
 assembled should prescribe the qualifications of electors 
 and the eligibility of x)ersons to hold office. He like- 
 TPise directed the military and naval authorities to assist 
 the provisional governor in carrying that jjroclamation 
 into effect, and in no way to hinder the loyal people of 
 the state from thus organizing a state government. 
 
 g 519. In this proceeding the president must have 
 acted under the authority of his office as the executive 
 of the nation, or as commander-in-chief, or as execu- 
 tive in part and commander-in-chief in part, or he must 
 have acted without authority. The occasion which 
 called for the exercise of presidential or other authority 
 in the adjustment of the political rights of the jj^^ople 
 of ISTorth Carolina was, that the rebellion had deprived 
 them of all civil government ; and the measures pro- 
 posed were to enable the loyal people of that state to 
 organize a state government. If it were true that the 
 people of North Carolina had been deprived of all civil 
 government by the rebellion, as it undoubtedly was, 
 and the loyal people were in need of a new state organi- 
 zation to restore their political rights and relations to 
 the general government, then they needed authorit}'' 
 to reconstruct or be reconstructed coming from the sov- 
 ereignty or the prerogative power of the nation. If the 
 political government constituting the state of North 
 Carolina had been destroyed by the political rebellion 
 of the state, and the people had been deprived of all 
 
 1 The oath alluded to is in these words, "I, , do solemnly swear — or 
 
 afRrm — in the presence of Almighty God, that I will henceforth faithfully 
 support and defend the constitution of the United States, and the union of tlie 
 states thereunder, and that I will in like manner abide by and faithfully sup- 
 port all laws and proclamations which have been made during the existing 
 rebellion with reference to the emancipation of slaves, so help me God." (See 
 President Johnson's Amnesty Proclamation of May 21), 1865.) 
 
OF THE PRESIDENT, ETC. 343 
 
 civil government as a state, it required, the exercise of 
 sovereign authority to reestablish a state government 
 therein, which should again confer upon the people the 
 right of self-government in respect to their local and 
 domestic interests, and the right to be represented in 
 the general government of the nation. If the people 
 of the state Iiad inherent authority in themselves to 
 reconstruct their state government, and re-establish their 
 political rights, then the interference of the president by 
 the appointment of a provisional governor, and by pre- 
 scribing the qualifications of delegates and electors to 
 their forthcoming convention or legislature, was unwar- 
 ranted — was a usurpation. If the j)eople did not 
 possess such inherent authority in themselves, they 
 needed the enabling act of congress, or of the law- 
 making power to give them the authority. The presi- 
 dent, as the mere executive of the nation, could only 
 execute the law as it existed. He could enforce only 
 such rights and privileges as were secured by law. He 
 is charged by the constitution to take care that the 
 laws be faithfully executed ; but he is nowhere required 
 or authorized to supply defective legislation. He is 
 required to protect and enforce the rights of the people 
 and of the states, where they have been ascertained by 
 law. Beyond this, as a civil officer, he has no authority. 
 As commander-in-chief he could exercise only martial 
 power, and govern by martial anthorit^^ So far as the 
 military and naval forces might be required to aid the 
 civil authorities in the administration of their civil 
 offices, he could command their co-operation. But as 
 commander-in-chief he has no civil powers, nor can he 
 confer any civil authority. Under the exigencies of war 
 he can exercise the exigency powers of his office; but 
 they cannot affect permanently the political or civil rights 
 of those who, for the time being, become the subject 
 of martial administration. As commander-in-chief, the 
 president can appoint a military governor to administer 
 where civil authority cannot make itself respected ;^ but 
 he has no authority to appoint provisional governors 
 who are to exercise civil functions, and then require the 
 
 I Gen. G. H. Shepley was appointed military governor of Louisiana in 1862. 
 Subsequently, Michael Hahn, having been elected governor in March, 1864, 
 President Lincoln invested him with the powers of military governor of that 
 state, thus : 
 
 Executive Mansion, Washington, March 15, 1864. 
 HI'S Excellency Michael Hahn, Oovernor of Louisiana ; 
 
 Until further orders, you are hereby invested with the powers exercised by 
 the military governor of Louisiana. 
 
 Yours truly, ABRAHAM LINCOLN. 
 
344 GOVERNMENT. 
 
 military to aid them in the euforcemeut of their author- 
 ity. The proposition is simply this : if the people of 
 Korth Carolina had by the political rebellion of the state, 
 been deprived of all civil government, it required the 
 authority which can institute a government to supply 
 that which had been lost. If they had been divested of 
 political rights and privileges through the loss of their 
 civil government, they could be re-invested again with 
 those rights and privileges only by the authority which 
 could give them a valid government, through which to 
 acquire the state rights and privileges, and the rights 
 and privileges of state citizenship under the constitution 
 of the United States. But no such authority could be 
 derived from the presidential office, in any capacity 
 whatever ; that is, neither from his j)owers as executive 
 or as commander-in-chief. ^ 
 
 § 520. The president has power, with the advice and 
 consent of the senate, to make treaties, provided two- 
 thirds of the senators present concur. The treaty- 
 makin^g power by which the nation becomes obligated 
 to perform the thing stipulated, or to refrain from doing 
 that which is agreed shall uot be done, must proceed 
 from the prerogative powers of sovereignty. The 
 power of negotiating and contracting jjublic treaties 
 between nations is incident to sovereignty ; and, hence, 
 belongs to every sovereign state.^ Public treaties 
 between sovereigns or states are usually negotiated 
 through the agency of ministers, or special diplomatic 
 agents appointed for such purpose.^ But to enable a 
 minister or other diplomatic agent to conclude and sign 
 a treaty with the government to which he is accredited, 
 he must be furnished with full ])ower, independent of 
 Ms general letter of credit.* There has been much dis- 
 cussion whether treaties and conventions negotiated 
 and signed by a minister with full poivers, are binding 
 upon the sovereign until ratified by him. It is usual 
 for the sovereign to accompany the general full -power 
 with particular or special instructions, which are retained 
 as a secret between the sovereign and his minister. 
 The question discussed is, should the minister plenipo- 
 tentiary, while keeping within the limits of his general 
 powers, depart from the special instruction given him, 
 would the sovereign be bound by such treaty or conven- 
 
 1 See in Appendix extracts from president's message of December 4, 1865. 
 
 2 Ijawreuce's Wiieat., 441. 
 
 3 Vattel, B. 2, ch. 12, § 156. 
 * Lawrence's Wlieat,, 443. 
 
OF THE PRESIDENT, ETC. 345 
 
 tioii before ratifying tlie same. Grotius thinks the 
 sovereign is bound by the acts of his embassador within 
 the limits of his patent full power, although the embas- 
 sador transcend or violate his secret instructions.^ 
 Vattel thinks the sovereign is bound by the acts of his 
 minister within the limits of his credentials, imless the 
 power of ratifying be expressly reserved.^ But all this 
 depends upon established custom. It is so exceedingly 
 diHicult to anticipate the complications that may arise 
 dining the progress of a convention or treaty, that in 
 order to avoid' all danger and difficulty, sovereigns 
 usually reserve to themselves the power of ratifying 
 what lias been concluded upon in their name. Therefore, 
 "the plenipotentiary commission is but a procuration 
 cum libera.''^ Bynkershock lays down the rule, that if 
 the credentials are special, and describe the particulars 
 of the authority conferred on the minister, the sovereign 
 is bound to ratify whatever is concluded in pursuance 
 of such authority.^ But if the minister exceed his 
 authority, or undertakes to treat points not contained 
 in his full power and instruction, the sovereign will be 
 justified in delaying or refusing his ratification. But 
 these questions cannot arise nnder the constitution of 
 the United States. The ministers plenipotentiary or 
 diplomatic agents of the United States can conclude no 
 convention or treaty which will be binding upon the 
 nation until ratified by the senate, by the approbation 
 of two-thirds of the senators present when the question 
 is submitted.^ 
 
 1 Grotius, B. 2, ch. 11, § 12; Puff., B. 3, ch. 9, § 2. 
 
 2 Vattel, B. 2, ch. 12, § 156. 
 
 3 Vattel, supra ; see Lawrence's Wheat., pt. 3, ch. 2, g5. 
 
 4 Id., B. 2, ch. 7. 
 
 The president is sometimes authorized by law to act in anticipation of 
 the ratification, as in the case of the negotiations ending in the purcliase 
 of Louisiana, for which two millions of dollars had been appropriated, 
 the plenipotentiaries being instructed to provide for the repayment of the 
 advance in the event of the refusal of the United States to ratify the con- 
 vention. (Mr. Madison, Secretary of State, to Mr. Livingston and Monroe, 
 March 2d, 1S02.) Also by act of March .3d, 1817, the sum of three millions was 
 appropriated to enable 'the president to conclude a treaty of peace, limits 
 and boundaries, with Mexico, to be used by him in tlie event that the 
 treaty, wlien signed by the authorized agents of the two governments, and 
 ratified by ISIexico, shall call for the expenditure of the same or a part thereof. 
 (Statutes at Large, vol. 9, p. 17-1.) In exchanging the ratification of the treaty 
 between the United States and Great Britain in relation to an inter-oceanic 
 communication, the British plenipotentiary subjoined tlie following explana- 
 toi-y declaration : " In proceeding to tlie exchange of the ratifications of the 
 convention signed at Washington, on the 19th of April, 18.50, between her 
 Britannic majesty and the United States of America, relative to the establish- 
 ment of a communication by ship canal between the Atlantic and Pacific 
 oceans, the undersigned, her Britannic majesty's plenipotentiary, has i-eceived 
 her majesty's instruction to declare that her majesty does not understand the 
 engagements of that convention to apply to Her majesty's settlement at Hon- 
 duras, or to its dependencies. Her majesty's ratiflcation is exchanged under 
 the explicit declaration above mentioned. Done at Washington, the 29th day 
 of June, 1850. H. L. Bulwer." On the 5th of July, Mr. Clayton filed a memo- 
 randum in the department of state acknowledging the receipt of the above, and 
 
 44 
 
S46 GOVERNMENT. 
 
 g 521. In inonarcliical countries the treaty-making 
 power is found in the monarcli or king-, upon tbe theory 
 that he is the soyereign. Before the introduction of 
 legislative bodies as limitations upon the prerogative 
 powers of the monarch, thereby changing absolute to 
 limited monarchies, the king or sovereign was absolute 
 in his authority, to make, adjudge and execute law. 
 Being the state, and governing by the (irace of God, and 
 not by the authority of the people, the power to make 
 treaties of every description belonged absolutely to him 
 by inheritance. When there began to be limitations 
 imposed upon the authority or prerogative powers of 
 the monarch, by the introduction of constitutions, or 
 of legislative bodies, they operated upon the practice, 
 but not upon the theory of governmental authority. 
 The king under the British constitution, has absolute 
 prerogative powers in every respect, where they have 
 not been made subject to limitations by the consent of 
 the sovereign. The i)ower of the king to make treaties 
 of every character and description has not been thus 
 limited ; therefore, it is said " that the prerogative of 
 making treaties exist in the crown, in its utmost pleni- 
 tude." ^ By parity of reasoning the treaty-making 
 Ijower in the United States, should be vested in congress, 
 as being that branch of the government in which the 
 prerogative powers of the nation in respect to matters 
 of national interest are iDerpetually present. If the king, 
 under the British constitution, has this prerogative 
 power " knit to the crown," in the absence of any con- 
 stitutional provision here, this power would have been 
 knit to that sovereignty in which the law-making power 
 resides ; to be exercised through the agency by which 
 
 that he understood that the British Honduras was not embraced in the treaty 
 of the 19th April, but declined to affirm or deny tlie Britisli title; and that 
 after signing such memorandum, wliicli he delivered to Sir Henry Bulwer, 
 they immediately proceeded to exchange the ratifications of the treatj\ (Cong. 
 Doc, o2d Cong., 2d sess.; Senate Ex. Doc. No. 12, Jan. 4, 1853.) Mr. Adams, 
 minister of tlie United States in London, presented this point to Earl Russell, 
 In declining to attach a declaration to the proposed convention of maritime 
 law, August 23, 1861. Said he, "By the terms of the constitution, every treaty 
 negotiated by tlie president of tlie United States must, before it is ratified, be 
 submitted to tlie consideration of the senate. The question immediately 
 arises, what is to be done with a declaration like that wliicii his lordship pro- 
 poses to make? Is it a part of the treaty, or is it not? If it be, then is the 
 undersigned exceeding his instructions in signing it; for the paper made no 
 part of the project wliich he was directed to propose; and in ease he should 
 sign it, tlie addition must be submitted to tlie senate for its advice and con- 
 sent, togetlier witla the paper itself. If it be not, what advantage can tlie party 
 niaking the declaration expect from it in modifying the construction of the 
 project, when the senate have never had it before them for their approval? If 
 It does, why did not the undersigned procure it to be incorporated into it? On 
 tlie other hand, if it do not, why did he connive at the appearance of a desire 
 to do it without effecting, the object. (Papers relating to Foreign AiTairs 
 accompanying president's message, 1861, p. 12-3; see also Mr. Lawrence's Notes 
 to Wheat., part 3, ch. 2, § 5.) 
 1 Federalist, No. 75. 
 
OF THE PRESIDENT, ETC. 347 
 
 tlmt power is constitutionally exercised. But the con- 
 stitution provides otherwise ; and, therefore, the treaty- 
 inakiiig- power is by it intrusted to the exercise of the 
 X)resident, as a mere agent or minister of the nation, 
 possessing- in himself no original or inherent authority, 
 subject to the ratification of the senate, which as a body, 
 is composed of the representative intelligence, prudence, 
 wisdom and dignity of the nation. And as it is impos- 
 sible to circumscribe within any definite limits this 
 power, and leave it applicable to all exigencies which 
 may nrise in the history of a nation, the constitution has 
 made it general and unqualified. There are reasons 
 why congress as a body are not adapted to the exercise 
 of this power. It not unfrequently happens in the 
 formation of treaties, that secrecy and dispatch are 
 indispensable. The delays incident to large assemblies, 
 the differences of opinion, the time consumed in debate, 
 the utter impossibility of secrecy rendered congress 
 wholly unfit for the purpose of diplomacy.^ 
 
 g 522. The difference between the office of the king of 
 England and that of the President of the United States, 
 is also manifest in the treaty-making power. The presi- 
 dent has the power, with the advice and consent of the 
 senate, two-thirds of the members present concurring, 
 to make treaties. But this authority in the president is 
 derived from the constitution ; and he acts in virtue of 
 its authority. But it is otherwise with the king. He is 
 the sole and absolute representative of the nation in all 
 foreign transactions. He can of his own motion, make 
 treaties of peace, commerce, alliance and of every other 
 description. Under the British constitution the preroga- 
 tive of making treaties exists in the crown in the utmost 
 plenitude ; and the compacts entered into by royal 
 authority have the most complete legal validity and 
 perfection, independent of any other sanction.^ Upon 
 the theory of the British constitution, the king is sover- 
 eign. He is the fountain of authority. Therefore, the 
 treaty-making power belongs to him as the sole and 
 absolute sovereign of the state. In this respect there is 
 no comparison between the intended power of the presi- 
 dent and the actual power of the British sovereign. 
 Therefore, in determining the nature and extent of the 
 authority of the president to make treaties or conven- 
 
 1 story's Com. on Constitution, g 1509; 1 Kent's Com., pt. 1, 2 8, p. 165. 
 s See Federalist, No. 75. 
 
848 GOVERNMENT. 
 
 tions, no aid can be derived by consulting the British 
 constitution, or the practice of the British sovereign. 
 
 S 523. In practice, the senate of the United States are 
 not consulted until the treaty has been formed and laid 
 before them for ratification. It is in the option of the 
 president to consult with the senate during the forma- 
 tion of a treaty, and to take their advice in respect 
 thereto ; and since it must meet with their approbation 
 before it can become obligator^', it would l)e well for 
 him to understand their views at as early a moment as 
 possible. When the treaty is laid before the senate for 
 their advice and consent, that body deliberates upon it 
 with closed doors. It then can ratify the whole or any 
 part of the convention ; or it can make such suggestions 
 and modifications of it as it deems proper. But in such 
 case the treaty must again be submitted to the president 
 and the foreign party for their assent, before it can 
 become obligatory. While the senate are in session 
 upon the question of ratification, it is necessarj' that 
 they have before them the facts and circumstances call- 
 ing for such treaty and upon which such convention is 
 based. Therefore it is common for them to require, and 
 for the president to lay before them, all the otficial 
 documents respecting such negotiations, to assist their 
 judgment. But the house of representatives, having 
 no voice in the ratification of treaties, have no consti- 
 tutional right to insist on the production before them 
 of such correspondence. When the treaty, to be 
 executed, requires an appropriation of money, it is 
 proper that the house should be informed of the pro- 
 priety or justice thereof, before making the necessary 
 appropriation.^ 
 
 § 524- Inasmuch as the power to make treaties is by 
 the constitution committed to the president to be exer- 
 cised under the advice and consent of the senate, it is 
 proper that the power of appointing embassadors and 
 other public ministers and consuls, should be committed 
 to the same authority, to-be exercised in the same man- 
 
 1 Rawle on the Constitution, ch. 7, pp. 63, 04. 
 
 Treaties of peace, wlaen made by competent authority, are binding upon the 
 wliole nation. If the treaty require tlie payment of money to carry it into 
 effect, and the money cannot be raised but by an act of the legislature, the 
 treaty is morally obligatory upon the legislature to pass the law; and to refuse 
 it would be a breach of public faith. The department of the government 
 which is intrusted by the constitution with the treaty-making power is com- 
 petent to bind the national faith in its direction • for the power to make 
 treaties of peace must be co-extensive with all the exigencies of the nation, and 
 necesarily involves in it that portion of the national sovereignty which has 
 the exclusive direction of diplomatic negotiations and contracts with foreign 
 powers, as treaties made by that power become of absolute efflcacy, because 
 they are the supreme law of the land. (1 Kent. Com. Lee. 8, § 3.) 
 
OF THE PRESIDENT, ETC. 349 
 
 ner. Therefore, under the constitution the president 
 nominates, and with the advice and consent of the 
 senate, he appoints, this class of officers. This clause 
 of the constitution^ also provides that the judges of the 
 supreme court, and all other officers of the United 
 States, whose appointments are not otherwise provided 
 for by the constitution, and which shall be established 
 by law, shall be nominated and appointed in the same 
 manner. But it likewise authorizes congress to provide 
 by law for vesting the power to appoint inferior officers 
 in the president alone, in the courts of law, or in the 
 heads of departments. What class of officers of the 
 United States are to be included as inferior, has not yet 
 been definitely determined. It would seem probable 
 that those named in the clause could hardly be included 
 as inferior officers. The office of embassador and public 
 ministers, of judges of the supreme court and heads of 
 departments are clearly principal offices in the govern- 
 ment.^ 
 
 g 525. Vacancies in office are liable to occur during 
 the recess of the senate, and it may be important to the 
 public that they should be filled immediately. There- 
 fore the constitution provides that the president shall 
 have power to fill up all vacancies that may happen 
 during such recess, by granting commissions which are 
 to expire at the end of the next session of the senate.^ 
 But the term vacancies in the constitution does not 
 include the creation of a new office, and the appoint- 
 ment of an officer to fill it. It was during the recess 
 of the senate that Mr. Madison, in 1813, appointed and 
 commissioned ministers to negotiate the treaty of peace 
 of Ghent. The office, though a constitutional one, that 
 is, one contemplated by the constitution, was created 
 during the recess of the senate, and filled by the 
 appointment of the president, without the advice and 
 consent of the senate ; therefore the question was 
 raised, whether the president had constitutional author- 
 ity so to do, there being no vacancy of any existing 
 office ; and the senate, at their next session, it is said, 
 entered their protest against such x)ractice ; and subse- 
 quently it held that the president could not create the 
 office and make such appointments during the recess of 
 the senate.* 
 
 1 Art. 2, g 2, cl. 2. 
 
 2 See recent law of congress abridging the patronage of the president. App. 
 
 3 Art. 2, § 2, cl. 3. 
 
 4 See Sergeant on Const, ch. 231 ; 2 Executive Journal, pp. 415-500 ; 3d do., 297. 
 See Story on Const., § 1539. 
 
350 GOVERNMENT. 
 
 g 526. Connected with the subject of appointment is 
 also that of the power of removal from office. The 
 constitntion provides for filling vacancies which may 
 occur during the recess of the senate, but it is silent as 
 to the power of the president to remove from office. 
 It would seem, in the absence of any provision to the 
 contrary, that it should require the exercise of the same 
 authority to remove an incumbent from office, that it 
 takes to appoint him to office; and such seemed to 
 have been the understanding of those who participated 
 in founding the government* Notwithstanding the 
 constitution makes no provision for removing an incom- 
 petent or unfaithful officer from his official position, it 
 is a power so manifestly essential to a prudent and wise 
 administration of government, that its existence is 
 deemed to be unquestionable. The writers in the Fede- 
 ralist^ assume the necessary existence of this authority ; 
 but they thought such power existed in the president 
 only ivith the consent of the senate. That is, they assumed, 
 without argument or doubt, that the consent of the 
 senate would be necessary to remove, as well as to 
 appoint, the incumbent. The silence of the constitu- 
 tion clearly indicates that it was expected that removals 
 would not take place, except as a public necessity, to 
 secure fidelity and efficiency in the discharge of official 
 trusts; and -it cannot be doubted that the practice of 
 creating vacancies by removals from office, without any 
 reference to the fidelity or efficiency of those removed, 
 or to the better qualifications or character of those who 
 are appointed to their places, is a violation, both of the 
 letter and the spirit of the constitution ; is a corrupt 
 and base usurpation of power never intended to be con- 
 ferred by that instrument, upon the president or any 
 other officer or department of government ; a jjrostitu- 
 tion of the patronage of government, so corrupting in 
 its purpose and influence, as to demand the impeach- 
 ment of the high officer who uses it. It would never 
 be used by an officer or party fit to be trusted with the 
 administration of the public authority, and the super- 
 vision of the public weal. The x>ractice of those 
 intrusted with the administration of the general govern- 
 ment has been, to recognize in the president of the 
 United States the jjower to remove from office at his 
 pleasure, those whom it required the advice and con- 
 sent of the senate to appoint thereto. But as this power 
 
 Federalist, No. 77. 
 
OF THE PRESIDEKT, ETC. 351 
 
 exercised by the president is an assumed one, it cannot 
 be donbted tliat congress has authority to regulate its 
 exercise. And if there is one duty which it owes to the 
 public to perform more speedily than any other, it is to 
 place under wholesome restraint the exercise of this 
 power of unnecessary removals from ofhce.^ 
 
 § 527. The general duties and powers of the president 
 are enumerated in the third sectiou of the second article 
 in these words, " He shall from time to time give to the 
 congress information of the state of the union, and 
 recommend to their consideration such measures as he 
 shall judge necessary and expedient; he may on extra- 
 ordiuary occasions, convene both houses or either of 
 them ; 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 ; he shall receive 
 embassadors and other jjublic ministers ; he shall take 
 care that the laws be faithfully executed ; and shall 
 commission all the ofBcers of the United States." 
 
 g 528. The language of this provision of the constitu- 
 tion, in form, distinguishes between the xmivers and the 
 
 1 The exercise of this power by the president has grown up under the admin- 
 istration of the general government from a very early date. During the first 
 session of congress, in 1789, this question was very fully discussed on a bill intro- 
 duced into tlie house of representatives " to establisli an executive department 
 to be denominated the department of foreign affairs," which among other 
 things provided, "That whenever the secretai-y shall be removed from office 
 by the president of the United States, or in any other case of vacancy," etc. (1 
 Stat, at Large, 28.) It was then contended by the advocates of tlais power in 
 the president, tliat it belonged to him; that it resulted from the nature of the 
 power, and from the convenience and even necessity of its exercise. Tliat in 
 Its nature it was a part of tlie executive power, and was indispensable for a 
 proper execution of the laws, and a regular administration of public affairs ; 
 that the person in whose favor a majority of tlie people would unite in an 
 election to the office of president had every presumption in his favor; that he 
 must be presumed to possess integrity, independence and high talents; that it 
 was impossible to suppose that he would abuse the patronage of the govern- 
 ment, or his power of removal to tlie base purpose of gratifying a party, or of 
 ministering to his own resentments, or that he would displace upriglit and 
 excellent oiHcers for a mere difference of opinion ; that the public odium which 
 would attach to such conduct, would be a perfect security against it. Tliat to 
 make removals from .such motives, would be an impeachable offense. (3 
 Story's Com. on Const., 'il?M and o9t.) Such was the opinion of Mr. Madison, 
 who was at that time a member of the house. Subsequent history teaches a 
 different lesson as to the effect of allowing a president the exercise of tliis 
 power. In 1835, a committee of congress appointed to investigate this subject, 
 made an able report on the subject of " Executive Patronage," on the 'Jtli of 
 February of that year. " It is easy" (say they), " to see that the certain, direct 
 and inevitable tendency of this practice is to convert the entire body of those 
 in office into corrupt and supple instruments of power, and to raise up a host 
 of hungry, greedy and subservient partisans, ready for every service, however 
 base and corrupt. Were a premium offered for the best means of extending to 
 the utmost the power of patronage; to destroy the love of country, and sub- 
 stitute a spirit of subserviency and man worship; to encourage vice and to 
 discourage virtue, and in a word, to prepare for the subversion of liberty and 
 the establishment of despotism, no scheme more perfect could be devised. 
 The disease is daily becoming more aggravated and dangerous, and if it be per- 
 mitted to progress for a few years longer with the rapidity with which it has 
 of late advanced, it will soon pass beyond the reach of remedy. The question 
 now is, not how, or where, or with whom, the danger originated, but how it is 
 to be arrested ; not the cause, but the remedy; not how our institutions and 
 liberty have been endangered, but how they are to be i-estored." (Consult the 
 practice of the administration under Andrew Johnson as acting president of 
 the United States. See also, laws passed in 1867, to remedy the evil, in Appendix.) 
 
§52 GOVERNMENT. 
 
 duties of the president; the jJOMJers being j^ermmi-yc; and 
 the duties being mandatory — thus it is the duty of the 
 president to give to congress, from time to time, infor- 
 mation of the state of the union ; to receive embassa- 
 dors and other public ministers ; to see that the laws of 
 the United States are faithfully executed, and to furnish 
 every officer of the nation with credentials of his author- 
 ity to act as such officer ; therefore, the constitution 
 provides that he sliall do these things. He has power 
 to convene congress on extraordinary occasions ; and to 
 adjourn them when the two houses cannot agree as to 
 the time of adjournment; therefore, the constitution 
 provides that he may do these things.^ 
 
 g 529. But whether the president be required or per- 
 mitted to exercise certain powers intrusted to the presi- 
 dential office, he is legally bound to act in good faith 
 for the highest good of the nation; and any willfal 
 departure from his line of duty in the discharge of the 
 high trusts committed to him, would subject him to 
 censure, and, if necessary, impeachment. On extraordi- 
 nary occasions he may convene both or either of the 
 houses of congress. It is manifestly his duty to exercise 
 this power in good faith, whenever the safety and wel- 
 fare of the nation requires it ; and although, according 
 to the language of the constitution, it is committed to 
 his discretion to determine what occasions shall require 
 the exercise of this power, he is nevertheless responsible 
 for the exercise of a reasonably sound, and a lonafide 
 discretion in the premises. If he act corruptly either in 
 omitting to assemble congress, or in adjourning them 
 after they are assembled, he would be liable to impeach- 
 ment, even though in form, the power is to be exercised 
 in his discretion. Thus, suppose, imder his power to 
 adjourn congress to such a time as he might think 
 proper, when there is disagreement between the two 
 houses in respect to the time of adjournment, he should 
 adjourn them beyond the time of the annual session ; 
 or should adjourn them on any occasion of a temporary 
 disagreement, for the purpose of getting rid of their 
 presence in the administration of the government, and 
 augmenting his influence in the same, there can be no 
 doubt, that in so doing he would be guilty of an im- 
 peachable offense ; and the congress which he should 
 
 1 See a discussion of the constitutional discrimination of the powers and 
 cuties of the president, by Alfred Conkling, published by Weare 0. Little, 
 Albany, 1866. 
 
OF THE PRESIDEN'T, ETC. 353 
 
 ILns corruptly attempt to prorogue, would not discbarge 
 its duty to the people until it liad remained long enough 
 tbereafter to impeacb, convict and remove Lim from 
 ofiice, and to put a more faithful officer in his place. 
 
 g 530. The president is required to receive embas- 
 sadors and other public ministers. Embassadors and 
 public miuisters are the only accredited medium tlirough 
 which political relations can be maintained with foreign 
 powers. Therefore the external administration of the 
 l)ublic authority is most intimately connected with the 
 ureafion and maintenance of these ministerial offices. 
 l*he i)Ower to receive embassadors and foreign ministers 
 carries with it also the incidental power to refuse to 
 receive them for proper or just cause. The refusal 
 to receive a foreign minister should be sustained by 
 substantial reasons ; otherwise it would be deemed an 
 imfriendly act toward the sovereign appointing him, 
 and might provoke hostilities unless accompanied with 
 proper explanations. The grounds of refusal may be 
 personal to the minister ; or to the subject of the 
 embassy ; or to the attitude of his sovereign toward 
 the government refusing to receive him. 
 
 § 531. By the fourth section of the second article 
 of the constitution of the United States, the president, 
 vice-president, and all civil officers of the United States 
 are liable to be removed from office on impeachment 
 for, and conviction of, treason, bribery, or other high 
 crimes and misdemeanors. The nature, object, and 
 policy of impeachments have already been considered.^ 
 There remain but these further considerations to be dis- 
 cussed in respect thereto. First, what is the authority 
 of the senate to arrest and bring before them, as the 
 trying court, the person of the accused ; and, second, 
 what is the effect of an impeachment by the house 
 npon the official status ot the accused? The conduct 
 of the presidential incumbent in the administration of 
 the duties and powers of his Office, has been such 
 during the years 18G5, 18GG, and 1867, as, in the minds 
 of a very large and respectable class of citizens, to call 
 for his impeachment and removal from office. It is 
 contended by one class, that as soon as the house of 
 representatives shall find articles of impeachment 
 against him, he will be liable to be arrested and to be 
 brought before the bar of the senate for trial. That 
 being arrested, there will be inability on his part to dis- 
 
 1 Aute §§ 275 to 2S2. 
 45 
 
354 GOVERNMENT. 
 
 charge the duties of his oflBce ; and, therefore, that it 
 will be inenmbent upon congress to declare what officer 
 shall act as ijresident until tbe disability be removed, or 
 a president be elected. It is contended on the other 
 hand, that the incumbent cannot be interfered with 
 until after impeachment by the house and conviction by 
 the senate. That during his trial on the impeachment 
 he is to be left in the jjossession and exercise of all the 
 powers incident to the office of president — and powers 
 which he is charged by the house Avith abusing — both 
 as the executive head of the nation, and as the com- 
 mander-in-chief of the army and navy of the United 
 States. That however dangerous it may be to leave in 
 the hands of the individual incumbent, such powers 
 during his trial, it is the fault of the constitution and 
 must be submitted to by the nation. 
 
 S 532. By the constitution of the United States the 
 (*\ house of representatives, as a department of the gov- 
 ernment, has the sole power of impeachment ;^ and the 
 senate has the sole x)ower to try all impeachments f and 
 congress has power to make all laws which shall be 
 necessary and proper for carrying into execution such 
 powers.^ The constitution, not having determined the 
 manner in which the accused shall be brought before the 
 bar of the senate for trial, or the manner in which 
 the trial shall be conducted, has left it to congress to 
 provide by law for the same. Congress can determine 
 by law whether the i)residential incumbent shall be 
 arrested on impeachment by the house, and whether, 
 on being arrested, he shall be deemed to be unable to 
 discbarge the powers and duties of his said office. The 
 constitution has wisely left the question of inability to 
 discharge the powers and duties of any given office, 
 to be defined by the people of the nation, through their 
 representatives in congress, that is, to be defined hj 
 law. What shall amount to a disqualification to dis- 
 charge the high trusts of the presidential office, could 
 with safety be committed to no other department of the 
 government ; for there is no other department so imme- 
 diately from the people, and so directly responsible to 
 them. There is no other department in which the 
 sovereignty of the nation is so x>otentially and per- 
 petually i)resent as in the congress of the United 
 States. There may be many causes of inability in the 
 presidential incumbent ; such as, dckness, insanity, 
 
 1 Art. 1, § 2, cl. 5. 3 Art. 1, § 3, cl. 6. 5 Art. 1, § 8, cl. 18. 
 
OF THE PRESIDENT, ETC. 355 
 
 doiibtful loyalty, and the like. Who except Congress, 
 as the law-making- power, can determine the nature and 
 extent of such inability ? The constitution contem- 
 plates that this inability may be of a temporary dura- 
 tion only, and may be removed ; or it maj' be permanent, 
 continuing until the election of a succes.sor. Thus, 
 congress may, by law, provide for the case of removal, 
 deatli, resignatioi], or inahility, both of the president 
 and vice-])resident, declaring what officer shall act accord- 
 ingly until the (Usability he removed, or a irresident shall 
 he elected? 
 
 % 533. The provisions of the constitution upon this 
 subject are plainly these : The i)resideut may be 
 impeached by the house, and tried by the senate ; and 
 congress may provide by law, for the manner in which 
 he shall be arraigned and tried before the bar of the 
 senate. If in the opinion of congress the presidential 
 incumbent is disqualified from properly discharging the 
 duties of the presidential otiice while on trial before 
 the senate, it can provide by law for such inability by 
 declaring what officer shall act as i)resident until such 
 disability be removed, or a successor be elected. There 
 can be no legal inability on the part of the president to 
 discharge the duties of his otfice, except such as con- 
 gress shall determine by law, and what shall amount to 
 such constitutional inability necessarily rests in the 
 judgment and discretion of congress. Their decision 
 and action in the premises is conclusive ; and there is 
 no appeal therefrom but to the people. The constitu- 
 tion provides that in case of disability, etc., congress 
 may provide for the administration of the presidential 
 powers and duties, and has not provided what shall be 
 deemed to amount to such disability ; but has given to 
 no other department than congress any powers in rela- 
 tion to the subject. The whole subject is hj the 
 constitution committed to congressional discretion, and 
 congress has full power to declare by law, what shall 
 amount to disqualification, and who shall administer 
 during the continuance of such inability, etc. 
 
 % 534. It has been contended by some that the fourth 
 section of the second article of the constitution, should 
 be understood to read that the president, vice-president 
 and all civil ofiicers of the United States shall be removed 
 from office on impeachment for treason, bribery and other 
 high crimes and misdemeanors ;, as well as for couvic- 
 
 I Art. 2, 2 1, cl. e. ... 
 
856 GOVERNMENT. 
 
 tion of tbe same. But such, evidently, is uot tlie legal 
 import of that section. An ofhcer is not to be presumed 
 to be guilty of the oifense for which he stands impeached, 
 until he is found guilty, after a full trial before the trying 
 court. He had no opportunity of appearing or being 
 heard before the house. His accusers were alone heard 
 there. Therefore, it cannot be supposed that the people 
 intended to authorize the final removal from office of 
 one, who was merely accused of a high offense, without 
 giving him an opportunity of being heard in his own 
 defense. It cannot be doubted, that under this jjrovi- 
 sion of the constitution, the officer must be convicted as 
 well as impeached before he can be permanently removed 
 from his office. But while the incumbent cannot be 
 removed until convicted, he may be, under a temporary 
 inability created or declared by law to discharge the 
 powers and duties of the presidential officer during his 
 trial before the bar of the senate. It is not only within 
 the province, but it is likewise the duty, of congress to 
 Ijrovide by law for the discharge of the presidential 
 power and duties during the occurrence of such a possi- 
 ble event. 
 
 CHAPTEE XYII. 
 
 OF THE JUDICIAL POWERS. 
 
 g 535. By the express provisions of the constitution 
 of the United States, the judicial authority of the nation 
 is vested in one supreme court, and in such inferior 
 courts as congress shall establish.^ The scope of this 
 X)ro vision in its administrative effect upon the nation, 
 depends upon a just definition of the term "judicial 
 power." As used in the constitution of the United 
 States, it is to have only its technical signification, 
 distinguishing it from the legislative and executive 
 departments of the government. As a judicial power, 
 its whole province is to be found in ascertaining and 
 applying the law according to the intent and purpose 
 for which it was made. The law being a rule of civil 
 conduct prescribed by the legislative will of the nation, 
 it becomes the duty of the judiciary to ascertain that 
 will as applicable to the ease properly before the court, 
 and to declare the requirements of the law therein, by 
 
 1 Art. 3, 2 1, of the Const, U. S. 
 
OF THE JUDICIAL POWERS. 357 
 
 its order, judgment or decree. Thus, it is tlie iDrovince 
 of tlie legislature, as the term implies, to give to society 
 or to the members thereof, the laws by which they are 
 required to regulate their civil conduct. It is the prov- 
 ince of the judiciary to ascertain that legislative intent, 
 and by appropriate orders, judgments or decrees, to 
 apply the law according to such ascertained purpose 
 and eliect. The maxim, jus dicere, noiijus dare, express 
 with forcible brevity, the i^rovince of the judge. The 
 function of the judge only begins where that of the 
 legislator ends. He has no mission to perform wiiere 
 there is no law to be interpreted and applied. Until 
 the legislator has spoken, and there is action or pro- 
 posed action on the part of the subject, the judicial 
 power must remain dormant. ^N'ot so with the legisla- 
 tive department. It is required to precede everj^ other. 
 It is necessarily rooted and grounded in ever-present 
 sovereignty; not only providing- for its own orderly 
 existence and action, but for the orderly existence and 
 action of every other department. Under the consti- 
 tution of the United States, it is intrusted with the 
 creation and organization of the national courts. It 
 can construct and reconstruct them at jileasure. It can, 
 by law, prescribe the rules by which the judges are to 
 be governed in the administration of justice. It can 
 determine what shall be the qualificatious of the judges, 
 and for what causes they may be removed by impeach- 
 ment. 
 
 § 536. But the legislative, executive and judicial 
 departments of the general g-overnment are created by 
 the constitution of the United States; which, in all that 
 it directs in respect to each, is the supreme law ; and 
 each department in its administration, is limited to the 
 authority conferred by that instrument. That is, 
 the legislative department can exercise its powers only 
 in respect to such subjects, as by the terms of the con- 
 stitution, are committed to its jurisdiction; and to the 
 making of such laws as are necessary and proper for 
 carrying into effect the will of the nation as expressed 
 or implied in that instrument. In enacting laws, con- 
 gress must keep within the range of subjects committed 
 to its jurisdiction ; and must authorize or require noth- 
 ing to be done which will conflict with any of the 
 positive provisions of the constitution. But keeping 
 within these limitations and restrictions, congress can 
 exercise the legislative discretion of the nation ; and 
 
358 GOVERNMENT. 
 
 tLe jndiciary are bound to interpret and apply, in good 
 faith, the laws enacted by congress, according to the 
 ascertained legislative intent thereof. Thns, while 
 the judicial powers of the government are distinct from, 
 and independent of, the legislative and executive depart- 
 ments, they can be exercised only in accordance with 
 I'.des prescribed by law, for the ascertainment find 
 application of the legislative will of the nation to affairs 
 subject to its general jurisdiction. 
 
 g 537. The judges of the supreme and inferior courts 
 are nominated, and with the advice and consent of the 
 senate, appointed by the president of the United States; 
 and they hold their offices during good behavior.^ 
 During the continuance of the ofhce to which they 
 are appointed, they cannot be removed except upon 
 impeachment and conviction of high crimes and misde- 
 meanors. The object of this provision is to secure to 
 the court that independence so essential to a just and 
 faithful discharge of judicial duties. In many cases their 
 jurisdiction is ascertained and secured by the constitu- 
 tion itself, in which respect the judicial powers are co- 
 ordinate with the legislative. But in .all other cases, 
 their jurisdiction is fixed by law, which necessarily sub- 
 ordinates them in their jurisdiction to the legislative 
 will. It has been questioned whether, after the courts 
 have been organized by law, and the judges have been 
 appointed and their salaries have been fixed, congress 
 has the constitutional authority to repeal or modify the 
 law in such a manner as to work a removal of a judge 
 from office. In 1801, congress passed an act reorgan- 
 izing the judiciary and authorizing the appointment 
 of sixteen new judges with suitable salaries, to hold 
 the circuit courts of the United States in the differ- 
 ent circuits created by the act.^ Under this act the 
 circuit judges were appointed and performed their 
 duties until the next year, when the courts estab- 
 lished by the act were abolished, without making any 
 provision for paying their salaries or continuing their 
 offices.^ It was contended by some that inasmuch as 
 such act abolishing these courts, in effect removed these 
 judges from office, that it was in violation of the consti- 
 tution which x)rovides, that they shall 'hold their office 
 during good behavior. Judge Story was of the opinion 
 that such act could not be reconciled with the terms or 
 
 I Art. 2, ? 2, cl. 2 of Const. U. S. ; and Art. 3, 2 1, of same, 
 a Act of iSOl, ch. 75. 
 3 Act of 1S02, ch, 8. 
 
OF THE JUDICIAL POWERS. 359 
 
 the intent of the constitution.^ But with due respect to the 
 opinion of the learned author, it iis not conceivable that 
 the franiers of the constitution intended to impose upon 
 the nation a constitutional obligation to maintain for- 
 ever an imperfect or defective organization of the inferior 
 court, lest, perchance, they should disturb the oiiicial 
 life of a judicial incumbent. It is a well-settled prin- 
 ciple, that the incumbent of an office for life or for 
 years, has no vested right or interest in the ofiice, or in 
 his ])rosi)ective salary. He administers for the public, 
 not for himself, and, in the absence of any constitutional 
 inhibition, the office may be abolished at any time, with- 
 out consulting the wishes or personal interest of the 
 incumbent. By abolishing the office, the incumbent is 
 not removed, but his official life ceases with the cessa- 
 tion of the office. 
 
 S 538. It cannot be doubted that it was the design of 
 the authors of the constitution to commit to congress 
 the organization and supervision of the national courts 
 in every respect not fixed and settled by the constitu- 
 tion itself The constitution provides that there shall 
 be one supreme court and such inferior courts as con- 
 gress may from time to time ordain and establish.^ It 
 also provides for the original and appellate jurisdiction 
 of the supreme court in certain cases; and for the ap- 
 pointment of the judges; and the tenure of their office, 
 etc. But it leaves the organization of these courts, the 
 number of judges, and the rules by which they are to be 
 governed, to the discretion of congress ; and without 
 the exercise of which the courts themselves could have 
 no existence. Everything pertaining to the organiza- 
 tion, and the practical workings of these courts, is com- 
 mitted necessarily, to the legislative discretion.^ 
 
 § 539. The legal rights of individuals cannot be pro- 
 tected and enforced by government except through the 
 
 1 Com. on Const., § 1633. 
 
 2 .Jadgos ofinferlor courts do not include judges of the courts annointed in 
 !.^:^n Itl'^tT'^'t «f the United States under the^author ty |?vln to^c^on^rlss to 
 regulate the territories of the United States. Such are le"isHtive ^r>.,rt« 
 created in virtue of the general sovereigntv which exists in tlie general so^^^^ 
 Co'r^Z'cVr^LTliS'''''''' ^--^-ies.^1 Peter's S. C^^lrltlfii^riir^'s 
 
 3 In a recent case (ex parte; in matter of A. H. Garland of Arkansas nefi- 
 mo"foii f,f Uie l°iD"rfmeVon,-t"'^','7 "'^V^^- ^arr, ofLoufsiana^?efiUonet?ron 
 taking the test oTtlfnrescri^r/^^^^ ^° practice as attorneyi. etc., without. 
 cSn of nn nnnrnli fn ho^^^^^ Congress, as an essential part of the qualifl- 
 md-Ps hPH fw th^^nn? /f ^"ti"ed to practice in such court, a majority of the 
 tutilnil? T ts nn «nnmni?,'^ '/h''^^- Pi-escribing such test oath, was unconsti- 
 ofle4l criticism and w^^^^^^^^ ?"« ^'"^^ «^nnot stand the test 
 
 mi 'relr^.l^'ali:^. '"? '^"^"' ^"'^"^'^^'^ '"^ tL^'^v'e^t^i^^SS'f^r^I^fS: 
 1 Dec. Term, 1SC6, not reported. 
 
360 GOVERNMElsTT. 
 
 intervention of the judiciary to interpret and apply the 
 laws for such purpose. In matters of internal adminis 
 tration the executive cannot act in tlie execution of the 
 law, except iu pursuance of the order, judgment, or 
 decree of the courts. In all questions directly aftecting- 
 the vested or natural rights of individuals, the action of 
 the judiciary necessarily precedes that of the executive, 
 for the purpose of ascertahiing the law, and directing 
 its application to the x)urpose intended. But in respect 
 to questions aflecting the political rights of i)olitical 
 states or communities, the judiciary cannot properly 
 interfere. Whether the inhabitants of a territory shall 
 be incorporated into a political state ; and upon Avhat 
 condif;ions ; and subject to what restrictions ; are ques- 
 tions of legislative discretion, which the judiciary can- 
 not review. It is the same generally, with all questions 
 committed to the discretion of congress, which do not 
 directly affect the natural or vested rights of the citizen.^ 
 .§ 540. The judicial power of the United States ex- 
 tends to all cases, in law or equity, arising under the 
 constitution and laws of the United States, and treaties 
 made under their authority; to all cases aftecting embas- 
 sadors, other public ministers and consuls ; to all cases 
 of admiralty and maritime jurisdiction ; to controversies 
 to which the United States shall be a party ; to contro- 
 versies between two or more states ; between a state 
 and citizens of another state; between citizens of dif- 
 ferent states ; between citizens of the same state claim- 
 ing lands under grants from diflFerent states ; and 
 between a state, or the citizens thereof, and foreign 
 states, citizens or snbjects.^ By the eleventh amendment 
 to the constitution it is provided, however, "that the 
 judicial power of the United States shall not be con- 
 strued to extend to any suit in law or equity commenced 
 or prosecuted against one of the United States by citi- 
 zens of another state, or by citizens or subjects of any 
 foreign state." ^ As the judicial power of the United 
 States extends only to cases arising under the constitu- 
 tion and latvs of the United States, etc., it is first neces- 
 sary to consider what constitutes a case, within the 
 meaning of this clause. To constitute a case, there 
 
 1 See the recent discussions before the supreme court on the application of 
 Georgia for a writ of injunction against Stanton, Grant and Pope, to prevent 
 the enforcement of the reconstruction act of 1867, and which was denied by the 
 court. 
 
 2 Art, 3, ? 2, cl. 1, Const. U. S- 
 
 3 See Story's Com. on Const., § 168-5; Fowler v. Lindsey, 3 Dall. Rep., 411; Slate 
 New York v. Connecticut, 4 Id., 1, 3,6; Uniled States \ . I'eters, 5 Cranch, 115, 139 ; 
 Osborn v. Bank of United States, 9 Wheat. Rep., 846. 
 
OF THE JUDICIAL POWERS. 361 
 
 must be the proper parties, having rights to be adjudi- 
 cated : or, at least, capable of having rights to be 
 adjudicated, arising in the manner, or between the par- 
 ties, prescribed in the constitutiou. And since there 
 can be no case for the exercise of judicial power by 
 the national judiciary, where the proper parties do not 
 exist ; and since there can be no proper party to au 
 action or suit, where the legal or equitable rights of a 
 legal person have not been, or are not threatened to be, 
 invaded, the principles involved in a case for the exer- 
 cise of judicial power by the national judiciary are easy 
 to be ascertained and applied.^ 
 
 § 541. In plain language, a case is an action or suit, 
 in law or equity, instituted according to the regular 
 course of judicial proceedings.^ As such, there must be 
 the i)roper parties to the action or suit ; that is, there 
 must be before the court a legal person as a party, 
 whose rights are to be protected or vindicated. Any 
 ])erson may be such a party whose legal rights, arising 
 under the constitution, or laws of the United States, or 
 treaties made in pursuance thereof, have been wrong- 
 fully invaded or withheld by a person legally responsible 
 for such wrongful conduct. So also may a person be a 
 I)arty and bring his case before the national judiciarj-, 
 ■where his protection, or the enforcement of his rights, 
 affect embassadors, other public ministers or consuls ; or 
 where they constitute a case for admiralty and maritime 
 jurisdiction, by arising upon the high seas, which are 
 the joint property of nations, whose rights and jnlvi- 
 leges relative thereto, are regulated by the law of 
 nations and treaties.^ Beyond these cases, the consti- 
 tution has declared who only can be parties to suits 
 before these national tribunals. But these parties must 
 be persons whose legal or equitable rights have been 
 withheld, or have been invaded ; or are in such immi- 
 nent danger as to call for the protective remedies admin- 
 istered in equity. 
 
 1 "It is clear that the Judicial department is authorized to exercise jurisdic- 
 tion to the full extent of the constitution, laws and treaties of the United 
 States, whenever any question respecting them shall assume such a form tliat 
 the judicial power is capable of acting upon it. When it has assumed such a 
 form, it has then become a case ; and then, and not till then, the judicial power 
 attaches to it. A case, in the sense of the constitution, arises when some sub- 
 ject touching the constitution, laws or treaties of the United States, is submitted 
 to the courts by a party who asserts his rights in the form prescribed by law." 
 (Stoi-y on Const., g 161G, and notes.) "A case is a controversy between parties, 
 which has taken a shape for judicial decision." (Marsh. Speech, 5 Wheat. Rep., 
 app., 16; see also Osborn v. The Bank of the United Slaten, 9 Wheat. Rep. 819.) 
 
 .2 Story on Const., § 1016. 
 
 3 Chisholm v. The State of Georgia, 2 Ball. Rep,, 419, 475; 2 Pet. Cond. Rep., 
 633, 671. 
 
 46 
 
S62 GOVERNMENT. 
 
 % 542. Oases arising under tlie constitution are distin 
 gnislied from tliose arising under tlie laws of the United 
 States in this : The constifcntion of the United States 
 confers certain powers, grants certain privileges, and 
 secures to citizens protection in the enjoyment of certain 
 rights, independent of any particular statutory enact- 
 ment. Therefore, cases may arise under such powers, 
 privileges, and rights: as if a citizen of one state 
 should be denied the privileges of a citizen in another 
 state; or if a state should attempt to make paper 
 money a legal tender for the payment of debts ; or if a 
 person charged with a crime against the United States, 
 should be denied the right of trial by jury ; or if a sol- 
 dier in time of peace, should be quartei'ed in any house 
 without the consent of the owner thereof; for an injury 
 such as these, there would be a case arising under the 
 constitution. On the other hand, cases arising under 
 the laws of the United States are such as grow out of 
 the legislation of congress within the scope of their con- 
 stitutional authority, whether they constitute the right, 
 the privilege, the claim, protection or defense of the 
 I)arty by whom they are asserted. Wherever in a judi- 
 cial proceeding any questions arise touching the validity 
 of a treaty, or statute, or authority exercised under the 
 United States, or touching the construction of any clause 
 of the constitution, or of iiuj statute, or of any treaty of 
 the United States, or touching the validity of any 
 statute or authority exercised under any state on the 
 ground of any repugnancy to the constitution, laws, or 
 treaties of the United States, it has been invariably held 
 to be a case to which the judicial power of the United 
 States extends.^ A case in law or equity consists of the 
 right of the one party as well as of the other, and may 
 be said to arise under the constitution or a law, or a 
 treaty of the United States whenever its correct decision 
 depends on the construction of either.^ 
 
 § 543. The reasons why the constitution conferred the 
 jurisdiction contained in article three, section two, is 
 
 t See Marbury X.Madison, 1 Crancli., 137, 173, 174; Story's Com. on Const., g 16i7; 
 Martin v. Hunter, 1 Wheat. Rep., 304; Cohens v. Virginia, C Wheat. Rep , 264; see 
 also Wheat. Rep., pp. 1 and 738. 
 
 2 See Judiciary act of 1789, oh. 20, g 25; see Story's Com., supra, g 1648. 
 
 The judicial power of tlie federal government extends to all cases in law and 
 equity arising under the constitution. Now the powers granted to the federal 
 government, or prohibited to tlie states, being all enumerated, tlie cases aris- 
 ing under the constitution can only be such as arise out of some enumerated 
 power delegated to the federal government, or prohibited to those of the several 
 states. These general words include wliat is comprehended in the next clause, 
 namely, cases arising under the laws of the United States, etc. (See 1 Tuck. Bl. 
 Com. App., 418; see discussion of tliese questions by Rawle on the Const., 
 ch. 28.) 
 
OF THE JUDICIAL POWERS. 363 
 
 forcibly expressed by Chief Justice Jat^ as follows: 
 " It may be asked what is the precise sense and latitude 
 in which the words * to establish justice,' as here used, 
 are to be understood? The answer to this question will 
 result from the provisions made in the constitution on 
 this head. They are specified in the second section of 
 the tliird article, where it is ordained that the judicial 
 I)ower of the United States shall extend to ten descrip- 
 tion of cases, namely: 1. To all cases arising under 
 this constitution ; because the meaning', constructiou 
 and operation of a compact ought always to be ascer- 
 tained by all the parties, not by authority derived 
 only from one of them. 2. To all cases arising under 
 the laws of the United States; because, as such laws, 
 constitutionally made, are obligatory on each state, the 
 measure of obligation and obedience ought not to be 
 decided and fixed by the party from whom the}^ are 
 due ; but by a tribunal deriving authority from both 
 parties. 3. To all cases arising under treaties made by 
 their authority; because, as treaties are compacts made 
 by. and obligatory on, the whole nation, their operatiou 
 ought not to be affected or regulated by local laws, or 
 courts of a part of the nation. 4. To all cases affecting 
 embassadors, or other public ministers and consuls ; 
 because, as these officers are of foreign nations, whom 
 this nation are bound to protect, and treat according to 
 the laws of nations, cases affecting them ought only 
 to be cognizable by national authority. 5. To all cases 
 of admiralty and maritime jurisdiction; because, as the 
 seas are the joint property of nations, whose rights and 
 privileges relative thereto are regulated by the law of 
 nations and treaties, such cases necessarily belong to 
 national jurisdiction. 6. To controversies to which the 
 United States shall be a party ; because, in cases in 
 which the whole people are interested it would not be 
 equal or wise to let any one state decide and measure out 
 the justice due to others. 7. To controversies between 
 two or more states ; because domestic tranquillity requires 
 that the contentions of states should be peaceably ter- 
 minated by a common judicatory ; and because, in a 
 free country justice ought not to depend on the will of 
 either of the litigants. 8. To controversies between a 
 state and citizens of another state ; because, in case 
 a state — that is, all the citizens of it — has demands 
 against some citizens of another state, it is better that 
 
 1 ChUholm V. The State of Georgia, 2 Dall. Rep., 419, 475. 
 
S64 GOYERJ^MENT. 
 
 slie sliould prosecute their demands in a national court, 
 than in a court of the state to which those citizens 
 belong; the danger of irritation and criminations, arising 
 from apprehensions and suspicions of partiality, being 
 thereby obviated ; because, in cases where some citizens 
 of one state have demands against all the citizens of 
 another state, the cause of liberty and the rights of men 
 forbid that the latter should be the sole judges of the 
 justice due to the former; and true republican govern- 
 ment requires that free and equal citizens should have 
 free, fair and equal justice. 9. To controversies between 
 citizens of the same state claiming lands under grants 
 of different states; because, as the rights of tlie two 
 states to grant the land are drawn into question, neither 
 of the two states ought to decide the controversy. 
 10. To controversies between a state or the citizens 
 thereof, and foreign states or citizens or subjects; 
 because, as every nation is responsible for the conduct 
 of its citizens toward other nations, all questions touch- 
 ing the justice due to foreign nations oi' people ought 
 to be ascertained by, and depend on national authority."' 
 
 ^ 544. Oases may arise undei- the laws of the United 
 States by implication, which may be brought before the 
 national judiciary for redress. If an officer is ordered 
 to arrest an individual, and he does so by the legal 
 authority of the nation, the law implies that he shall 
 be protected in obeying such authority. It is no 
 unusual thing for an act of congress to imply, without 
 expressing, such exemption from state control. Col- 
 lectors of revenue, carriers of the mails, operators in 
 the mint establishment, and other national institutions 
 of a public nature, are examples ; and although there 
 is no provision of congress expressly i)rotecting them, 
 such protection is necessarily incidental to the office, 
 and is implied in the acts creating it."^ 
 
 S 545. The judicial power extends to all cases in law 
 and equity. " There is hardly a subject of litigation 
 between individuals which may not involve those 
 
 1 Mr. Madison saj^s that cases arising under tlie constitution in the sense of 
 tlae above clause, are of two descriptions. One of them comprehends the cases 
 growing out of the restrictions on the legislative power of the states, such as 
 emitting bills of credit, making anything but gold and silver a tender in pay- 
 ment of debts. Should this prohibition be violated, and a suit between 
 citizens of the same state be the consequence, this would be a case arising 
 under the constitution before the judicial power of the United States. A 
 second description comprehends suits between citizens and foreigners, or 
 citizens of different states, to be decided according to the state or foreign laws, 
 but submitted by the constitution to the judicial power of the United States. 
 Virginia Resolutions and Report, January, 1800, p. 28. 
 
 2 See Story's Com. on Const., a 1658 ; Osborn v. Bank of United States, 9 Wheat. 
 Kep., 846, 863, 866. 
 
OF THE JUDICIAL POWERS. 365 
 
 ingredients of fraud, accident, trust, or hardship, wLicli 
 would render the matter an object of equitable rather 
 than legal jurisdiction, as the distinction is established 
 in several of the states. It is the peculiar province of 
 a court of equity to relieve against what are called hard 
 bargains. These are contracts in which, though there 
 may have been no direct fraud or deceit sufficient to 
 invalidate them in a court of law, yet there may have 
 been some undue and unconscionable advantage taken 
 of the necessities or misfortunes of one of the parties 
 which a court of equity would not tolerate. In such 
 cases, where foreigners were concerned on either side, 
 it would be impossible for the federal judicatures to do 
 justice without equitable as well as legal jurisdiction. 
 This reasoning may not be so palpable in those states 
 where the formal and technical distinction between law 
 and equity is not maintained, as in this state, wbere it 
 is exemplified by every day's practice.^ 
 
 g 540. The supreme court has original jurisdiction in 
 all cases affecting embassadors, other public ministers 
 and consuls, and those cases in which a state is a party. 
 Such cases can only be brouglit in the supreme conk 
 of the United States. But all other cases of which the 
 national judiciary can take cognizance, may, under 
 the regulations of congress to that effect, be commenced 
 in the subordinate or inferior courts of the United 
 States. The supreme court is to have appellate juris- 
 diction both of the law and fact in all such cases, 
 except where, under the regulations of congress, it is 
 otherwise provided.'^ The essential element ol" an appel- 
 late jurisdiction is the right to revise and correct the 
 proceedings in a cause already instituted, and does not 
 create the cause.^ It necessarily implies that the 
 subject-matter has already been instituted in, and acted 
 upon by, some other court whose judgment or proceed- 
 ings are to be revised. This appellate jurisdiction may 
 be exercised in a variety of forms, as the legislature 
 may prescribe. The most usual modes are by "writs of 
 error and by appeal. A writ of error is a common law 
 process to remove the record of the inferior court into 
 the superior or appellate court for a re-examination of 
 the law only. An appeal is a process of civil law origin, 
 
 1 Alexander Hamilton in the Federalist, No. 80, p. 447. 
 ■ 2 Art 3, J 2, cl. 2. Story's Cora, on Const., i} 1763-176S. 
 3 Story's Com. ou Const., 'i 1761; 1 Cr. 175; 2 Pet., 449. 
 
366 GOVERNMENT. 
 
 wliicli briDgs np the whole case, subjecting the fact as 
 Tvell as the law to a re-examluatiou au^ re-trial.^ 
 
 S 547. By the language, "the supreme court shall 
 have appellate jurisdiction both as to law and fact," is 
 not meant that the supreme court may on appeal review 
 the decisions of a jury in mere matters of fact, and thus 
 in effect destroy the validity of their verdict ; but that 
 in cases of equity and admiralty jurisdiction the supreme 
 court may review the facts as well as the law.^ The 
 appellate jurisdiction of the supreme court extends to 
 all cases determinable in the different modes ; some in 
 the course of the common law, and some otherwise. 
 In reviewng those which are determinable according to 
 the course of the common law, the court will review 
 only questions of law ; while in reviewing equity and 
 admiralty cases, are-examination of the facts is according 
 to usage. If any doubt remains as to this construction 
 the following amendment of the constitution sets the 
 question at rest. Article seven of the amendment ijro- 
 vi(les that " in suits at common law, where the value in 
 controversy shall exceed twenty dollars, the right of 
 trial by jury shall be preserved: and that no fact tried 
 by a jury shall be otherwise re-examined in any court 
 of the United States, than according to the rules of the 
 common law. 
 
 § 548. The trial of all crimes, except in cases of 
 impeachment, shall be by jury, and such trial shall be 
 held in the state where the said crimes shall have beeu 
 committed. But when not committed within any state, 
 the trial shall be at such place or places as the congress 
 may by law have directed.^ This provision of the con- 
 stitution applies only to the civil administration of the 
 government. Whenever, from invasion or rebellion, 
 the public safety may require the administration of 
 martial authority, criminals may be tried, convicted 
 and executed without the intervention of a jury. In 
 the language of Judge Stewaet, in refusing the writ 
 of habeas corpus to C. L. Vallandigham on the ground 
 that the ijublic safety demanded his arrest and punish- 
 ment: "Those who live under the protection and enjoy 
 the blessings of our benignant government, must learn 
 that they cannot stab its vitals with impunity. If they 
 cherish hatred and hostility to it, and desire its subver- 
 sion, let them withdraw from its jurisdiction, and seek 
 
 1 See 3 DalL K., 321 ; 9 Wheat. Rep., 409-412 ; Story's Com. on Const., J 1762. 
 s Federalist, Nos. 81 and 83 ; Story on Const., a 1763. 
 a Art. 3, 2 2, cl. 3, Const. U. S. 
 
OF THE JUDICIAL POWERS. 367 
 
 the fellowship and protection of those with whom they 
 are in sympathy. If they remain with iis while they are 
 not of us, they must be subject to such a course of 
 dealing* as the great law of self-preservation x>i'escribes 
 and will enforce. And let them not complain if the 
 stringent doctrine of military necessity should find them 
 to be legitimate subjects of its action." ^ 
 
 ^ 549. The right of trial by jury has from very early 
 times, been insisted upon as the great bulwark of civil 
 and political liberty ; and has been watched with 
 unceasing jealousy, and solicitude. This right consti- 
 tutes a fandamental article of Magna Gharta^ which is 
 that no man shall be arrested, nor imprisoned, nor ban- 
 ished, nor deprived of life, except by the judgment of his 
 peers, or by the law of the land. And a trial by jury is 
 understood to mean — generally — a trial by a jury of 
 twelve men, impartially selected, and who must unani- 
 mously concur in the guilt of the accused before a legal 
 conviction can be had. The object to be gained by a 
 jnry trial in criminal cases is to guard against the spirit 
 of oppression and tyranny on the i)art of rulers ; and a 
 violence and vindictiveness on the part of the people. 
 The principle involved in jury trials is forcibly expressed 
 by Mr. Justice Smith in WilUs v. Long Island Railroad 
 Companif in these words. " The wisdom of the time- 
 honored rule of the common law which refers questions of 
 fact to, the jurors, and questions of law to the judge, is 
 not more conspicuous in any class of cases than those 
 which involve questions of negligence. Oases of that 
 nature frequently come before the courts in which men 
 of equal intelligence and judgment differ in their conclu- 
 sions, simply because they differ in experience and habits, 
 in temperament or mental organization. A course of con- 
 duct which seems sufficiently careful to a self-reliant 
 man, who is accustomed to act promptly, may appear 
 reckless to one who is usually circumspect and hesita- 
 ting. That «i'6Trt^c judgment which is the result of the 
 deliberations of twelve men of ordinary sense and expe- 
 rience is recognized by our jury system as a juster stan- 
 dard than the judgment of one man of equal experience 
 and sense in the determination of questions of fact, and 
 it is especially valuable in the decision of questions of 
 negligence." 
 
 1 See State Papers of Abraham Lincoln, by Raymond, p. 3S5. 
 
 2 Masina Charta, cb. 23 ofU Henry III. 
 
 3 31 N. Y., G70, 679. 
 
368 GOVERNMENT. 
 
 S 550. Trials for crimes must be had in the state where 
 they are committed. The ol^ject of this clause is to 
 secure a trial with the least possible incouveuience to the 
 accused ; that is, that he shall not be compelled to 
 go to a trial in some distant state away from friends, 
 witnesses and neighborhood, and thus be subjected to the 
 indifference, and perhaps, prc'judice of strangers to 
 who.m he is only known as an accused person, with whom 
 they have no sympatli3% and in whom, no interest. But 
 while this provision of the constitution is designed to 
 secure to individuals these benetits, it may likewise, 
 sometimes contribute to embarrass the admiuistration of 
 public justice. During the great rebellion, the public 
 seiitimeut of those states which went into it was such, 
 that however guilty of treason the conspirators were, it 
 was exceedingly difficult, if not impossible, to convict 
 them before a jury of those states. The consequence 
 has been, that those who were principally guilty of 
 fomenting and carrying on the rebellion against national 
 authority, and treason against the nation's life, have 
 escaped with impunity. The chief of the rebellion, act- 
 ing as ]3resident of the assumed confederacy, their 
 executive head, and the commander-in-chief of their 
 army and navy may unquestionably be prosecuted for 
 treason in any state into which he sent his array to levy 
 war against the United States. And it must be deemed 
 to be the fault of the executive department of the national 
 government, that he has not been indicted and tried in 
 the district in which Gettysburg in Pennsylvania is 
 situated, where his rebellious army was defeated by the 
 national forces in July, 1863. " To constitute the crime 
 of treason," say the court in ex jiarte Bollman ^ " war 
 must be actually levied against the United States. To 
 levy war, and actually to levy war, are distinct offenses. 
 It is not the intention of the court to say, that no indi- 
 vidual can be guilty of this crime who has not appeared in 
 arms against his country. On the contrary, if war be 
 actually levied, if a body of men be actually assembled for 
 the purpose of effecting by force a treasonable purpose, 
 all those who xjerform any part, however minute, or 
 however remote from the scene of action, and who are 
 actually leagued in the general conspiracy are to be 
 considered as traitors." Under this construction of the 
 law of treason by the supreme court of the United States, 
 there could have been no legal difficulty in the way 
 
 1 4 Cranch, 126; see also Uniied Slates v. Burr, 4 Id., 469-508, 
 
INTER-STATE ADMINISTRATION. 369 
 
 of indicting and trying the master spirits of the rebellion 
 in any state where, by their aid and procurement, trea- 
 son against the United States was committed. And 
 besides tliis, many acts of treason were committed nnder 
 tlie commissions of the rebel government, in territories 
 outside of state governments; thereby giving authority 
 to congress to provide by law, for trying the rebel chief 
 and his co-rebels for these acts of treason, in any state 
 of the uuion.^ 
 
 CHAPTER XYIII. 
 
 IXTER-STATB ADMINISTEATION. 
 
 S 551. The states being political corporations, 
 instituted or continued as instruments to administer 
 national authority, in respect to local and domestic 
 Interests within their respective limits, although inde- 
 l)endent of each other in their local administration, are 
 not independent and foreign to each other in the author- 
 ity by which they administer. Each state has sole 
 jurisdiction or administrative authority within its own 
 borders ; but each possesses and administers the same 
 authority, to wit, the authority of the nation. Conse- 
 quently the public acts, records and judicial proceedings 
 in each of the several states are evidence of the action, 
 and determination of the same authority. No matter 
 how much the several states may differ in the details 
 of state administration, or in forms and modes of pro- 
 ceedings, they are each legal and binding within their 
 respective jurisdictions, in virtue of the authority which 
 is present in ever^'- state. It is proper, therefore, to 
 require the several states to give faith and credit to that 
 which has been authoritatively settled in another state. 
 Accordingly article four, section one, provides that 
 •' full faith and credit shall be given in each state to the 
 I)ublic acts, records, and judicial proceedings of every 
 other state ; and that congress may, bj^ general laws 
 l)rescribe the manner in which such acts, records and 
 l)roceedings shall be proved, and the effect thereof" 
 The purpose of this provision is to carry into effect the 
 theory of the presence of but one authority in the seve- 
 ral states, b}' which the public acts, records and judicial 
 
 » See Art. 3, § 2, cl. 3, of the Constitution of the United States. 
 47 
 
870 GOVERNMENT. 
 
 proceedings are liad. It is intended to give conclusive 
 efficiency throughout alJ the states, to that authority, 
 which had, in due form, become conclusive in any of 
 tliera. It is to remove all the public acts, records, and 
 judicial proceedings of the several states, from the cat- 
 egor}' of those which, in the language of jurisprudence, 
 are denominated "foreign," as contradistinguished 
 from " domestic " judgments and the like, — that the 
 jurisdiction of the court being established, the judgment 
 thereof shall be conclusive upon the merits.^ 
 
 g 552. At the time the constitution was adopted, 
 there had been a diversity of opinions in the English 
 courts as to the credit to be given to a foreign judg- 
 ment. It was generally conceded, that when the foreign 
 judgment came in question collaterally, it was to be 
 deemed conclusive ; but when such judgments were put 
 in suit, and made the subject of an action, the prevail- 
 ing opinion seemed to be, that they were only iirima 
 facie evidence of a debt, and had only the force of a 
 simple contract between the parties.^ Mr. Staekie 
 was of the opinion that the better authority in the 
 courts of England, was in favor of the conclusiveness 
 of foreign judgments, where they were made the 
 basis of an action or suit ; and remarked, that the prin- 
 ciple on which the conclusive quality of judgments and 
 decrees rested applied as well to foreign as to domestic 
 judgments.^ The American authorities hold that a 
 foreign judgment, when i)roduced as the foundation of 
 an action in the courts of this country, are never more 
 than prima facie evidence ; and that they may be 
 impeached by showing that they were irregularly 
 obtained, or, indeed, uj)on almost any ground which 
 could have constituted a defense to the original suit."* 
 But all American cases agree that when the foreign 
 judgment comes only incidentally in question, it is 
 conclusive. The several states in the American union 
 are not to be deemed foreign states in respect 
 to each other ; nor are the supreme or circuit courts 
 of the United States to be so considered in the state 
 courts.^ 
 
 1 See Story's Com. on Const., ? 1309, ei seg.: see 1 Phillipps on Ev., Cowen and 
 Hill's notes, pp. 351-a5o ; also 3 I'd., pp. 895-893, note 636. 
 
 2 1 Phil. Ev., ch. 3, § 2, p. 352, and authorities. 
 
 3 1 Stark. Ev., 6 Am. Ed., p. 228; Cowen & Hill's notes to Phil. Ev., note 636 
 top. 353. 
 
 * See Cowen & Hill's notes to Phil. Ev., No. 636. 
 
 6 See collection of authorities by Cowen & Hill in their notes to Phillipps' 
 Evidence under the head of Foreign Courts, note 638, to p. 353. 
 
INTER-STATE ADMINISTRATION. 371 
 
 g 553. In pnrsnance of tlae authority vested in con- 
 gTess by tlie constitution, it passed an act^ in which, 
 after ])roviding fou the mode of proof, it provided that 
 •'the said record and judicial i)roceedinii:s, authenticated 
 as aforesaid, shall have such faith and credit given to 
 them in every court within the United States, as they 
 Lave, by law or usage, in the courts of the state from 
 whence the said records are or shall be taken." The 
 provisions of the act of 1790 are likewise extended to 
 the records and judicial proceedings of the several territo- 
 ries of the United States, and to the countries subject to 
 the jurisdiction of the Uidted States.^ In respect to this 
 clause of the constitution, there have been two classes of 
 construction upon the words " and the effect thereof." 
 Some bad read the clause in this sense: that congress 
 shall have the authority to lu'escribe the effect of the 
 required proof or authentication ; others read it that 
 congress shall have authority to prescribe the effect of 
 the public acts, records and judicial proceedings in the 
 states, when they shall be duly proved by proper 
 authentication.^ But the prevailing opinion is, that the 
 hitter construction should be adopted, and such is 
 the character of legislation by congress upon that sub- 
 ject. By the uniform course of decisions in the several 
 states, it is now well settled that the judgment of any of 
 the state courts is of the same dignity in every other state 
 as in the state where rendered; and that it is or is not 
 conclusive in its operation as evidence, in the several 
 stnte courts, according to its character in the state 
 where pronounced ;* and that such judgments maybe 
 Avholly impeached by showing that the court rendering 
 it had not jurisdiction.^ 
 
 § 554. Citizens of a state are citizens of the United 
 States residing within the limits of the particular state 
 of which they are citizens. There are no particular state 
 laws creating citizenship, nor under the constitution of 
 the United States, can such distinctions be maintained. 
 A state as a politicnl cor[)oration instituted for special 
 and local purposes, cannot create state distinctions in citi- 
 zenshi[>. Citizens of the nation residing within the limits 
 of any of the states, are, under the national constitution, 
 obliged to maintain their political connection with the 
 national government, through the state corporation. And 
 
 1 May 26, 1790, cli. 11 ; 2 L. U. Statutes, 102. 
 
 2 3L. U. Slatutes, 621. 
 
 3 9 Mass. Rep., 462; Cook's Rep., 420; 1 Pet. C. C. R., 74; 17 Mass., 510. 
 
 4 Cow. & Hill's notes to Phill. Ev., note 638 to p. 353, and authorities. 
 
 6 1 Pet. Rep., 328, 310; 9 id., 157; 10 Wend., 75; 13 id., 407 ; 1 Mass., 1U3; 1 Paine, 55. 
 
872 GOVERNMENT. 
 
 the constitutional rights of every citizen of the nation 
 are snpreuiely binding upon these state corporations. 
 The logic is simply this : The nation, in virtue of its 
 inherent sovereignty, has ordained and established 
 a constitutional government, which in its authority, as 
 the representative of the pation, is supreme over all. 
 In its ordinance of government it has provided two 
 modes of administration in character and jurisdiction — 
 one general, and one local ; — that is, it has provided for 
 the institution and maintenance of a general or national 
 administration, to be participated in by the citizens of 
 the nation at large ; and for the institution and main- 
 tenance of local or state governments, to be partici[)ated 
 in by the citizens of the states respectively. By the 
 constitution of the United States, the nation has made 
 these state corporations the instruments by means of 
 which the national citizen avails himself of his right to 
 I)articipate in the administration of national authority ; 
 and it has secured to him the privilege of exercising his 
 national political rights through these state institutions. 
 Therefore, the constitution jjrovides, that the citizens of 
 each state, shall be entitled to all privileges and immu- 
 nities of citizens, in the several states. Every citizen 
 of a state being also a citizen of the nation, has national 
 rights, and national authority extending over every 
 inch of the national domain, and over every mem- 
 ber of the national family ; therefore, he has a political 
 right to inhabit whatever state he pleases and to enjoy 
 all inlvileges and immunities of a citizen therein.^ 
 
 ,§ 555. The constitution also provides that 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 neces- 
 sity of this x)ro vision arises from the local character 
 
 1 A citizen of the United States has national riglits co-extensive with the 
 jurisdiction of the national government. He has the same authority over 
 national interests in one part of the union as in another. By his representa- 
 tive in congress, lie speaks and acts for the whole union. By the constitution 
 of the United States, which is both the fundamental and supreme law of 
 the nation, each citizen is invested with this political authority over every 
 part of the national domain, and entitled to all privileges and immunities of 
 citizens, in the several states; that is, tlirougliout tlie nation. Where, then, 
 was the foundation for the pretended right of secession, which involved the 
 right to exclude from the state the authority of the nation? Twenty mil- 
 lions of national citizens in the north and west had national authority over, 
 and national interests in, South Carolina; rights to which they were horn 
 under the national constitution, and rights which they had exercised ever 
 since they were born. How, then, could the people of South Carolina divest 
 these twenty millions of their national rights within the limits of that por- 
 tion of the national domain ? 
 
 2 Art. 4, g 2, cl. 2, Const. U. S. 
 
INTER-STATE ADMINISTRATION. 373 
 
 of state antlioriry. A state government can exercise no 
 autliority beyond tlie limits of the state. Its laws are 
 only bindin<»- npon those who are fonnd within its juris- 
 diction, either in person or property. Consequently, 
 should a person violate a state regulation, or commit a 
 criminal act, and thenleave thostate before beingarrested 
 or required to answer for it, he would be beyond the 
 reach of its authority or power to i)unish. Nor would 
 he be liable in the state in which he might be found, for 
 acts committed beyond its jurisdiction. And inasmuch 
 as, by the provisions of the constitution, no state can 
 enter into anj^ agreement or compact with another for 
 any purpose, this provision became indispensable to 
 guard ngainst such evils. It was necessary for an author- 
 ity that knew no state lines, but extended throughout 
 all the states and territories of the Union, to provide for 
 bringing to trial and yunishmeut, escaping criminals, or 
 fugitives from justice. 
 
 g 550. At the formation of the general government, 
 the people of the United States were residing under 
 state governments, each of which was local and inde- 
 pendent of the other. The people of these states were 
 one nation. But as a nation, they had no government 
 by which to express or execute the national will and 
 authority. It was proposed to institute such a govern- 
 ment of the people of the United States, not of the states 
 themselves. Such an institution would necessarily subor- 
 dinate these state institutions in all national affairs, to 
 national authority ; upon the principle that the whole is 
 greater than any of its parts; that the authority of the 
 Avhole people, is greater than the authority of a mere 
 minority of them. But these state governments were to 
 be continued as instruments of local or domestic admin- 
 istration. As local political institutions, their author- 
 ity was to continue as before, limited to local interests 
 and within their respective boundaries. These laws 
 could have no extra-territorial force. In respect to each 
 other, each was sovereign and independent. By the 
 terms of the constitution no state was to have authority 
 to enter into any agreement or compact with another 
 state, or with a foreign power. ^ As a fact, slavery 
 existed as a local institution in the several states,^ and 
 the people oould not agree to abolish it. It was therefore 
 deemed necessary to insert in the constitution a provi- 
 sion to secure to the owner of slaves in any of the states 
 
 1 Art. 1, 1 10, cl. 2. s With one exception. 
 
874 GOVERNMENT. 
 
 the right to pursue a,fter, and recapture his escnpiiig 
 skive, in any other state within the national limits. 
 Prior to the institution of the national government, the 
 several states being independent and sovereign in respect 
 to each other, had extended this right by means of an 
 intei'-state comity. But u})on the institution of the 
 general government of the nation this authority on the 
 l)art of the state was to be taken away ; and, as the law 
 of tlie state by which the slave was held in bondage, 
 could have no extra-territorial force ; and as the state 
 could enter into no compact or agreement with another 
 state to establish or continue such c(miity, it was pro- 
 vided in the constitution that " No person held to 
 service or labor in one state, under the laws thereof, 
 escaping into another, shall, in consequence of any law 
 or regulation therein, be discharged from such service or 
 labor, but shall be delivered up on claim of the i)arty to 
 whom such service or labor may be due."^ 
 
 % 557. Tbe sole object of this provision was to secure 
 to the slaveholder the right to retain his property in the 
 slave, notwithstanding his escape beyond the jurisdiction 
 making him such ; and the power to enforce such legal 
 right in any state where his slave might be found. In 
 society there are two sources or classes of rights in 
 respect to their foundation or origin : one having its 
 basis in natural justice; and the other in physical force, 
 or might. In all things, except slavery, the American 
 people professed to have rei)udiated the doctrine that 
 might could confer rights. Slavery had its basis in [)0wer 
 or force. It had no shadow of natural justice in it. 
 Hence, it could never exist by any implication or i)re- 
 sumption of law. Said Lord Mansfield, "it is of such a 
 nature that it is incapable of being introduced on any 
 reason, moral or political. It it so odious that nothing 
 can support it but positive law." * And even under the 
 influence it obtained over the nation, by becoming the 
 bond of union of one of the great political parties, 
 making and unmaking presidents and administrations, 
 few if any of its advocates presumed so much upon the 
 ignorance or depravity of the people, as to assert that 
 human slavery had its basis in natural justice; or, which 
 was the same thing, that man had a natural right to 
 enslave his fellow: This class of rights — if they may 
 be denominated such — had their basis in force merely ; 
 and their continuance always and everywhere, depended 
 
 i Art. 4, i 2, cl. 3. 2 In the Somersett case, 20 Ho-weU's State trials, p. 1, 79. 
 
• INTER-STATE ADMINISTRATION. 375 
 
 upon (lie presence of the law -wLicli crented it. There- 
 fore the shiveholder, at the time of instituting the 
 national governineiit, insisted upon iiitrodaciiig into the 
 constitution [hefiujitive clause, that by the authority of 
 the nation, the local or state power creating- slavery, 
 might be extended, in respect Xo fugitive slaves, through- 
 out the nation. For the shiveholder in South Carolina 
 had no legal claim to the person of his slave (he moment 
 such slave should pass beyond the jurisdiction of that 
 state ; because the right, being one of force merely, 
 ceased the moment the slave escaped and w^ent beyond 
 its power. Therefore, this clause was inserted in the 
 constitution to extend, by the authority of the nation, 
 the right of the slaveholder to claim and recapture his 
 escaping slave.^ 
 
 % 558. The sense of the American people as to the 
 nature of property in slaves, and as to the necessity of 
 this special provision that it might be recognized, is 
 manifested by the insertion of this clause in the con- 
 stitution. At the institution of the national govern- 
 ment, no one thought it necessary to insert in the consti- 
 tution a provision securing to the owner of a horse or 
 other personal jiroperttj, the right to take and hold it in 
 another state ; because the right to property had its 
 basis in natural justice; and was apimrtenant to the 
 owner thereof; and it went with him; while the right 
 to a slave as property was only appurtenant to the enslav- 
 ing poiver; and could only continue in the presence of 
 such power. The owner of a horse in South Carolina 
 could migrate witli him to any state in the Union, and 
 retain his property therein without any constitutional 
 provision to that effect ; but the owner of a slave had 
 no claim to him beyond the limits of the state, except ia 
 case of fugitives ; and even in such cases his claim 
 could not l)e enforced beyond the limits of national 
 authority. Tlie claim, that because the slave was con- 
 sidered property in the jurisdiction making him such, 
 therefore he should be deemed to be property every- 
 where, had no foundation in law. While slaves were 
 
 1 By the general law of nations no nation is bound to recognize the state of 
 slavery as to foreign slaves found Avithin its territorial dominions, when it is 
 in opposition to its own policy and institutions in favor of tlie subjects of 
 other nations where slavery is recognized. If it does, it is a matter of comity, 
 and not as a matter of international right. The state of slavery is deemed to 
 be a mere municipal regulation founded upon, and limited to, the range of the 
 territorial laws. (Somersett's case, LofTt's Ren., 1; S. C, 11 State Trials, by 
 Harg., 310; S. 0., 20 Howell's State Trials, 1, 79.) "it is manifest from these con- 
 siderations, that if the constitution had not contained this clause every non- 
 slaveholdiiig state in tlie union would have been at liberty to have declared free 
 all runaway slaves coming within its limits. (Story's Com. on Const., g 1812, 
 aad note.) 
 
S76 GOVERNMENT. 
 
 always considered and treated as property by tlie 
 enslaving- power, they were never considered or treated 
 as sucli beyond tbe jurisdiction of such power, unless 
 by comity. Bnt nnder this provision of the constitu- 
 tion none but esccqnng slaves could be claimed and 
 retaken after having passed the jurisdiction of the 
 enslaving power. If the master voluntarily permitted 
 his slave to go beyond the jurisdiction which enslaved 
 him, he could not invoke the aid of this clause. It was 
 because the slave could not be deemed property after ha 
 had passed the limits of the authority enslaving him, that 
 the master could not legally be protected in the ])osses- 
 sion of slaves, in the territories of the United States. 
 The law of the state had no extra-territorial force ; and 
 as i)ersons were declared and held as slaves only in 
 virtue of state law, as soon as they passed beyond the 
 limits of the state they ceased to be slaves; not in 
 virtue of any special law or statute to that effect, but in 
 virtue of the limit of the authority by which they had 
 been enslaved. When the master from South Carolina 
 took his slaves into Kansas, and attempted to hold them 
 there as such, the question arose immediately, by what 
 authority does he introduce slavery into Kansas ? By 
 what authority can he hold a person there in slavery ? 
 The laws of South Carolina ceased in respect to hini 
 and his slaves, as soon as he left the state; therefore the 
 authority to hold his slave ceased at the point where 
 the slaveholding jurisdiction ceased. As the law of the 
 state does not extend into the territory, and as the law 
 of the nation governing in the territories does not 
 enslave or permit slavery, by what authority could the 
 master hold the slave in the national territories? The 
 complaint of the master that he was deprived of his just 
 rights in the territories, because he could not hold his 
 slaves there, had its answer in the fact, that he had 
 invested in a species of special i)roperty, unknowu 
 except in special localities ; and, therefore, if he would 
 enjoy that species of property, he must confine himself 
 to such localities ; and not attempt to settle in commu- 
 nities, where the rights of man as man, were regarded, 
 and slavery was discarded. The fault was in the char- 
 acter of his investment, and not in the laws Avhich gave 
 to all their freedom and just rights. 
 
 g 559. This clause of the constitution has been the 
 subject of judicial construction ;^ and, although, by the 
 
 1 Prigg v. Commomvealth o/Fenn., 16 Peters' S. C. R,, 698; affirmed, 14 How., 13. 
 
INTER-STATE ADMINISTRATION. 377 
 
 amendment of tlieconstitntion abolisliing slavery, it lias 
 ceased to affect the rights or duties of American citizens, 
 it may not be amiss to examine somewhat into the prin- 
 ciples enunciated in such decisions, and tlie logic upon 
 Avhich tliey assumed to be based. The palpable mean- 
 ing of the clause, " No person held to service or labor in 
 one state, under the laws thereof, escai)ing into another, 
 shall, in consecpience of any law or regulalion therein, 
 be discharged from such labor or service, but shall be 
 delivered upon claim of the party to which such service 
 or labor may be due," is, that the state into which the 
 fugitive might escape, should make no law, or adopt no 
 regulation by which to prevent the master or owner 
 from luirsuing after, and reclaiming his escaping slave. 
 The clause itself is so palpable in its meaning as to 
 admit of no construction. It is not a clause conferring 
 X)ower either upon the general or state government. It 
 is entirely restrictive in its character — restrictive of 
 state action. It is said he shall be delivered up on 
 claim. But such claim can be preferred against no one 
 who has not the fugitive either in his custody or within 
 his control. The meaning of this provision is i)lainly 
 this. Should a fugitive be brought before state author- 
 ity by hahms corpus or otherwise, suing for his liberty, 
 and should the master or owner establish his legal claim 
 under the laws of the state from which he escaped, the 
 court would not be at liberty to discharge such fugitive 
 in consequence of any state law or regulation, but would 
 be required to deliver him to the claimant. 
 
 § 5G0. The circumstances attending the introduction 
 of this clause into the constitution, the object for which 
 it was introduced, together with the language of the 
 clause clearly demonstrate, that no cliitij urns imposed 
 upon any one hy this clause, except upon the person or 
 authority detaining the fugitive from the custody of the 
 party to whom the kibor or service ^vas due. Even in his 
 own state the master or owner could prefer no claim for 
 his fugitive upon any one who had not the custody or 
 control of him. He could make no demand for him, 
 either upon his government or the citizens thereof, 
 unless they had the slave in their custody. This clause 
 was not intended to give the master greater facilities for 
 retaking his escaping slave throughout the nation, than 
 he possessed under his own state government. This 
 clause simply extended to the master of an escaping 
 slave, the right to recapture him anywhere within the 
 
 48 
 
378 GOVERNMENT. 
 
 national limits ; and, on establishing Lis claim under the 
 laws of the state from which the escape was made, to 
 reclaim and take him back, without let or hinderance 
 fi'om state laws ou state regulations. It intended to 
 leave the master to find and retake his escaping slave in 
 any part of the nation, as he miglit in any part of the 
 state, in tlie absence of any legal provision to aid liim. 
 But it did not confer any jjower or impose any duty other 
 than as above stated, upon any person or government. 
 
 g 5G1. In the case of Prigg against the common- 
 wealth of Pennsylvania,^ the supreme court of the 
 United States, among other things, held that this clause 
 of the constitution was restrictive of state, not federal, 
 action ; that the states were precluded from all author- 
 ity to legislate upon the subject ; that it was no part 
 of the duty of an officer of the state government, or of 
 any citizen thereof, to aid the claimant in arresting or 
 securing the fugitive, or to do anythii»g in aid of that 
 I)rovision. That no claim or demand could be maile 
 upon any officer or citizen of the national government 
 to assist in capturing and bringing before the proper 
 tribunal the escaping fugitive ; that the claim could be 
 made upon no one until the owner or claimant, his 
 agent or attorney, had seized the fugitive and brought 
 him before a competent tribunal, and had presented 
 his proofs — that until then no obligation could be 
 imposed upon any one — that so much of the clause as 
 says, the fugitive shall be delivered up on claim, when 
 construed Avith other parts of the same clause, can refer 
 only to those who are detaining him by virtue of some 
 state law or regulation, after the validity of the master's 
 claim had been established; that if there should be any 
 national law or national regulation, or any defect in the 
 master's title under any law or regulation of the state 
 from which he escaped, by which he would there be 
 discharged, there would be no obligation upon any one 
 to deliver him up, 
 
 g 562. The supreme court, in the Prigg case, took the 
 broad ground that a state could pass no law, or make 
 no regulation whatever, touching the subject-matter of 
 this clause, for the purpose of carrying the same into 
 effect or otherwise; — that any regulation, by a state 
 even, for the purpose of trying the question of fact, 
 whether the alleged fugitive was in reality such, or 
 whether he owed labor or service, would be uucou- 
 
 1 18 Pet. Rep., 60S; affirmed, 14 How., 13. 
 
INTER-STATE ADMINISTRATION. 379 
 
 stitntioiinl ; — tliat any detention for sncli trial, wonld 
 l)()sti)()ne the ))ossession of tlie master, and deprive liini 
 of that inunediate command of his services to which ho 
 mi<j;ht be entitled ; — and that it wonld operate as a dis- 
 cliarge "jrro tanto^^ from the labor and service dne; — 
 that the qnestion of discharge could never be ''how 
 much'" he is discharged from, but whether he is dis- 
 charged '\from anij''^ labor or service by the necessary 
 operation of a law or regulation of a state. The prin- 
 ci[)le involved in the ojnnion of the court as above 
 stated, if observed, would deny to a state all authority 
 to protect a citizen thereof from arrest and e^^tra- 
 dition, i)rovided the arrest was made under pretense 
 that he was a fugitive from labor or service. He might 
 be taken from his home at any time, without legal pro- 
 cess, and be transported to a remote part of th? state to 
 be brought before a district or circuit judge ; there to be 
 tried upon a question involving his personal liberty for 
 life ; without notice to prepare for trial ; without pro- 
 cess to obtain witnesses, without counsel or the means 
 of obtaining any.^ 
 
 S 503. At the time the constitution was ordained and 
 established, and the general government was instituted, it 
 does not appear that the people contemplated the jicfpii- 
 sition of other territory than what they then possessed. 
 The provision of the constitution that congress might 
 admit new states into the contem[)lated union, referred 
 as well to states then existing which might not at once 
 unite in ratifying the constitution, as to those which 
 might be formed in the then existing territories. In the 
 progress of the revolution, it was perceived that from 
 
 1 It is worthy of notice, that in the decision of tliis case, each of the judges 
 gave opinions; and while they were intent upon holding tliat congress liad tlie 
 exclusive rigUt of legislation upon this subject, a majority of the court could, 
 agree upon no ground for so holding. Indeed, scarcely any two of tlie judges, 
 were able to agree as to reasons for holding such an opinion; so that the 
 decision seems to have been given without any other satisfactory reason than 
 that the court desired to have it so. Cases thus decided, while they become 
 precedents, are not satisfactory to the profession; for it cannot be disguised, 
 that they are based more upon the feelings of the men, than the convictions 
 and judgment of the court; and often betray more of the politician than of 
 the judge. Fortunately for all, this clause has become obsolete or nearly so, 
 by the abolition of slavery throughout the United States. 
 
 The position taken by the court in this case virtually made the liberties of 
 the citizens of the free states to depend upon the slave code of South Carolin.a, 
 It was only necessary for a stranger to appear in our midst, and to lay claim 
 to a human being as his property, or slave — no matter who that being might 
 be. It might be the wife or child of a well-known citizen. The power of the 
 state to in vestigate such a case was gone ; because, in the language of the court, 
 the constitution had vested the power to investigate such ci-Aim^, exclusiuely, 
 in such tribunals as congress should appoint. A debauchee lusts for a fair 
 v/oman ; and under pretense that she is a fugitive, owing him service, etc., he 
 seizes her, without process, and carries her off, pretending to be in search of 
 a proper tribunal to try the question; and while this is going on, all legal 
 powev and authority in the state to arrest the outrage and try the question of 
 owing service are suspended, because the constitution has committed that 
 subject to another jurisdiction. 
 
380 GOVERNMENT. 
 
 the extent of territory of several of the states, it might 
 become ex|)edient to divide the same into two or more 
 states ; besides it became an interesting question whether 
 the right to this vacant territory pertaining to the crown 
 at the time of the revolution, belonged to the several 
 states within whose chartered limits it was situated; or 
 whether it ought not belong to the nation in its federa- 
 tive character, by whose expense of blood and treasure 
 it had been acquired. This was a subject of protracted 
 and ardent controversy ; but^ at length some of the states 
 yielded to the solicitations of congress, and most of the 
 uni>atented territory was ceded to the nation.^ To 
 induce the states to make liberal cessions, congress 
 declared that the ceded territory should be disposed of 
 for the common beuellt of the union, and should be 
 formed into re[)ul)lican states, with the same rights of 
 sovereignty, freedom and inde])endence, as the other 
 states; that they should be of a suitable extent of 
 territory not less than one hundred and not more 
 than' one hundred and hfty miles square and that 
 the reasonable expenses incurred by the state, since 
 the commencement of the revolutionary war, in 
 subduing the British posts, or in maintaining or acquir- 
 ing the territory should be reimbursed.^ It was with 
 refereiice principally to this territory that this clause of 
 the constitution was adopted. The general precaution, 
 that no new state should be formed, by dividing or taking 
 parts of several existing states for that purpose, without 
 the concurrence of congress, and of the legislature of 
 the states concerned, was highly proper. So likewise 
 was the provision that no new state should be formed by 
 the junction of two or more states or parts of states. 
 
 §'5G4. Although the constitution made no express pro- 
 vision for the acquisition of new territory by the nation, it 
 was soon demonstrated that such powers were essential to 
 any government intrusted with the execution of national 
 authority. In 1801, when France was about to acquire, 
 and come into possession of Florida aiid the Louisiana ter- 
 ritory, including the mouth of the Mississippi river, the 
 nation determined that that outlet to the products of a 
 large portion of the territory of the United States, could 
 not be intrusted in the hands of any foreign power ; and 
 by the general consent of the nation, the Louisiana terri- 
 
 1 1 Tuck. Bla. Com., app. pp. 2S3-2S6; 2 Pitkin's History, cli. 11 p. 33-36; Story's 
 Com. on Const., §? 227, 228. ^ , ^^ 
 
 2 1 Secret .1 ournals of Congress, Sept. 6, 17S0, pp . 440-441 ; 6 Journals of Congress, 
 Oct. 10, p. 213; 2 Pitkin's Hist., cli. 11, pp. 31-36; Story on Const., 2 1316, and note. 
 
INTER-STATE ADMINISTRATION". 381 
 
 toiy was purchased. ludeed, so vital to the security and 
 prosperity of the nation was the possession of the month 
 of the Mississippi, that Mr. Jeflerson instructed Mr. 
 Livin'^ston, our minister at Paris, to represent in sub- 
 stance to the French nation, that any attempt on its 
 part to occupy New Orleans as a«2:ainst the Ujiited 
 States woukl be deemed a just cause of war. The rights 
 of sovereignty necessarily incident to nationality include 
 the right to acquire territory whenever the security and 
 welfare of the nation demand it.^ The treaty-makiug 
 power necessarily includes all authority essential to such 
 acquisition. Since that time, the nation has acquired 
 territory from Mexico, including a portion of Texas, 
 New Mexico and California. And a treaty has been in 
 progress between the United States and Russia for the 
 acquisition by the United States,'of the Russian posses- 
 sions in America. 
 
 § 5G5. Shortly after the inauguration of the rebellion 
 in 18G1, the legislature of Virginia passed an ordinance 
 of secession, and assumed to take the State of Virginia 
 out of the union. The people in the northern and west- 
 ern part of the state were loyal to the union, and refused 
 to be bound by the treasonable action of those who had 
 undertaken to force them into rebellion. Measures were 
 soon after inaugurated to bring about a political divi- 
 sion of the state, which resulted in the establishment of 
 a new state called " West Virginia," consisting of forty- 
 eight counties. This state was admitted into the union 
 in'pnrsuance of an act of congress passed December 31, 
 18G2.'- 
 
 g 5G6. As the general government was instituted for 
 the purpose of exercising national authority over all 
 matters pertaining to national security and welfare, it 
 Avas necessarily charged with the regulation and govern- 
 ment of the territories belonging to the nation, and 
 therefore the constitution committed to congress the 
 power to dispose of, and make all needful rules and 
 regulations respecting the territory and other property 
 belonging to the United States.' When for any purpose 
 or by any means, the nation acquires territory, the title 
 to tlie same vests in the nation as a corporate society. 
 It does not belong to individuals as members of the 
 national society, and they can have no property in, or 
 authority over, such territory except through theauthor- 
 
 ' -A-nte, ? , „ „ ,„ 
 
 s 3d Session of the 37th Congress, ch. C, p. 633. 
 3 Art. 4, 1 3, cl. 2, Canst. CJ. S. 
 
882 GOVERNMENT. 
 
 ity of the nation as expressed tbrongli the law-niakin<j 
 power thereof. Dnrhig- the political struggles between 
 the anti-slavery and pro-slavery parties in the United 
 States, questions of national authority over the terri- 
 tories of the United States were raised and discussed. 
 The slaveholder insisted upon his right to take his slaves 
 with liiui into these territories, and to hold them there 
 as slaves; thus establishing slavery in the territories, 
 and to accomi)lish this end, divers theories respecting 
 the rights of the inhabitants in, and the authority of 
 the government over, these territories were instituted 
 and (liscussed. There was one theory denominated in 
 political parlance, "s(piatter sovereignty," which cou- 
 tetided that those who inhabited a territory had the sole 
 authority of determining the character of the domestic 
 or local institutions to be introduced therein. If they 
 were in favor of slavery in the territory, then slavery 
 might be introduced, against the wishes or consent of 
 the peo[)le of the United States. This class of political 
 philosophers had their origin in a theory introduced in 
 184G, by General Cass, to wit, that congress had only 
 a property jurisdiction over the territories of the Uiiited 
 States, aiid'had no authority over the local and domes- 
 tic concerns of the inhabitants thereof.^ This theory 
 was introduced as a means of defense against what was 
 denominated the " Wilmot Froviso,'' which proposed 
 that congress should, by law, make it impossible to 
 create any future slave states out of free territory. 
 These theories were discussed by the leading political 
 parties at times with great earnestness, but were never 
 accepted or acted npon by the government or people of 
 the United States. They had their influence in the 
 political canvass, but were never recognized in the halls 
 of legislation or upon the bench. 
 
 g 567. Those who denied to congress the right to leg- 
 islate for the territories of the United States, were 
 obliged to assert the right of the nation to acquire terri- 
 tory, not in virtue of any constitutional provision to that 
 effect, but in virtue of national sovereignty. This involved 
 the absolute fallacy of their theory. The nation, in vir- 
 tue of its sovereignty, acquired territory from like sov- 
 ereign nations. The question then arose, did the nation 
 acquire only a ^jroj^eri?/ jurisdiction over such territory, 
 leaving the sovereignty in France, Mexico, or Spain, or 
 did she acquire the sovereignty likewise ? It could not 
 
 1 See his letter to A. O. P. Nicholson, of Tennessee. 
 
INTER-STATE ADMINISTRATION. 883 
 
 be denied that in acquirin<^ the territory of Florida, 
 Loiii.siana, New Mexico and California, tLe sovereignty 
 Lad been acquired, and being- acquired, it had been ves- 
 ted in the people as a nation, there to remain until by 
 the legislative will of the nation, it should be transferred 
 to another like sovereign. This proposition was easy 
 of comprehension. The people of the nation, in virtue of 
 their inherent sovereignty, acquired the property in, 
 and sovereignty over, the territories of the United States. 
 AVhen ac(iuired by purchase, they were paid for out of 
 the common treasury ; when by conquest, they were 
 acquired by the common blood of the nation ; and when 
 the title was transferred, it was transferred to the nation 
 at large. Therefore every citizen of the United States 
 had a right to participate in the regulation and govern- 
 ment of the same through the national legislature. 
 
 g 508. The fourth section of the fourth article of the 
 constitution provides that "the United States shall guar- 
 anty to every state in this Union, a republican form of 
 government; and shall protect each of them against 
 invasion ; and on application of the legislature or of 
 the executive — when the legislature cannot be convened 
 — against domestic violence." By the terni"f//6' United 
 States,'' as here used, is understood the people of the 
 United States, acting through the agency of the general 
 government; that is, those ■who ordained and estab- 
 lished the constitution, and instituted the general gov- 
 ernment as a means of administering their authority. 
 This provision of the constitution is in itself the author- 
 itative guaranty, to be carried into execution through 
 the general government. The parties to this guaranty 
 are the people of the nation on the one hand, and the 
 people of the state on the other, each with all, and all 
 with each, that the local or state government under 
 which they live, shall be in form republican. The lan- 
 guage of this clause is peculiar. It is not that the na- 
 tion shall guaranty to the states that every associate 
 state shall be republican in form; but it shall guar- 
 anty to every state, a republican form of govern- 
 ment; the guaranty is to each state, that is, to the 
 people of each state that the local or state government 
 shall be republican in form. It is the guaranty of the 
 thirty millions of the nation, to the one hundred and 
 twelve thousand of the inhabitants of Delaware, that 
 the local or state government of Delaware shall be 
 rex)ublican. 
 
884 GOVERNMENT. 
 
 g 569. The states as political corporations were not 
 parlies to the constitution ; but tbe citizens of tlie states 
 ill their character as national citizens were parties to it. 
 The states as i^olitical corporations stood in need of no 
 such guaranty. The people of the state had authority 
 to determine the form of their government imov to the 
 institution of the general government; and if they 
 desired one republican in form, they could have it with- 
 out any guaranty from the nation. It was not the 
 design of this provision to secure the people of a state 
 against their own future volitions, should they, on the 
 faihire of the system they were then adopting, desire to 
 change the form of their local government. It was not 
 to the state as a corporation or an association of people 
 that the guaranty was made ; but to the individual 
 crushed and overwhelmed by an insolent and oppressive 
 majority ; it was to him as a citizen of the Uuited States 
 whether in the majority or the minority, that the guar- 
 anty was given to secure him not only from individual but 
 governmental oppression. The ends sought to be accom- 
 l^lished b}^ the institution of the general and state gov- 
 ernments are better secured by construing this guar- 
 anty as extending to all the people of the several states, 
 and thus securing to each the benejfits of a republican 
 form of government, than by any other construction. 
 It thus pledges the faith and power of the nation to 
 every citizen, that the local government nnder which 
 he lives shall be republican, and that he shall be enti- 
 tled to sustain to it the relation of a free citizen. 
 
 g 570. It has been urged that the term " repuUican^^ 
 is vague and indefinite ; that the worst kinds of despot- 
 ism have flourished under governments " republican in 
 form;'' and the republics of Greece, and Home, and 
 Italy have been cited. It is admitted, that looking at 
 simple precedents without an investigation of the princi- 
 ples involved in a republican government, the friends of 
 freedom have little to hope from a government republican 
 merely in its form. But an investigation of the princi- 
 j)les which give name to a republican government, and 
 an observation of the manner in which, and the reasons 
 for which, that form of government is prescribed by and 
 guaranteed in, the constitution of the United States, 
 make it a bulwark of American liberty, which cannot 
 be evaded or overthrown. As a corporation a state 
 may be republican in form, while but a moiety of 
 the people are represented in the government; — it 
 
INTER-STATE ADMINISTRATION". 385 
 
 may be republican in form, while its proportions are 
 cramped and distorted by limitations and partialities. 
 The idea of a republic necessarily places the sov'erei<^nty 
 in the people. It supposes that those who administer 
 the public authority do so by the authority of the 
 people, that is by the governing portion of them. Gov- 
 ernments have been called republics which have been 
 under the direction of a wealthy or aristocratic class, in 
 which the masses of the people had no voice. Never- 
 theless they were denominated republican, as distin- 
 guished from monarchies. The principles upon which 
 such governments were administered, taken in respect 
 to the administration thereof, were republican, and they 
 Avere denominated republics ; and a guaranty made to 
 the governing class that the government should be to 
 them republican in form would have been fulfilled. But 
 had the guaranty been made to each individual subject 
 of that government, that for the protection of his rights 
 the government should be to him republican, it would 
 not have been realized. When, however, it is remem- 
 bered that the guaranty under consideration was made 
 by all the people of the United States with each and 
 every citizen thereof, that the local or state govern- 
 ment under which he should live, should be to him 
 republican in form, it became the highest guaranty of 
 civil protection which could be given to a citizen. 
 
 g 571. The Federalist sometimes speaks of the Ameri- 
 can Union as though it was a confederacy ; and at other 
 times as though it was a government of the people. In 
 commenting upon this clause of the constitution, it 
 treats the union as a confederacy. It says, "in a con- 
 federacy fouixled on republican principles, and com- 
 posed of republican members, the superintending gov- 
 ernment ought clearly to possess authority to defend 
 the system against aristocratic or monarchical innova- 
 tions. The more intimate the nature of such a union 
 may be, the greater interest have the members in the 
 jjolitical institutions of each other; and the greater 
 right to insist, that the form of government under which 
 the compact was entered into, should be substantially 
 maintained. But a right implies a remedy ; and where 
 else could the remedy be deposited, than where it is 
 deposited by the constitution. Governments of dis- 
 similar principles and forms have been found less 
 adapted to a federal coalition of any sort, than those 
 of a kindred nature. ' As the confederate republic of 
 
 49 
 
386 GOVERNMENT. 
 
 Germany consists of free cities and petty states, subject 
 to different princes, experience shows us that it is more 
 imperfect than that of Holland and Switzerland. 
 Greece was undone as soon as the kin^ of Macedon 
 obtained a seat among the Amphictyons.' " ^ 
 
 § 572 But the plain statement of the case seems to be 
 this: — The people of the United States in the institution 
 of the general and state governments were i)roviding 
 for the administration of their authority in such a man- 
 ner, as to secure to themselves and their posterity the 
 blessings of civil liberty. It was a part of their system 
 to commit the management of all local and domestic 
 interests to local governments, which, in the exercise of 
 their authority within the sphere of their administration, 
 were to be independent of the general government, and 
 of the people of the other states or portions of the 
 nation. These local or state institutions already existed 
 over most of the national domain ; and were to be insti- 
 tuted whenever and wherever future occasion might 
 require. Every national citizen was likewise a state 
 citizen ; subject to the administration of these local gov- 
 ernments, in all that pertained to his local and domestic 
 interests. As a state citizen, no one had any authority 
 to interfere with, or direct, the administration of govern- 
 mental authority, in other states ; and yet his safety and 
 welfare as a national citizen, would be greatly affected 
 by the political character of the other local governments. 
 It was therefore a matter of necessary precaution that 
 the ijeople of the nation should at all times retain the 
 political supervision of the character of these local or 
 state institutions, and see to it, that, in character, they 
 should be in harmony with the American theory and 
 principle of government. 
 
 % 573. These states, in territory, are but portions of the 
 national domain ; in inhabitants, but families of national 
 citizens ; in political individuality, but corporate instru- 
 ments of national administration, instituted for local and 
 special purposes. It was therefore the duty of the nation, 
 to protect them against foreign invasion from without, 
 and domestic violence from within, to enable them to 
 discharge the duties imposed upon them, and to secure 
 to the people the blessings of civil liberty. The consti- 
 tution therefore provides, that the nation shall protect 
 each state against invasion and domestic violence.^ 
 
 1 Montesquieu, B. 9, ch. 1, 2; Federalist, No. 21 ; Story's Com. on Const., § 1815. 
 3 Art. 4, 2 4, Const. U. S. , 
 
constitutio:n'al amendments. S87 
 
 CHAPTER XIX. 
 
 OF A]VIE^^):^rENTS to the coxstitutiox. 
 
 § 574. The constitution of the United States was 
 ordained and established for the purpose of instituting a 
 goverment authorized to speak and act for the nation 
 Tlie experience of thirteen years under the confederacy, 
 had demonstrated the fact, that a nation could not exist 
 and maintain its independence, without a government 
 iutrnsted with the exercise of supreme authority over 
 every subject essential to a true nationality. The 
 people of the United States ordained and established the 
 constitution to the end that such a government might be 
 instituted. In the institution of such government, they 
 took especial care to act in virtue of their authority as 
 members of the national society ; as people of the United 
 — not of the separate States. When the constitution 
 had been framed by delegates from the several states, 
 and made ready to be submitted, it was especialy pro- 
 vided, that it should be submitted to the people of the 
 states, and not to the states as political corporations, — • 
 for their ratification. That the legislatures of the seve- 
 ral states should provide by law for the calling of 
 primary conventions of the people to whom the proposed 
 constitution should be submitted. The object of these 
 requirements was to institute a national government of 
 the people ; and not a confederated government of the 
 political states. It was to base the government upon 
 the inherent sovereignity of the American nation, and 
 make it supreme over all local or state authority in its 
 administration. In such action, they occupied a plane 
 above constitutions, and spake with the authority that 
 ordains and estaNishes independent of constitutions ; an 
 authority which pertains to society in its sovereign rela- 
 tions to each and every member thereof; acknowledging 
 no superior save God and his laws, natural and Divine. 
 Therefore they said, " This constitution and the laws of 
 United States made in pursuance thereof, etc., shall he 
 it/je supreme law of the land; and the judges in every 
 stiite shall be bound thereby, anything in the constitu- 
 tion or laws of sluj state to the contrary notwithstand- 
 ing." ^ 
 
 1 Art. 6, cl. 2, Const. U. S. 
 
388 GOVERNMENT. 
 
 g 575. In providing for amendments to tMs consti- 
 tution, the people retained the authority to make such 
 changes as experience should demonstrate to be neces- 
 sary for the safety and welfare of the nation. Article 
 five provides that " 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 or 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." 
 
 S 576. This provision points out two modes of amend- 
 ment of the constitution, one at the instance of the 
 general government, through the instrumentality of 
 congress ; the other at the instance of the states. Con- 
 gress, whenever two-thirds of each house concur in the 
 expediency of an amendment may propose the same ; 
 and when it is ratified by the legislatures of three-fourths 
 of the several states, or by conventions, as congress 
 shall direct, it becomes a part of the constitution. Or 
 the legislatures in two-thirds of the several states may 
 apply for a convention for proposing amendments, 
 which congress is obliged to call on such application, 
 and the amendments ijroposed by such convention, to 
 become a part of the constitution, must be ratified in the 
 same manner as when proposed by congress. 
 
 § 577. Whether the proposed amendments to the 
 constitution shall be ratified or rejected by the action 
 of the state legislatures, or by the action of conven- 
 tions of the people in the several states, depends upon 
 the discretion of congress. The amendment, when 
 made, becomes, to all intents and purposes, a part of 
 the constitution ; and, therefore, of the supreme law of 
 the land. The authority involved in making these 
 amendments is superior to the constitution itself; that 
 is, it must be an authority which can add new pro- 
 visions, or remove existing ones, at pleasure. For this 
 reason congress, as the national legislature, determines 
 whether the proposed amendments shall be submitted 
 for ratification, to the state legislatures, or to conven- 
 tions of the people, so that the ratification or rejection 
 of any proposed amendment, will be . by national, and 
 
CONSTITUTIONAL AMENDMENTS. 389 
 
 not state authority. By this provision of the consti- 
 tution, an amendment may be made conferring upon 
 the general government full jurisdiction over any 
 subject, at the expense of state administrative author- 
 ity, even against the consent of one-fourth of the 
 states ; that is, a state is liable to be deprived of any 
 portion of its jurisdiction without its consent This of 
 itself, demonstrates the superior authority of the nation 
 over that of the states. No political corporation can 
 be deemed sovereign when its will is subject to a higher 
 legal authority. Sovereignty, as an attribute of civil 
 government, is the supreme authority and power by 
 which a state is governed, and implies the right of com- 
 manding in the last resort. Therefore, there can be no 
 absolute sovereignty in a state, where the authority of 
 its constitution and laws are liable to be overruled by a 
 higher authority. 
 
 ,§ 578. The mode pointed out by the constitution in 
 which amendments may be made, evinces great wisdom 
 and prudence on the part of those who framed and adopted 
 it. Being a new experiment in government, it could not 
 be presumed to be sufhciently perfect, not to require 
 amendments to adapt it to the needs of the expanding 
 nation ; nevertheless it should guard against impulse or 
 haste in changing its principles to meet any supposed 
 need, or to supply any apparent defect. The require- 
 ment, therefore, that before any amendment should be 
 made, it should be proposed by two-thirds of each house 
 of congress, or by a convention called on the applica- 
 tion of the legislatures of two-thirds of the states ; and 
 that the amendments thus proposed before they should 
 become valid as parts of the constitution, should be rati- 
 fied by three-fourths of the votes of the states, etc., seems 
 to be eminently wise and safe. The necessity for an 
 amendment must become palpable before it can be pro- 
 posed ; and it must be essential to the security or welfare 
 of the nation, or three-fourths of the states through their 
 legislatures or conventions would hardly be inclined to 
 adopt it. The time required, and the deliberation which 
 would be had, in proposing and ratifying any amend- 
 ment, would be suflScient to insure wise and prudent 
 action on the part of the best minds of the nation. 
 
 § 579. The peopld of the United States were exceed- 
 ing jealous of power in the hands of those charged with 
 the administration of the general government. They 
 seemed continually to lose sight of the fact, that the 
 
390 GOVERNMENT. 
 
 national government was as eminently theirs, and as 
 immediately responsible to them, as was the govern- 
 ment of the states; — that it was to them, as national 
 citizens, what the state government was to them, as 
 state citizens — that both were their own institutions, 
 created for their own protection and welfare; — that 
 the state and national citizen was one and the same 
 individual, having one and the same interests to be pro- 
 tected and promoted — that the character and interests 
 of an individual as a national citizen, could never 
 prompt him to injure and oppress himself as a state 
 citizen; — that therefor, there never could be a disposi- 
 tion on the part of the nation to trench upon the rights 
 and liberties of the citizens of the state. In short, tbat 
 the body, consisting of all the members, could never iind 
 an interest or an inclination, to make war upon its indi- 
 mdiial members. So the national citizen could never 
 be placed in a situation where either interest or inclina- 
 tion would lead him to injure himself as a state citizen. 
 The constitution of government, while it made the legis- 
 lative office permanent, provided for returning one 
 branch thereof to the people every two years ; so that 
 the individual members of the legislature could not 
 separate themselves from the people, and legislate for 
 j)ermanent advantage to themselves. There could be no 
 inducement to usurp authority, or to accumulate power 
 in the government as against the people ; for those who 
 did so would soon be returned to the people to suffer the 
 oppression of their own begetting. The members of the 
 general government not being permanent, and being 
 obliged to live as citizens under the la'u s of their own 
 enacting, would not be inclined to injure themselves by 
 Avicked, weak or imprudent legislation. They had lived, 
 hitherto, under a national government monarchical in 
 theory and practice. That government, in its authority 
 and interests, had been separated from the masses, and 
 was not responsible to them. The independence they 
 had proclaimed, and maintained, was achieved to vindi- 
 cate the rights of the citizen against the oppression of 
 such government. It was, therefore, natural for them 
 to feel and act as they did, until such early impressions 
 of the natural separation of the interests of the govern- 
 ment and people were removed. Under the influence 
 of these feelings, they demanded that the constitution 
 should contain guarantees in favor of the people as 
 against the government, iu the nature of bills of rights, 
 
CONSTITUTIONAL AMENDMENTS. 391 
 
 such as had been demanded of King John, Charles the 
 First, and other princes. Most of the amendments to 
 the constitution which were made soon after, were of 
 this character, 
 
 g 580. Bills of rights, in theb origin, are stipulations 
 between the prince and bis subjects ; that is between, 
 the government and people, for the limitation of prerog- 
 ative authority in the administration of the government. 
 These stipulations are proper, and not unfrequently 
 necessary, in monarchical countries where the govern- 
 ment in origin, authority, and interest, is separated from 
 the peoi)]e. But in democratic countries, where the 
 people themselves are not only the source of govern- 
 mental authority, but the administrators of it, there is 
 less occasion to guard their liberties by limitations and 
 restrictions in the nature of such bills. There are possi- 
 bilities of temporary abuses of governmental powers 
 which would endanger, for the moment, the rights and 
 liberties of the citizen. To guard against such tempo- 
 rary dangers, it is proper to insert; in the fundamental 
 law, limitations and restrictions of such a character as 
 will be likely to prevent their occurrence. Thus, the 
 first amendment to the constitution provides that con- 
 gress shall make no law res[)ecting an establishment of 
 religion ; or prohibiting the free exercise thereof. In 
 that respect government is to leave man to his own 
 conscience, and to take upon himself the responsi- 
 bilities of being true to the demands of his religious 
 nature. He must be left to adapt his creed to his con- 
 victions ; and both, to such light and understanding as 
 a free inquiry into his own nature, needs, duty and rela- 
 tion to God and man will give him. History and obser- 
 vation have taught, that nothing is more likely to occur 
 under any form of government, than an effort to impose 
 upon others, the religious creeds and observances of 
 those who, in influence or power, lead society. There- 
 fore to guard against such a possible attempt this pro- 
 vision was inserted in the fundamental law. 
 
 ,§ 581. Says Judge Story :^ " How far any govern- 
 ment has a right to interfere in matters touching reli- 
 gion has been a subject much discussed by writers upon 
 public and political law. The right and the duty of the 
 government to interfere in matters of religion have been 
 maintained by many distinguished authors, as well 
 those who were the warmest advocates of free govern- 
 
 1 Com. on Const. 2 1871. 
 
392 GOVERNMENT. 
 
 meuts, as tliose who were attached to governments of a 
 more arbitrary character. Indeed the right of society or 
 government to interfere in matters of religion will hardly 
 be contested by any persons, who believe that piety, 
 religion and morality are intimately connected with the 
 well being of the state, and indispensable to the admin- 
 istration of civil justice. The promulgation of the great 
 doctrines of religion, the benign attributes and provi- 
 dence of one Almighty God, the responsiblity to Him for 
 all our actions, founded upon moral freedom and account- 
 ability ; a future state of rewards and punishments ; the 
 cultivation of all the moral, social and benevolent 
 virtues, can never be a matter of indifference in any well 
 ordered community.^ It is indeed difficult to conceive 
 how any civilized society can well exist without them. 
 It is impossible for those who believe in the truths of 
 Christianity as a divine revelation, to doubt that it is 
 the especial duty of government to foster and encour- 
 age it among all the citizens and subjects. This is a 
 jjoint wholly distinct from that right of private judg- 
 ment in matters of religion, and of the freedom of pub- 
 lic worship according to the dictates of one's conscience." 
 §582. "The real diflficulty lies in ascertaining the 
 limits to which government may rightfully go in foster- 
 ing and encouraging religion. Three cases may easily 
 be supposed. One where government afibrds aid to a 
 particular religion, leaving all persons free to adopt any 
 other. Another where it creates an ecclesiastical estab- 
 lishment for the propagation of the doctrines of a 
 particular sect of that religion, leaving a like freedom 
 to all others. A third where it creates such an estab- 
 lishment, and excludes all persons not belonging to it, 
 either wholly or in part, from any participation in the 
 public honors, trusts, emoluments, privileges and immu- 
 nities of the state. For instance, a government may 
 simply declare that the christian religion shall be the 
 religion of the state ; and shall be aided and encouraged 
 in all the varieties of sects belonging to it. Or it may 
 declare that the Catholic or the Protestant religion shad 
 be the religion of the state, leaving every man to the 
 free enjoyment of his own religious opinions. Or it 
 may establish the doctrines of a particular sect, as of 
 Episcopalians, as the religion of the state, with a like 
 freedom ; or it may establish the doctrines of a par- 
 ticular sect, as exclusively the religion of the state, 
 
 1 Burlamaqui, pt. 3, p. 171. 
 
CONSTITUTIONAL AMENDMENTS. 393 
 
 tolerating otliers to a limited extent, or excluding all 
 not belonging to it from all iJiiblic honors, trusts, 
 emoluments, privileges and immunities." 
 
 g 583. There is no real difficulty in determining the 
 true limit of governmental action in respect to morality, 
 religion or any other state of the individual by which 
 he is to be made a better member of society. There is 
 a wide distinction between what the public authority 
 should encourage, and what it should ordain and estab- 
 lish; and there is likewise a wide distinction between 
 religion, as a state of the heart or affections, and 
 theology, or the i^hilosophy or science by which that 
 religious condition is to be induced in the individual. 
 Eeligion has respect to what a man is; theology to what 
 a man believes and lyractices. True religion consists in 
 that spiritual condition or state of the individual by 
 means of which he becomes united to, and at one with, 
 God. True theology consists in that faith and practice 
 by which that true religious condition is to be attained. 
 Government can appropriately encourage that faith and 
 I)ractice, which appears to it, to lead to that true 
 religious condition or state, and in this way, to encour- 
 age religion. It can create and endow schools and 
 seminaries of learning with such a view. But it cannot, 
 constitutionally or appropriately, determine what par- 
 ticular faith and practice shall be adopted and followed 
 by a citizen or class of citizens, nor can it use the public 
 authority to establish any particular mode or form of 
 faith. 
 
 g 584. It is the province of government to protect 
 society from such conduct on the part of citizens, as 
 tends directly to destroy public morality and virtue ; or 
 to inflict evils upon individuals and society. Practices 
 may be encouraged, or even required, in the name of 
 religion, which it would be the duty of government not 
 only not to encourage, but absolutely to prohibit and 
 punish. There is, and can be no limit to the follies and 
 absurdities practiced and inculcated in the name of reli- 
 gion. A parent may feel called upon to sacrifice his 
 child ; or a mother, her babe. A wife or widow, to burn 
 upon the funeral pile. One may profess to believe it 
 to be his duty to live in a state of sexual permiscuity, 
 and to beget as many children as he has the physical 
 ability. These and a thousand such absurd and hurtful 
 notions may be promulgated and practiced as a rehgious 
 privilege, duty and obligation. No one will presume to 
 
 50 
 
394 GOVERNMENT. 
 
 question either tbe authority or the duty of the govern- 
 ment, to protect society against such i)eriiicions practices, 
 even though it should interfere with the religion of the 
 Hindoo or the Mormon. The true scope of govern- 
 mental policy and authority in respect to religion would 
 seem to be, to encourage that faith and i)ractice which 
 tends directly to in-odiice in theindividnal a high sense 
 of respousil)ility to the All-true, All-puke, a"ll-just, 
 WISE and good, and to prohibit those practices whieli are 
 in their nature criminal or whose direct and inevitable 
 tendencies are to produce criminal acts. When a person 
 does an act which is prohibited by law as criminal or 
 hurtful to individuals or society, he is responsible for 
 the injury, without any inquiry into the moral, political 
 or religious philosophy b}* which he attempts to excuse 
 himself. He is punished for the crime committed againsb 
 individuals or society, not for an error in his religious 
 faith or practice. Tlie constitution intends to protect 
 all in the practice and enjoymentof their religious fjxith, 
 so far as it does not beget or inculcate criminal or hurtful 
 civil practices. The remaining part of this clause 
 Ijrovides for the freedom of speech and of the press, 
 independent of the exercise of governmental authority. 
 % 585. The second amendment of the constitution 
 jjrovides that the right of the people to keep and bear 
 arras shall not be infringed, because a well-regulated 
 militia is necessary to the security of a free state. 
 The militia are the citizen soldiers, as distinguished 
 from those who are trained to arms as a j)rofession, and 
 who constitute the elements of a standing army. To be 
 an efficient militiaman the right to keep and bear arms 
 is essential. This jjrovision had its source in that 
 jealousy of power in the hands of the general govern- 
 ment, so manifest in the people, at the time the consti- 
 tution was framed and adopted. This right in the 
 people to keep and bear arms, although secured by this 
 ])ro vision of the constitution, is held in subjection to 
 the i)ublic safety and welfare. Whenever for any 
 cause, the public safety shall require the substitution of 
 martial for civil administration, then the maxim, sains 
 respuNicoi suprema lex, applies ; and this constitutional 
 right may be temporarily suspended. But while civil 
 authority bears sway, this provision of the constitution 
 is the supreme law upon that subject. Of the same 
 character is the third amendment. No soldier shall, in 
 time of peace, be quartered in any house, without the 
 
CONSTITUTIONAL AMENDMENTS. 395 
 
 consent of the owner, nor in time of war, but in the 
 manner prescribed by law. In time of peace, when the 
 civil administration of authority is competent to protect 
 society, every man's house is his castle. The king even 
 cannot pass his threshold without express or implied 
 l)ermissi()n. But in time of war, when civil authority 
 is supplanted by martial power, because force must 
 answer to force, then the particular security of the indi- 
 vidual subject must yield to the safety and welfare of 
 the state. Then the public authority must clothe itself 
 with all necessary power over the persons and property 
 of the subject, and Avield it for the public good. 
 
 ^ 58G. The fourth amendment to the constitution is 
 but a continued enumeration of those limitations and 
 restrictions of governmental authority, deemed essential 
 to the security of the citizen. It provides that the right 
 of the people to be secure in their person, houses, papers 
 and effects, against unreasonable searches and seizures 
 shall not be violated : and that no warrants shall issue 
 but upon probable cause supported by oath or afiirma- 
 tiou, and particularly describing thei^lace to be searched 
 and the person or thing to be seized. Such substan- 
 tially was the rule of the common law.^ But after the 
 restoration in England, a practice had obtained in the 
 secretary's office of issuing general warrants to arrest 
 persons of certain classes or practices, without naming 
 any ; authorizing the officers to apprehend all suspected 
 persons. Under such general warrant great abuses were 
 practiced. The question of the legality of these war- 
 rants coming before the king's bench, they were held 
 to be void for uncertainty.^ But this provision, like 
 those going before, is only a limitation upon the civil 
 authority of the general government. Whenever martial 
 law becomes necessary, these restrictions and limita- 
 tions cannot be appealed to. 
 
 g 587. Xo person shall be held to answer for a capital 
 or otherwise infamous crime, unless on a presentment or 
 indictment of a grand jury, 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. Nor shall any 
 person be subject for the same offense to be twice put in 
 jeopardy of life or limb ; nor shall be compelled in any 
 criminal case, to be a witness against himself, nor be 
 deprived of life, liberty, or property, without due process 
 
 1 3 rranch, 447; 1 Leading Crim. cases, p. 161 ; 9 Georgia, 73. 
 
 2 3 Burr, 1743 ; 4 Bl. Com., 291, note to same; 3 Cranch, 447. 
 
396 GOVERNMENT. 
 
 of law ; nor shall private property be taken for pnblic use 
 without jnst compensation/ and in all criminal prosecu- 
 tions the accused shall eujoy the right to a speedy and 
 public trial, by an impartial jury of the state and district 
 wherein the crime shall have been committed, which 
 district shall have been previously ascertained by law ; 
 and to be informed of the nature and cause of the accu- 
 sation > to be confronted with the witnesses against him ; 
 to have compulsory process for obtaining witnesses in 
 his favor, and to have the assistance ot" counsel for 
 his defense. The object of these amendments is to 
 secure to every citizen or inhabitant of the nation, who 
 may chance to be accused of a crime against the peace 
 and dignity thereof, an honest and fair opportunity to 
 vindicate himself before the tribunals of his country. 
 First, he shall not be required to make any answer to a 
 criminal accusation, until that has been formally reduced 
 to writing and attested by responsible official parties, hav- 
 ing legal authority to investigate the facts and frame the 
 accusation. Second, having once been legally tried for 
 an offense, he shall not be tried again, for the same 
 offense, and thus be twice put in jeopardy therefor. 
 Third, he shall not be required to be a witness against 
 himself in any criminal trial. Fourth, he shall be 
 entitled to a speedy and pnblic trial, before a jury of the 
 district or state in which the crime is alleged to 
 have been committed, which district must have been 
 ascertained and determined by law before the commis- 
 sion of such crime. He may demand to be informed of 
 the nature and cause of the accusation, and to be con- 
 fronted on trial with the witnesses against him ; and to 
 demand and have the compulsory process of the court 
 to obtain his witnesses, and the assistance of counsel to 
 aid him in his defense. These rights being secured 
 to the accused, there is little danger of an oppressive 
 trial, or an unjust conviction. 
 
 S 588. The state and national constitutions by which 
 the general and state governments were instituted and 
 empowered to act, were instruments or powers executed 
 by the x>eople, to these respective corporations. All 
 governmental authority proceeded directly or indirectly 
 from the nation, in which alone sovereignty inheres. 
 The constitution of the general government enumerated 
 the subjects of general jurisdiction, over which that 
 government was to preside, and in respect to which, it 
 
 1 eth. Amendment. , 
 
CONSTITUTIONAL AMENDMENTS. 397 
 
 alone had authority to Administer. The constitution 
 likewise, by prohibitions and restrictions, guarded 
 against the exercise of certain powers by the states. 
 Then, lest there should be any misunderstanding as to 
 the source and limitation of governmental authority 
 in the general and state governments, it is provided by 
 the tenth amendment, that " the powers not delegated 
 to the United States by the constitution, nor prohibited 
 by it to the states, are reserved to the states respect- 
 ively, or to the people." The object of this clause is to 
 make the definition and distribution of political powers 
 under the administration of the two classes of govern- 
 ment more distinct and certain. Power to administer 
 in respect to a certain class of subjects, had been given 
 to the general government ; and it was desirable that 
 the remaining governmental powers should be intrusted 
 to state administration for local and domestic purposes. 
 Therefore, having defined the subjects of general 
 administration, and having given to the general gov- 
 ernment full powers in respect thereto, it would have 
 accomplished the purpose had in view, to have said, all 
 remaining governmental powers shall be exercised by 
 the states respectively, had it not been, that the exer- 
 cise of certain powers had been prohibited to the states ; 
 and besides it was not certain, that in the enumeration 
 of subjects committed to the general administration, 
 every subject essential to the prosperity, security, and 
 •welfare of the nation, had been included. If there 
 ■were any such subjects or xjowers, they were not to be 
 considered as being intrusted to state administration, 
 but were reserved to the people themselves. This reser- 
 vation to the people shows, that in the estimation of 
 those who framed and adopted this constitution, the 
 ultimate source of the authority by which the general 
 government was instituted, was in the people, and not 
 in the states as political corporations. 
 
 § 589. The last amendment made to the constitution 
 of the United States is in these words : Neither slavery 
 nor involuntary servitude except as a ijunishment for 
 crime whereof the party shall have been duly convicted, 
 shall exist within the United States, or any place 
 subject to their jurisdiction. Congress shall have power 
 to enforce this article by approi)riate legislation.^ 
 Under this amendment, congress has full power to 
 provide for such political administration in the several 
 
 1 13 U. S. Statutes at Large, p. 5C7. 
 
898 GOVERNMENT. 
 
 states as to secure freedom to every citizen or inhabitant 
 thereof. This provision of the constitution, together 
 with section four of article four, gives to the general 
 government full power to supervise state legislation 
 upon the subject of the political franchise of its citizens 
 or inhabitants, whenever, in their judgment, it becomes 
 necessary to carry into effect these guarantees. If a 
 republican form of government, or freedom from 
 slavery or involuntary servitude cannot be secured in 
 any state without giving to the people the elective 
 franchise, it cannot be doubted that congress has full 
 power to do so. 
 
APPENDIX. 
 
 NO. 1. 
 
 The first step taken by the American Colonies toward 
 establishing their nationality, was by the appointment of dele- 
 gates to meet in convention and take into consideration their 
 actual situation ; and the differences subsisting between them 
 and Great Britain. This convention met in Carpenter's Hall, 
 in the city of Philadelphia, on the 5th of September, 1774. On 
 that occasion delegates attended from New Hampshire, Massa- 
 chusetts Bay, Rhode Island and Providence Plantations, Con- 
 necticut, from the city and county of New York, and other 
 counties in the province of New York, New Jersey, Pennsylva- 
 nia, New Castle, Kent and Sussex, on Delaware, Maryland, Vir. 
 ginia, and South Carolina. Peyton Randolph was unanimously 
 chosen president of the congress, and Charles Thomson was 
 unanimously chosen secretary. On the 14th of September, dele- 
 gates from North Carolina appeared and took their seats, in the 
 congress. This congress continued in session until the 26th of 
 October, when, having first passed a resolution (Oct. 22) recom- 
 mending delegates to meet again at Philadelphia on the 10th of 
 May, 1775, it was dissolved. On the 22d of October, Peyton Ran- 
 dolph being unable to attend, on account of indisposition, Henry 
 Middleton was chosen to suj^ply his place as president of the 
 congress. 
 
 On the 10th of May, 1775, according to the recommendation 
 of the preceding congress, the delegates from the same several 
 colonies, with the exception of Rhode Island, assembled at the 
 State House in Philadelphia, Avhen Peyton Randolph was, a 
 second time, unanimously elected president, and Charles Thom- 
 son was unanimously chosen secretary, of said second congress. 
 On the 24th of May, Peyton Randolph being tinder the neces- 
 sity of returning home, the chair became vacant ; and John 
 Hancock was unanimously elected president, in his place. 
 On the 14th of June it was resolved to raise several companies 
 of riflemen, by enlistment, for one year, to serve in the American 
 
4 APPENDIX. 
 
 Continental Army ; it established the pay of the officers and pri- 
 vates, and ajjpointed a committee to prepare rules and regula- 
 tions for the government of the army. On the 15th of June, it 
 was resolved that a general should be appointed to command 
 all the continental forces, raised or to be raised, for the defense 
 of American liberty ; and George Washington was unanimously 
 elected and commissioned as such general. 
 
 NO. 2. 
 
 COMMISSION OF GEORGE WASHINGTON AS COM- 
 MANDER-IN.CHIEF OF THE ARMY OF THE UNITED 
 COLONIES. 
 
 " In Congress. The delegates of the United Colonies of New 
 Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New 
 York, New Jersey, Pennsylvania, New Castle, Kent and Sussex, 
 on Delaware, Maryland, Virginia, North Carolina and South 
 Carolina, — To George Washington, Esquire : We, reposing 
 especial trust and confidence in your patriotism, conduct and 
 fidelity, do, by these presents, constitute and appoint you to be 
 general and commander-in-chief of the army of the United Colo- 
 nies, and of all the forces raised, or to be raised by them, and 
 of all others who shall voluntarily ofier their service, and join 
 the said army for the defense of the American liberty, and for 
 repelling every hostile ' invasion thereof; and you are hereby 
 vested with full power and authority to act as you shall think 
 for the good and welfare of the service. And we do hereby 
 strictly charge and require all officers and soldiers under your 
 command to be obedient to your orders, and diligent in the 
 exercise of their several duties. And we do also enjoin and 
 require you to be careful in executing the great trust reposed 
 in you, by causing strict discipline and order to be observed in 
 the arm J'-, and that the soldiers are duly exercised, and provided 
 with all convenient necessaries. And you are to regulate your 
 conduct, in every respect, by the rules and discipline of war 
 (as herewith given you), and punctually to observe and follow 
 such orders and directions, from time to time, as you shall re- 
 ceive from this or a future Congress of the said United Colonies, 
 or a committee of Congress, for that pui'pose appointed. This 
 commission to continue in force until revoked by this or a future 
 Congress. By order of the Congress. John Hancock, Presi- 
 
APPENDIX. 5 
 
 dent. Dated Pliiladelijliia, June 19, 1775. Attested, Charles 
 Thomson, Secretaty.^^ 
 
 On the 1st of August, Congress adjourned to the 5th of Sep- 
 tember, 1775. Congress again convened agreeably to their 
 adjournment, but did not form a quorum for business until the 
 13th inst., when delegates from Georgia appeared, produced 
 their credentials and took their seats in Congress. On the 25t]i 
 of November, Congress passed resolutions directing seizures and 
 capture, under commissions obtained from them, together with 
 condemnation of British vessels eraj^loyed in a hostile manner 
 against the colonies, and pointed out the mode of trial and con- 
 demnation, and the apportionment of prizes. On the 28th of 
 November, Congress adopted rules for the regulation of the 
 Navy of the United Colonies. On the 2d of December an ex- 
 change of prisoners was declared proper. Thus Congress con- 
 tinued step by step organizing a force to repel the assaults of 
 the British government upon the liberties of the colonies, until, 
 on the 4th of July, 1776, they adopted and promulgated to the 
 world the Declaration of Independence.* 
 
 NO. 3. 
 
 Ill Congress, July 4, 1776. 
 THE UNANIMOUS DECLARATION OF THE THIRTEEN 
 UNITED STATES OF AMERICA. 
 
 When-, in the course of human events, it becomes necessary 
 for one people to dissolve the political bands which have con- 
 uected them with another, and to assume, among the powers of 
 the earth, the separate and equal station to which the laws of 
 nature and of nature's God entitle them, a decent respect to the 
 opinions of mankind requires that they should declare the causes 
 whicli impel them to the separation. 
 
 We hold these truths to be self evident — that all men are 
 created equal ; that they are endowed by their Creator with cer- 
 tain unalienable rights ; that among these are life, liberty and the 
 pursuit of happiness; that to secure these rights, governments 
 are instituted among men, deriving their just powers from the 
 consent of the governed ; that, whenever any form of govern- 
 ment becomes destructive of these ends, it is the right of the 
 people to alter or to abolish it, and to institute a new govern- 
 
 *See the -writings of Tliomas Jefferson, Vol. 1, p. 10, as to tlie proceedings of 
 Congress from June 7, 1776, to July 4. See 1 J^liott's Debates, by Lippincott & 
 Co., p. 5G. 5 J 
 
Q APPEKDIX. 
 
 ment, laying its foundation on such principles, and organ- 
 izing its powers in such form, as to them shall seem most 
 likely to effect their safety and haj)piness. 
 
 Prudence, indeed, will dictate that governments long estab- 
 lished should not be changed for light and transient causes ; and 
 accordingly, all experience hath shown that ■ mankind are more 
 disposed to suffer while evils are sufferable, than to right them- 
 selves by abolishing the forms to which they are accustomed. 
 But when a long train of abuses and usurpations, pursuing 
 invariably the same object, evinces a design to reduce them 
 under absolute despotism, it is their right, it is their duty, to 
 throw off such government, and to provide new guards for their 
 future security. Such has been the patient sufferance of these 
 colonies ; and such is now the necessity which constrains them 
 to alter their former systems of government. The history of 
 the present king of Great Britain is a history of repeated inju- 
 ries and usurpations, all having in direct object the establish- 
 ment of an absolute tyranny over these states. To prove this, 
 let facts be submitted to a candid world. He has refused his 
 assent to laws the most wholesome and necessary for the public 
 good. He has forbidden his governors to pass laws of immedi- 
 ate and pressing importance, unless susjDended in their operation 
 till his assent should be obtained ; and when so suspended, he 
 has utterly neglected to attend to them. . 
 
 He has refused to pass other laws, for the accommodation of 
 large districts of people, unless those people would relinquish 
 the right of representation in the legislature — a right inesti- 
 mable to them, and formidable to tyrants only. 
 
 He has called together legislative bodies at places unusual, 
 uncomfortable and distant from the repository of their public 
 records, for the sole purpose fatiguing them into compliance 
 with his measures. 
 
 He has dissolved representative houses repeatedly, for oppo- 
 sing, with manly firmness, his invasions on the rights of the 
 people. 
 
 He has refused, for a long time after such disso utions, to 
 cause others to be elected; whereby the legislative powers, 
 incapable of annihilation, have returned to the people at large, 
 for their exercise, the state remaining in the mean time, exposed 
 to all the dangers of invasion from without, and convulsions 
 within. . 
 
APPENDIX. 7 
 
 He has endeavored to prevent the population of these states, 
 for that purpose obstructing tlie laAvs for naturalization of 
 foreigners ; refusing to pass others to encourage their migration 
 hither, and raising the conditions of new appropriations of 
 lands. 
 
 He has obstructed the administration of justice, by refusing 
 his assent to laws for establishing judiciary powers. 
 
 He has made judges dependent on his will alone for the ten- 
 ure of their offices, and the amount and payment of their 
 salaries. 
 
 He has erected a multitude of new offices, and sent hither 
 swarms of officers, to harass our people, and eat out their sub- 
 stance. He lias kept among us, in times of jDcace, standing 
 armies, without the consent of our legislatures. 
 
 He has affiacted to render the military independent of, and 
 superior to, the civil power. 
 
 He has combined with others to subject us to a jurisdiction 
 foreign to our constitution and unacknowledged by our laws ; 
 giving his assent to their acts of pretended legislation. 
 
 For quartering large bodies of armed troops among us : — For 
 protecting them, by a mock trial, from punishment for any mur- 
 ders which they should commit on the inhabitants of these 
 states : — For cutting off our trade with all parts of the world : 
 For imposing taxes on us without our consent : — For depriving 
 us, in many cases, of the benefits of trial by jury : — For trans- 
 porting us beyond seas to be tried for pretended offenses : — For 
 abolishing the free system of English laws in a neighboring 
 j)rovince, establishing therein an arbitrary government, and 
 enlarging its boundaries, so as to render it at once an examj^le 
 and fit instrument for introducing the same absolute rule into 
 these colonies : — For taking away our charters, abolishing our 
 most valuable laws, and altering, fundamentally, the forms of 
 our governments : — For suspending our own legislatures, and 
 declaring themselves invested with power to legislate for us in 
 all cases Avhatsoever. 
 
 He has abdicated government here, by declaring us out of his 
 protection and waging war against us. He has plundered our 
 seas, ravaged our coasts, burnt our towns, and destroyed the 
 lives of our people. 
 
 He is at this time transporting large arrqies of foreign mer- 
 cenaries to complete the work of death, desolation and tyranny 
 
8 APPENDIX. 
 
 already begun, with, circumstances of cruelty and perfidity 
 scarcely paralleled in the most barbarous ages, and totally 
 unworthy the head of a civilized nation. 
 
 lie has constrained our fellow-citizens, taken captive on the 
 high seas, to bear arms against their country, to become the 
 executioners of their friends and brethren, or to fall themselves 
 by their hands. 
 
 He has excited domestic insurrections amongst us, and has 
 endeavored to bring on the inhabitants of our frontiers the merci- 
 less Indian savages, Avhose known rule of warfare is an undis- 
 tinguished destruction of all ages, sexes and conditions. 
 
 In every stage of these oppressions we have petitioned for 
 redress in the most humble terras ; our repeated petitions have 
 been answered only by rej)eated injury. A prince, whose 
 character is thus marked by every act Avhich may define a tyrant, 
 is unfit to be the ruler of a free people. 
 
 Nor have Ave been wanting in attentions to our British breth- 
 ren. We have warned them from time to time, of attempts by 
 their legislature to extend an unwarrantable jurisdiction over us. 
 "VVe have reminded them of the circumstances of our emigra- 
 tion and settlement here. We have appealed to their native jus- 
 tice and magnanimity, and Ave have conjured them, by the ties of 
 our common kindred, to disavoAV these usurpations, which Avould 
 inevitably interrupt our connections and correspondence. They 
 too have been deaf to the voice of justice and consanguinity. 
 We must, therefore, acquiesce in the necessity which denounces 
 our separation, and hold them, as Ave hold the rest of mankind, 
 enemies in Avar, in peace friends. 
 
 We, therefore, the representatives of the United States of 
 America, in General Congress assembled, appealing to the 
 Supreme Judge of the Avorld for the rectitude of our intentions, 
 do, in the name and by the authority of the good people of these 
 colonies, solemnly j^ublish and declai-e, that these United Colo- 
 nies are, and of right ought to be, free and independent states ; 
 that they are absolved from all allegiance to the British croAvn, 
 and that all political connections betAveen them and the state of 
 Great Britain is, and ought to be, totally dissolved ; and that, 
 as free and independent states, they have full poAver, to levy 
 Avar, conclude peace, contract alliances, establish commerce, and 
 to do all other acts and things Avhich independent states may of 
 right do. And for the support of this declaration, Avith a firni 
 
APPENDIX. 
 
 reliance on the protection of Divine Providence, we mutually 
 pledge to each other our lives, our fortunes, and our sacred 
 honor. 
 
 JOHN HANCOCK. 
 
 NEW HAMPSniRK. 
 
 Josi.ili Bartlett, 
 William Whipple, 
 Matthew Thornton. 
 
 MASSACnUSETTS BAY. 
 
 Samuel Adam?, 
 John Adams, 
 Robert Ti-eat Paine, 
 Elbridge Gerry. 
 
 RnODE ISLAND, &C. 
 
 Stephen Hopkins, 
 William Elleiy. 
 
 CONNECTICUT. 
 
 Roger Sherman, 
 Samuel Huntington, 
 William Williams, 
 Oliver Wolcott. 
 
 NEW YORK. 
 
 William Floyd, 
 Philip Livingston, 
 Francis Lewis, 
 Lewis Morris. 
 
 NEW JERSEY. 
 
 Richard Stockton, 
 John Witherspoon, 
 Fi'ancis Hopkmson, 
 John Hart, 
 Abraham Clark. 
 
 PENNSYLVANIA. 
 
 Robert Morris, 
 Benjamin Rush, 
 Benjamin Franklin, 
 John Morton, 
 George Clymer, 
 James Smith, 
 George Taylor, 
 James Wilson, 
 George Ross. 
 
 DELAWARE. 
 
 Cesar Rodney, 
 George Read, 
 Thomas M'Kean. 
 
 MARYLAND. 
 
 Samuel Chase, 
 William Paca, 
 Thomas Stone, 
 C. Carroll, of Carrollton. 
 
 VIRGINIA. 
 
 George Wythe, 
 Richard Henry Lee, 
 Thomas Jefferson, 
 Benjamin Harrison, 
 Thomas Nelson, Jr., 
 Francis Lightfoot Lee, 
 Carter Braxton. 
 
 NORTH CAROLINA. 
 
 William Hooper, 
 Joseph Hewes, 
 John Penn. 
 
 SOUTH CAROLINA. 
 
 Edward Rutledge, 
 Thomas Heyward, Jr., 
 Thomas Lynch, Jr. 
 Arthur Middleton. 
 
 Button Gwinett, 
 Lyman Hall, 
 George Walton. 
 
 jsro. 4r. 
 
 While the declaration of independence was under considera- 
 tion Congress took measures for the formation of a political 
 union of the colonies. They appointed a committee to prepare 
 a form of Confederation between the colonies, which consisted 
 of one member from each colony. Mr. Bartlet, Mr. S. Adams, 
 Mr. Hopkins, Mr. Sherman, Mr. R. R. Livingston, Mr. Dickinson, 
 Mr. M'Kean, Mr. Stone, Mr. Nelson, Mr. Hewes, Mr. E. Rutledge 
 and Mr. Gwinnett were appointed such committee. This com- 
 mittee reported the draft of Articles of Confederation, which 
 was debated and amended from time to time, until on the 15th 
 of November, 1777, the Articles were agreed to by Congress. 
 They were submitted to the legislatures of the several states, to 
 
10 APPENDIX. 
 
 be considered, and if agreed to, they were advised to authorize 
 their delegates in Congress to ratify the same. On the 9th day 
 of July, 1778, the delegates of the several states having been 
 authorized by the legislatures of their respective states to ratify 
 the Articles of Confederation, proceeded to do so as follows : 
 
 ARTICLES OF CONFEDERATION 
 
 To ALL TO WHOM THESE PeESENTS SHALL COME, 
 
 We, the undersigned, Delegates of the States affixed to our 
 names, send greeti7ig : 
 Wheeeas the delegates of the United States of America, in 
 Congress assembled, did, on the fifteenth day of November, in 
 the year of our Lord one thousand seven hundred and seventy- 
 seven, and in the second year of the Independence of America, 
 agree to certain Articles of Confederation and Perpetual Union, 
 between the states of New Hampshire, Massachusetts Bay, 
 Rhode Island and Providence Plantations, Connecticut, New 
 York, New Jersey, Pennsylvania, Delaware, Maryland, Virginiaj 
 North Carolina, South Carolina, and Georgia, in the words 
 following, viz. : 
 
 Articles of Confederation and Perpetual Union, between the 
 States of New Hampshire, Massachusetts Bay, JRhode Islaiid 
 and Providence Plantations, Connecticut, New York, New 
 Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
 Carolina, South Carolina, and Georgia. 
 
 Article 1. The stj'-le of this confederacy shall be, "The 
 United States of America." ... 
 
 Art. 2. Each state retains its sovereignty, freedom, and 
 independence, and every power, jurisdiction, and right, which 
 is not by this Confederation expressly delegated to the United 
 States in Congress assembled. 
 
 Art. 3. The said states hereby severally enter into a firm 
 league of friendship with each other for their common defence, 
 the security of their liberties, and their mutual and general 
 welfare ; binding themselves to assist each other against all force 
 ofiered to, or attacks made upon, them, or any of them, on 
 account of religion, sovei'eignty, trade, or any other pretence 
 whatever. 
 
 Art. 4. The betterto secure and perpetuate mutual friendship 
 arid intercourse among the people of the different states in this 
 
APPENDIX. IX 
 
 Union, the free inhabitants of each of these states — pauijers, 
 vagabonds, and fugitives from justice, excepted — shall be enti- 
 tled to all privileges and immunities of free citizens in the 
 several states; and the people of each state shall have free 
 ingress and regress to and from any other state, and shall enjoy- 
 therein all the privileges of trade and commerce, subject to the 
 same duties, impositions, and restrictions, as the inhabitants 
 thereof, respectively, provided that such restrictions shall not 
 extend so far as to prevent the removal of property imported 
 into any state from any other state, of which the owner is an 
 inhabitant ; provided also, that no imposition, duty, or restric- 
 tion, shall be laid by any state on the property of the United 
 States, or either of them. 
 
 If any person, guilty of, or charged with, treason, felony, or 
 other high misdemeanor, in any state, shall flee from justice, 
 and be found in any of the United States, he shall, upon demand 
 of the governor or executive power of the state from which he 
 fled, be delivered up, and removed to the state having jurisdic- 
 tion of his offence. 
 
 Full faith and credit shall be given, in each of these states, to 
 the records, acts, and judicial proceedings, of the courts and 
 magistrates of every other state. 
 
 Art. 5. For the more convenient management of the general 
 interests of the United States, delegates shall be annually 
 appointed in such manner as the legislature of each state shall 
 direct, to meet in Congress on the first Monday in November, 
 in every year, with a power reserved to each state, to recall its 
 delegates, or any of them, at any time within the year, and to 
 send others in their stead for the remainder of the year. 
 
 No state shall be represented in Congress by less than two, 
 nor by more than seven members ; and no person shall be 
 capable of being a delegate for more than three years in any 
 term of six years ; nor shall any person, being a delegate, be 
 capable of holding any oflSce under the United StateSj for which 
 he, or another for his benefit, receives any salary, fees, or 
 emolument of any kind. 
 
 Each State shall maintain its own delegates in a meeting of 
 the states, and while they act as members of the committee 
 of the states. 
 
 In determining questions in the United States in Congress 
 assembled, each state shall have one vote. 
 
12 APPENDIX. 
 
 Freedom of siDeech and debate in Congress shall not ho 
 impeached or questioned in any court or place out of Congress ; 
 and the members of Congress shall be protected in their persons 
 from arrests and imprisonments, during the time of tiieir going 
 to and from, and attendance on, Congress, except for treason, 
 felony, or breach of the peace. 
 
 Art. 6. No state, without the consent of the United States 
 in Congress assembled, shall send any embassy to, or receive 
 any embassy from, or enter into any conference, agreement, 
 alliance, or treaty, with any king, prince, or state; nor shall 
 any person holding any office of profit or trust under the United 
 States, or any of them, accept of any present, emolument, office, 
 or title, of any kind whatever, from any king, prince, or foreign 
 state; nor shall the United States in Congress assembled, or 
 any of them, gi-ant any title of nobility. 
 
 No two or more states shall enter into any treaty, confedera- 
 tion, or alliance Avhatever between them, without the consent 
 of the United States in Congress assembled, specifying accu- 
 rately the purj)Oses for which the same is to be entered into, 
 and how long it shall continue. 
 
 No state shall lay any imposts or duties, which may interfere 
 with any stipulations in treaties entered into, by the United 
 States in Congress assembled, with any king, prince, or state, 
 in pursuance of any treaties already proposed by Congress to 
 the courts of France and Spain. 
 
 No vessel of war shall be kept up in time of peace by any 
 state, except such number only as shall be deemed necessary, 
 by the United States in Congress assembled, for the defense of 
 such state, or its trade ; nor shall any body of forces be kept 
 up by any state, in time of peace, except such number only as, 
 in the judgment of the United! States in Congress assembled, 
 shall be deemed requisite to garrison the forts necessary for the 
 defense of such state ; but every state shall always keep up a 
 well-regulated and disciplined militia, sufficiently armed and 
 accoutered, and shall provide, and have constantly ready for use, 
 in public stores, a due number of field-pieces and tents, and a 
 proper quantity of arms, ammunition, and camp equipage. 
 
 No state shall engage in any war without the consent of the 
 United States in Congress assembled, unless such state be actu- 
 ally invaded by enemies, or shall have received certain advice 
 of a resolution being formed by some nation of Indians to 
 
APPENDIX. 13 
 
 invade such state, and the danger is so imminent as not to admit 
 of a delay till the United States in Congress assembled can be 
 consulted ; noi' shall any state grant commissions to any ships 
 or vessels of war, nor letters of marque or reprisal, except it be 
 after a declaration of war by the United States in Congress 
 assembled, and then only against the kingdom or state, and the 
 subjects thereof, against which war has been so declared, and 
 under such regulations as shall be established by the United 
 States in Congress assembled, unless such state be infested by 
 pirates; in which case, vessels of war may be fitted out for that 
 occasion, and kept so long as the danger shall continue, or until 
 the United States in Congress assembled shall determine other- 
 wise. 
 
 Art. 7. When land forces are raised by any State for the 
 common defense, all officers of or under the rank of colonel 
 shall be appointed by the legislature of each State, respectively, 
 by whom such forces shall be raised, or in such manner as such 
 State shall direct ; and all vacancies shall be filled up by the 
 State which first made the appointment. 
 
 Art. 8. All charges of war, and all other expenses that shall 
 be incurred for the common defense or general warfare, and 
 allowed by the United States in Congress assembled, shall be 
 defrayed out of a common treasury, which shall be supplied by 
 the several States, in proportion to the value of all land, within 
 each state, granted to or surveyed for any person, as such land, 
 and the buildings and improvements thereon, shall be estima- 
 ted, according to such mode as the United States in Congress 
 assembled shall, from time to time, direct and appoint. 
 
 The taxes for paying that proportion shall be laid and levied 
 by the authority and direction of the legislatures of the several 
 States, Avithin the time agreed upon by the United States in 
 Congress assembled. 
 
 Art, 9. The United States in Congress assembled shall have 
 the sole and exclusive right and power of determining on peace 
 and war, except in the cases mentioned in the sixth article — of 
 sending and receiving ambassadors — entering into treaties and 
 alliances ; provided that no treaty of commerce shall be made 
 whereby the legislative power of the respective states shall be 
 restrained from imposing such imposts and duties on foreigners 
 as their own people are subjected to, or from prohibiting the 
 exportation or importation of any species of goods or commodi- 
 52 
 
14 APPENDIX. 
 
 ties whatsoever — of establishing rules • for deciding, in all 
 cases, what captures, on land or water, shall be legal, and in 
 what manner prizes taken by land or naval forces in the service 
 of the United States shall be divided or appropriated — of 
 gi-anting letters of marque and repi-isal in times of peace — 
 appointing courts for the trial of piracies and felonies commit- 
 ted on the high seas, and establishing courts for receiving and 
 determining finally appeals in all cases of capture ; provided 
 that no member of Congress shall be appointed a judge of any 
 of the said courts. 
 
 The United States in Congress assembled shall also be the 
 last resort on appeal in all disputes and differences now subsist- 
 ing, or that hereafter may arise, between two or more states, 
 concerning boundary, jurisdiction, or any other cause whatever; 
 which authority shall always be exercised in the manner follow- 
 ing : Whenever the legislative or executive authority, or lawful 
 agent, of any state in controA'ersy with another, shall present a 
 petition to Congress, stating the matter in question, and pray- 
 ing for a hearing, notice thereof shall be «given by order of 
 Congress to the legislative or executive authority of the other 
 state in controversy, and a day assigned for the appearance of 
 the parties, by their lawful agents, who shall then be directed 
 to apj)oint, by joint consent, commissioners or judges to consti- 
 tute a court for hearing and determining the matter in 
 question ; but if they cannot agree, Congress shall name three 
 persons out of each of the United States, and from the list of 
 such persons each party shall alternately strike out one, the 
 petitioners beginning, until the number shall be reduced to thir- 
 teen ; and from that number not less than seven nor more than 
 nine names, as Congress shall direct, shall, in the presence of 
 Congress, be drawn out by lot ; and the persons whose names 
 shall be so drawn, or any five of them, shall be commissioners 
 or judges, to hear and finally determine the controversy, so 
 always as a major part of the judges, who shall hear the cause, 
 shall agree in the determination ; and if either party shall 
 neglect to attend at the day appointed, without showing 
 reasons which Congress shall judge suflicient, or being present, 
 shall refuse to strike, the Congress shall proceed to nominate 
 three persons out of each state, and the Secretary of Congress 
 shall strike in behalf of such party absent or refusing ; and the 
 judgment and sentence of the court, to be appointed in the 
 
APPENDIX. 15 
 
 manner before prescribed, shall be final and conclusive ; and if 
 any of the parties shall refuse to submit to the authority of such 
 court, or to appear or defend their claim or cause, the court shall 
 nevertheless proceed to pronounce sentence or judgment, which 
 shall, in like manner, be final and decisive, the judgment 
 or sentence, and other proceedings, being in either case trans- 
 mitted to Congress, and lodged among the acts of Congress for 
 the security of the parties concerned ; provided that every 
 commissioner, before he sits in judgment, shall take an oath, to 
 be administered by one of the judges of the supreme or super- 
 ior court of the state, where the cause shall be tried, " v:ell and 
 truly to hear and determine the matter in question^ according 
 to the best of his judgment^ without favor ^ affection, or hope of 
 reward ; " provided, also, that no state shall be deprived of terri- 
 tory for the benefit of the United States. 
 
 All controversies concerning the private right of soil, claimed 
 tinder different grants of two or more states, whose jurisdic- 
 tion, as they may respect such lands, and the states which 
 passed such grants, are adjusted, the said grants, or either of 
 them, being at the same time claimed to have originated ante- 
 cedent to such settlement of jurisdiction, shall, on the petition 
 of either party to the Congress of the United States, be finally 
 determined, as near as may be, in the same manner, as is before 
 prescribed for deciding disputes respecting territorial jurisdic- 
 tion between different states. 
 
 The United States in Congress assembled shall also have the 
 sole and exclusive right and power of regulating the alloy and 
 value of coin struck by their own authority, or by that of the 
 respective states ; fixing the standard of weights and measures 
 throughout the United States ; regulating the trade and mana- 
 ging all affairs with the Indians not members of any of the 
 states, provided that the legislative right of any state within 
 its own limits be not infringed of violated ; establishing and 
 regulating post-offices from one state to another throughout 
 all the United States, and exacting such postage on the papers 
 passing through the same as may be requisite to defray the 
 expenses of the said office; appointing all officers of the land 
 forces in the service of the United States, excepting regimental 
 officers ; appointing all the officers of the naval forces, and 
 commissioning all officers whatever in the service of the United 
 
16 APPENDIX. 
 
 States ; making rules for the government and regulation of the 
 said land and naval forces, and directing their operations. 
 
 The United States in Congress assembled, shall have authority 
 to appoint a committee to sit in the recess of Congress, to be 
 denominated "a committee of the states," and to consist of one 
 delegate from each state; and to appoint such other committees 
 and civil officers as may be necessary for managing the general 
 afiairs of the United States under their direction — to appoint 
 one of their number to preside, provided that no person be 
 allowed to serve in the office of president more than one year 
 in any term of three years — to ascertain the necessary sums of 
 money to be raised for the service of the United States, and to 
 aj)];)roiDriate and apply the same for defraying the public expenses 
 — to borrow money or emit bills on the credit of the United 
 States, transmitting, every half year, to the respective states, an 
 account of the sums of money so borrowed or emitted — to build 
 and equip a navy — to agree upon the number of land forces, 
 and to make requisitions from each state for its quota, in pro- 
 portion to the number of white inhabitants in such state; which 
 requisitions shall be binding ; and thereupon the legislature of 
 each state shall appoint the regimental officers, raise the men, 
 and clothe, arm, and equip them in a soldier-like manner, at the 
 expense of the United States; and the officers and men so clothed, 
 armed, and equipped, shall march to the place appointed, and 
 within the time agreed on by the United States in Congress 
 assembled ; but if the United States in Congress assembled shall, 
 on consideration of circumstances, judge proper that any state 
 should not raise men, or should raise a smaller number than its 
 quota, and that any other state should raise a greater number 
 of men than the quota thereof, such extra number shall be raised, 
 officered, clothed, armed and equipped, in the same manner as 
 the quota of such state, unless the legislature of such state shall 
 judge that such extra number cannot be safely spared out of 
 the same ; in Avhich case they shall raise, officer, clothe, arm and 
 equip, as many of such extra number as they judge can be safely 
 spared. And the officers and men so clothed, armed and equip- 
 ped, shall march to the place appointed, and within the time 
 agreed on by the United States in Congress assembled. 
 
 The United States in Congress assembled, shall never engage 
 in a war ; nor grant letters of marque and rej)risal in time of 
 peace ; nor enter into any treaties or alliances ; nor coin money ; 
 
APPENDIX. 17 
 
 nor regulate the value thereof; nor ascertain the suras and 
 expenses necessary for the defense and welfare of the United 
 Stater, or any of them; nor emit bills; nor borrow money on 
 the credit of the United States; nor appropriate money; nor 
 agree upon the number of vessels of war to be built or purchased, 
 or the number of land or sea forces to be raised ; nor appoint a 
 commander-in-chief of the army or navy,— unless nine states 
 assent to the same ; nor shall a question on any other point, 
 except for adjourning from day to day, be determined, unless by 
 the votes of a majority of the United States in Congress 
 aseembled. 
 
 The Congress of the United States shall have power to adjourn 
 to any time within the year, and to any place within the United 
 shall be appointed by the states within which their offices are 
 States, so that no period of the adjournment shall be for a longer 
 duration than the space of six months ; and shall publish the 
 journal of tlieir proceedings monthly, except such parts thereof, 
 relating to treaties, alliances, or military operations, as in their 
 judgment requires secrecy; and the yeas and nays of the dele- 
 gates of each state on any question shall be entered on the 
 journal when it is desired by any delegate ; and the delegates 
 of a state, or any of them, at his or their request, shall be 
 furnished with a transcript of the said journal, except such 
 parts as are above excepted, to lay before the legislatures of the 
 several states. 
 
 Art. 10. The committee of the states, or any nine of them, 
 shall be authorized to execute, in the recess of Congress, such 
 of the powers of Congress as the United States in Congress 
 assembled, by the consent of nine states, shall, from time to 
 time, think expedient to vest them with ; provided that no 
 power be delegated to the said committee, for the exercise of 
 which, by the Articles of Confederation, the voice of nine states 
 in the Congress of the United States assembled is requisite. 
 
 Art. 11. Canada, acceding to this Confederation, and joining 
 in the measures of the United States, shall be admitted into, 
 and entitled to, all the advantages of this union ; but no other 
 colony shall be admitted into the same, unless such admission 
 be agreed to by nine states. 
 
 Art. 12. All bills of credit emitted, moneys borrowed, and 
 debts contracted, by or under the authority of Congress, before 
 the assembling of the United States in pursuance of the present 
 
18 APPENDIX. 
 
 Confederation, shall be deemed and considered as a charge 
 against the United States, for j^ayment and satisfaction whereof 
 the said United States, and the public faith, are hereby solemnly 
 pledged. 
 
 Aet. 13. Every state shall abide by the determination of the 
 United States in Congress assembled, on all questions which, by 
 this Confederation, are submitted to them. And the articles 
 of this Confederation shall be inviolably observed by every 
 state, and the union shall be perpetual ; nor shall any altera- 
 tion, at any time hereafter, be made in any of them, unless 
 such alteration be agreed to in a Congress of the United 
 States, and be afterwards confirmed by the legislature of every 
 state. 
 
 RATIFICATION. 
 
 And whereas it has pleased the Great Governor of the world 
 to incline the hearts of the legislatures we respectfully represent 
 in Congress, to approve of and to authorize us to ratify the said 
 Articles of Confederation and Perpetual Union : JShow ye. 
 That we, the undersigned delegates, by virtue of the power and 
 authority to us given for that purpose, do, by these presents, in 
 the name and in behalf of our respective constituents, fully and 
 entirely ratify and confirm each and every of the said Articles of 
 Confederation and Perpetual Union, and all and singular the 
 matters and things therein contained; and we do further 
 solemnly plight and engage the faith of our respective constit- 
 uents, that th6y shall abide by the determinations of the 
 United States in Congress assembled, on all questions which, by 
 the said Confederation, are submitted to them ; and that the 
 articles thereof shall be inviolably observed by the states we 
 respectively represent ; and that the union shall be perpetual. 
 
 In witness whereof, we liave hereunto set our hands, in Congress. Done 
 at Pliiladelpliia, in the state of Pennsylvania, the ninth day of July, in 
 the year of our Lord one thousand seven hundred and seventy-eight, 
 and in the third year of the Independence of America. 
 
 On the part and iehalf of the state of New HampsMre. 
 
 Josiah Bartlett, John Wentworth, Jun., Aug. 8, 1778. 
 
 On the part and hehalf of the state of Massachusetts Bay. 
 
 Jolm Hancock, Francis Dana, 
 
 Samuel Adams, James Lovell, 
 
 Elbridge. Gerry, . Samuel Holten. 
 
• APPENDIX. 19 
 
 On the part and helialf of the state of Rhode Island and Providence 
 Plantations. 
 
 William Ellery, John Collins. 
 
 Henry Marchant, 
 
 On the part and behalf of the state of Connecticut. 
 
 Eoger Sherman, Titus Hosmer, 
 
 Samuel Huntington, Andrew Adams. 
 
 Oliver Wolcott, 
 
 On the part and behalf of the state of New York. 
 
 Jas. Diiane, Wm. Duer, 
 
 Fra. Lewis, Gouv. Morris. 
 
 On the part and behalf of the state of New Jersey. 
 Jno. Witherspoon, Nath. Scudder, Nov. 26, 1778. 
 
 On the part and behalf of the state of Pennsylvania. 
 Robert Morris, William Clingan, 
 
 Daniel Roberdeau, Joseph-Reed, 22d July, 1778. 
 
 Jona. Bayard Smith, 
 
 On the part and behalf of the state of Delaware. 
 
 Thos. M'Kean, Feb. 13, '79, ' Nicholas Van Dyke. 
 
 John Dickinson, May 5, '79, 
 
 On the part and behalf of the state of Maryland. 
 
 John Hanson, March 1, '81, Daniel Carroll, do. 
 
 On the part and behalf of the state of Virginia. 
 
 Richard Henry Lee, Jno. Harvie, 
 
 John Banister, Francis Lightfoot Lee. 
 
 Thomas Adams, 
 
 On the part and behalf of the state of North Carolina. 
 John Penn, July 21, '78, Corns. Harnett. 
 
 Jno. Williams, 
 
 On the part and behalf of the state of South Carolina. 
 Henry Laurens, Richard Hutson, 
 
 William Henry Drayton, Thos. Heyward, Jun. 
 
 Jno. Mathews, 
 
 On the part and behalf of the state of Georgia. 
 Jno. Walton, July 24, '78, Edw'd Langworthy. 
 
 Edw'd Telfair, 
 
 After the termination of the war the defects in the Articles 
 of Confederation became apparent. The Congress provided for, 
 had not been invested with sufficient j^owers to enable it to pro- 
 vide for the exigencies of national existence. It could 
 recommend, but it had no power to require compliance with its 
 recommendations. It could not even raise a dollar for national pur- 
 poses. Its attention was necessarily turned immediately to the 
 subject of providing a revenue as a means of preserving the 
 national faith and credit. But it was continually baffled in its 
 
20 APPENDIX. 
 
 efforts, by the jealousies and antagonisms existing among the 
 several states. On the 18th of April, 1783, Congress, by nine 
 States, adopted the following recommendations to be submitted 
 to the several states : 
 
 isro. 5. 
 
 Mesolved, That it be recommended to the several states, as 
 indispensably necessary to the restoration of public credit, and 
 to the punctual and honorable discharge of the public debts, to 
 invest the United States in Congress assembled with a power 
 to levy, for the use of the United States, the following duties 
 upon goods imported into the said states from any foreign port, 
 island, or plantation : 
 
 Upon all rum of Jamaica proof, per gallon, 4-90ths of a dollar. 
 
 Upon all other spirituous liquors,. 3-90ths do. 
 
 Upon Maderia wine, , 12-90ths do. 
 
 Upon all other wines, 6-90ths do. 
 
 Upon common Bohea tea, per lb., 6-90ths do. 
 
 Upon all other teas, 24-90ths do. 
 
 Upon pepper, per lb., 3-90ths do. 
 
 Upon brown sugar, per lb., -J-gOth do. 
 
 Upon loaf sugar, 2-90ths do. 
 
 Upon all other sugars, l-90th do. 
 
 Upon molasses, per gallon, l-90th do. 
 
 Upon cocoa and coffee, per lb., l-90th do. 
 
 Upon all other goods, a duty of five per cent, ad valorem^ at 
 the time and place of importation. 
 
 Provided, That none of the said duties shall be applied to any 
 other purpose than the discharge of the interest or principal of 
 the debts contracted, on the faith of the United States, for sup- 
 porting the war, agreeably to the resolution of the 16th day of 
 December last, nor be continued for a longer term than twenty- 
 five years ; and provided, that the collectors of the said duties 
 shall be appointed by the states within which their offices are 
 to be respectively exercised ; but when so appointed, shall be 
 amenable to, and removable by, the United States in Congress 
 assembled, alone; and in case any state shall not make such 
 appointment within one month after notice given for that 
 purpose, the appointment may be made by the United States in 
 Congress assembled. 
 
APPENDIX. 21 
 
 That it be further recommended to the several states to estab- 
 lish, for a term limited to twenty-five years, and to appropriate 
 to the discharge of the interest and principal of the debts con- 
 tracted on the faith of the United States for supporting the 
 war, substantial and effectual revenues, of such nature as they 
 may judge most convenient, for supplying their respective 
 proportions of one million five hundred thousand dollars, 
 annually, exclusive of the afore-mentioned duties, which pro- 
 portion shall be fixed and equalized from time to time, according 
 to the rule which is, or may be, prescribed by the Articles of 
 Confederation; and in case the revenues established by any 
 state shall at any time yield a sum exceeding its actual propor- 
 tion, the excess shall be refunded to it ; and in case the revenues 
 of any state shall be found to be deficient, the immediate defi- 
 ciency shall be made uj) by such state with as little delay as 
 possible, and a future deficiency guarded against by an enlarge- 
 ment of the revenues established ; Provided, that, until the rule 
 of the Confederation can be carried into practice, the projDor- 
 tions of the said one million five hundred thousand dollars shall 
 be as follows, viz : 
 
 New Hampshire, 52,708 
 
 Massachusetts, 224,427 
 
 Rhode Island, 32,318 
 
 Connecticut, 132,091 
 
 New Yorlc, 128,243 
 
 New Jersey, 83,358 
 
 Pennsylvania, 205,189 
 
 Delaware, 22,443 
 
 Maryland, 141,517 
 
 Virginia, 256,487 
 
 North Carolina, 109,006 
 
 South Carolina, 96,183 
 
 Georgia, 16,030 
 
 The said last-mentioned revenues to be collected by j^ersons 
 appointed as aforesaid, but to be carried to the separate credit 
 of the states within which they shall be collected. 
 
 That an annual account of the j^roceeds and ai^plication of all 
 the afore-mentioned revenues shall be made out and transmitted 
 to the several states, distinguishing the proceeds of each of the 
 specified articles, and the amount of the whole revenue received 
 from each state, together with the allowances made to the 
 several ofiicers employed in the collection of the said revenues. 
 
 That none of the preceding resolutions shall take effect until 
 all of them shall be acceded to by every state; after which 
 unanimous accession, however, they shall be considered as form- 
 ing a mutual compact, among all the states, and shall be 
 irrevocable by any one of them, without the concurrence of the 
 whole, or a majority of the United States in Congress assembled. 
 53 
 
22 APPENDIX. 
 
 That, as a further means, as well of hastening the extinguish- 
 ment of the debts, as of establishing the harmony of the United 
 States, it be recommended to the states which have passed no 
 acts towards complying with the resolutions of Congress of 
 the 6th of September, and 10th of October, 1780, relative to the 
 cession of territorial claims, to make the liberal cessions therein 
 recommended, and to the states which may have passed acts 
 complying with the said resolutions in part only, to revise and 
 complete such compliance. 
 
 That, as a more convenient and certain rule of ascertaining 
 the proportions to be supplied by the states respectively to the 
 common treasury, the following alteration in the Articles of 
 Confederation and perpetual Union between these states, be, 
 and the same is hereby agreed to in Congress ; and the several 
 states are advised to authorize their respective delegates to sub- 
 scribe and ratify the same, as part of the said instrument of 
 union, in the words following, to wit : 
 
 So much of the 8th of the Articles of Confederation and Per- 
 petual Union, between the thirteen states of America, as is 
 contained in the words following, to wit, " All charges of war, 
 and all other exjDcnses that shall be incurred for the common 
 defense or general welfare, and allowed by the United States in 
 Congress assembled, shall be defrayed out of a common treasury, 
 which shall be supplied by the several states, in proportion to the 
 value of all land within each state, granted to or surveyed for 
 any person, as such land, and the buildings and improvements 
 thereon shall be estimated, according to such mode as the United 
 States in Congress assembled shall from time to time direct and 
 appoint," is hereby revoked and made void ; and in place thereof, 
 it is declared and concluded, the same having been agreed to 
 in a Congress of the United States, that all charges of war, and 
 all other expenses, that have been, or shall be, incurred for the 
 common defense or general welfare, and allowed by the United 
 States in Congress assembled, except so far as shall be other- 
 wise provided for, shall be defrayed out of a common treasury, 
 which shall be supplied by the several states in proportion to 
 the whole number of white and other free citizens and inhabit- 
 ants, of every age, sex and condition, including those bound to 
 servitude for a term of years, and three-fifths of all other persons 
 not comprehended in the foregoing description, except Indians 
 not paying taxes, in each state ; which number shall be trienni- 
 
APPENDIX. 23 
 
 ally taken and transmitted to the United States in Congress 
 assembled, in such mode as they sliall direct and appoint. 
 
 April 26, 1783. — The committee, consisting of Mr. Madison, 
 Mr. Ellsworth and Mr. Hamilton, appointed to prepare an 
 address to the states, to accompany the act of the 18th of this 
 month, reported a draft, "vyhich being read and amended, was 
 agreed to, as follows : 
 
 NO. 6. 
 
 ADDPvESS TO THE STATES, BY THE UNITED STATES 
 IN CONGRESS ASSEMBLED. 
 
 To accompany the Act of April 18, 178.3. 
 
 The prospect which has for some time existed, and Avhich is 
 now happily realized, of a successful termination of the war, 
 together Avith tho critical exigencies of public afiairs, has made 
 it the duty of Congi-ess to review and provide for the debts 
 which the war has left upon the United States, and to look for- 
 ward to the means of obviating dangers which may interrupt 
 the harmony and tranquillity of the confederacy. The result of 
 their mature and solemn deliberations, on these great objects, is 
 contained in their several recommendations of the 18th inst., 
 herewith transmitted. Although these recommendations speak 
 themselves the principles on which they are founded, as well as 
 the ends which they propose, it will not be improper to enter 
 into a few explanations and remarks, in order to place in a 
 stronger view the necessity of complying with them. 
 
 The first measure recommended is, effectual provision for the 
 debts of the United States. The amount of these debts, as far 
 as they can now be ascertained, is 42,000,375 dollars. To dis- 
 charge the principal of this aggregate debt at once, or in any short 
 period, is evidently not within the compass of our resources; 
 and, even if it could be accomplished, the ease of the 
 community would require that the debt itself should be left to 
 a course of gradual extinguishment, and certain funds be provi- 
 ded for paying, in the mean time, the annual interest. The 
 amount of the annual intei'est is computed to be 2,415,956 
 dollars. Funds, therefore, which will certainly and punctually 
 produce this annual sum, at least, must be provided. 
 Observations on Kevenue. 
 
 In devising these funds, Congress did not overlook the mode 
 of supplying the common treasury, provided by the Articles of 
 
24 APPENDIX. 
 
 Confederation ; but, after the most respectful consideration of 
 that mode, they were constrained to regard it as inadequate, 
 and inapiDlicable to the form into which the public debt must be 
 thrown. The delays and uncertainties incident to a revenue to 
 be established and collected, from time to time, by thirteen 
 independent authorities, is, at first view, irreconcilable with the 
 punctuality essential in the discharge of the interest of a national 
 debt. Our own experience, after making every allowance for 
 transient impediments, has been a sufficient illustration of this 
 truth. Some departure, therefore, in the recommendation of 
 Congress, from the Federal Constitution, was unavoidable ; 
 but it will be found to be as small as could be reconciled with 
 the object in view, and to be supported, besides, by solid consid- 
 erations of interest and sound policy. 
 
 The fund which presented itself on this, as it did on a former 
 occasion, was a tax on imports. The reasons which recommen- 
 ded this branch of revenue, have heretofore been stated in an 
 act, of which a copy, No. 2, is now forwarded, and need not be 
 here repeated. It will suffice to recapitulate, that taxes on con- 
 sumption are always least burdensome, because they are least 
 felt, and are borne too by those who are both willing and able 
 to pay them ; that, of all taxes on consumption, those on foreign 
 commerce are most compatible with the genius and policy of 
 free states; that, from the relative positions of some of the more 
 commercial states, it will be impossible to bring this essential 
 resource into use without a concerted uniformity ; that this uni- 
 formity cannot be concerted through any channel so properly 
 as through Congress, nor for any purpose so aptly as for paying 
 the debts of a revolution, from which an unbounded freedom 
 has accrued to commerce. 
 
 In renewing this proposition to the states, we have not been 
 unmindful of the objections which heretofore frustrated the 
 unanimous adoption of it. We have limited the duration of 
 the revenue to the term of twenty-five years ; and we have left 
 to the states themselves the appointment of the officers who 
 are to collect it. If the strict maxims of national credit alone 
 were to be consulted, the revenue ought manifestly to be 
 coexistent with the object of it, and the collection placed in 
 every respect under that authority which is to dispense the 
 former, and is responsible for the latter. These relaxations 
 will, we trust, be regarded, on one hand, as the effisct of a 
 
APPENDIX. 25 
 
 disposition in Congress to attend, at all times, to tlie senti- 
 ments of those whom they serve, and, on the other hand, as a 
 proof of tlieir anxious desire that provision may be made, in 
 some way or other, for an honorable and just fulfillment of the 
 engagements Avhich they have formed. 
 
 To render this fund as productive as- possible, and, at the 
 same time, to narrow the room for collusions and frauds, it has 
 been judged an improvement of the plan, to I'ecommend a 
 liberal duty on such articles as are most susceptible of a tax 
 according to their quantity, and are of most equal and general 
 consumption ; leaving all other articles, as heretofore i^roi^osed, 
 to be taxed according to their value. 
 
 The amount of this fund is computed to be 915,950 dollars. 
 Accuracy, in the first essay, on so complex and fluctuating a 
 subject, is not to be expected. It is presumed to be as near the 
 truth as the defect of proper materials would admit. 
 
 The residue of the computed interest is 1,500,000 dollars, and 
 is referred I to the states to be provided for by such funds as 
 they may judge most convenient. Here, again, the strict max- 
 ims of public credit gave way to the desire of Congress to 
 conform to the sentiments of their constituents. It ought not 
 to be omitted, however, with respect to this portion of the 
 revisnue, that the mode in which it is to be supplied varies so 
 little from that pointed out in the Articles of Confederation, 
 and the variations are so conducive to the great object pro- 
 posed, that a ready and unqualified compliance on the part of 
 the states may be the more justly expected. In fixing the 
 quotas of this sum, Congress, as may be well imagined, were 
 guided by very imperfect lights, and some inequalities may 
 consequently have ensued. These, however, can be but tempo- 
 rary, and, as far as they may exist at all, will be i-edressed by a 
 retrospective adjustment, as soon as a constitutional rule can be 
 applied. 
 
 The necessity of making the two foregoing j^rovisions one 
 indivisible and irrevocable act, is apparent. Without the first 
 quality, partial provision only might be made where complete 
 provision is essential; nay, as some states might prefer and 
 adopt one of the funds only, and the other states, the other fund 
 only, it might happen that no provision at all would be made: 
 without the second, a single state, out of the thirteen, might at 
 any time involve the nation in bankruptcy, the mere practica- 
 
26 APPENDIX. 
 
 bility of which would be a fatal bar to the establishment of 
 national credit. Instead of enlarging on these topics, two 
 observations are submitted to the justice and wisdom of the 
 legislatures. First, the present creditors, or rather the domestic 
 part of them, having either made their loans for a period which 
 has expired, or havin'g become creditors, in the first instance, 
 involuntarily, are entitled, on the clear principles of justice and 
 good faith, to demand the principal of their credits, instead of 
 accepting the annual interest. It is necessary, therefore, as the 
 principal cannot be paid to them on demand, that the interest 
 should be so effectually and satisfactorily secured, as to enable 
 them, if they incline, to transfer their stock at its full value. 
 Secondly, if the funds be so firmly constituted as to inspire a 
 thorough and universal confidence, may it not be hoped that 
 the capital of the domestic debt, which bears the high interest 
 of six per cent, may be canceled by other loans obtained at a 
 more moderate interest ? The saving by such an operation 
 would be a clear one, and might be a considerable o4ie. 
 
 Thus much for the interest of the national debt : for the dis- 
 charge of the principal within the term limited, we rely on the 
 natural increase of the revenue from commerce, on requisitions 
 to be made from time to time for that purpose, as circumstances 
 may dictate, and on the pi*ospect of vacant territory. If these 
 resources should prove inadequate, it will be necessary, at the 
 expiration of twenty-five years, to continue the funds now 
 recommended, or to establish such others as may then be found 
 more convenient. 
 
 AVith a view to the resource last mentioned, as well as to 
 obviate disagreeable controversies and confusions. Congress 
 have included in their present recommendations a renewal of 
 those of the 6th day of September, and of the 10th day of 
 October, lYSO. In both these respects, a liberal and final 
 accommodation of all interfering claims of vacant territory is 
 an object which cannot be pressed with too much solicitude. 
 
 The last object recommended is a constitutional change of the 
 rule by which a partition of the common burdens is to be made. 
 The expediency, and even necessity, of such a change, has been 
 sufficiently enforced by the local injustice and discontents which 
 have proceeded from valuations of the soil in every state where 
 the experiment has been made. But how infinitely must these 
 evils be increased, on a comparison of such valuations among 
 
APPENDIX. 27 
 
 the states themselves ! On whatever side, indeed, this rule be 
 surveyed, the execution of it must be attended with the most 
 serious difficulties. If the valuations be referred to the author- 
 ities of the several states, a general satisfaction is not to be 
 hoped for. If they be executed by officers of the United States 
 traversing the country for that purpose, besides the inequalities 
 against Avhich this mode would be no security, the expense 
 would be both enormous and obnoxious. If the mode taken in 
 the act of the IVth day of February last, which was deemed, 
 on the whole, least objectionable, be adhered to, still the insuffi- 
 ciency of the data to the purpose to which they are to be applied 
 must greatly impair, if not utterly destroy, all confidence in the 
 accuracy of the result ; not to mention that, as far as the result 
 can be at all a just one, it will be indebted, for that advantage, 
 to the principle on which the rule proposed to be substituted is 
 founded. Tliis rule, although not free fi-om objections, is liable 
 to fewer than any other that could be devised. The only mate- 
 rial difficulty which attended it in the deliberations of Congress, 
 was to fix the pro2:)er difference betAveen the labor and industry 
 of free inhabitants and of all other inhabitants. The ratio 
 ultimately agreed on was the effect of mutual concessions ; and 
 if it should be supposed not to correspond precisely with the 
 fact, no doubt ought to be entertained that an equal spirit of 
 accommodation among the several legislatures will jjrevail 
 against little inequalities which may be calculated on one side 
 or on the other. But notwithstanding the confidence of 
 Congress as to the success of this proposition, it is their duty 
 to recollect that the event may possibly disappoint them, and to 
 request that measures may still be pursued for obtaining and 
 transmitting the information called for in the act of the iVth of 
 February last, which, in such event, will be essential. 
 
 The plan thus communicated and explained by Congress must 
 now receive its fate from their constituents. All the objects 
 comprised in it are conceived to be of great importance to the 
 happiness of this confederated republic — are necessary to render 
 the fruits of the revolution a full reward for the blood, the 
 toils, the cares, and the calamities which have purchased it. But 
 the object, of which the necessity will be peculiarly felt, and 
 which it is peculiarly the duty of Congress to inculcate, is the 
 provision recommended for. the national debt. Although this 
 debt is greater than could have been wished, it is still less, on the 
 
28 APPENDIX. 
 
 whole, than could have been expected ; and, when referred to 
 the cause in which it has been incurred, and compared with the 
 burdens Avhich wars of ambition and of vain glory have entailed 
 on other nations, ought to be borne not only with cheerfulness, 
 but with pride. But the magnitude of the debt makes no part 
 of the question. It is sufficient that the debt has been fairly 
 contracted, and that justice and good faith demand that it 
 should be fully dischai-ged. Congress had an ojDtion between 
 diiFerent modes of discharging it. The same option is the only 
 one that can exist with the states. The mode which has, after 
 long and elaborate discussion, been preferred, is, we are per- 
 suaded, the least objectionable of any that would have been 
 equal to the purpose. Under this persuasion, we call upon the 
 justice and plighted faith of the several states to give it its 
 proper effect, to reflect on the consequences of rejecting it, and 
 to remember that Congress will not be answerable for them. 
 
 If other motives than that of justice could be requisite on 
 this occasion, no nation could ever feel stronger ; for to whom 
 are the debts to be paid ? 
 
 To an ally, in the first place, who, to the exertion of his arms 
 in support of our cause, has added the succors of his treas-ure ; 
 who, to his important loans, has added liberal donations ; and 
 whose loans themselves carry the impression of his magnanimity 
 and friendship. 
 
 To individuals in a foreign country, in the next place, who 
 were the first to give so precious a token of their confidence in 
 our justice, and of their fi-iendship for our cause, and who are 
 members of a republic which was second in espousing our 
 rank among nations. 
 
 Another class of creditors is that illustrious and patriotic 
 hand of fellow-citizens, whose blood and whose bravery have 
 defended the liberties of their country ; who have patiently 
 borne, among other distresses, the privation of their stipends, 
 whilst the distresses of their country disabled it from bestowing 
 them ; and who, even now, ask for no more than such a portion 
 of their dues as will enable them to retire from the field of 
 victory and glory into the bosom of peace and private citizen- 
 ship, and for such effectual security, for the residue of their 
 claims, as their country is now unquestionably able to provide. 
 
 The remaining class of creditors is composed partly of such 
 of our fellow-citizens as originally lent to the public the use of 
 
APPENDIX. 29 
 
 their funds, or have since manifested most confidence in their 
 country, by receiving transfers from the lenders ; and partly of 
 those whose property has been either advanced or assumed for 
 the public service. To discriminate the merits of these several 
 descriptions of creditors, would be a task equally unnecessary 
 and invidious. If the voice of humanity plead more loudly in 
 favor of some than of others, the voice of policy, no less than 
 of justice, pleads in favor of all. A wise nation will never 
 permit those who relieve the wants of their country, or who 
 rely most on its faith, its firmness, and its resources, when 
 either of them is distrusted, to sufier by the event. 
 
 Let it be remembered, finally, that it has ever been the pride 
 and boast of America, that the rights for which she contended 
 were the rights of human nature. By the blessings of the 
 Author of these rights on the means exerted for their defense, 
 they have prevailed against all opposition, and form the basis 
 of thirteen independent states. No instance has heretofore 
 occurred, nor can any instance be expected hereafter to occur, 
 in which the unadulterated forms of republican government can 
 pretend to so fair an opj^ortunity of justifying themselves by 
 their fruits. In this view, the citizens of the United States are 
 responsible for the greatest trust ever confided to a political 
 society. If justice, good faith, honor, gratitude, and all the 
 other qualities which ennoble the character of a nation, and 
 fulfill the ends of government, be the fruits of our establish- 
 ments, the cause of liberty will acquire a dignity and lustre 
 which it has never yet enjoyed, and an example will be set 
 which cannot but have the most favorable influence on the 
 rights of mankind. If, on the other side, our governments 
 should be unfortunately blotted with the reverse of these 
 cardinal and essential virtues, the great cause which we have 
 engaged to vindicate will be dishonored and betrayed, the last 
 and fairest experiment in favor of the rights of human nature will 
 be turned against them, and their patrons and friends exposed 
 to be insulted and silenced by the votaries of tyranny and 
 usurpation. 
 
 By order of the United States in Congress assembled. 
 
 54 
 
80 APPEKDIX. 
 
 NO. 7. 
 
 On tlie 30th April, 1'784, Congress agreed to the following 
 further recommendations : 
 
 " The trust reposed in Congress renders it their duty to be 
 attentive to the conduct of foreign nations, and to prevent or 
 restrain, as far as may be, all such proceedings as might prove 
 injurious to the United States. The situation of commerce at 
 this time claims the attention of the several States, and few 
 objects of greater importance can present themselves to their 
 notice. The fortune of every citizen is interested in the success 
 thereof; for it is the constant source of wealth and incentive to 
 industry ; and the value of our jDroduce and our land must ever 
 rise or fall in proportion to the prosj)erous or adverse state of 
 trade. 
 
 " Already has Great Britain adopted regulations destructive 
 of our commerce with her West India Islands. There was, rea- 
 son to expect that measures so unequal, and so little calciilated 
 to promote mercantile intercourse, w^ould not be persevered in 
 by an enlightened nation. But these measures are growing 
 into a system. It would be the duty of Congress, as it is their 
 wish, to meet the attempts of Great Britain with similar restric- 
 tions on her commerce; but their powers on this head are not 
 explicit, and the propositions made by the legislatures of the 
 several states render it necessary to take the general sense of 
 the Union on this subject. 
 
 " Unless the United States in Congress assembled shall be 
 vested with powers competent to the j^rotection of commerce, 
 they can never command reciprocal advantages in trade ; and 
 without these, our foreign commerce must decline, and eventu- 
 ally be annihilated. Hence it is necessary that the states should 
 be explicit, and fix on some eifectual mode by which foreign 
 commerce not founded on principles of equality may be 
 restrained. 
 
 " That the United States may be enabled to secure such 
 terms, they have 
 
 " Mesolved, That it be, and it hereby is, recommended to the 
 legislatures of the several States, to vest the United States in 
 Congress assembled, for the term of fifteen years, with power 
 to prohibit any goods, wares, or merchandise, from being 
 imported into, or exported from, any of the states, in vessels 
 
APPENDIX. 31 
 
 belonging to, oi* navigated by, the subjects of any power -witli 
 whom states shall not have formed treaties of commerce. 
 
 " Hesolved, That it be, and it hereby is, recommended to the 
 legislatures of the several states, to vest the United States in 
 Congress assembled, for the term of fifteen years, with the 
 power of prohibiting the subjects of any foreign state, kingdom, 
 or empire, unless authorized by treaty, from importing into the 
 United States any goods, wares, or merchandise, which are not 
 the produce or manufacture of the dominions of the sovereign 
 whose subjects they are. 
 
 ^^ Provided, That to all acts of the United States in Congress 
 assembled, in pursuance of the above powers, the assent of nine 
 states shall be necessary." 
 
 The result of all this was that the several States did not 
 agree upon any plan in accordance with these several recom- 
 mendations, and it became ajsparent that nothing could be 
 accomplished in this manner. 
 
 On the 21st day of January, 1786, in the House of Delegates 
 in Virginia, it was 
 
 Resolved,, That Edmund Randolph, James Madison, Jun., 
 Walter Jones, St. George Tucker, Meriwether Smith, David 
 Ross, William Ronald and George Mason, Esquires, be appointed 
 commissioners, who, or any five of whom, shall meet such com- 
 missioners as may be appointed by the other States in the 
 Union, at a time and place to be agreed on, to take into consid- 
 eration the trade of the United States ; to examine the relative 
 situation and trade of the said States ; to consider how far a uni- 
 form system in their commercial regulations may be necessary 
 to their common interest and their permament harmony ; and to 
 report to the several States such an act relative to this great 
 object as, when unanimously ratified by them, will enable the 
 United States in Congress assembled effectually to provide for 
 the same that the said commissioners shall immediately transmit 
 to the several States copies of the preceding resolution, with a 
 circular letter requesting their concurrence therein, and propos- 
 ing a time and place for the meeting aforesaid. 
 
 Test, JOHN BECKLEY, C. H. D. 
 
 1786, January 21. 
 
 Agreed to by the Senate. H. BROOKE, C ;S^. 
 
 By his excellency, Patrick Henry, Esquire, Governor of the 
 Commonwealth of Virginia, it is hereby certified that John 
 
82 APPENDIX. 
 
 Beclcley, the person subscribing the above resolve, is Clerk of 
 the House of Delegates, and that due fjxith and credit is, and 
 ought to be, paid to all things done by him by virtue of his 
 office. 
 
 Given under my hand, as Governor, and under the Seal of 
 [l. s.] the Commonwealth, at Richmond, the 6th day of July, 
 1786. P. HENRY. 
 
 ■ISTO. 8. 
 
 " To the Honorable the Legislatures of Virginia, Delaware, 
 Pennsylvania, New Jersey and New York, the commissioners 
 from the said states respectively, assembled at Annapolis, 
 humbly beg leave to report, — 
 
 " That, pursuant to their several appointments, they met at 
 Annapolis, in the state of Maryland, on the 11th day of Sep- 
 tember, instant ; and having proceeded to a communication of 
 their powers, they found that the states of New York, Pennsyl- 
 vania and Virginia, had, in substance, and nearly in the same 
 terms, authorized their respective commissioners ' to meet such 
 commissioners as were or might be appointed by the other 
 states in the Union, at such time and place as should be agreed 
 upon by the said commissioners, to take into consideration the 
 trade and commerce of the United States; to consider how far 
 a uniform system in their commercial intercourse and regulations 
 might be necessary to their common intei'est and permanent 
 harmony ; and to report to the several states such an act relative 
 to this great object as, when unanimously ratified by them, 
 would enable the United States in Congress assembled, efiectu- 
 ally to provide for the same.' 
 
 " That the state of Delaware had given similar powers to their 
 commissioners, with this difference only, that the act to be 
 framed in virtue of these powers, is required to be reported ' to 
 the United States in Congress assembled, to be agreed to by 
 them, and confirmed by the legislatures of every state.' 
 
 " That the state of New Jersey had enlarged the object of 
 their appointment, empoAvering their commissioners 'to con- 
 sider how far a uniform system in their commercial regulations 
 and other important matters might be necessary to the common 
 interest and permanent harmony of the several states ;' and to 
 report such an act on the subject as, when ratified by them, 
 * would enable the United States in Congress assembled, effect- 
 ually to provide for the exigencies of the Union.' 
 
APPENDIX. 33 
 
 *' That appointments of commissioners have also been made by 
 the states of New Hampshire, Massachusetts, Rhode Island and 
 North Carolina, none of whom, however, have attended ; but 
 that no information has been received by your commissioners, 
 of any appointment having been made by the states of Connec- 
 ticut, Maryland, South Carolina or Georgia. 
 
 *' That the express terms of the powers to your commissioners, 
 supposing a deputation from all the states, and having for 
 object the trade and commerce of the United States, your com- 
 missioners did not conceive it advisable to proceed on the 
 business of their mission u.nder the circumstances of so partial 
 and defective a repi-esentation, 
 
 " Deeply impressed, however, with the magnitude and impor- 
 tance of the object confided to them on this occasion, your 
 commissioners cannot forbear to indulge an expression of their 
 earnest and unanimous Avish, that speedy measures may be 
 taken to eflect a general meeting of the states, in a future con- 
 vention, for the same and such other purposes as the situation 
 of public affairs may be found to require. 
 
 " If, in expressing this wish, or in intimating any other senti- 
 ment, your commissioners should seem to exceed the strict 
 bounds of their appohitment, they entertain a full confidence 
 that a conduct dictated by an anxiety for the welfare of the 
 United States will not fail to receive an indulgent construction. 
 
 " In this persuasion your commissioners submit an opinion, 
 that the idea of extending the powers of their deputies to other 
 objects than those of commerce, which has been adopted by the 
 state of New Jersey, was an improvement on the original j^lan, 
 and will deserve to be incorporated into that of a future conven- 
 tion. They are the more naturally led to this conclusion, as, in 
 the course of their reflections on the subject, they have been 
 induced to think that the power of regulating trade is of such 
 comprehensive extent, and will enter so far into the general 
 system of the federal government, that to give it efficacy, and to 
 obviate questions and doubts concerning its precise nature and 
 limits, may require a correspondent adjustment of other parts 
 of the federal system. 
 
 " That there are important defects in the sytem of the federal 
 government, is acknowledged by the acts of all those states 
 which have concurred in the present meeting ; that the defects, 
 upon a closer examination, may be found gi'eater and more 
 
34 APPENDIX. 
 
 numerous than even these acts imply, is at least so far probable, 
 from the embarrassments which characterize the present state of 
 our national affairs, foreign and domestic, as maiy reasonably be 
 supposed to merit a deliberate and candid discussion, in some 
 mode which will unite the sentiments and councils of all the 
 states. In the choice of the mode, your commissioners are of 
 opinion that a convention of deputies from the different states, 
 for the sj)ecial and sole purpose of entering into this investi- 
 gation, and digesting a plan for supplying such defects as may 
 be discovered to exist, will be entitled to a preference, from 
 considerations which will occur without being j)articularized. 
 
 " Your commissioners decline an enumeration of those national 
 circumstances on which their opinion respecting the propriety 
 of a future convention, with more enlarged powers, is founded ; 
 as it would be a useless intrusion of facts and observations, most 
 of which have been frequently the subject of public discussion, 
 and none of which can have escaped the penetration of those to 
 whom they would in this instance be addressed. They are, 
 however, of a nature so serious, as, in the view of your com- 
 missioners, to render the situation of the United States delicate 
 and critical, calling for an exertion of the united virtue and 
 wisdom of all the members of the confederacy. 
 
 " Under this impression, your commissioners, with the most 
 respectful deference, beg leave to suggest their unanimous con- 
 viction, that it may essentially tend to advance the interests of 
 the Union, if the states, by whom they have been resj^ectively 
 delegated, would themselves concur, and use their endeavors to 
 procure the concurrence of the other states, in the appointment 
 of commissioners, to meet at Philadelphia on the second Monday 
 in May next, to take into consideration the situation of the 
 United States, to devise such further pi-ovisions as shall appear 
 to them necessary to render the constitution of the federal 
 government adequate to the exigencies of the Union ; and to 
 report such an act for that purpose to the United States in Con- 
 gress assembled, as, when agreed to by them, and afterwards 
 confirmed by the legislatures of every state, will effectually pro- 
 vide for the same. 
 
 " Though your commissioners could not with propriety 
 address these observations and sentiments to any but the states 
 they have the honor to represent, they have nevertheless con- 
 cluded, from motives of respect, to transmit copies of this report 
 
APPENDIX. 85 
 
 to the United States in Congress assembled, and to the execu- 
 tive of the other states. 
 
 " By order of the Commissioners. 
 "Dated at Annapolis, September 14, 1786. 
 
 Hesolved, That the chairman sign the aforegoing report in 
 behalf of the commissioners. Then adjourned without day. 
 
 A^eiu York. Delaivare. 
 
 Egbert Benson, George Read, 
 
 Alexander Hamilton. John Dickinson, 
 
 New Jersey. Eichard Bassett. 
 Abra. Clark, Virginia. 
 
 Wm. Cii. Houston, Edmund Randolph, 
 
 James Schureman. James Madison, Jan., 
 
 Pennsylvania. St. George Tucker. 
 Tench Coxe. 
 
 NO. 9. 
 
 These resolutions were submitted to Congx-ess on the '21st of 
 February, 1787, and the result was that Congress agreed to the 
 following preamble and resolutions : 
 
 " Whereas there is provision, in the Articles of Confederation 
 and Perpetual Union, for making alterations therein, by the 
 assent of a Congress of the United States, and of the legisla- 
 tures of the several states, and whereas exiDcrience hath evinced 
 that there are defects in the present Confederation ; as a mean to 
 remedy which, several of the states, and particularly the state 
 of Kew York, by express instructions to their delegates in Con- 
 gress, have suggested a convention for the purposes expi-essed in 
 the following resolution ; and such convention aj^pearing to be 
 the most probable mean of establishing in these States a firm 
 national government, — 
 
 " Resolved, That, in the opinion of Congress, it is expedient 
 that, on the second Monday in May next, a convention of dele- 
 gates, who shall have been appointed by the several states, be 
 held at Philadelphia, for the sole and express purpose of revising 
 the Articles of Confederation, and reporting to Congress, and 
 the several legislatures, such alterations and provisions therein 
 as shall, when agreed to in Congress, and confirmed by the 
 states, render the federal Constitution adequate to the exigen- 
 cies of government and the preservation of the Union." 
 
 The states severally, in comi^liance with these recommenda- 
 tions, appointed the following as delegates to meet in convention 
 on the second Monday of May, 1787. 
 
36 APPENDIX. 
 
 LIST OF THE MEMBERS OF THE FEDERAL CONVEN- 
 TION, WHICH FORMED THE CONSTITUTION OF 
 THE UNITED STATES. 
 
 From Attended 
 
 1787, 
 
 New Hampshire, 1. John Langdon, July 23. 
 
 John Pickering, 
 
 2. Nicholas Gilman, , July 23. 
 
 Benjamin West, ' 
 
 Massachusetts, Francis Dana, 
 
 Elbridge Gerry, May 29. 
 
 3. Nathaniel Gorham, May 28. 
 
 4. Eufus King, May 25. 
 
 Caleb Strong, May 28. 
 
 Ehode Island, [No appointment] 
 
 Connecticut, 5. Wra. Sam. Johnson, June 2. 
 
 6. Roger Sherman, May 30. 
 
 Oliver Ellsworth, May 29. 
 
 New Tore, Robert Yates, May 25. 
 
 7. Alexander Hamilton, May 25. 
 
 John Lansing, June 2. 
 
 New Jersey, 8. William Livingston, June 5. 
 
 9. David Brearly, May 25. 
 
 William C. Houston, May 25. 
 
 10. William Patterson, -May 25. 
 
 John Nelson, 
 Abraham ClarTc, 
 
 IL Jonathan Dayton, June 21. 
 
 Pennsylvania, 12. Benjamin Franklin, May 28. 
 
 13. Thomas Mifflin, May 28. 
 
 14. Robert Morris, May 25. 
 
 15. George Clymer, May 28. 
 
 16. Thomas Fitzsimons, May 25. 
 
 17. Jared Ingersoll, May 28. 
 
 18. James Wilson, May 25. 
 
 19. Gouverneur Morris, May 25. 
 
 Delaware, ......... 20. George Read, May 25. 
 
 21. Gunning Bedford, Jun., May 28. 
 
 22. John Dickinson, May 28. 
 
 23. Richard Basset, May 25. 
 
 24. Jacob Broom, May 25. 
 
 Maryland, 25. James M'Henry, May 29. 
 
 26. Daniel of St. Thomas Jenifer, June 2. 
 
 27. Daniel Carroll, July 9. 
 
 John Francis Mercer, August 6. 
 
 Luther Martin, June 9. 
 
 Virginia, 28. George Washington, May 25. 
 
 Patrick Henry, (declined.) 
 
 Edmund Randolph, May 25. 
 
 29. John Blair, May 25. 
 
 30. "James Madison, Jun., May 25. 
 
 George Mason, May 25. 
 
 George Wythe, May 25. 
 
 J. M'Clurg, [room of P. Henry.] . . May 25. 
 
 North Carolina, .... Richard Caswell, (resigned.) 
 
 Alexander Martin, May 25. 
 
APPENDIX. 37 
 
 North Carolina, .... William E. Davie, May 25. 
 
 31. Wm. Blount, [room of R. Caswell.] June 20, 
 Willie Jones, (declined.) 
 
 32. Richard D. Speight, May 25. 
 
 33. H. Williamson, [room of W.Jones.J May 25. 
 South Carolina, 34. John Rutledge, May 25. 
 
 35. Charles C. Pinckney, May 25. 
 
 36. Charles Pinckney, May 25. 
 
 37. Pierce Butler, May 25. 
 
 Georgia, 38. William Few, May 25. 
 
 39. Abraham Baldwin, June 11. 
 
 William Pierce, May 31. 
 
 George Walton, 
 
 William Houstoun, June 7. 
 
 Nathaniel Pendleton, 
 
 Those with numbers before their names signed the Constitution, 39 
 
 Those in Italicn never attended, 10 
 
 Members who attended, but did not sign the Constitution, 16 
 
 65 
 NO. 10. 
 
 The following are the credentials of the members of the 
 Federal Convention : 
 
 CREDENTIALS OF MEMBERS OF THE FEDERAL 
 CONVENTION. 
 
 STATE OF NEW HAMPSHIRE. 
 In the Year of our Lord 1787. 
 An Act for appointing Deputies from this State to the Convention proposed 
 to beholden in the city of Philadelphia, in May, 17S7, for the Purpose of 
 revising the federal Constitution. 
 
 Whereas, in the formation of the federal compact, which 
 frames the bond of union of the American states, it was not pos- 
 sible, in the infant state of our republic, to devise a system 
 which, in the course of time and experience, would not manifest 
 imperfections that it would be necessary to reform: 
 
 And whereas, the limited powers, which, by the Articles of 
 Confederation, are vested in the Congress of the United States, 
 have been found far inadequate to the enlarged purposes which 
 they were intended to produce ; and whereas Congress hath, by 
 repeated and most urgent representations, endeavored to awaken 
 this, and other states of the Union, to a sense of the truly critical 
 and alarming situation in which they may inevitably be involved, 
 unless timely measures be taken to enlarge the j^owers of Con- 
 gress, that they may be thereby enabled to avert the dangers 
 which threaten our existence as a free and independent people ; and 
 55 
 
88 APPENDIX. 
 
 whereas this state hath been ever desirous to act upon the liberal 
 system of the general good of the United States, without circum- 
 scribing its views to the narrow and selfish objects of partial 
 convenience ; and has been at all times ready to make every 
 concession, to the safety and happiness of the whole, which 
 justice and sound policy could vindicate ; — 
 
 Be it therefore enacted, by the Senate and Souse of Represen- 
 tatives, in General Court convened. That John Langdon, John 
 Pickering, Nicholas Oilman and Benjamin West, Esqrs., be and 
 hereby are, appointed commissioners : they or any two of them, 
 are hereby authorized and empowered, as deputies from this 
 state, to meet at Philadelphia said Convention, or any other 
 j)lace to which the Convention may be adjourned, for the pur- 
 poses aforesaid, there to confer with such deputies as are, or 
 may be, appointed by the other states for similar purposes, and 
 with them to discuss and decide upon the most effectual means 
 to remedy the defects of our federal Union, and to procure and 
 secure the enlarged purposes which it was intended to effect, 
 and to report such an act to the United States in Congress, as, 
 when agreed to by them, and duly confirmed by the several 
 states, will effectually provide for the same. 
 
 State of New Hampshire. — In the House of Repre- 
 sentatives, June 27,- 1787. The following bill having been 
 read a third time, — voted that it pass to be enacted. Sent up 
 
 for concurrence. 
 
 JOHN SPARHAWK, SpeaTcer. 
 
 In Senate, the same day. This bill having been read a third 
 time, — voted that the same be enacted. 
 
 JOHN SULLIVAN, President. 
 Copy examined, per Joseph Pearson, Secretary. [l. s.] 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 By his excellency, James Bowdoin, Esq., Governor of the Com- 
 [l. s.] monwealth of Massachusetts. 
 
 To the Hon. Francis Dana, Elbridge Gerry, Nathaniel Gor- 
 hani, JRufus King and Caleb Strong, Esqrs., Greeting : 
 
 Whereas Congress did, on the 21st day of Feburary, A. D. 
 1787, resolve, " That, in the opinion of Congress, it is expedient 
 that, on the second Monday in May next, a convention of dele- 
 gates, who shall have been appointed by the several states, be 
 
APPENDIX. 89 
 
 held at Philadelphia, foi* the sole and express jDurpose of revising 
 the Articles of Confederation, and reporting to Congress and the 
 several legislatures such alterations and provisions therein as 
 shall, when agreed to in Congress, and confirmed by the states, 
 render the federal constitution adequate to the exigencies of 
 government and the preservation of the Union ;" And whereas 
 the General Court have constituted and appointed you their 
 delegates, to attend and repi'esent this commonwealth in the 
 said proposed Convention, and have by a resolution of theirs of 
 the 10th of March last, requested me to commission you for 
 that purpose ; — 
 
 iVow, therefore^ Knoxo ye. That, in pursuance of the resolu- 
 tions aforesaid I do, by these presents, commission you, the 
 said Francis Dana, Elbridge Gerry, Nathaniel Gorham, Rufus 
 King, and Caleb Strong, Esqrs., or any three of you, to meet 
 such delegates as may be appointed by the other, or any of the 
 other States in the Union, to meet in Convention at Philadel- 
 phia, at the time and for the purposes aforesaid. 
 
 In testimony whereof, I have caused the jDublic seal of the 
 commonwealth aforesaid to be hereunto affixed. 
 
 Given at the Council Chamber, in Boston the ninth day of 
 April, A. D. 1787, and in the 11th year of the independ- 
 ence of the United States of America. 
 
 JAMES BOWDOIN. 
 
 By his excellency's command. — John Aveky, Jun,, Secretary. 
 
 STATE OF CONNECTICUT. 
 
 At a General Assembly of the State of Connecticut, in America, 
 [l. s.] holden at Hartford, on the second Thursday of May, 
 A. D. 1787. 
 
 An Act for appointing Delegates to meet in Convention of the 
 
 States, to he held in Philadelphia on the second Monday of 
 
 May instant. 
 
 Whereas, the Congress of the United States, by their act of 
 the 21st February, 1787, have recommended that, on the sec- 
 ond Monday of May inst., a Convention of delegates, who shall 
 have been appointed by the several States, to be held at Phila- 
 delphia, for the sole and express purpose of revising the Arti- 
 cles of the Confederation ; — 
 
 £e it enacted by the governor, council, and representatives^ 
 in General Court assembled, and by the authority of the 
 
40 APPENDIX. 
 
 same, That the Hon. William Samuel Johnson, Eoger Sherman, 
 and Oliver Ellsworth, Esqrs., be, and they hereby are, appoint- 
 ed delegates to attend the said Convention, and are requested 
 to proceed to the city of Philadelphia, for that purpose, without 
 delay; and the said " delegates, and, in case of sickness or acci- 
 dent, such one or more of them as shall attend the said Conven- 
 tion, is and are hereby authorized and empowered to represent 
 this State therein, and to confer with such delegates appointed 
 by the several States, for the purposes mentioned in the said 
 act of Congress, that may be present and duly empowered to 
 sit in said Convention, and to discuss upon such alterations and 
 provisions, agreeably to the general principles of republican 
 government, as they shall think proper to render the Federal 
 Constitution adequate to the exigencies of government and the 
 preservation of the Union ; and they are further directed, pursu- 
 ant to the said act of Congress, to report such alterations and 
 provisions as may be agreed to by a majority of the United 
 States represented in Convention, to the Congress of the Uni- 
 ted States, and to the General Assembly of this State. 
 A true copy of record. Examined by 
 
 GEORGE WILLYS, Secretary, 
 
 STATE OF NEW YORK. 
 
 By his excellency, George Clinton, Governor of the State of 
 [i,. s,] New York, general and commander-in-chief of all the 
 
 militia, aijd admiral of the navy of the same. 
 To all to lohom these 2^resents shall come : 
 
 It is by these presents certified, that John M'Kesson, who 
 has subscribed the annexed copies of resolutions, is clerk of the 
 Assembly of this State. 
 
 In testimony whereof, I have caused the jsrivy seal of the 
 said State to be hereunto affixed, this 9th day of May, in the 
 11th year of the independence of the said State. 
 
 GEORGE CLINTON. 
 
 State op New York. — In Assembly, ^5?'i«ar?/ 28, 1787. — 
 A copy of a resolution of the honorable the Senate, delivered 
 by Mr. Williams, was read, and is in the words following, viz. : 
 
 Resolved, If the honorable the Assembly concur therein, 
 that three delegates be appointed on the part of this State, 
 to meet such delegates as may be appointed on the part of the 
 
APPENDIX. 41 
 
 other States, respectively, on the second Monday in May next, 
 at Philadelphia, for the sole and express purpose of revising the 
 Articles of Confederation, and reporting to Congress, and to the 
 several legislatures, such alterations and provisions thei-ein as 
 shall, when agreed to in Congress, and confirmed by the several 
 States, render the Federal Constitution adequate to the exigen- 
 cies of government and the preservation of the Union ; and that 
 in case of such concurrence, the two houses of the legislature 
 Avill, on Tuesday "next, proceed to nominate and appoint the 
 said delegates, in like manner as is directed by the Constitution 
 of this State for nominating and appointing delegates to Con- 
 gress. 
 
 -Resolved, That this house do concur with the honorable the 
 Senate in the said resolution. 
 
 Ijf Assembly, Jfarch 6, l7^1.—Jlesolved, That the Hon. 
 Robert Yates, Esq., Alexander Hamilton, and John Lansing, 
 Jun., Esqrs., be and they ai'e hereby nominated by this house 
 delegates on the part of this State, to meet such delegates as 
 may be appointed on the part of the other States, respectively, 
 on the second Monday in May next, at Philadelphia, pursuant 
 to concurrent resolutions of both houses of the legislature, on 
 the 28th ultimo. 
 
 Orde7-ed, That Mr. N. Smith deliver a copy of the last pre- 
 ceding resolution to the honorable the Senate. 
 
 A copy of a resolution of the honorable the Senate was deliv- 
 ered by Mr. Vandei'bilt, that the Senate will immediately meet 
 this house in the Assembly Chamber, to compare the list of 
 persons nominated by the Senate and Assembly, respectively, 
 as delegates, pursuant to the resolutions before mentioned. 
 
 The honorable the Senate accordingly attended in the Assem- 
 bly Chamber, to compare the lists of persons nominated for 
 delegates, as above mentioned. 
 
 The list of persons nominated by the honorable the Senate 
 were the Hon. Robert Yates, John Lansing, Jun., and Alexan- 
 der Hamilton, Esqrs. ; and on comparing the lists of the per- 
 sons nominated by the Senate and Assembly respectively, it 
 appeared that the same persons were nominated in both lists ; 
 thereupon, Resolved, that the Hon. Robert Yates, John Lan- 
 sing, Jun., and Alexander Hamilton, Esqrs., be, and they are 
 hereby declared duly nominated and appointed delegates, on 
 the part of this State, to meet such delegates as may be appointed 
 
42 APPENDIX. 
 
 on the part of the other States, respectively, on the second 
 Monday in May next, at Philadelphia, for the sole and express 
 purpose of revising the Articles of Confederation, and reporting 
 to Congress, and to the several legislatures, such alterations and 
 provisions therein as shall, when agreed to in Congress, 
 and confirmed by the several States, render the Federal Con- 
 stitution adequate to the exigencies of government and the 
 preservation of the Union. 
 
 True extracts from the journals of the Assembly. 
 
 JOHN M'KESSON, Clerh. 
 
 STATE OF NEW JERSEY. 
 
 To the Hon. David Brearly^ William Churchill Houston, Wil- 
 liam Patterson, and John Neilso7i, Esqrs., Greeting: 
 
 The Council and Assembly, reposing especial trust and con- 
 fidence in your integrity, prudence and ability, have, at a joint 
 meeting, appointed you, the said David Brearly, William 
 Churchill Houston, William Patterson, and John Neilson, 
 Esqrs., or any three of you, commissioners, to meet such com- 
 missioners as have been, or may' be, appointed by the other 
 States in the Union, at the city of Philadelphia, in the common- 
 wealth of Pennsylvania, on the second Monday in May next, 
 for the purpose of taking into consideration the state of the 
 Union as to trade and other important objects, and of devising 
 Buch other provisions as shall appear to be necessary to render 
 the constitution of the federal government adequate to the 
 exigencies thereof 
 
 In testimony whereof, the great seal of the State is hereunto 
 affixed. Witness, William Livingston, Esq., governor, 
 captain-general, and commander-in-chief in and over the 
 State of New Jersey, and territories thereunto belonging 
 chancellor and ordinary in the same, at Trenton, the 23d 
 day of Novembei*, in the year of our Lord, 1786, and of 
 our sovereignty and independence the eleventh. 
 
 WILLIAM LIVINGSTON. 
 
 By Ms excellency's command. — Bowes Reed, Secretary. 
 
APPENDIX. 43 
 
 STATE OF NEW JERSEY. 
 
 To his excellency, William Livingston, and the Hon. Abraham 
 [l. s.] Clark, Esqrs, Greeting : 
 
 The Council and Assembly, reposing especial trust and con- 
 fidence in your integrity, prudence, and ability, have at a joint 
 meeting, appointed yon, the said William Livingston and 
 Abraham Clark, Esqrs., in conjunction Avith the Hon. David 
 Brearly, William Churchill Houston, and William Patter- 
 son, Esqrs., or any three of you, commissioners, to meet 
 such commissioners as have been appointed by the other States 
 in the Union, at the city of Philadelphia, in the commonAvealth 
 of Pennsylvania, on the second Monday in this present month, 
 fof the purpose of taking into consideration the state of the 
 Union, as to trade and other important objects, and of devising 
 sitch other provisions as shall appear to be necessary to render 
 the constitution of the federal government adequate to the 
 exigencies thereof. 
 In testimony whereof, the great seal of the State is hereunto 
 affixed. Witness, William Livingston, Esq., governor, 
 captain-general, and commander-in-chief, in and over the 
 State of New Jersej^ and territories thereunto belonging, 
 chancellor and ordinary in the same, at Burlington, the 
 18th day of May, in the year of our Lord 1787, and of our 
 sovereignty, and independence the eleventh. 
 
 WIL. LIVINGSTON. 
 By his excellency's command.— Bowes Reed, Secretary. 
 
 STATE OF NEW JERSEY. 
 To the Hon. J. Dayton, Esq. 
 
 The Council and Assembly, reposing especial trust and confi- 
 dence in your integrity, prudence and ability, have, at a joint 
 meeting, appointed you, the said Jonathan Dayton, Esq., in 
 conjunction Avith his excellency, William Livingston, the Hon. 
 David Brearly, William Churchill Houston, William Patterson 
 and Abraham Clark, Esqrs., or any three of you, commissioners, 
 to meet such commissioners as have been appointed by the other 
 states in the Union, at the city of Philadelphia, in the common- 
 wealth of Pennsylvania, for the purpose of taking into consider- 
 ation the state of the Union as to trade and other important 
 objects, and of devising such other provisions as shall appear to 
 
44 APPENDIX. 
 
 be necessary to render the constitution of the federal govern- 
 ment adequate to the exigencies thereof. 
 
 In testimony whereof the great seal of the state is hereunto 
 affixed. Witness, Robert Lettice Hooper, Esq., vice-pi'esi- 
 dent, captain-general and comraander-in chief in and over 
 the state of New Jersey, and territories thereunto belong- 
 ing, chancellor and ordinary in the same, at Burlington, the 
 fifth day of June, in the year of our Lord 1*787, and of our 
 sovereignty and independence the eleventh. 
 
 ROBERT L. HOOPER. 
 By his honor's command.— Bowes Reed, Secretary. 
 
 COMMONWEALTH OF PENNSYLVANIA. 
 
 An Act appointing Deputies to the Convention intended to he 
 
 held in the City of Philadelphia^ for the purpose of revising 
 
 the Federal Constitution. 
 
 Section 1. Whei'eas the General Assembly of this common- 
 wealth, taking into their serious consideration tlie rej)resentations 
 heretofore made to the legislatures of the several states in the 
 Union, by the United States in Congress assembled, and also 
 weighing the difficulties under w^hich the confederated states 
 now labor, are fully convinced of the necessity of revising the 
 Federal Constitution, for the j)urpose of making such alterations 
 and amendments as the exigencies of our public affairs require: 
 And whereas the legislature of the state of Virginia have already 
 passed an act of that commonwealth, empowering certain com- 
 missioners to meet at the city of Philidelphia, in May next, a 
 convention of commissioners or deputies from the different 
 states ; and the legislature of this state are fully sensible of the 
 important advantages which may be derived to the United 
 States, and every of them, from co-operation with the common- 
 mealth of Virginia and the other states to the Confederation, in 
 the said design. 
 
 Sec. 2. Be it enacted, and it is hereby enacted, hy the repre- 
 sentatives of the freemen of the commonwealth of Pennsylvania , 
 in General Assembly met, and hy the authority of the same. 
 That Thomas Mifflin, Robert Morris, George Clymer, Jared 
 Ingersoll, Thomas Fitzsimons, James Wilson and Gouverneur 
 Moi'ris, Esqrs.,"are hereby appointed deputies from this state, 
 to meet in the Convention of the deputies of the respective states 
 
APPENDIX. 45 
 
 of North America, to be held at the city of Philadelphia, on the 
 2d day in the month of May next ; and the said Thomas Mifflin, 
 Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitz- 
 simons, James Wilson and Gouverneur Morris, Esqrs., or any 
 four of them, are hereby constituted and appointed deputies 
 from tliis state, with powers to meet such deputies as may be 
 appointed and authorized by the other states, to assemble in the 
 said Convention, at the city aforesaid, and join with them in 
 devising, deliberating on, and discussing, all such alterations 
 and further provisions as may be necessary to render the Fede- 
 ral Constitution fully adequate to the exigencies of the Union, 
 and in reporting such act or acts, for that purpose, to the United 
 States in Congress assembled, as, when agreed to by them, and 
 duly confirmed by the several states, will effectually provide 
 for the same. 
 
 Sec. 3. And be it further enacted hy the authority aforesaid^ 
 That, in case any of the said deputies hereby nominated shall 
 happen to die, or to resign his or their said appointment or 
 appointments, the supreme executive council shall be, and 
 hereby are, empowered and required to nominate and appoint 
 other person or persons, in lieu of him or them so deceased, or 
 who has or have so resigned, which person or persons, from and 
 after such nomination and appointment, shall be and hereby are, 
 declared to be vested with the same powers respecrively as any 
 of the deputies nominated and appointed by this act is vested 
 with by the same : Provided always, that the council are not 
 hereby authorized, nor shall they make any such nomination or 
 appointment, except in vacation and during the recess of the 
 General Assembly of this state. Signed by order of the house, 
 
 [^- S-] THOMAS MIFFLIN", Speaker. 
 
 Enacted into a law at Philadelphia, on Saturday, December 
 30, in the year of our Lord 1786. 
 
 PETER ZACHARY LLOYD, 
 
 ClerJc of the General Assembly. 
 
 I, MatthcAV Irwine, Esq., master of the rolls for the state of 
 Pennsylvania, do certify the preceding writing to be a true copy 
 (or exemplification) of a certain act of Assembly lodged in my 
 office. 
 
 In witness whereof, I have hereunto set my hand and seal of 
 
 [l, s.] office, the 15th May, A. D. 1787. 
 
 MATTHEW IRWINE, M. B. 
 56 
 
46 APPENDIX. 
 
 A Supplement to the Act entitled ^^ An Act ap)pointing Deputies 
 to the Convention intended to he held in the City of Philadel- 
 phia, for the purpose of revising the Federal Constitution. 
 Sectiojt 1. Whereas, by the act to which this act is a supple- 
 ment, certain persons were appointed as deputies from this state 
 to sit in the said Convention ; And whereas it is the desire of 
 the General Assembly, that his excellency, Benjamin Franklin, 
 Esq., president of this state, should also sit in the said Conven- 
 tion, as deputy from this state ; therefore, 
 
 Sec. 2. JBe it enacted, and it is hereby enacted, hy the repre- 
 sentatives of thefreetnen of the commonwealth of Pennsylvania, 
 in General Assembly met, and by the authority of the same, 
 That his excellency, Benjamin Franklin, Esq., be, and he is 
 hereby, appointed and authorized to sit in the said Convention 
 as a deputy from this state, in addition to the persons hereto- 
 fore appointed ; and that he be, and he hereby is, invested Avith 
 like powers and authorities as are invested in the said deputies, 
 or any of them. Signed by order of the House, 
 
 THOMAS MIFFLIN", Spealcer. 
 
 Enacted into a law at Philadelphia, on Wednesday the 28th 
 day of March, in the year of our Lord 1787. 
 
 PETER ZACHARY LLOYD, 
 
 Clerk of the Genercd Assembly. 
 I, Matthew Irwine, Esq., master of the rolls for the state of 
 Pennsylvania, do certify the above to be a true copy (or exem- 
 plification) of a supplement to a certain act of Assembly, which 
 supplement is lodged in my office. 
 
 In witness whereof, I have hereunto set my hand and seal of 
 [l. s.] office, the 15th May, A. D. 1787. . 
 
 MATTHEW IRWINE, M. B. 
 
 DELAWARE STATE. 
 
 His excellency, Thomas Collins, Esq., president, captain-general, 
 and commander-in-chief of the Delaware state. 
 
 To all to whoin these presents come. Greeting: 
 
 Know ye, that, among the laws of the said state, passed by the 
 
 r -1 General Assembly of the same, on the 3d day of Feb- 
 ruary, in the year of our Lord 1787, it is thus enrolled : 
 " In the eleventh year of the independence of the Delaware 
 
 state." 
 
APPENDIX. 47 
 
 " An Act appointing Deputies from this State to the Conven- 
 tion proposed to be held in the City of Philadelphia, for the 
 Piopose of revising the Federal Constitution:^ 
 Whereas, the General Assembly of this state are fully con- 
 vinced of the necessity of revising the Federal Constitution, and 
 adding thereto such further provisions as may render the same 
 more "adequate to the exigencies of the Union ; And whereas 
 the legislature of Virginia have already passed an act of that 
 commonwealth, appointing and authorizing certain commission- 
 ers to meet at the city of Philadelphia, in May next, a Conven- 
 tion of commissioners or deputies from the different states ; and 
 this state being willing and desirous of co-operating with the 
 commonwealth of Virginia, and the other states in the Confede- 
 ration, in so useful a design : 
 
 Be it therefore enacted by the General Assembly of Dela- 
 ware, that George Read, Gunning Bedford, John Dickinson, 
 Richard Bassett, and Jacob Broom, Esqrs., are hereby appointed 
 deputies from this State to meet in the Convention of the 
 deputies of other States to be held at the city of Philadelphia, 
 on the 2d day of May next ; and the said George Read, Gun- 
 ning Bedford, John Dickinson, Richard Basset, and George 
 Broom, Esqrs., or any three of them, are hereby constituted 
 and appointed deputies from this State, with powers to meet 
 such deputies as may be appointed and authorized by the other 
 States to assemble in the said Convention at the city aforesaid, 
 and to join Avith them in devising, deliberating on, and discuss- 
 ing, such alterations and further provisions as may be necesary 
 to render the Federal Constitution adequate to the exigencies 
 of the Union ; and in reporting such act or acts, for that pur- 
 pose, to the United States in Congress assembled, as, when 
 agreed to by them, and duly confirmed by the several States, 
 may effectually provide for the same. So always and provided, 
 that such alterations or further provisions, or any of them, do 
 not extend to that part of the fifth article of the Confederation 
 of the said States, finally ratified on the 1st day of March, in the 
 year 1781, which declares that, "In determining questions in 
 the United States in Congress assembled, each State shall have 
 one vote." 
 
 And be it enacted. That in case any of the said deputies 
 hereby nominated shall happen to die, or resign his or their 
 appointment, the president or commander-in-chief, with the 
 
48 APPENDIX. 
 
 advice of the pvivy council, in the recess of the General Assem- 
 bly, is hereby authorized to supply such vacancies. 
 
 Signed by the order of the House and Assembly, 
 
 JOHN COOK, SpeaJcer. 
 
 Signed by the order of the Council, 
 
 GEORGE CRAGHED, ^joga^er. 
 
 Passed at Dover, February 3, 1787. 
 
 All and singular which j)remises, by the tenor of these pres- 
 ents, I have caused to be exemplified. In testimony whereof, I 
 have hereunto subscribed my name, and caused the great seal 
 of the said State to be aiixed to these presents, at New Castle, 
 the 2d day of April, in the year of our Lord 1787, and in the 
 11th year of the independence of the United States of America. 
 
 THOMAS COLLINS. 
 Attest, James Booth, Secretary. 
 
 STATE OF MARYLAND. 
 
 An Act for the Aiyijointment of, and conferring Powers on^ 
 Deputies from this State to the Federal Convention. 
 Be it enacted by the General Assembly of Maryland, That 
 the Hon. James M'Henry, Daniel of St. Thomas Jenifer, Daniel 
 Carroll, John Francis Mercer, and Luther Martin, Esqrs., bo 
 appointed and authorized, on behalf of this State, to meet such 
 deputies as may be appointed and authorized, by any other of 
 the United States, to assemble in Convention at Philadelphia, 
 for the purpose of revising the federal system and to join with 
 them in considering such alterations and further provisions as 
 may be necessary to render the Federal Constitution adequate 
 to the exigencies of the Union ; and in reporting such an act 
 for that purpose to the United States in Congress assembled, 
 as, when agreed to by them, and duly confirmed by the several 
 States, will effectually provide for the same ; and the said dep- 
 uties, or such of them as shall attend the said Convention, 
 shall have full power to represent this State for the puposes 
 aforesaid ; and the said deputies are hereby directed to report 
 the proceedings of the said Convention, and any act agreed to 
 therein, to the next session of the General Assembly of this State. 
 By the House of Delegates, May 2G, 1787. Read and 
 assented to. 
 
 By order, WM. HARWOOD, Cleric. 
 
APPENDIX. 4 
 
 True copy from the original, WM. HARWOOD, Clerk H. D. 
 By the Senate, May 26, 1Y87. Read and assented to. 
 
 By order, J. DORSEY, Clerk. 
 
 True copy from the original. J. DORSEY, Clerk Senate. 
 
 W. SMALLWOOD. 
 
 COMMOWEALTH OF VIRGINIA. 
 
 General Assembly begun and held at the Public Buildings in the 
 
 city of Richmond, on Monday, the 16th day of October, 
 
 in the year of our Lord, 1786. 
 
 An Act for appointing Deputies from, this Commonwealth to 
 a Convention p)roi)osed to be held in the City of Philadel- 
 phia, in Maij next, for the Purpose of revising the Federal 
 Constitution. 
 
 Whereas, the commissioners who assembled at Annapolis, on 
 the 14th day of September last, for the purpose of devising and 
 reporting the means of enabling Congress to provide effectually 
 for the commercial interests of the United States, have repre- 
 sented the necessity of extending the revision of the federal 
 system to all its defects, and have recommended that deputies 
 for that purpose be appointed by the several legislatures, to 
 meet in Convention, in the city of Philadelphia, on the 2d day of 
 May next, — a provision which was preferable to a discussion 
 of the subject in Congress, where it might be too much inter- 
 rupted by the ordinary business before them, and where it 
 would, besides, be deprived of the valuable counsels of sundry 
 individuals who are disqualified by the constitution or laws of 
 particular states, or restrained by peculiar circumstances from 
 a seat in that assembly. And whereas the General Assembly 
 of this commonwealth, taking into view the actual situation of 
 the confederacy, as well as reflecting on the alarming repre- 
 sentations made, from time to time, by the United States in 
 Congress, particularly in their act of the 15th day of February 
 last, can no longer doubt that the crisis is arrived at which the 
 good people of America are to decide the solemn question— 
 whether they will, by wise and magnanimous efforts, reap the 
 just fruits of that independence, which they have so gloriously 
 acquired, and of that union which they have cemented with so 
 much of their common blood — or whether, by giving way to 
 unmanly jealousies and pi*ejudices, or to partial and transitoiy 
 interests, they will renounce the auspicious blessings prepared 
 
50 APPENDIX. 
 
 for them by the revolution, and furnish to its enemien an 
 eventful triumph over those by whose virtue and valor it has 
 been accomplished : And whereas the same noble and extended 
 policy, and the same fraternal and affectionate sentiments, 
 which originally determined the citizens of this commonwealth 
 to unite with their brethren of the other states in establishing a 
 federal government, cannot but be felt with equal force now as 
 motives to lay aside every inferior consideration, and to con- 
 cur in such further concessions and provisions as may be nec- 
 essary to secure the great objects for which that government 
 was instituted, and to render the United States as happy in 
 peace as they have been glorious in war : 
 
 JBe it therefore enacted by the General Assembly of the 
 Commonwealth of Virginia, That seven commissioners be 
 appointed, by joint ballot of both houses of Assembly, who, or 
 any three of them, are hereby authorized, as deputies from this 
 commonwealth, to meet such deputies as may be appointed and 
 authorized by other States, to assemble in Convention at Phil- 
 adelphia, as above recommended, and to join with them in 
 devising and discussing all such alterations and further pro- 
 visions as may be necessary to render the Federal Constitution 
 adequate to the exigencies of the Union ; and in reporting 
 such an act, for that purpose, to the United States in Congress, 
 as, when agreed to by them, and duly confirmed by the several 
 states, will effectually provide for the same. 
 
 And he it further enacted, That, in case of the death of any 
 of the said deputies, or of their declining their appointments, 
 the executive is hereby authorized to supply such vacancies ; 
 and the governor is requested to transmit forthwith a copy of 
 this act to the United States in Congress, and to the executives 
 of each of the States in the Union. 
 
 [Signed,] JOHN JONES, Speaker of the Senate. 
 
 JOSEPH PRENTIS, Speaker of the House of Delegates. 
 
 A true copy from the enrollment. — John Beckley, Clerk IT. D, 
 
 Ik the House op Delegates. 
 
 Monday, the Ath of December, 1786. 
 The house, according to the order of the day, proceeded, by 
 joint ballot with the Senate, to the appointment of seven depu- 
 ties, from this commonwealth, to a Convention proposed to be 
 held in the city of Philadelphia, in May next, for the purpose of 
 
APPENDIX. 51 
 
 revising the Federal Constitution ; and the members having 
 prepared tickets with the names of the persons to be appointed, 
 and deposited the same in tlie ballot-boxes, Mr. Corbin, Mr. 
 Matthews, Mr. David Stuart, Mr. George Nicholas, Mr. Rich- 
 erd Lee, Mr. Wills, Mr. Thomas Smith, Mr. Goodall, and Mr. 
 Tuberville, was nominated a committee to meet a committee 
 from the Senate, in the conference chamber and jointly with 
 them to examine the ballot-boxes, and report to the house on 
 whom the majority of the votes should fall. The committee then 
 withdrew, and, after some time, returned into the house, and 
 reported that the committee had, according to order, met a com- 
 mittee from the Senate, in the conference chamber, and jointly 
 with them examined the ballot-boxes, and found a majority of 
 votes in favor of George Washington, Patrick Henry, Edmund 
 Randolph, John Blair, James Madison, George Mason, and 
 George Wythe, Esqrs. [Extract from the journal.] 
 
 JOHN BECKLEY, Clerk II. Delegates 
 Attest, John Beckley, Clerk H. D. 
 
 In the House of Sekators. 
 
 Monday, the 4th of December, 1V86. 
 The Senate, according to the order of the day, proceeded, by 
 joint ballot with the House of Delegates, to the appointment 
 of seven deputies, from this commonwealth, to a Convention 
 proposed to be held in the city of Philadelphia, in May next, 
 for the purpose of revising the Federal Constitution ; and the 
 members having prepared tickets, with the names of the persons 
 to be appointed, and deposited the same in the ballot-boxes, Mr. 
 Anderson, Mr. Nelson and Mr. Lee, were nominated a com- 
 mittee to meet a committee from the House of Delegates, in the 
 conference chamber, and jointly Avith them to examine the ballot- 
 boxes, and report to the house on whom the majority of votes 
 should fall. The committee then withdrew, and, after some time, 
 returned into the house, and reported that the committee had, 
 according to order, met a committee from the House of Dele- 
 o-ates, in the conference chamber, and jointly with them 
 examined the ballot-boxes, and found a majority of votes in 
 favor of George Washington, Patrick Henry, Edmund Ran- 
 dolph, John Blair, James Madison, George Mason, and George 
 Wythe, Esqrs. [Extract from the journal.] 
 
 JOHN BECKLEY, Clerk H. D. 
 Attest, H. Bkook, Clerk S, 
 
52 APPENDIX. 
 
 [l. s.] Virginia, to wit : 
 
 I do hereby certify and make known, to all whom it may con- 
 cern, that John Beckley, Esq., is clerk of the House of Delegates 
 for this commonwealth, and the proper officer for attesting the 
 proceedings of the General Assembly of the said commonwealth, 
 and that full faith and credit ought to be given to all things 
 attested by the said John Beckley, Esq., by virtue of his office 
 as aforesaid. 
 
 Given under my hand, as governor of the commonwealth of 
 Virginia, and under the seal thereof, at Richmond, this 4th day 
 of May, 1V87. EDM. RANDOLPH. 
 
 , [l. s.] Virginia, to wit : 
 
 I do hereby certify, that Patrick Henry, Esq., one of the 
 seven commissioners appointed by joint ballot of both houses of 
 Assembly of the commonwealth of Virginia, authorized as a 
 deputy therefrom to meet such dej)uties as might be aj)pointed 
 and authorized by other states to assemble in Philadelphia, and 
 to join with them in devising and discussing all such alterations 
 and further provisions as might be necessary to render the 
 Federal Constitution adequate to the exigencies of the Union, 
 and in reporting such an act for that purpose to the United 
 States in Congress as, when agreed to by them, and duly con- 
 firmed by the several states, might effectually provide for the 
 same, did decline his appointment aforesaid ; and thereupon, in 
 pursuance of an act of the General Assembly, of the said com- 
 monwealth, entitled " An Act for appointing deputies from this 
 commonwealth to a Convention proposed to be held in the city 
 of Philadelphia, in May next, for the purpose of revising the 
 Federal Constitution," I do hereby, with the advice of the 
 council of state, supply the said vacancy by nominating James 
 M'Clurg, Esq., a deputy for the purposes aforesaid. 
 
 Given under my hand, as governor of the said commenwealth, 
 
 and under the seal thereof, this 2d day of May, in the year of 
 
 our Lord, 1787. 
 
 EDM. RANDOLPH. 
 
 THE STATE OF NORTH CAROLINA. 
 To the Son. Alexander Martin^ JEsq.^ Greeting : 
 
 Whereas, our General Assembly, in their late session, holden 
 at Fayetteville, by adjournment, in the month of January last, 
 
APPENDIX. 53 
 
 did, by joint ballot of the Senate and House of Commons, elect 
 Richard Caswell, Alexander Martin, William Richardson Davie, 
 Richard Dobbs Spaight and Willie Jones, Esqrs., deputies to 
 attend a Convention of delegates from the several United States 
 of America, proposed to be held at the city of Philadelphia, in 
 May next, for the purpose of revising the Federal Consti- 
 tution : 
 
 We do therefore, by these presents, nominate, coramissionate, 
 and appoint you, the said Alexander Martin, one of the deputies 
 for and in behalf, to meet with our other deputies at Philadel- 
 pliia, on the 1st of May next, and with them, or any two of 
 them, to confer with such deputies as may have been, or shall 
 be, appointed by the other states, for the purpose aforesaid : 
 To hold, exercise and enjoy, the appointment aforesaid, with 
 all powers, authorities and emoluments, to the same belonging, 
 or in any wise appertaining — you conforming, in every instance, 
 to the act of our said Assembly, under which you are appointed. 
 
 Witness, Richard Caswell, Esq., our governor, captain-gen- 
 eral and commander-in-chief, under his hand and our seal, 
 at Kinston, the 24th day of February, in the eleventh year 
 
 of our independence, A. D, I'ZSY. 
 
 RICH. CASWELL. 
 By his excellency's command. 
 
 Winston Caswell, P. Secretary. [l. s.] 
 
 THE STATE OF NORTH CAROLINA. 
 
 To the Hon. WilUmn Itichardson Davie, Esq., Greeting : 
 
 Whereas our General Assembly, in their late session, holden 
 at Fayetteville, by adjournment, in the month of January last, 
 did, by joint ballot of the Senate and House of Commons, elect 
 Richard Caswell, Alexander Martin, William Richardson Davie, 
 Richard Dobbs Spaight and Willie Jones, Esqrs,, deputies to 
 attend a Convention of delegates from the several United States 
 of America, proposed to be held in the city of Philadelphia, 
 in May next, for the purpose of revising the Federal Con- 
 stitution, — 
 
 We do therefore, by these presents nominate, commissionate 
 and appoint you, the said William Richardson Davie, one of the 
 deputies for and in our behalf, to meet with other deputies at 
 Philadelphia, on the 1st day of May next, and with them, or any 
 two of them, to confer with such deputies as may have b«en, or 
 57 
 
54 APPENDIX. 
 
 shall be, appointed by the other states, for the purpose afore- 
 said: To hold, exercise and enjoy, the said aj)pointinent, with 
 powers authorities and emoluments, to the same belonging, or 
 in any Avise appertaining — you conforming, in every instance, 
 to the act of our said Assembly, under which you are appointed. 
 Witness, Richard Caswell, Esq., our governor, captain-general 
 and commander-in-chief, under his hand and our great seal, 
 at Kinston, the 24th day of February, in the eleventh year 
 of our independence, A. D. 1787. 
 
 RICH. CASWELL. 
 By his excellency's command. 
 
 Winston Caswell, P. Secretary. [l. s,] 
 
 THE STATE OF NORTH CAROLINA. 
 
 To the Hon. Richard Dohhs Spaight, Esq., Greeting : 
 
 Whereas our General Assembly, in their late session, holden 
 at Fayetteville, by adjournment, in the month of January last^ 
 did, by joint ballot of the Senate and House of Commons, elect 
 Richard Caswell, Alexander Martin, William Richardson Davie, 
 Richard Dobbs Spaight and Willie Jones, Esqrs., deputies to 
 attend a Convention of delegates from the several United States 
 of America, proposed to be held in the city of Philadelphia, 
 in May next, for the purpose of revising the Federal Con- 
 stitution, — 
 
 We do therefore, by these presents, nominate, commissionate 
 and appoint you, the said Richard Dobbs Spaight, one of the 
 deputies for and in behalf of us to meet with our other deputies 
 at Philadelphia, on the 1st day of May next, and with them, or 
 any two of them, to confer with such deputies as may have been 
 or shall be, appointed by the other states, for the purposes afore- 
 said: To hold, exercise, and enjoy, the said appointment, with 
 all powers, authorities and emoluments, to the same incident 
 and belonging, or in any wise appertaining — you conforming 
 in every instance, to the act of our said Assembly, under which 
 you are appointed. 
 
 Witness, Richard Caswell, Esq., our governor, captain-gen- 
 eral and commander-in-chief, under his hand and our 
 great seal, at Kinston, the 14th day of April, in the eleventh 
 
 year of our independence, A. D. 1787. 
 
 RICH. CASWELL.. 
 By his excellency's command. 
 
 Winston Caswell, P. Secretary. [l. s.] 
 
APPENDIX. 55 
 
 STATE OF NORTH CAROLINA. 
 His excellency, Richard Caswell, Esq., governor, captain-gen- 
 eral, and commander-in-chief, in and over the state aforesaid. 
 To all to vihom these presents shall come, Greeting : 
 
 Whereas, by an act of the General Assembly of the said State, 
 passed the Gth day of January last, entitled " An Act for appoint- 
 ing deputies from this State to a Convention proposed to be 
 held in the city of Fhiladelpliia, in May next, for the purpose 
 of revising the Federal Constitution," among other things it is 
 enacted, " that five commissioners be appointed by a joint ballot 
 of both both houses of Assembly, who, or any three of them, 
 ai'e hereby authorized as deputies from this State to meet at 
 Philadelphia, on the 1st day of May next, then and there to 
 meet and confer with such deputies as may be appointed by 
 the other States for similar purposes and with them to discuss 
 and decide upon the most eifectual means to remove the defects 
 of our federal union, and to procure the enlarged purposes 
 which it was intended to effect ; and that they report such an 
 act to the General Assembly of this State, as, when agreed to 
 by them, will effectually provide for the same." And it is by 
 the said act further enacted, " That, in case of the death or res- 
 ignation of any of the deputies or of their declining their ap- 
 pointments, his excellency, the governor for the time being, 
 is hereby authorized to supply such vacancies" : " And whereas, 
 in consequence of the said act, Richard Caswell, Alexander 
 Martin, William Richardson Davie, Richard Dobbs Spaight, 
 and Willie Jones, Esqrs., -were, by joint ballot of the two houses 
 of Assembly, elected deputies for the purposes aforesaid ; And 
 whereas the said Richard Casw^ell hath resigned his said 
 appointment, as one of the deputies aforesaid ; — 
 
 Now, know ye. That I have appointed, and by these pres- 
 ents do appoint, the Hon. William Blount, Esq., one of the 
 deputies to represent this State in the Convention aforesaid, in 
 the room and stead of the aforesaid Richard Caswell, hereby 
 giving and granting to the said William Blount the said pow- 
 ers, privileges, and emoluments, which the said Richard Cas- 
 well would have been vested with, ow entitled to, had he con- 
 tinued in the appointment aforesaid. \ 
 
 Given undor my liatid, and the <jreat seal of the State, at Kinston, tlie 
 2;]d dav of April. Anno D^miui 1787, and in the 11th year of Ameri- 
 can independence. RICH. CASWELL. 
 By his excellency's command. 
 
 WiiiSTON Cas\yk6,^ p.. Secretary^ {l. s.J 
 
56 APPENDIX. 
 
 STATE OF NORTH CAROLINA. 
 
 His excellency, Richard Caswell, Esq., governor, captain-gen- 
 eral, and commander in-chief, in and over the state aforesaid. 
 To all to v^hom these presents shall come, Greeting : 
 
 Whereas, by an act of the General Assembly of the said 
 State, passed the 6th day of January last, entitled " An Act 
 for appointing deputies from this State, passed the 6th day of 
 January last, entitled "An Act for appointing deputies from 
 this State to a Convention proposed to be held in the city of 
 Philadelphia, in May next, for the purpose of revising the 
 Federal Constitution," among other things it is enacted, " that 
 five commissioners be appointed by joint ballot of both houses 
 of Assembly, who , or any three of them, are hereby author- 
 ized, as deputies from this State to meet at Philadelphia, on 
 the 1st day of May next, then and there to meet and confer 
 with such deputies as may be appointed by the other States for 
 similar purposes, and with th^m to discuss and decide upon the 
 most elFectual means to remove the defects of our federal 
 union, and to procure the enlarged purposes Avliich it vras 
 intended to effect, and that they report such an act to the 
 General Assembly of this State as, when agreed to by them, 
 will effectually provide for the same ; " And it is by the said 
 act further enacted, " That in case of the death or resignation 
 of any of the deputies, or their declining their appointments, 
 his excellency, the Governor for the time being, is hereby 
 authorized to supply such vacancies ;" — 
 
 And whereas, in consequence of the said act, Richard Cas- 
 well, Alexander Martin, William Richardson Davie, Richard 
 Dobbs Spaight, and Willie Jones, Esqrs., were, by joint ballot 
 of the two houses of the Assembly, elected deputies for the 
 purpose aforesaid ; And whereas the said Willie Jones hath 
 declined his appointment as one of the deputies aforesaid ; 
 
 Now, know ye, that I have appointed, and by these presents, 
 do ajDpoint, the Hon. Hugh Williamson, Esq., one of the depu- 
 ties to represent this State in the Convention aforesaid, in the 
 room and stead of the aforesaid Willie Jones, hereby giving 
 and granting to the said Hugh Williamson the same pow- 
 ers, privileges, and emoluments, which the said W. Jones 
 would have been vested with and entitled to, had he acted under 
 the appointment aforesaid. 
 
APPENDIX. 57 
 
 Given under my hand and the great seal of the State, at 
 Kinston, the 3d day of April, Anno Domini 1787, and in 
 the 11th year of American independence. 
 
 By his excellency's command. RICH. CASWELL. 
 
 Dallam Casavell, Pro. Secretary. 
 
 STATE OF SOUTH CAROLINA. 
 
 By his excellency, Thomas Pinckney, Esq., governor and com- 
 mander-in-chief, in and over the State aforesaid. 
 To the Hon. John Rutledge. Esq., Greeting : 
 
 By virtue of the power and authority in me vested by th^ 
 legislature of this State, in their act passed the 8th day of March 
 last, I do hereby commission yon, the said John Rutledge, as 
 one of the deputies appointed from this State, to meet such dep- 
 uties or commissioners as may be appointed and authorized by 
 other of the United States to assemble in Convention, at the city 
 of Philadelphia, in the month of May next, or as soon thereaf- 
 ter as may be, and to join with such deputies or commissioners 
 (they being duly authorized and empowered) in devising and 
 discussing all such alterations, clauses, articles, and provis- 
 ions, as may be thought necessary to render the Federal 
 Constitution entirely adequate to the actual situation and 
 future good government of the confederated States ; and that 
 you, together Avith the said deputies or commissioners, or a 
 majority of them, who shall be present (provided the State be 
 not represented by less than two), do join in reporting such an 
 act to the United States in Congress assembled, as, when 
 approved and agreed to by them, and duly ratified and confirmed 
 by the several States, will efiectually provide for the exigencies 
 of the Union. 
 
 Given under my hand and the great seal of the State, in the 
 city of Charleston, this 10th day of April, in the year of 
 our Lord 1787, and of the sovereignty and independence 
 of the United States of America the eleventh. 
 By his excellency's command. THOMAS PINCKNEY. 
 
 Peter Feenkau, Secretary. ' [l. s.] 
 
 STATE OF SOUTH CAROLINA. 
 By his excellency, Thomas Pinckney, Esq., governor and com- 
 mander-in-chief in and over the State aforesaid. 
 To the Hon. Charles Pinckney, Esq., Greeting : 
 By virtue of power and authority in me vested by the legis- 
 
58 APPENDIX. 
 
 lature of this State, in their act passed tlie 8th day of March 
 last, I do hereby commission you, the said Charles Pinckney, as 
 one of the deputies appointed from this State to meet such dep- 
 uties or commissioners as may be appointed and authorized by 
 other of the United States, to assemble in Convention at the 
 city of Philadelphia, in the month of May next, or as soon 
 thereafter as may be, and to join with such deputies or com- 
 missioners (they being duly autliorized and empowered) in 
 devising and discussing all such alterations, clauses, articles, 
 and provisions, as may be thought necessary to render the 
 Federal Constitution entirely adequate to the actual situation 
 and future good government of the confederated States ; and 
 that you, together with the said deputies or commissioners, or 
 a majority of them who shall be present (provided the State be 
 not represented by less than two), do join in reporting such an 
 act to the United States. in Congress assembled, as, when 
 approved and agreed to by them, and duly ratified and con- 
 firmed by the several States, Avill efiectuully provide for the 
 exigencies of the Union. 
 
 Given under my hand and the great seal of the State, in the 
 city of Charleston, this 10th day of April, in the year of our 
 Lord 1787, and of the sovereignty and independence of 
 the United States of America tlie eleventh. 
 
 THOMAS PINCKNEY. 
 By his excellency's command. 
 
 Peter Fkeneau, Secretary. [l. s.] 
 
 STATE OF SOUTH CAROLINA. 
 By his excellency, Thomas Pinckney, Esq., governor and com- 
 mander-in-chief in and over the state aforesaid. 
 To the Hon. Charles Cotesioorth Plnchiey^ Esq , Greeting : 
 
 By virtue of the power and authority in me vested by the 
 legislature of this state, in their act passed the 8th day of 
 March last, I do liereby commission you, the said Charles 
 Cotesworth Pinckney, as one of the deputies appointed from 
 this state, to meet such deputies or commissioners as may be 
 appointed and authorized by other of the United States, to 
 assemble in convention at the city of Philadelphia, in the 
 month of May next, or as soon thereafter as maybe, and join 
 with such deputies or commissioners (they being duly author- 
 ized and empowered) in devising and discussing all such altera- 
 
APPENDIX. . 59 
 
 tions, cliuises, articles, and provisions, as may be thought 
 necessary to render the Federal Constitution entirely adequate 
 to the actual situation and future good government of the con- 
 federated states ; together with the said deputies or connnis- 
 sioners, or a majority of them who shall be present (provided 
 the state be not represented by less than two), to join in report- 
 ing such an act to the United States in Congress assembled, 
 as, when approved and agreed to by them, and duly ratified and 
 confirmed by the several states, will effectually provide for the 
 exigencies of the Uuion. 
 
 Given under my hand and the great seal of the state, in the 
 city of Charleston, this 10th day of April, in the year of 
 our Lord 1787, and of the sovereignty and indej^endence 
 of the United States of America the eleventh. 
 
 THOMAS PINCKNEY. 
 By his excellency's command. 
 
 Peter Freneau, Secretary. [l. s.] 
 
 STATE OF SOUTH CAROLINA. 
 By his excellency, Thomas Pinckney, Esq., governor and com- 
 mander-in-chief over the state aforesaid. 
 To the Hon. Pierce Butler^ Esq., Greeting : 
 
 By virtue of the power and authority in me vested by the 
 legislature of this state, in their act passed the 8th day of 
 March last, I do hereby commission you, the said Pierce Butler, 
 as one of the deputies appointed from this state, to meet 
 such deputies or commissioners as may be appointed or author- 
 ized by other of the United States, to assemble in Conven- 
 tion at the city of Philadelphia, in the month of May next, or 
 as soon thereafter as may be, and to join with such deputies or 
 commissioners (they being duly authorized and emjDOwered) 
 in devising and discussing all such alterations, clauses, articles 
 and provisions, as may be thought necessary to render the 
 Federal Constitution entirely adequate to the actual situation 
 and future good government of the confederated states; and 
 that you, together with the said deputies and commissioners, or 
 a majority of them who shall be present (provided the state 
 be not represented by less than two), do join in reporting such 
 an act to the United States in Congress assembled, as, when 
 approved and agreed to by them, and duly ratified and con- 
 firmed by the several states, Avill efiectually provide for the exi- 
 gencies of the Union. 
 
60 APPENDIX. 
 
 Given under my hand and the great seal of the state, in the 
 city of Charleston, this 10th day of April, in the year 
 our Lord 1787, and of the sovereignty and independence 
 of the United States of America the eleventh. 
 
 THOMAS PINCKNEY. 
 By his excellency's command. 
 
 Pjeter Freneau, Secretary. [l. s.] 
 
 STATE OF GEORGIA. 
 
 By the Hon. George Mathews, Esq., captain-general, gover- 
 nor, and commander-in-chief in and over the state aforesaid. 
 To all to whom these presents shall come^ Greeting : 
 
 Know ye, That John Milton, Esq., who hath certified the 
 annexed copy of an ordinance, entitled " An Ordinance for the 
 ApjDointment of I>eputies from this state, for the Purpose of 
 revising the Federal Constitution," is secretary of the said 
 state, in whose office the archives of the same are' deposited ; 
 Therefore, all due faith, credit, and authority, are, and ought 
 to be, had and given the same. 
 
 In testimon}'- whereof, I have hereunto set my hand, and 
 caused the great seal of the said state to be put and affixed, 
 at Augusta, the 24th day of April, in the year of our Lord 
 1787, and of our sovereignty and independence the 
 eleventh. GEO. MATHEWS. 
 
 By his honor's command. — J. Milton. [l. s.] 
 
 An Ordinance for the Appointment of Deputies from this 
 State^forthe Purpose of revising the Federal Constitution. 
 
 JBe it ordained hy the representatives of the freemen of the 
 State of Georgia, i?i General Assembly met, and by authority 
 of the same, that William Few, Abraham Baldwin, William 
 Pierce, George Walton, William Houston, and Nathaniel Pen 
 dleton, Esqrs., be, and they are hereby, appointed commission- 
 ers, who, or any two or more of them, are hereby authorized, 
 as deputies from this state, to meet such deputies as may be 
 appointed and authorized by other states, to assemble in Con- 
 vention at Philadelphia, and to join with them in devising and 
 discussing all such alterations and further provisions as may 
 be necessary to render the Federal Constitution adequate to the 
 exigencies of the Union, and in reporting such an act for that 
 purpose to the United States in Congress assembled as, when 
 
APPENDIX. 61 
 
 agreed to by them, and duly confirmed by the several states, 
 will effectually provide for the same. In case of the death of 
 any of the said deputies, cr of their declining their appoint- 
 ments, the executive are hereby authorized to supply such 
 vacancies. 
 
 By order of the house. 
 
 Signed, WM. GIBBONS, SpeaJcer. 
 
 Augusta, the 10th February^ 1787. 
 
 Georgia, Secretanfs Office. 
 
 The above is a true copy from the original ordinance depos- 
 ited in my office. 
 
 Augusta, 24th April, 1787. J. MILTON, Secretary. 
 
 The State of Georgia, by the grace of God, free, sovereign, and 
 
 independent. 
 To the Hon William Feic, Esq. : 
 
 Whereas you, the said William Few, are, in and by an ordi- 
 nance of the General Assembly of our said state, nominated 
 and appointed a deputy to represent the same in a Convention 
 of the United States, to be assembled at Philadelphia, for the 
 purposes of devising and discussing all such alterations and 
 further provisions as may be necessary to render the Federal 
 Constitution adequate to the exigencies of the Union, — 
 
 You are therefore hereby commissioned to proceed on the 
 duties required of you in virtue of the said ordinance. 
 
 Witness our trusty and well-beloved George Mathews, 
 Esq., our captain-general, governor, and commander-in- 
 chief, under his hand and our great seal, this 17th day of 
 April, in the year of our Lord 1787, and of our sovereignty 
 and independence the eleventh. 
 
 GEO. MATHEWS, [l. s.] 
 By his honor's command. 
 
 J. Milton, Secretary. 
 
 The State of Georgia, by the grace of God, free, sovereign, 
 and independent, 
 
 To the Hon. 'William Pierce, Esq. 
 
 Whereas you, the said William Pierce, are, in and by an ordi- 
 nance of the General Assembly of our said state, nominated and 
 appointed a deputy to represent the same in Convention of the 
 United States, to be assembled at Philadelphia, for the purpose 
 58 
 
62 APPENDIX. 
 
 of devising and discussing all such alterations and furthei" pro- 
 visions as may be necessary to render the Federal Constitution 
 adequate to the exigencies of the Union, — You are therefore 
 hereby commissioned to proceed on the duties required of you 
 in virtue of the said ordinance. 
 
 Witness our trusty and well-beloved George Mathews, Esq., 
 our captain-general, governor and commander-in-chief, 
 under his hand and our great seal, at Augusta, this 1 7th 
 day of April, in the year of our Lord 1787, and of our 
 sovereignty and independence the eleventh. 
 
 GEORGE MATHEWS, [l. s.] 
 By his honor's command. 
 
 J. MiLTON", Secretary. 
 
 The State of Georgia, by the grace of God, free, sovereign, and 
 independent. 
 
 To the Hon. William Houston, Esq. : 
 
 Whereas you, the said William Houston, are, in and by an 
 ordinance of the General Assembly of our said state, nominated 
 and appointed a delegate to represent the same in Conven- 
 tion of the United States, to be assembled at Philadelphia, for 
 the purpose of devising and discussing all such alterations and 
 further provisions as may be necessary to render the Federal 
 Constitution adequate to the exigencies of the Union, — 
 
 You are therefore hereby commissioned to proceed on the 
 duties required of you in virtue of the same ordinance. 
 
 Witness our trusty and well-beloved George Mathews, Esq., 
 our captain-general, governor and commander-in-chief, 
 under his hand and our great seal, at Augusta, this 1 7th 
 day of April, in the year of our Lord 1787, and of our 
 sovereignty and independence the eleventh. 
 
 GEO. MATHEWS, [l. s.] 
 By his honor's command. 
 
 J. Milton, Secretary. 
 
 INTO. 11. 
 
 JOURNAL OF THE FEDERAL CONVENTION. 
 
 This Convention assembled on the 14th of May 1787, at the 
 State House in the city of Philadelphia, and adjourned from 
 
APPENDIX. 63 
 
 time to time until the 25th of that month .when the following 
 Dele"-atcs appeared and took seats in the Convention : 
 
 Masmchusetti. Virgin ia. 
 
 The Hon. Rufus King, Esq. His Excellency Gforge Wasliington, Esq. 
 
 ,, T^ 7 His Excellency E. Randulnli, Esq. 
 
 Miolork. The Hon. John Blair, 
 
 Tlie Hon. Robert Yate;', and j-mies Madison 
 
 Alexander Hamilton, Esqrs. Geor"-e Mason ' 
 
 New Jersey. George Wvthe, and 
 
 m TT -n A-n i James M'Clnrg, Esqrs. 
 
 Tlie Hon. David Brearly, ,, ,, „ ,. 
 
 i.r rii 1 11 IT .« ;i North (arolina, 
 
 \Vin. CnmcliiU Houston, and .' 
 
 Wm. Patterson, Esqrs. The Hon. Alexander Martin, 
 
 . William Richardson Davie, 
 
 Pennsylvania. Richard Dobbs Spaitrht, and 
 
 The Hon. Robert Morris, Hugh Williamson, Esqrs. 
 
 Thomas Fitzsimmons, g^^^j^ Carolina. 
 
 James Wilson, and m, -n- t , -r. i j 
 
 Gouverneur Morris, Esqrs. J^e Hoii^ John RiUledge 
 
 ' ^ Charles Cotesworih riuckney, 
 
 Delaware. Charles Pinckney, and 
 
 The Hon. George Read, ^i^^^ce Butler, E.^qrs. 
 
 Rii'hard Bassett, and Georgia. 
 
 Jacob Broom, Esqrs. The Hon. William Few, Esq. 
 
 NO. 12. 
 
 The Convention organized by electing George Washington as 
 president, and William Jackson, as secretary of the Convention. 
 The deliberations of this Convention resulted in submitting 
 to Congress a draft of the Constitution accompanied by the fol- 
 lowing resolutions : 
 
 " Resolved, That the preceding Constitution be laid before 
 the United States in Congress assembled ; and that it is the 
 opinion of this Convention, that it should afterwards be sub- 
 mitted to a convention of delegates chosen in each state by the 
 people thereof, under the recommendation of its legislature, for 
 their assent and ratification ; and that each Convention, assent- 
 ing to and ratifying the same, should give notice thereof to the 
 United States in Congress assembled. 
 
 " Resolved., That it is the opinion of this Convention, that, as 
 soon as the conventions of nine states shall have ratified lliis 
 Constitution, the United States in Congress assembled should fix 
 a day on which electors should be appointed by the states 
 which shall have ratified the same ; and a day on which tlie 
 electors should assemble to vote for the president and the time 
 and place for commencing proceedings under this Constitution ; 
 that, after such publication, the electors should be appointed, 
 and the senators and representatiees elected ; that the electors 
 
64 APPENDIX. 
 
 should meet on the day fixed for the election of the President, 
 and should transmit their votes, certified, signed, sealed, and 
 directed, as the Constitution requires, to the secretary of the 
 United States in Congress assembled; that the senators and 
 representatives should convene at the time and place assigned ; 
 that the senators should appoint a president of the Senate for 
 the sole purpose of receiving, opening, and counting the votes, 
 for President ; and that, after he shall be chosen, the Congress, 
 together with the President, should without delay, proceed 
 to execute this Constitution." 
 
 " Provided^ That no state shall be restrained from imposing 
 the usual duties on produce exported fi'om that state, for the 
 sole purpose of defraying the charges of inspecting, packing, 
 storing, and indemnifying the losses on such produce, while in 
 the custody of public officers; but all such regulations shall, 
 in case of abuse, be subject to the revision and control of Con- 
 gress :" 
 
 CONSTITUTIOK 
 
 WE the people of the United States in order to form a more 
 perfect union, establish justice, ensure domestic tranquillity, 
 provide for the common defence, promote the general wel- 
 fare and secure the blessings of liberty to ourselves and our 
 posterity, do ordain and establish this Constitution for the 
 United States of America. 
 
 ARTICLE I. 
 
 SECTION" I. 
 
 All legislative powers herein granted shall be vested in a 
 Congress of the United States, which shall consist of a Senate 
 and House of liepresentatives. 
 
 SECTION II. 
 
 The House of Representatives shall be composed of members 
 chosen every second year by the people of the several States, 
 and the electors in each State shall have the qualifications 
 requisite for electors of the most numerous branch of the State 
 Legislature. 
 
 No person shall be a Representative who shall not have 
 attained the age of twenty-five years, and been seven years a 
 (?.tizen of the United States, and who shall not, when elected, 
 be an inhabitant of that State in which he shall be chosen. 
 
APPENDIX. 65 
 
 Representatives and direct taxes shall be apportioned among 
 the several States which may be included within this Union, 
 according to their respective numbers, which shall be deter- 
 mined by adding to the whole number of free persons, including 
 those bound to service for a term of years, and excluding Indians 
 not taxed, three fifths of all other persons. The actual enumer- 
 ation shall be made within three years after the first meeting of 
 the Congress of the United States, and within every subsequent 
 term of ten years, in such manner as they shall by law direct. 
 The number of Representatives shall not exceed one for every 
 thirty thousand, but each State shall have at least one Repre- 
 sentative ; and until such enumeration shall be made, the State 
 of New Hampshire shall be entitled to choose three, Massa- 
 chusetts eight, Rhode Island and Providence Plantations one, 
 Connecticut five, New York six. New Jersey four, Pennsylvania 
 eight, Delaioare one, 3Iaryland six, Virginia ten. North Caro- 
 lina five, South Carolina five, and Georgia three. 
 
 When vacancies haj^pen in the representation from any State, 
 the Executive authority thereof shall issue writs of election to 
 fill such vacancies. 
 
 The House of Representatives shall choose their Speaker and 
 other ofiicers ; and shall have the sole power of impeachment. 
 
 SECTION III. 
 
 The Senate of the United States shall be composed of two 
 Senators from each State, chosen by the Legislature thereof, for 
 six years ; and each Senator shall have one vote. 
 
 Immediately after they shall be assembled in consequence of 
 the first election, they shall be divided as equally as may be, 
 into three classes. The seats of the Senators of the first class 
 shall be vacated at the expiration of the second year, of 
 the second class at the expiration of the fourth year, and of the 
 third class at the expiration of the sixth year, so that one third 
 may be chosen every second year ; and if vacancies happen by 
 resignation or otherwise, during the recess of the Legislature 
 of any State, the executive thereof may make temporary 
 appointments, until the next meeting of the Legislature, which 
 shall then fill such vacancies. 
 
 No person shall be a Senator who shall not have attained to 
 the age of thirty years, and been nine years a citizen of the 
 United States, and who shall not, when elected, be an inhab- 
 itant of that State for which he shall be chosen. 
 
66 APPENDIX. 
 
 I 
 
 The Vice-President of the United States shall be President 
 of the Senate, Tbut shall have no vote unless they be equally- 
 divided. 
 
 The Senate shall choose their other officers, and also a presi- 
 dent pro-tempore, in the absence of the Vice-President or when 
 he shall exercise the office of President of the United States. 
 
 The Senate shall have the sole power to try all impeach- 
 ments : when sitting for that purpose, they shall be on oath or 
 affirmation. When the President of the United States is tried 
 the Chief Justice shall preside : and no person shall be con- 
 victed without the concurrence of two-thirds of the members 
 jjresent. 
 
 Judgment in cases of impeachment shall not extend farther 
 than to removal from office, and disqualification to hold and 
 enjoy any office of honor, trust, or profit under the United 
 States : but the party convicted shall nevertheless be liable and 
 subject to indictment, trial, judgment and punishment, accord- 
 ing to law. 
 
 SECTIOlSr IV. 
 
 The times, places and manner of holding elections for Sena- 
 tors and Representatives, shall be prescribed in each State by 
 the legislature thereof; but the Congress may at any time 
 by law make or alter such regulations, except as to the places 
 of choosing Senators. 
 
 The Congress shall assemble at least once in every year, and 
 such meeting shall be on the first Monday in December unless 
 they shall by law appoint a different day. 
 
 SECTION v. 
 
 Each house shall be the judge of the elections, returns and 
 qualifications of its own members, and a majority of each shall 
 constitute a quorum to do business ; but a smaller number may 
 adjourn from day to day, and may be authorized to compel the 
 attendance of absent members, in such manner, and u.nder such 
 jjcnalties as each house may provide. 
 
 Each house may determine the rules of its proceedings, pun- 
 ish its members for disorderly behavior, and, with the concur- 
 rence of two thirds, expel a member. 
 
 Each House shall keep a journal of its pi'oceedings, and from 
 time to time publish the same, excepting such jaarts as may 
 in their judgment require secrecy ; and the yeas and nays 
 
APPENDIX. 67 
 
 of the members of either House on any question shall, at the 
 desire of one fifth of those present, be entered on the journal. 
 Neither House, during the Session of Congress, shall, with- 
 out the consent of the other, adjourn for more than three days, 
 nor to any other place than that in which the two houses shall 
 be sitting. 
 
 SECTION VI. 
 
 The Senators and Representatives shall receive a compensa- 
 tion for their services, to be ascertained by law, and paid out of 
 the Treasury of the United States. They shall in all cases 
 except treason, felony and breach of the peace, be privileged 
 from arrest during their attendance at the session of their res- 
 pective Houses, and in going to and returning from the same; 
 and for any speech or debate in either house, they shall not be 
 questioned in any other place. 
 
 No Senator or Representative shall, during the time for which 
 he was elected, be appointed to any civil office under the 
 authority of the United States, Avhich shall have been created, 
 or the emoluments whereof shall have been increased during 
 such time: and no person holding any office undei' the United 
 States shall be a member of either House during his continu- 
 ance in office. 
 
 SECTION VII. 
 
 All bills for raising revenue shall originate in the House of 
 Representatives ; but the Senate may j^ropose, or concur with, 
 amendments, as on other bills. 
 
 Every bill which shall have passed the House "of Repre- 
 sentatives, and the Senate, shall, before it become a law, be 
 presented to the President of the United States ; if he approve 
 he shall sign it, bat if not he shall return it, with his objections 
 to that House in which it shall have originated, Avho shall enter 
 the objections at large on their journal, and. proceed to 
 reconsider it. If after such reconsideration two-thirds of that 
 House shall agree to pass the bill, it shall be sent, together with 
 the objections, to the other House, by which it shall likewise be 
 reconsidered, and if approved by two-thirds of that House, it 
 shall become a law. But in all such cases the votes of both 
 Houses shall be determined by yeas and nays, and the names 
 of the persons voting for and against the bill shall be entered 
 on the journal of each House respectively. If any bill shall 
 not be returned by the President within ten days (Sundays 
 
68 APPENDIX. 
 
 excepted,) after it shall have been presented to him, the same 
 shall be a law, in like manner as if he had signed it, unless the 
 Congress by their adjournment prevent its return, in which case 
 it shall not be a law. 
 
 Every order, resolution, or vote to which the concurrence of 
 the Senate and House of Representatives may be necessary 
 (except on a question of adjournment) shall be presented to 
 the President of the United States ; and before the same shall 
 take effect, shall be approved by him, or, being disapproved by 
 him, shall be repassed by two-thirds of the Senate and House 
 of Representatives, according to the rules and limitations pre- 
 scribed in the case of a bill. 
 
 SECTIOX VIII. 
 
 The Congress shall have power To lay and collect taxes, 
 duties, imposts and excises, to pay the debts and provide for 
 the common defence and general welfare of the United States ; 
 but all duties, imposts and exercises shall be uniform throughout 
 the United States ; 
 
 To borrow money on the credit of the United States ; 
 
 To regulate commerce with foreign nations, and among the 
 several States, and with the Indian tribes ; 
 
 To establish an uniform rule of naturalization, and uniform 
 
 laws on the subject of bankruptcies throughout the United 
 
 States ; 
 
 To coin money, regulate the value thereof, and of foreign 
 
 •coin, and fix the standard of weights and measures ; 
 
 To provide for the punishment of counterfeiting the secu- 
 rities and current coin of the United States ; 
 
 To establish post offices and post roads ; 
 
 To promote the progress of science and useful arts, by secur- 
 ing for limited times to authors and inventors the exclusive 
 right to their respective writings and discoveries ; 
 
 To constitute tribunals inferior to the supreme court ; 
 
 To define and punish piracies and felonies committed on the 
 high seas and offences against the law of nations ; 
 
 To declare war, grant letters of marque and reprisal, and 
 make rules concerning captures on land and water ; 
 
 To raise and support armies, but no appropriation of money 
 to that use shall be for a longer term than two years ; 
 
 To provide and maintain a navy ; 
 
APPENDIX. 69 
 
 To make rules for the government and regulation of the land 
 and naval forces ; 
 
 To provide for calling forth the militia to execute the laws 
 of the Union, suppress insurrections and repel invasions ; 
 
 To provide for organizing, arming and discijjlining, the 
 militia, and for governing such part of them as may be 
 employed in the service of the United States, reserving to 
 the States respectively, the appointment of the officers, and the 
 authority of training the militia according to the discipline 
 prescribed by Congress ; 
 
 To exercise exclusive legislation in all cases whatsoever over 
 such district (not exceeding ten miles square) as may by ces- 
 sion of particular States, and the acceptance of Congress, become 
 the seat of the government of the United States, and to exer- 
 cise like authority over all places purchased by the consent of 
 the Legislature of the State in which the same shall be, for the 
 erection of forts, magazines, arsenals, dock-yards, and other 
 needful buildings ; — And 
 
 To make all laws which shall be necessary and proper for 
 carrying into execution the foregoing powers, and all other 
 powers vested by this constitution in the government of the 
 United States, or in any department or officer thereof. 
 
 SECTION IX. 
 
 The migration or importation of such persons as any of the 
 States now existing shall think proper to admit, shall not be 
 prohibited by the Congress prior to the year eighteen hundred 
 and eight, but a tax or duty may be imposed on such importa- 
 tion, not exceeding ten dollars for each person. 
 
 The privilege of the writ of Habeas Corpus shall not be sus- 
 pended, unless when in cases of rebellion or invasion the public 
 safety may require it. 
 
 No bill of attainder or ex post facto law shall be passed. 
 
 No capitation, or other direct, tax shall be laid, unless in pro- 
 portion to the census or enumeration herein before directed to 
 to be taken. 
 
 No tax or duty shall be laid on articles exported from any 
 State, 
 
 No preference shall be given by any regulation of commerce 
 
 or revenue to the ports of one State over those of another : nor 
 
 shall vessels bound to, or from, one State, be obliged to enter, 
 
 clear, or pay duties in another, 
 59 
 
70 APPENDIX. 
 
 No money shall be drawn from tho Treasury, but in conse- 
 quonoe of appropriations made by law ; and a regular statement 
 and aceoimt of the receipts and expenditures of all public 
 money shall be published from time to time. 
 
 No title of nobility shall be grated by the United States : and 
 no person holding any olliee of proiit or trust under them, shall, 
 without the consent of the Congress, accept of any present, 
 emolument, othce, or title, of any kind whatever, from any 
 king, prince, or foreign State. 
 
 SKCTION X. 
 
 No State shall enter into any treaty, alliance, or confedera- 
 tion ; grant letters of marque and reprisal ; coin money ; emit 
 bills of credit ; make anything but gold and silver coin a tender 
 in payment of debts ; pass any bill of attainder, ex post facto 
 law ; ov law impairing the obligation of contracts ; or grant any 
 title of nobility. 
 
 No State shall, Avithout the consent of the Congress, lay any 
 imposts or duties on imports or exports, except wliat may be 
 absolutely necessary for executing its inspection laws : 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 ; and all such laws shall be subject to the 
 revision and control of the Congress. 
 
 No State shall, without the consent of Congress, lay any duty 
 of tonnage, keep troops, or ships of Avar in time of peace, enter 
 into any agreement or compact with another State, or with a 
 foreign power, or engage in war, unless actually invaded, or 
 in such imminent danger as will not admit of delay. 
 
 ARTICLE II. 
 
 SECTIOX I. 
 
 The executive power shall be vested in a President of the 
 United States of America. He shall hold his office during the 
 term of four years, and, together Avith the Vice-President, 
 chosen for the same term, be elected as follows ; 
 
 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 L^nited 
 States, shall be appointed .an elector. 
 
APPENDIX. 71 
 
 The electors shall meet in their respective States, and vote by 
 ballot for two persons, of whom one at least shall not be an in- 
 habitant of the same State with themselves. And they shall 
 make a list of all the persons voted for, and of the number of 
 votes for each ; which list they shall sign and certify, and trans- 
 mit 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 tlie Senate and House of Repre- 
 sentatives, open all the certificates, and the votes shall then be 
 counted. The person having the greatest number of votes shall 
 be the President, if such number be a majority of the whole 
 number of electors appointed; and if there be more than one 
 who have such majority, and have an equal number of votes, 
 then the House of Representatives shall immediately choose, by 
 ballot one of them for President ; and if no person have a 
 majority, then from the five highest on the list the said House 
 shall, in like manner, choose tlie President. But in choosing 
 the President, the votes shall be taken by States, the represen- 
 tation from each State having one vote; a quorum for this pur- 
 pose shall consist of a member or meml>ers 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 the 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. 
 
 The Congress may determine the time of choosing the elec- 
 tors, and the day on which they shall give their votes ; which 
 day shall be the same throughout the United States. 
 
 No person except a natural born citizen, or a citizen of the 
 United States, at the time of the adoption of this Constitution, 
 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, and been fourteen years a resident 
 within the United States, 
 
 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 Presi- 
 dent and Vice-President, decla,ring what officer shall then act 
 
72 APPENDIX. 
 
 as President, and such officer sliall act accordingly, until the 
 disability be removed or a President shall be elected. 
 
 The President shall, at stated times, receive for his services, 
 a compensation, which shall neither be increased or diminished 
 during the period for which he shall have been elected, and 
 he shall not receive within that period any other emolument 
 from the United States, or any of them. 
 
 Before he enter on the execution of his office, he shall take the 
 following oath or affirmation : " I do solemnly sioear [or affirm) 
 that I will faithfully execute the office of President of the United 
 States, and will, to the best of tny ability, preserve, protect, and 
 defend the Constitution of the United States.'''' 
 
 SECTION II. 
 
 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 ; 
 he may require the opinion, in writing, of the principal officer 
 in each of the executive departments, upon anj?- subject relating 
 to the duties of their respective offices ; and he shall have power 
 to grant reprieves and pardons for offenses against the United 
 States, except in cases of impeachment. 
 
 He shall have power, by and with the advice and consent of 
 the .Senate, to make ti-eaties, provided two-thirds of the Senators 
 present concur ; and he shall nominate, and by and with the 
 advice and consent of the Senate, shall aj^point ambassadors, other 
 public ministers and consuls, judges of the supreme coin-t, and all 
 other officers of the United States, whose appointments are not 
 herein otherwise provided for, and which shall be established by 
 law : But the Congress may by law vest the appointment of 
 such inferior officers as they think proper, in the President 
 alone, in the courts of law, or in the heads of departments. 
 
 The President shall have power to fill up all vacancies that 
 may happen during the recess of the Senate, by granting com- 
 missions which shall expire at the end of their next session. 
 
 SECTION III. 
 
 He shall from time to time give to the Congress the informa- 
 tion of the state of the Union, and recommend to their consider- 
 ation such measures as he shall judge necessary and expedient ; 
 he may, on extraordinary occasions, convene both Houses, or 
 either of them, and, in case of disagreement between them, with 
 respect to the time of adjournment, he may adjourn them to 
 
APPENDIX. 78 
 
 such time as he shall think i:)roper ; he shall receive ambassadors 
 and other public ministers ; he shall take care that the laws be 
 faithfully executed, and shall commission all the officers of the 
 United States. 
 
 SECTION IV. 
 
 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. 
 
 ARTICLE III. 
 
 SECTION I. 
 
 The judicial power of the United States shall be vested in 
 one Supreme Court, and in such inferior courts as the Congress 
 may from time to time ordain and establish. The judges, 
 both of the supreme and inferior courts, shall hold their offices 
 during good behaviour, and shall, at stated times, receive for 
 their services, a compensation, which shall not be diminished 
 during their continuance in office. 
 
 SECTION II. 
 
 The judicial power shall extend to all cases in law and equity, 
 arising under this constitution, the laws of the United States, 
 and the treaties made, or which shall be made, under their 
 authority; to all cases — affecting ambassadors, other public min- 
 isters, and consuls ; — to all cases of admiralty and maritime juris- 
 diction; — to controversies between two or more States; — 
 between a State and citizens of another State ; — between citizens 
 of diffiarent States; — between citizens of the same State, claiming 
 lands under grants of different States, and between a State or 
 the citizens thereof, and foreign States, citizens or subjects. 
 
 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. In all the other cases 
 before-mentioned, the supreme court shall have appellate juris- 
 diction, both as to law and fact, with such exceptions, and under 
 such regulations, as the Congress shall make. 
 
 The trial of all crimes, except in cases of impeachment, shall 
 be by jury ; and such trial shall be held in the State where the 
 said crimes shall have been committed ; but when not committed 
 within any State, the trial shall be at such place or places as the 
 Congress may by law have directed. 
 
74 APPENDIX. 
 
 SECTION III. 
 
 Treason against the United States, shall consist only in levying 
 war against them, or in adhering to their enemies, giving them 
 aid and comfort. 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. 
 
 The Congress shall have jDower 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. 
 
 ARTICLE IV. 
 
 SECTION I. 
 
 Full faith and credit shall be given in each State to the 
 public acts, records, and judicial proceedings of every other 
 State. And the Congress may by general laws prescribe the 
 manner in which such acts, records, and proceedings shall be 
 proved, and the effect thereof. 
 
 SECTION II. 
 
 The citizens of each State shall be entitled to all the privi- 
 leges and immunities of citizens in the several States. 
 
 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. 
 
 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. 
 
 SECTION III. 
 
 New States may be admitted by the Congress into this 
 Union ; but no new State shall be formed or erected within the 
 jurisdiction of any other State ; nor any State be formed by 
 the junction of two or more States, or parts of States, with- 
 out the consent of the Legislature of the States concerned as 
 well as of the Congress. 
 
 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 ; and nothing in this 
 
APPENDIX. "5 
 
 constitution shall be so construed as to prejudice any claims of 
 the United States, or of any particular State. 
 
 SECTIO^r IV. 
 
 The United States shall guaranty to every state in this Union 
 a republican form of government, and shall protect each of 
 them against invasion ; and on application of the legislature, or 
 of the executive (when the legislature cannot be convened) 
 against domestic violence. 
 
 ARTICLE V. 
 
 The Congress, Avhenevcr two-thirds of both Houses shall 
 deem it necessary, shall propose amendments to this constitu- 
 tion, or, on the application of the legislatures of two-thirds of 
 the several States, shall call a convention for proposing amend- 
 ments, which in either case, shall be valid to all intents and 
 purposes, as part of this constitution, when ratified by the 
 legislatures of three-fourths of the several States, or by conven- 
 tions in three-fourths thereof, as the one or the other mode of 
 ratification may be proposed by the Congress ; 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 ; and that no State, without its consent, shall be dej)rived 
 of its equal suifrage in the Senate. 
 
 APvTICLE VI. 
 
 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 confedera- 
 tion. 
 
 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, any thing in the constitution or 
 laAvs of any State to the contraiy notwithstanding. 
 
 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 sujDport this 
 constitution : but no religious test shall ever be required as a 
 qualification to any office or public trust under the United 
 States. 
 
76 APPENDIX. 
 
 • ARTICLE VII. 
 
 The ratification of the conventions of nine states, shall be suf- 
 ficient for the establishment of this constitution between the 
 States so ratifying the same. 
 
 Done in convention by the unanimous consent of the States 
 present the seventeenth day of September in the year of our 
 Lord one thousand seven hundred and eighty-seven and of 
 the independence of the United States of America the 
 twelfth. In witness whereof we have hereunto subscribed 
 
 our names. 
 
 GEO. WASHINGTON, 
 
 President^ and deputy frotn Vtrginia. 
 
 NEW HAMPSHIRE. CONNECTICUT 
 
 John Langdon, William Samuel Johnson, 
 
 Nicholas G-ilman. Eoger Sherman. 
 
 MASSACHUSETTS. jlg-^y yoRK. 
 
 Nathaniel Gorham, Alexander Hamilton. 
 
 Kufus King. 
 
 *= MARYLAND. 
 
 NEW JERSEY. T H/T'TT 
 
 -rrr-ii T- • 4. James M Henry, 
 
 William Livmgston, -n • i ea^ m t -e 
 
 D'lv'd "R 1 Daniel of St. Tho. Jenifer, 
 
 William Patterson, 
 
 Jonathan Dayton. Virginia. 
 
 PENNSYLVANIA. John Blair, 
 
 Benjamin Franklin, 'Barnes Madison, jr. 
 Thomas Mifflin, north Carolina. 
 
 Robert Morris, William Blomit, 
 
 George Clymer, Richard Dobbs Spaight, 
 
 Thomas Fitzimons, Hugh Williamson. 
 Jared IngersoU, south Carolina. 
 
 James Wilson, John Rutledge, 
 
 Gouverneur Morris. Charles C. Pinckney, 
 
 DELAWARE. Charlcs Pinckney, 
 
 George Reed, Pierce Butler. 
 Gunning Bedford, jun. Georgia. 
 
 John Dickinson, William Few, 
 
 Richard Bassett, Abraham Baldwin. 
 Jacob Broom. 
 
 Attest: WILLIAM JACKSON, Secretary. 
 
 On the 17th of September, 1787, the Federal Convention, 
 having signed the draft of the constitution and closed its labors, 
 adjourned without day. 
 
 On the 28th of September, 1787, the Congress having 
 received the report of the Convention assembled at Phila- 
 delphia, and which had drafted the Constitution, resolved to 
 submit the same to the people of the several States. This 
 resolution was in these words : 
 
 ^'■Resolved, unanimously^ That the said report, with the 
 resolutions and letter accompanying the same, be transmitted 
 
APPENDIX. 77 
 
 to the several legislatures, in order to he submitted to a Coti- 
 vention of delegates chosen in each state, by the people thereof, 
 in conformity to the resolves of the Convention made and pro- 
 vided in that case." 
 
 The report of the draft of the Constitution was accordingly 
 submitted to the several state legislatures, which severally 
 passed acts calling conventions, for the purpose of submitting 
 the draft of the Constitution to the consideration of the people 
 through their delegates chosen for that purpose. These Con- 
 ventions having been called, and the draft of the Constitution 
 having been submitted to them, they severally reported to 
 Congress their ratification of the same as follows : 
 
 THE RATIFICATIONS OF THE TWELVE STATES, 
 
 Reported in the General Convention. 
 DELAWARE.— December 7, 1787. 
 We, the deputies of the people of the Delaware state, in 
 Convention met, having taken in our serious consideration the 
 Federal Constitution proposed and agreed upon by the deputies 
 of the United States in a General Convention held at the city 
 of Philadelphia, on the seventeenth day of Sei^tember, in the 
 year of our Lord one thousand seven hundred and eighty-seven, 
 have appi'oved, assented to, ratified, and confirmed, and by 
 these presents do, in virtue of the power and authority to us 
 given, for and in behalf of ourselves and our constituents, fully, 
 freely, and entirely approve of, assent to, ratify, and confirm the 
 said Constitution. 
 
 Done in Convention, at Dover, this seventh day of December, 
 in the year aforesaid, and in the year of the independence 
 of the United States of America the twelfth. 
 In testimony whereof, we have hereunto subscribed our 
 names. 
 
 Sussex County. Kent County. Newcastle County. 
 
 John Ingraham, Nicholas Ridgely, James Latimer, President, 
 
 John Jones, Richard Smith, James Black, 
 
 WiUiara Moore, George Fruitt, John James, 
 
 William Hall, Richard Bassett, Gunning Bedford, Sen., 
 
 Thomas Laws, James Sykes, Kensey Johns, 
 
 Isaac Cooper, Allen M'Lean, Thomas Watson, 
 Woodman Storkley, Daniel Cummins, Sen., Solomon Maxwell, 
 
 John Laws, Joseph Barker, Nicholas Way, 
 
 Thomas Evans, Edward White, Thomas DufF, 
 
 Israel Holland. George Maalove. Gunning Bedford, Jun. 
 60 
 
78 
 
 APPENDIX. 
 
 . To all to iohom these Presents shall come, Greeting : 
 
 I, Thomas Collins, president of the Delaware state, do hereby 
 certify, that the above instrument of writing is a true copy of 
 the original ratification of the Federal Constitution by the Con- 
 vention of the Delaware state, which origin aL ratification is 
 now in my possession. 
 
 In testimony whereof, I have caused the seal of the Dela- 
 [l. s.] ware state to be hereunto annexed. 
 
 THOMAS COLLINS. 
 
 PENNSYLVANIA.— December 12, 1V87. 
 
 In the Name of the People op Pennsylvania. 
 
 Be it known unto all men, that we, the delegates of the 
 people of the commonwealth of Pennsylvania, in General Con- 
 vention assembled, have assented to and ratified, and by these 
 presents do, in the name and by the authority of the same 
 people, and for ourselves, assent to and ratify the foregoing 
 Constitution for the United States of America. Done in Con- 
 vention at Philadelj)hia, the twelfth day of December, in the 
 year of our Lord one thousand seven hundred and eighty-seven, 
 and of the independence of the United States of America the 
 twelfth. In witness whereof, we have hereunto subscribed our 
 
 names. 
 
 FREDEPJCK A. MUHLENBERG, Fresiclent. 
 
 George Latimer, 
 Benjamin Rash, 
 Hilary Baker, 
 James Wilson, 
 Thomas M'Kean, 
 To. Macpherson, 
 John Himn, 
 G-eorge Gray, 
 Samuel Ashmead, 
 Enoch Edwards, 
 Henry Wynkoop, 
 John Barclay, 
 Thomas Yardley, 
 Abraham Stout, 
 Thomas Bull, 
 
 Anthony Wayne, 
 William Gibbons, 
 Richard Downing, 
 Thomas Cheney, 
 John Hannum, 
 Stephen Chambers, 
 Robert Coleman, 
 Sebastian Graff, 
 John Hiibley, 
 Jasper Yeates, 
 Henry Slagle, 
 Thomas Campbell, 
 Thomas Hartley, 
 David Grier, 
 John Black, 
 
 Benjamin Pedan, 
 John Arndt, 
 Stephen Balliat, 
 Joseph Horsefield, 
 David Dashler, 
 William Wilson, 
 John Boyd, 
 Thomas Scott, 
 John Nevill, 
 John Alison, 
 Jonathan Roberts, 
 John Richards, 
 James Morris, 
 Timothy Pickering, 
 Benjamin Elliott, 
 
 Attest : 
 
 James Casipbell, Secretary. 
 
 NEW JERSEY.— December 18, 1787. 
 In Convention op the State op New Jersey. 
 Whereas a Convention of Delegates from the following 
 states, viz., — New Hampshire, Massachusetts, Connecticut, New 
 
APPENDIX. 79 
 
 York, New Jersey, Pennsylvania, Delaware, Maryland, Vir- 
 ginia, North Carolina, South Carolina, and Georgia, — met at 
 Philadelphia, for the purpose of deliberating, on, and forming, 
 a Constitution for the United States of America, — ifinished their 
 session on the 17th day of September last, and reported to 
 Congress the form which they had agreed upon, in the words 
 following viz. : [See the Constitution.'] 
 
 And whereas Congress, on the 28th day of September last, 
 unanimously did resolve, " That the said report, with the reso- 
 lutions and letter accompanying the same, be transmitted to 
 the several legislatures, in order to be submitted to a convention 
 of delegates, chosen in each state by the people thereof, in con- 
 formity to the resolves of the Convention made and provided 
 in that case ;" 
 
 And whereas the legislature of this state did, on the 29th day 
 of October last, resolve in the words following, viz., " Resolved^ 
 unanimously, That it be recommended to such of the inhabit- 
 ants of this state as are entitled to vote for representatives in 
 General Assembly, to meet in their respective counties on the 
 foui'th Tuesday in November next, at the several places fixed 
 by law for holding the annual elections, to choose three suitable 
 persons to serve as delegates from each county in a state Con- 
 vention, for the purposes hereinbefore mentioned, and that the 
 same be conducted agreeably to the mode, and conformably 
 with the rules and regulations, prescribed for conducting such 
 elections ; 
 
 " Resolved, unanimously, That the persons so elected to serve 
 in state Convention, do assemble and meet together on the 
 second Tuesday in December next, at Trenton, in the county 
 of Hunterdon, then and there to take into consideration the 
 aforesaid Constitution and if approved of by them, finally to 
 ratify the same, in behalf and on the part of this state, and 
 make report thereof to the United States in Congress assembled, 
 in conformity with the resolutions thereto annexed. 
 
 ^^ Resolved, That the sherifis of the respective counties of this 
 state shall be, and they are hereby, required to give as timely 
 notice as may be, by advertisements, to the people of their 
 counties, of the time place, and purpose of holding elections, as 
 aforesaid." 
 
 And whereas the legislature of this state did also, on the 1st 
 day of November last, make and pass the following act, viz., 
 
80 APPENDIX. . 
 
 " An Act to authorize the people of this state to meet in con- 
 vention, deliberate upon, agree to, and ratify, the Constitution 
 of the United States proposed by the late General Convention, 
 — Be it enacted by the Council and General Assembly of this 
 state, and it is hereby enacted by the authority of the same, 
 that it shall and may be lawful for the people thereof, by their 
 delegates, to meet in Convention to deliberate upon, and, if 
 approved of by them, to ratify, the Constitution for the United 
 States proposed by the General Convention held at Philadelphia, 
 and every act, matter, and clause, therein contained, conform- 
 edly to the resolutions of the legislature passed the 29th day 
 of Octobei-, 1Y87, — any law, usage, or custom, to the contrary 
 in any wise notwithstanding ;" 
 
 Now be it known, that we, the delegates of the state of New 
 Jersey, chosen by the people thereof, for the purpose aforesaid, 
 having maturely deliberated on and considered the aforesaid 
 proposed constitution, do hereby, for and on behalf of the people 
 of the said state of New Jersey^ agree to, ratify, and confirm, the 
 same and every part thereof. 
 
 Done in Convention, by the unanimous consent of the mem- 
 bers present, this 18th day of December, in the year of our 
 Lord 1787, and of the independence of the United States of 
 America the twelfth. 
 In witness whereof, we have hereunto subscribed our names. 
 JOHN STEVENS, President, 
 and Delegate from the county of Hunterdon. 
 County of Cape County of 
 
 May, Jesse Hand, Middlesex. . .John ISTeilson, 
 
 Jeremiah Eldridge, John Beatty, 
 
 Matthew Willdin. Benjamin Manning. 
 
 Hunterdon, . . .David Breai'ly, J/on??io?i</i,..Elisha Lawrence, 
 
 Joshua Corshon. Samuel Breese, 
 
 Morris, William Windes, William Crawford. 
 
 William Woodhull, Somerset, . . . John AVitherspoon, 
 
 John Jacob Faesch. Jacob R. Hardenberg, 
 
 Cv-Triberland, . .DoMidi Potter, Frederick Frelinghuysen. 
 
 Jonathan Bowen, Burlington,.. Thomas Reynolds, 
 
 Eli Elmer. Geo. Anderson, 
 
 Sussex, Robert Ogden, Joshua^ M. Wallace. 
 
 Thomas Anderson, Gloucester, .Richard Howell, 
 
 Robert Hoops. Andrew Hunter, 
 
 Bergen, John Fell, Benjamin Whitall. 
 
 Peter Zobriskie, Salem, Whitten Cripps, 
 
 Cornelius Hennion. Edmund Wetherby. 
 
 Essex, John Chetwood, 
 
 Samuel Hay, Attest : 
 
 David Crane. Samuel W. Stockton, ySecretery, 
 
APPENDIX. 81 
 
 STATE OF GEORGIA— January 2, 1Y88. 
 In Convention, Wednesday, January 2, 1788. 
 
 To all to whom these presents shall come, Greeting : 
 
 Whereas the foi-m of a Constitution for the government of 
 the United States of America, was, on the 17th day of Septem- 
 ber, 1787, agreed upon and reported to Congress by the deputies 
 of the said United States convened in Philadelphia, which said 
 Constitution is written in the words following, to wit : 
 
 And whereas the United States in Congress assembled did, 
 on the 28th day of September, 1787, resolve, unanimously, 
 " That the said report, with the resolution and letter accom- 
 panying the same, be transmitted to the several legislatures, in 
 order to be submitted to a convention of delegates chosen in 
 each State by the people thereof, in conformity to the resolves 
 of the Convention made and provided in that case." 
 
 And whereas the legislature of the State of Georgia did, on 
 the 26th day of October, 1787, in pursuance of the above recited 
 resolution of Congress, resolve, That a convention be elected on 
 the day of the next general election, and in the same manner 
 that representatives are elected ; and that the said Convention 
 consist of not more than three members from each county ; and 
 that the said Convention should meet at Augusta, on the 4th 
 Tuesday in December then next, and, as soon thereafter as con- 
 venient, proceed to consider the said report and resolutions, 
 and to adopt or reject any part or the Avhole thereof. 
 
 Now know ye, that we, the delegates of the people of the 
 State of George, in convention met, pursuant to the resolutions 
 of the legislature aforesaid, having taken into our serious con- 
 sideration the said Constitution, have assented to, ratified, and 
 adopted, and by these presents do, in virtue of the powers and 
 authority to us given by the j^eople of the said State for that pur- 
 pose, for and in behalf of ourselves and our constituents, fully 
 and entirely assent to, ratify, and adopt, the said Constitution. 
 
 Done in Convention, at Augusta, in the said State, on the 2d 
 day of January, in the year of our Lord 1788, and of the 
 independence of the United States the 12th. 
 
 In witness whereof, we have hereunto subscribed our names. 
 
 JOHN WERE AT, President, 
 and delegate for the county of JRichmond. 
 
82 
 
 APPENDIX. 
 
 
 County of 
 
 
 County of 
 
 
 Chatham y. . , 
 
 . . . W. Stepbens, 
 
 Glynn, 
 
 . . George Handley, 
 
 
 Joseph Habersham. 
 
 
 Christopher Hillary, 
 
 Effingham, . . 
 
 . . . Jenhirri Davis, 
 
 
 J. Milton. 
 
 
 N. Brownson. 
 
 Camden, ..... 
 
 , . . Henry Osborn, 
 
 Burke, 
 
 ...Edward Telfair, 
 
 
 James Seagrove, 
 
 
 H. Todd. 
 
 
 Jacob Weed. 
 
 Richmond, . . , 
 
 , . . William Few, 
 
 Washington, . 
 
 ...Jared Irwin, 
 
 
 James M'Niel. 
 
 
 John Rutherford. 
 
 Wilkes, 
 
 . . . G-eo. Matthews, 
 Flor. Sullivan, 
 
 Greene, 
 
 . . .Robert Christmas, 
 
 ? ■ • • • 
 
 
 Thomas Daniel, 
 
 
 John King. 
 
 
 R. Middleton. 
 
 Liberty, 
 
 . . . James Powell,. 
 John Elliot, 
 James Maxwell. 
 
 
 
 CONNECTICUT. — January 9, 1788. 
 In the Name of the People of the State op Connecticut. 
 We, the delegates of the people of said state, in general Con- 
 vention assembled, pursuant to an act of the legislature in Octo- 
 ber last, have assented to, and ratified, and by these presents do 
 assent to, on the iVth day of September, A. D. 1787, for the 
 United States, of America. 
 
 Done in Convention, this 9th day of January, A. D. 1788. 
 In witness whereof, we have hereunto set our hands. 
 
 MATTHEW GRISWOLD, President. 
 
 Jeremiah Wadsworth, 
 Jesse Root, 
 Isaac Lee, 
 Selah Hart, 
 Zebulon Peck, Jun., 
 Elisha Pitkin, 
 Erastur Wolcott, 
 John Watson, 
 John Treadwell, 
 William Judd, 
 Nathaniel Minor, 
 Jonathan Sturges, 
 Thaddeus Burr, 
 Elisha Whittlesey, 
 Joseph Moss White, 
 Amos Mead, 
 Amasa Learned, 
 Samuel Huntington, 
 Jedediah Huntington, 
 Isaac Huntington, 
 Robert Robbins, 
 Daniel Foot, 
 Eli Hyde, 
 
 Joseph Woodbridge, 
 Stephen Billings, 
 Andrew Lee, 
 
 Jabez Fitch, 
 ISTehemiah Beardsley, 
 James Potter, 
 John Chandler, 
 Isaac Burnham, 
 John Wilder, 
 Mark Prindle, 
 Jedediah Hubbel, 
 Aaron Austin, 
 Samuel Canfield, 
 Daniel Everitt, 
 Hezekiah Fitch, 
 Joshua Porter, 
 Benjamin Hinma, 
 Joseph Mosely, 
 Wait Goodrich, 
 Simeon Smith, 
 Hendrick Dow, 
 Seth Paine, 
 Asa Witter, 
 Moses Cleveland, 
 Samson Howe, 
 William Danielson, 
 William Williams, 
 James Bradford, 
 Joshua Dunlap, 
 
 John Curtiss, 
 Asa Barnes, 
 Stephen Mix Mitchell, 
 John Chester, 
 Oliver Ellsworth, 
 Roger Newbury, 
 Roger Sherman, 
 Pierpont Edwards, 
 Samuel Beach, 
 Daniel Holbrook, 
 John Holbrook, 
 Gideon Buckingham, 
 Lewis Mallet, Jun. 
 Joseph Hopkins, 
 John Welton, 
 Richard Law, 
 Robert M'Cune, 
 Daniel Sherman, 
 Samuel Orton, 
 Asher Miller, 
 Samuel H. Parsons, 
 Ebenezer White, 
 Hezekiah Goodrich, 
 Dyer Throop, 
 Jabez Chapman, 
 Cornelius Higgins, 
 
APPENDIX. 
 
 83 
 
 William Noyes, 
 Joshua Raymond, Jan., 
 Jeremiah Halsey, 
 Wheeler Colt, 
 Charles Phelps, 
 John Beach, 
 Hezekiah Rogers, 
 Lemuel Sanford, 
 William Heron, 
 Philip Burr Bradley, 
 Nathan Dauchy, 
 James Davenport, 
 John Davenport, Jun., 
 Wm. Samuel Johnson, 
 Elisha Mills, 
 Eliphalet Dyer, 
 Jedediah Elderkin, 
 
 State of Connecticut, ss. 
 
 Hartford, January Ninth^ Anno Domini 1788. 
 The foregoing ratification was agreed to, and signed as above, 
 by one hundred and twenty-eight, and dissented to by forty 
 delegates in convention, which is a majority of eighty-eight. 
 
 Certified by MATTHEW GRISWOLD, President. 
 Teste. Jedediah Strong, Secretary. 
 
 Daniel Learned, 
 
 Moses Campbell, 
 Benjamin Dow, 
 Oliver Woloott, 
 Jedediah Strong, 
 Moses Hawley, 
 Charles Burrell, 
 Nathan Hale, 
 Daniel Miles, 
 Asaph Hall, 
 Epaphras Sheldon, 
 Eleazer Curtiss, 
 John Whittlesey, 
 Dan. Math. Brinsmade, 
 Thomas Fenn, 
 David Smith, 
 
 Hezekiah Brainard, 
 Theophilus Morgan, 
 Hezekiah Lane, 
 William Hart, 
 Samuel Shipman, 
 Jeremiah West, 
 Samuel Chapman, 
 Ichabod Warner, 
 Samuel Carver, 
 Jeremiah Ripley, 
 Ephraim Root, 
 John Phelps, 
 Isaac Foot, 
 Abijah Sessions, 
 Caleb Holt, 
 Seth Crocker. 
 
 COMMONWEALTPI OF MASSACHUSETTS. 
 
 February 17, 1788. 
 The Convention having impartially discussed, and fully con- 
 sidered, the Constitution for the United States of America, 
 reported to Congress by the Convention of Delegates from the 
 United States of America, and submitted to us by a resolution 
 of the General Court of the said Commonwealth, passed the 25th 
 day of October last past, — and acknowledging, with grateful 
 hearts, the goodness of the Supreme Ruler of the universe in 
 affording the people of the United States, in the course of His 
 providence, an opportunity, deliberately and peaceably, without 
 fraud or surprise, of entering into an explicit and solemn com- 
 pact with each other, by assenting to and ratifying a new Con- 
 stitution, in order to form a more perfect union, establish justice, 
 insure domestic tranquillity, provide for the common defense, 
 promote the general welfare, and secure the blessings of liberty 
 to themselves and their posterity — do, in the name and in 
 behalf of the people of the commonwealth of Massachusetts, 
 assent to and ratify the said Constitution for the United States of 
 America. 
 
84 APPENDIX. 
 
 And as it is the opinion of this Convention, that certain amend- 
 ments and alterations in the said Constitution would remove the 
 fears, and quiet the ajDprehensions, of many of the good people 
 of this commonwealth, and more effectually guard against an 
 undue administration of the federal government, the Conven- 
 tion do therefore recommend that the follcAving alterations and 
 provisions be introduced into the said Constitution : 
 
 I. That it be explicitly declared that all powers not expressly 
 delegated by the aforesaid Constitution are reserved to the sev- 
 eral states, to be by them exercised. 
 
 II. That there shall be one representative to every thirty 
 thousand persons, according to the census mentioned in the Con- 
 stitution, until the whole number of the representatives amounts 
 to two hundred. 
 
 III. That Congress do not exercise the powers vested in 
 them by the 4th section of the 1st article, but in cases where a 
 state shall neglect or refuse to make the regulations therein 
 mentioned, or shall make regulations subversive of the rights of 
 the people to a free and equal representation in Congress, agree- 
 ably to the Constitution. 
 
 IV. That Congress do not lay direct taxes but when the 
 moneys arising from the impost and excise are insufficient for 
 the public exigencies, nor then until Congress shall have first 
 made a requisition upon the states to assess, levy, and pay, their 
 respective proportions of such requisition, agreeably to the cen- 
 sus fixed in the said Constitution, in such way and manner as 
 the legislatures of the states shall think best ; and in such case 
 if any state shall neglect or refuse to pay its proportion, pursu- 
 ant to such requisition, then Congress may assess and levy such 
 state's proportion together with interest thereon at the rate of 
 six per cent per annum, from the time of payment prescribed in 
 such requisition. 
 
 V. That Congress erect no company of merchants with exclu- 
 sive advantages of commerce. 
 
 VI. That no person shall be tried for any crime by which he 
 may incur an infamous punishment, or loss of life, until he be 
 first indicted by a grand jury, except in such cases as may arise 
 in the government and regulation of the land and naval forces. 
 
 VII. The Supi-eme Judicial Federal Court shall have no juris- 
 diction of causes between citizens of different States, unless the 
 matter in dispute, whether it concerns the realty or personalty, 
 
APPENDIX. 85 
 
 be of the value of three thousand dollars at the least ; nor shall 
 the federal judicial powers extend to any actions between 
 citizens of different States, where the matter in dispute, whether 
 it concerns the realty or personalty, is not of the value of fifteen 
 hundred dollars at least. 
 
 VIII. In civil actions between citizens of different States, 
 every issue of fact, arising in actions of common law, shall be 
 tried by a jury, if the parties, or either of them, request it. 
 
 IX. Congress shall at no time consent that any person, hold- 
 ing an office of trust or profit under the United States, shall 
 accept of a title of nobility, or any other title or office, from any 
 king, prince, or foreign state. 
 
 And the convention do, in the name and in behalf of the 
 people of this commonwealth, enjoin it upon their representa- 
 tives in Congress, at all times, until the alterations and provi- 
 sions aforesaid have been considered, agreeably to the 5th 
 article of the said Constitution, to exert all their influence, and 
 use all reasonable and legal methods, to obtain a ratification of 
 the said alterations and provisions, in such manner as is pro- 
 vided in the said article. 
 
 And that the United States in Congress assembled may have 
 due notice of the assent and ratification of the said Constitu- 
 tion by this Convention, it is Resolved, That the assent and 
 ratification aforesaid be engrossed on parchment, together with 
 the recommendation and injunction aforesaid, and with this 
 resolution ; and that his excellency, John Hancock, Esq., presi- 
 dent, and the Hon. William Cush'ing, Esq., vice-president of 
 this Convention, transmit the same, countersigned by the secre- 
 tary of the Convention, under their hands and seals, to the 
 United States in Congress assembled. 
 
 JOHN" HANCOCK, President. 
 WILLIAM CUSHING, Vice-President. 
 
 George Richards Minot, Secretary. 
 
 Pursuant to the resolution aforesaid, we, the president and 
 vice-president above named, do hereby transmit to the United 
 States in Congress assembled the same resolution, with the 
 above assent and ratification of the Constitution aforesaid, for 
 the United States, and the recommendation and injunction 
 above specified. 
 
 In witness whereof, we have hereunto set our hands and seals, 
 
 at Boston, in the commonwealth aforesaid, this 7th day of 
 61 
 
86 
 
 APPENDIX. 
 
 February, Anno Domini 1788, and in the twelftli year of 
 the independence of the United States of America. 
 
 JOHN" HANCOCK, President. [l. s.] 
 
 "WM. GUSHING, Vice-President, [l. s.] 
 
 MARYLAND.— Apkil 28,* 1788. 
 
 In Convkntion of the Delegates op the People of the 
 State of Maetland, April 28, 1788. 
 
 . "We, the delegates of the people of the State of Maryland, 
 having fully considered the Constitution of the United States 
 of America, reported to Congress by the Convention of deputies 
 from the United States of America, held in Philadelphia, on the 
 l7th day of September, in the year 1787, of which the annexed 
 is a copy, and submitted to us by a resolution of the General 
 Assembly of Maryland, in November session, 1787, do, for our- 
 selves, and in the name and on the behalf of the people of this 
 State, assent to and ratify the said Constitution. 
 
 In witness whereof, we have hereunto subscribed our names. 
 
 GEO. PLATER, President. 
 
 Eichard Barnes, 
 Charles Chilton, 
 N. Lewis Sewall, 
 William Til.o-hman, 
 Donalson Yeates, 
 Isaac Perkins, 
 John Gale, 
 N. Hammond, 
 Daniel Sullivan, 
 James Shaw, 
 Jos. Gilpin, 
 H. HoUingsworth, 
 John Done, 
 Thomas Johnson, 
 Thomas S. Lee, 
 Peter Chaille, 
 James Martin, 
 William Morris, 
 J. Richardson, 
 William Richardson, 
 Matt. Driver, 
 
 Attest. — Wm. Harwood, Clerh. 
 
 Richard Potts, 
 Abraham Few, 
 William Paca, 
 William Granger, 
 Joseph Wilkinson, 
 Charles Graham, 
 John Cheslea, Jan., 
 W. Smith, 
 G. R. Brown, 
 J. Parnham, 
 Zeph. Turner, 
 Michael Jenifer Stone, 
 R. Goldsborongh, Jun., 
 Edward Lloyd, 
 John Stevens, 
 Peter Edmonson, 
 James M' Henry, 
 John Coulter, 
 Thomas Spriirg, 
 John Stull, 
 Moses Rawlings, 
 
 George Gale, 
 Henry Waggamau, 
 John Stewart, 
 James Gordon Heron, 
 Samuel Evans, 
 Fielder Bowie, 
 Osb. Sprigg, 
 Benjamin Hall, 
 George Digges, 
 Nicholas Carrole, 
 A. C. Hanson, 
 James Tilghman, 
 John Seney, 
 James HoUyday, 
 William Hemsley, 
 Henry Shryock, 
 Thomas Cramphin, 
 Ricliard Thomas, 
 William Deakins, Jun., 
 Benj. Edwards. 
 
 STATE OF SOUTH CAROLINA.— May 23, 1788. 
 
 In Convention of the people of the State of South Carolina, 
 by their representatives held in the city of Charleston, on Mon- 
 day the 12th day of May, and continued by divers adjournments 
 to Friday, the 23d day of May, Anno Domini 1788, and in the 
 12th yeai* of the independence of the United States of America. 
 
APPENDIX. 87 
 
 The Convention, having maturely considered the Constitu- 
 tion, or form of government, reported to Congress by the Con- 
 vention of Delegates from the United States of America, and 
 submitted to them by a resolution of the legislature of this 
 State, passed the 17th and 18th days of February last, in order 
 to form a more perfect union, establish justice, insure domestic 
 tranquillity, provide for the common defense, promote the gen- 
 eral welfare, and secure the blessings of liberty to the people 
 of the said United States, and their posterity, — Do, in the 
 name and behalf of the people of this State, hereby assent 
 to and ratify the said Constitution. 
 
 Done in Convention, the 23d day of May, in the year of 
 our Lord 1788, and of the independence of the United States 
 of America the twelfth. 
 
 THOMAS PINCKNEY, President, [l. s.] 
 Attest. John Sandford Dakt, Secretary, [l. s.] 
 
 And whereas it is essential to the preservation of the rights 
 reserved to the sevei'al States, and the freedom of the people, 
 under the operations of a general government, that the right of 
 prescribing the manner, time, and places, of holding the elec- 
 tions to the federal legislature, should be forever inseparably 
 annexed to the sovereignty of the several States, — This Conven- 
 tion doth declare, that the same ought to remain, to all poster- 
 ity, a perpetual and fundamental right in the local, exclusive of 
 the interference of the general government, except in cases 
 where the legislatures of the States shall refuse or neglect to 
 perform and fulfill the same, according to the tenor of the said 
 Constitution. 
 
 This Convention doth also declare, that no section or j)ara- 
 graph of the said Constitution warrants a construction that the 
 States do not attain every power not expressly relinquished by 
 them, and vested in the general government of tlie Union. 
 
 Hesolved, That the general govei-nment of the United States 
 ought never to impose dii'ect taxes, but where the moneys 
 arising from the duties, imports, and excises, are insufficient 
 for the public exigencies, nor then until Congress shall have 
 made a requisition upon the States to assess, levy, and pay, their 
 respective proportions of such requisitions ; and in case any 
 State shall neglect or refuse to pay its proportion, pursuant to 
 such requisition, then Congress may assess and levy such state's 
 proportion, together with interest theroon, at the rate of six 
 
88 APPENDIX. 
 
 per centum per annum from the time of payment prescrilbed 
 by such requisition. 
 
 Mesolved, That the third section of the sixth article ought to 
 be amended, by inserting the word " other" between the words 
 " no" and " religious." 
 
 JResolvedy That it be a standing instruction to all such dele- 
 gates as may hereafter be elected to represent this State in the 
 general government, to exert their utmost abilities and influ- 
 ence to effect an alteration of the Constitution, conformably to 
 the aforegoing resolutions. 
 
 Done in Convention, the 23d day of May in the year of our 
 Lord 1V88, and of the independence of the United States 
 of America the twelfth. 
 
 THOMAS PINCKNEY, President, [l. s.] 
 Attest. John. Sandford Dart, Secretary, [l. s.] 
 
 STATE OF NEW HAMPSHIRE.— June 21, 1788. 
 In Convention of the Delegates op the People of the 
 State of New Hampshire, June the 21st 1788. 
 The Convention having impartially discussed and fully con- 
 sidered the Constitution for the United States of America, 
 reported to Congress by the Convention or Delegates from the 
 United States of America, and submitted to us by a resolution 
 of the General Court of said State, passed the 14th day of 
 December last past, and acknowledging with grateful hearts 
 the goodness of the Supreme Ruler of the universe in afford- 
 ing the peoj)le of the United States, in the course of His provi- 
 dence, an opportunity, deliberately and peaceably, without 
 fraud or surpi-ise, of entering into an explicit and solemn com- 
 pact with each other, by assenting to and ratifying a new Con- 
 stitution, in order to form a more perfect Union, establish jus- 
 tice, insure domestic tranquillity, provide for the common defense, 
 promote the general welfare, and secure the blessings of liberty 
 to themselves and their posterity, — Do, in the name and behalf 
 of the people of the State of New Hampshire, assent to and ratify 
 the said Constitution for the United States of America. And as 
 it is the opinion of this Convention, that certain amendments and 
 alterations in the said Constitution would remove the fears 
 and quiet the apprehensions of many of the good people of this 
 State, and more effectually guard against an undue administra- 
 ton of the federal government, — The Convention do therefore , 
 
APPENDIX. 89 
 
 recommend that the following alterations and provisions be 
 introduced into the said Constitution : 
 
 I. That it be explicitly declared that all powers not expressly 
 and particularly delegated by the aforesaid Constitution are 
 reserved to the several states, to be by them exercised. 
 
 II. That tliere shall be one representative to every thirty 
 thousand persons, accoi'ding to the census mentioned in the 
 Constitution, until the whole number of representatives amount 
 to two hundred. 
 
 III. That Congress do not exercise the powers vested in them 
 by the fourth section of the first article but in cases when a 
 State shall neglect or refuse to make the regulations therein 
 mentioned, or shall make regulations subversive of the rights 
 of the people to a free and equal representation in Congress ; 
 nor shall Congress in any case make regulations contrary to 
 a free and equal representation. 
 
 IV. That Congress do not. lay direct tax.es but when the 
 moneys arising from impost, excise, and their other resources, are 
 insufficient for the public exigencies, nor then, until Congress 
 shall have first made a requisition upon the States to assess, 
 levy, and pay, their respective proportions of such requisition, 
 agreeably to the census fixed in the said Constitution, in such 
 way and manner as the legislature of the State shall think 
 best ; and in such case, if any State shall neglect, then Congress 
 may assess and levy such State's proportion, together with the 
 interest thereon, at the rate of six per cent per annum, from 
 the time of payment prescribed in such requisition. 
 
 V. That Congress shall erect no company of merchants with 
 exclusive advantages of commerce. 
 
 VI. That no person shall be tried for any crime by which he 
 may incur an infamous punishment, or loss of life, until he first 
 be indicted by a grand jury, except in such cases as may arise 
 in the government and regulation of the land and naval forces. 
 
 VII. All common law cases between citizens of different 
 States shall be commenced in the common law courts of the 
 respective States : and no appeal shall be allowed to the federal 
 court, in such cases, unless the sum or value of the thing in 
 controversy amount to three thousand dollars. 
 
 VIII. In civil actions between citizens of different States, 
 every issue of fact, arising in actions at common law, shall 
 be tried by jury, if the parties, or either of them, request it. 
 
90 APPENDIX. 
 
 IX. Congress shall at no time consent that any pei'son hold- 
 ing an office of trust oi* profit under the United States, shall 
 accept any title of nobility, or any other title or office, from any 
 king, prince or foreign state, 
 
 X. That no standing army shall be kept up in time of peace, 
 unless with tlie consent of three-fourths of the members of each 
 branch of Congress ; nor shall soldiers, in time of peace, be 
 quartered upon private houses, without the consent of the 
 owners. 
 
 XL Congress shall make no laws touching religion, or to 
 infringe the rights of conscience. 
 
 XII. Congress shall never disarm any citizen, unless such as 
 are or have been in actual rebellion. 
 
 And the Convention do, in the name and in behalf of the peo- 
 ple of this State, enjoin it upon their representatives in Congress, 
 at all times until the alterations and provisions aforesaid have 
 been considered agreeably to the fifth article of the said Con- 
 stitution, to exert all their influence, and use all reasonable 
 and legal methods, to obtain a ratification of the said altera- 
 tions and provisions, in such manner as is provided in the 
 article. 
 
 And that the United States in Congress assembled may have 
 due notice of the assent and ratification of the said Constitution 
 by this Convention, it is Hesolved, That the assent and ratifica- 
 tion aforesaid be engrossed on parchment, together Avith the 
 recommendation and injunction aforesaid, and with this reso- 
 lution ; and that John Sullivan, Esq., president of the Conven- 
 tion, and John Langdon, Esq., president of the State, transmit 
 the same, countersigned by the secretary of Convention, 
 and the secretary of State, under their hands and seals, to the 
 United States in Congress assembled. 
 
 JOHN SULLIVAN, Fres. of the Conv. [l. s.] 
 JOHN LANGDON, Pres. of the State, [l. s.] 
 
 "R ri i J'^HX Calf, Secretary of Convention. 
 y 01 e . I Joseph Pearson, Secretary of State. 
 
 VIRGINIA.— to wit.— JuxE 26, 1788. 
 
 "We, the delegates of the people of Virginia, duly elected in 
 pursuance of a recommendation from the General Assembly, 
 and now met in Convention, having fully and freely investigated 
 and discussed the proceedings of the Federal Convention, and 
 
APPENDIX. 91 
 
 being prepared as well as the most mature deliberation hath 
 enabled us, to decide thereon, — Do, in the name and in behalf 
 of the people of Virginia, declare and make known, that the 
 l^owers granted under the Constitution, being derived from the 
 people of the United States, may be resumed by them, when- 
 soever the same shall be perverted to their injury or oppres- 
 sion, and that every power not granted thereby remains with 
 them, and at their will ; that, therefore, no right, of any 
 denomination, can be canceled, abridged, restrained, or mod- 
 ified, by the Congress, by the Senate or House of Representa- 
 tives, acting in any capacity, by the President, or any depart- 
 ment or officer of the United States, except in those instances 
 in which power is given by the Constitution for those purposes ; 
 and that, among other essential rights, the liberty of conscience, 
 and of the press, cannot be canceled, abridged, restrained, or 
 modified, by any authority of the United States. With these 
 impressions, with a solemn appeal to the Searcher of all hearts 
 for the purity of our intentions, and under the conviction that 
 whatsoever imperfections may exist in the Constitution ought 
 rather to be examined in the mode prescribed therein, than to 
 bring the Union into danger by a delay with a hope of obtain- 
 ing amendments previous to the ratifications, — We, the said 
 delegates, in the name and in behalf of the people of Virginia, 
 do, by these presents, assent to and ratify the Constitution 
 recommended, on the 17th day of September, 1787, by the 
 Federal Convention, for the government of the United States, 
 hereby announcing to all those whom it may concern, that the 
 said Constitution is binding upon the said people, according to 
 an authentic copy hereto annexed, in the words following. 
 [See Constitution.] 
 
 Done in Convention, this 26th day of June, 1788. 
 
 By order of the Convention. 
 
 EDM. PEK^DLETON, President, [l. s.] 
 
 [See Debates in Convention, where the Declaration or 
 Sill of Rights, and Amendments, are printed at large.] 
 
 United States In Congress Assembled. 
 
 Wednesday, Jidy 2, 1788. 
 The State of New Hampshire having ratified this Constitu- 
 tion, transmitted to them by the act of the 28th of Se2)tember 
 last, and transmitted to Congress their ratification, and the 
 
92 APPENDIX. 
 
 same being read, the president reminded Congress that this 
 was the ninth ratification transmitted and laid before them ; 
 whereupon, — 
 
 On motion of Mr. Clarke, seconded by Mr. Edwards, — 
 Ordered, That the ratifications of the Constitution of the 
 United States, transmitted to Congress, be referred to a com- 
 mittee to examine the same and report an act to Congress for 
 putting the said constitution into operation, in pursuance of the 
 resolutions of the late Federal Convention. 
 
 On the question to agree to this order, the yeas and nays 
 being required by Mr. Yates : 
 
 JVew; Hampshire, Mr. Gilman, Ay. \ . 
 
 Mr. Wigate, Ay. f ^^• 
 
 Massachusetts, Mr. Dane, Ay. ) . 
 
 Mr. Otis, Ay.l^y- 
 
 Rhode Island, Mr. Arnold, ) Fxrn«Pd 
 
 Mr. Hazard, ^ J^xcusea. 
 
 Connecticut, Mr. Huntington, . . .Ay. \ . 
 
 Mr. Edwards, . .Ay. \ ^' 
 
 New Yorh, Mr. L'Hommedieu, .Ay.) -p.- ■■, ■, 
 
 Mr. Yates, No. \ ^*^*«^'^- 
 
 New Jersey Mr. Clarke, Ay. ) 
 
 Mr. Elmer, Ay. [■ Ay. 
 
 Mr. Dayton, Ay. ) 
 
 Pennsylvania, Mr. Bingham, Ay. ( , 
 
 Mr. Read, Ay. i ^^Z- 
 
 Maryland, Mr. Con tee, Ay. 
 
 Virginia Mr. Griffin, Ay. ) 
 
 ■ Mr. Carrington,. . . .Ay. > Ay. 
 
 Mr. Brown, Ay. ) 
 
 South Carolina, Mr. Huger, Ay. ^ 
 
 Mr. Parker, Ay. > Ay. 
 
 Mr. Tucker, Ay. ) 
 
 Georgia, Mr. Few, -^V- I a„ 
 
 Mr. Baldwin ^2/. i ^' 
 
 So it passed in the affirmative. 
 
 STATE OF NEW YORK.— July 26, 1V88. 
 
 We, the delegates of the people of the state of New York, 
 duly elected and met in Convention, having maturely considered 
 the Constitution for the United States of America, agreed to 
 on the lYth day of September, in the year IVSV, by the Conven- 
 tion then assembled at Philadelphia, in the commonwealth of 
 Pennsylvania (a copy whereof precedes these presents), and 
 having also seriously and deliberately considered the present 
 situation of the United States, — Do declare and make known, — 
 
 That all power is originally vested in, and consequently 
 
APPENDIX. 93 
 
 derived from, the people, and that government is instituted by 
 them for their common interest, protection, and security. 
 
 That the enjoyment of life, liberty, and the pursuit of happi- 
 ness, are essential rights, which every government ought to 
 respect and preserve. 
 
 That the powers of government may be reassumed by the 
 people whensoever it shall become necessary to their happiness ; 
 that every power, jurisdiction, and right, ■sVhich is not by the 
 said Constitution clearly delegated to the Congress of the 
 United States, or the departments of the government thereof, 
 remains to the people of the several states, or to their respective 
 state governments, to whom they may have granted the same ; 
 and that those clauses in the said Constitution, which declare 
 that Congress shall not have or exercise certain powers, do not 
 imply that Congress is entitled to any powers not given by the 
 said Constitution ; but such clauses are to be construed either 
 as exceptions to certain specified powers, or as inserted merely 
 for greater caution. 
 
 That the people have an equal, natural, and unalienable right 
 freely and peaceably to exercise their religion, according to the 
 dictates of conscience ; and that no religious sect or society 
 ought to be favored or established by law in preference to 
 others. 
 
 That the people have a right to keep and bear arms ; that a 
 well-regulated militia, including the body of the people capable 
 of hearing arms, is the proper, natural, and safe defense of a 
 free state. 
 
 That the militia should not be subject to martial law, except 
 in time of war, rebellion, or insurrection. 
 
 That standing armies, in time of peace, are dangerous to 
 liberty, and ought not to be kept up, except in cases of neces- 
 sity ; and that at all times the military should be under strict 
 subordination to the civil power. 
 
 That, in time of peace, no soldier ought to be quartered in 
 any house without the consent of the owner, and in time of 
 war only by the civil magistrate, in such manner as the laws 
 may direct. 
 
 That no person ought to be taken, imprisoned, or disseized of 
 his freehold, or be exiled, or deprived of his privileges, fran- 
 cliises, life, liberty, or property, but by due process of law. 
 
 That no person ought to be put twice in jeopai'dy of life or 
 62 
 
94 APPENDIX. 
 
 limb, for one and the same offense ; nor, tmless in case of 
 impeachment, be punished more than once for the same offense. 
 
 That every person restrained of his liberty is entitled to an 
 inquiry into the lawfulness of such restraint, and to a removal 
 thereof if unlawful ; and that such inquiry or removal ought not 
 to be denied or delayed, except when, on account of public 
 danger, the Congress shall suspend the privilege of the writ of 
 habeas corpus. 
 
 That excessive bail ought not to be required, nor excessive 
 fines imposed, nor cruel or unusual punishments inflicted. 
 
 That (except in the government of the land and naval forces, 
 and of the militia when in actual service, and in cases of 
 impeachment) a presentment or indictment by a grand jury 
 ought to be observed as a necessary preliminary to the trial of 
 all crimes cognizable by the judiciary of the United States ; 
 and such trial should be speedy, public, and by an impartial 
 jury of the county where the crime was committed ; and that 
 no person can be found guilty without the unanimous consent 
 of such jury. But in cases of crimes not committed within 
 any county of any of the United States, and in cases of crimes 
 committed within any county in which a general insurrection 
 may prevail, or which may be in the possession of a foreign 
 enemy, the inquiry and trial may be in such county as the 
 Congress shall by law direct ; which county, in the two cases 
 last mentioned, should be as near as conveniently may be to that 
 county in which the ci'ime may have been committed ; — and 
 that, in all criminal prosecutions, the accused ought to be 
 informed of the cause and nature of his accusation, to be con- 
 fronted with his accusers and the witnesses against him, to have 
 the means of producing his witnesses, and the assistance of 
 counsel for his defense ; and should not be compelled to give 
 evidence against himself. 
 
 That the trial by jury, in the extent that it obtains by the 
 common law of England, is one of the greatest securities to the 
 rights of a free people, and ought to remain inviolate. 
 
 That every freeman has a right to be secure from all imrea- 
 sonable searches and seizures of his person, his papers, or his 
 property ; and therefore, that all warrants to search suspected 
 places, or seize any freeman, his papers, or property, without 
 information, upon oath or affirmation, of sufficient cause, ai'e 
 grievous and oppressive ; and that all general warrants (or such 
 
APPENDIX. 95 
 
 in which the place or person suspected are not particularly- 
 designated) are dangerous, and ought not to be granted. 
 
 That the people have a right peaceably to assemble together 
 to consult for their common good, or to instruct their represen- 
 tatives, and that every person has a right to petition or apply 
 to the legislature for redress of grievances. 
 
 That the freedom of the press ought not to be violated or 
 restrained. 
 
 That there should be, once in four years, an election of the 
 President and Vice-President, so that no officer, who may be 
 appointed by the Congress to act as President, in case of the 
 removal, death, resignation, or inability, of the President and 
 Vice-President, can in any case continue to act beyond the ter- 
 mination of the period for which the last President and Vice- 
 President were elected. 
 
 That nothing contained in the said Constitution is to be con- 
 strued to prevent the legislature of any state from passing laws 
 at its discretion, from time to time, to divide such state into 
 convenient districts, and to apportion its representatives to and 
 amongst such districts. 
 
 That the prohibition pontained in the said Constitution, 
 against ex post facto laws, extends only to laws concerning 
 crimes. 
 
 That all appeals in causes determinable according to the 
 course of common law, ought to be by writ of error, and not 
 otherwise. 
 
 That the judicial power of the United States, in cases in 
 which a State may be a party, does not extend to criminal pros- 
 ecutions, or to authorize any suit by any person against a 
 State. 
 
 That the judicial power of the United States, as to contro- 
 versies between citizens of the same State, claiming lands under 
 grants from different States, is not to be construed to extend to 
 any other controversies between them, except those which 
 relate to such lands, so claimed, under grants of different States. 
 
 That the jurisdiction of the Supreme Court of the United 
 States, or of any other court to be instituted by the Congress, is 
 not in any case to be increased, enlarged, or extended, by any 
 faction, collusion, or mere suggestion ; and that no treaty is to be 
 construed so to operate as to alter the constitution of any State. 
 Under these impressions, and declaring that the rights afore- 
 
96 APPENDIX. 
 
 said cannot be abridged or violated and that the explanations 
 •aforesaid are consistent with the said Constitution, and in confi- 
 dence that the amendments which shall have been proposed to 
 the said Constitution will receive an early and mature considera- 
 tion, — We, the said delegates, in the name and in the behalf of 
 the people of the State of New York, do, by these presents, 
 assent to and ratify the said Constitution. In full confidence, 
 nevertheless, that, until a convention shall be called and con- 
 vened for proposing amendments to the said Constitution, the 
 militia of this State will not be continued in service out of this 
 State, for a longer term than six weeks, without the consent of 
 the legislature thereof; that the Congress will not make or alter 
 any regulation in this State, respecting the times, places and 
 manner, of holding elections for senators or representatives, 
 unless the legislature of this State shall neglect or refuse to 
 make laws or regulations for the purpose, or from any circum- 
 stance be incapable of making the same; and that, in those 
 cases, such power will only be exercised until the legislature of 
 this State shall make provision in the premises; that no excise 
 will be imposed on any article of the growth, production, or 
 manufacture of the United States, or any of them, within this 
 State, ardent spirits excepted ; and the Congress will not lay 
 direct taxes within this State, but when the moneys arising 
 from the impost and excise shall be insufficient for the public 
 exigencies, nor then, until Congress shall first have made a 
 requisition upon this State to assess, levy, and pay the amount 
 of such requisition, made agreeably to the census fixed in the 
 said Constitution, in such way and manner as the legislature of 
 this State shall judge best ; but that in such case, if the State 
 shall neglect or refuse to pay its proportion, pursuant to such 
 requisition, then the Congress may assess and levy this State's 
 proportion, together with intei'est, at the rate of six per centum 
 per annum, from the time at which the same was required to be 
 paid. 
 
 Done in Convention, at Poughkeepsie, in the county of 
 Dutchess, in the State of New York, the 26th day of July, 
 in the year of our Lord 1*788. 
 
 By order of the Convention. 
 
 GEO. CLINTON, President. 
 
 Attested : John M'Kessok, ) ^,,^,^^^,-,,. 
 A. B. BankeEj j 
 
APPENDIX. 97 
 
 And the Convention do, in the name and behalf of the people 
 of the State of New York, enjoin it upon their representatives in * 
 Congress to exert all their influence, and use all reasonable 
 means, to obtain a ratification of the following amendments to 
 the said Constitution, in the manner prescribed therein ; and in 
 all laws to be passed by the Congress, in the mean time, to con- 
 form to the spirit of the said amendments, as far as the Consti- 
 tution will admit. 
 
 That there shall be one representative for every thirty thou- 
 sand inhabitants, according to the enumeration or census men- 
 tioned in the Constitution, until the whole number of represen- 
 tatives amounts to two hundred, after which that number shall 
 be continued or increased, but not diminished, as the Congress 
 shall direct, and according to such ratio as the Congress shall 
 fix, in conformity to the rule prescribed for the apportionment 
 of representatives and direct taxes. 
 
 That the Congress do not impose any excise on any article 
 (ardent spirits excepted) of the growth, production, or manu- 
 facture of the United States, or any of them. 
 
 That Congress do not lay direct taxes but when the moneys 
 arising from the impost and excise shall be insufiicient for the 
 public exigencies, nor then, until Congress shall first have made 
 a requisition upon the States to assess, levy, and pay, their 
 respective proportions of such requisition, agreeably to the 
 census fixed in the said Constitution, in such way and manner 
 as the legislatures of the respective States shall judge best ; and 
 in such case, if any State shall neglect or refuse to pay its pro- 
 portion, pursuant to such requisition, then Congress may assess 
 and levy such State's proportion, together with interest at tlie 
 rate of six per centum per annum, from the time of payment 
 prescribed in such requisition. 
 
 That the Congress shall not make or alter any regulation, in 
 any State, respecting the times, places, and manner, of holding 
 elections for senators and representatives, unless the legislature 
 of such State shall neglect or refuse to make laws and reo^ula- 
 tions for the purpose, or from any circumstance be incapable of 
 making the same, and then only until the legislature of such 
 State shall make provision in the premises ; provided, that Con- 
 gress may prescribe the time for the election of representatives. 
 
 That no person, except natural-born citizens, or such as were 
 citizens on or before the 4th day of July, 1776, or such as held 
 
98 APPENDIX. 
 
 commissions under the United States during the war, and have 
 'at any time since. the 4th day of July, IIIQ, become citizens of 
 one or other of the United States, and who shall be freeholders, 
 shall be eligible to the places of President, Vice-President, or 
 members of either house of the Congress of the United States. 
 
 That the Congress do not grant monopolies, or erect any 
 company with exclusive advantages of commerce. 
 
 That no standing army or regular troops shall be raised, or 
 kept up, in time of peace, without the consent of two thirds of 
 the senators and representatives present in each house. 
 
 That no money be borrowed on the credit of the United 
 States without the assent of two thirds of the senators and 
 representatives present in each house. 
 
 That the Congress shall not declare war without the concur- 
 rence of two-thirds of the senators and representatives present 
 in each house. 
 
 That the privilege of the habeas corpus shall not, by any law, 
 be suspended for a longer term than six months, or until twenty 
 days after the meeting of the Congress next following the pass- 
 ing the act for such suspension. 
 
 That the right of Congress to exercise exclusive legislation 
 over such district, not exceeding ten miles square, as may, by 
 cession of a particular State, and the acceptance of Congress, 
 become the seat of government of the United States, shall not 
 be so exercised as to exempt the inhabitants of such district 
 from paying the like taxes, imposts, duties, and excises, as shall 
 be imposed on the other inhabitants of the State in which such 
 district may be ; and that no person shall be privileged within 
 the said district from arrest for crimes committed, or debts con- 
 tracted, out of the said district. 
 
 That the right of exclusive legislation, with respect to such 
 places as may be purchased for the erection of forts, magazines, 
 arsenals, dock-yards, and other needful buildings, shall not 
 authorize the Congress to make any law to prevent the laws of 
 the States, respectively, in which they may be, from extending 
 to such places in all civil and criminal matters, except as to 
 such persons as shall be in the service of the United States ; nor 
 to them with respect to crimes committed without such places. 
 
 That the compensation for the senators and representatives 
 be ascertained by standing laws ; and that no alteration of the 
 existing rate of compensation shall operate for the benefit of the 
 
APPENDIX. 99 
 
 representatives until after a subsequent election shall have 
 been had. 
 
 That the Journals of the Congress shall be published at least 
 once a year, with the exception of such parts, relating to treaties 
 or military operations, as, in the judgment of either house, shall 
 require secrecy ; and that both houses of Congress shall always 
 keep their doors open during their sessions, unless the business 
 may, in their opinion, require secrecy. That the yeas and nays 
 shall be entered on the Journals Avhenever two members in 
 either house may require it. 
 
 That no capitation tax shall ever be laid by Congress. 
 
 That no person be eligible as a senator for more than six 
 years in any term of twelve years ; and that the legislatures of 
 the respective States may recall their senators, or either of them, 
 and elect others in their stead, to serve the remainder of the 
 time for which the senators so recalled were appointed. 
 
 That no senator or representative shall, during the time for 
 which he was elected, be appointed to any office under the 
 authority of the United States. 
 
 That the authority given to the executives of the States to 
 fill up the vacancies of senators be abolished, and that such 
 vacancies be filled by the respective legislatures. 
 
 That the power of Congress to pass uniform laws concerning 
 bankruptcy shall only extend to merchants and other traders ; 
 and the States, respectively, may pass laws for the relief of 
 other insolvent debtors. 
 
 That no person shall be eligible to the office of President of 
 the United States a third time. 
 
 That the executive shall not grant pardons for treason, unless 
 with the consent of the Congress ; but may, at his discretion, 
 grant reprieves to persons convicted of treason, until their cases 
 can be laid before Congress. 
 
 That the President, or person exercising his powers for the 
 time being, shall not command an army in the field in person, 
 without the previous desire of the Congress. 
 
 That all letters patent, commissions, j^ardons, writs, and pro- 
 cesses of the United States, shall run in the name of the people 
 of the United States, and be tested in the name of the President 
 of the United States, or the person exercising his powers for 
 the time being, or the first judge of the court out of which the 
 same shall issue, as the case may be. 
 
100 APPENDIX. 
 
 That the Congress shall not constitute, ordain, or establish, any 
 tribunals of inferior courts, with any other than appellate juris- 
 diction, except such as may be necessary for the trial of cases of 
 admiralty and mai'itime jurisdiction, and for the trial of piracies 
 and felonies committed on the high seas ; and in all other cases 
 to which the judicial power of the United States extends, and 
 in which the Supreme Court of the United States has not orig- 
 inal jurisdiction, the causes shall be heard, tried, and deter- 
 mined, in some one of the State Courts, with the right of ajDpeal 
 to the Supreme Court of the United States, or other proper tribu- 
 nal, to be established for that purpose by the Congress, with 
 such exceptions, and under such regulations, as the Congress 
 shall make. 
 
 That the court for the trial of impeachments shall consist of the 
 Senate, the Judges of the Supreme Court of the United States, 
 and the first or senior judge, for the time being, of the highest 
 court of general and ordinary common-law jurisdiction in each 
 State ; that the Congress shall, by standing laws, designate the 
 courts in the respective States answering this description, and, in 
 States having no courts exactly answering this description, 
 shall designate some other court, preferring such, if any there 
 be, whose judge or judges may hold their places during good 
 behavior ; provided, that no more than one judge, other than 
 Judges of the Supreme Court of the United States, shall come 
 from one State. 
 
 That the Congress be authorized to pass laws for compensa- 
 ting the judges for such services, and for compelling their attend- 
 ance ; and that a majority, at least of the said judges shall be 
 requisite to constitute the said court. That no person impeached 
 shall sit as a member thereof; that each member shall, previous 
 to the entering upon any trial, take an oath or affirmation hon- 
 estly and impartially to hear and determine the cause ; and that 
 a majority of the members present shall be necessary to a con- 
 viction. 
 
 That persons aggrieved by any judgment, sentence or decree 
 of the Supreme Court of the United States, in any cause in 
 which that court has original jurisdiction, with such excep- 
 tions, and under such regulations, as the Congress shall make 
 concerning the same, shall, upon application, have a commis- 
 sion, to be issued by the President of the United States to such 
 men learned in the law as he shall nominate, and by and with 
 
APPENDIX. 101 
 
 the advice and consent of the Senate appoint not less than 
 seven, authorizing such commissioners, or any seven or more 
 of them, to correct the errors in such judgment, or to review 
 such sentence and decree, as the case may be, and to do justice 
 to the parties in the premises. 
 
 That no judge of the Supreme Court of the United States 
 shall hold any other office under the United States, or any of 
 them. 
 
 That the judicial power of the United States shall extend to 
 no controversies respecting land, unless it relate to claims of 
 territory or jurisdiction between states, and individuals under 
 the grants of different States. 
 
 That the militia of any state shall not be compelled to serve 
 without the limits of the State, for a longer term than six weeks, 
 without the consent of the legislature thereof. 
 
 That the Avords loithout the cofisent of the Congress, in the 
 seventh clause of the ninth section of the first article of the 
 Constitution, be expunged. 
 
 That the senators and representatives, and all executive and 
 judicial officers of the United States, shall be bound by oath or 
 affirmation not to infringe or violate the constitution or I'ights 
 of tlie respective States. 
 
 That the legislatures of the respective States may make pro- 
 vision, by law, that the electors of the election districts, to be 
 by them appointed, shall choose a citizen of the United States, 
 who shall have been an inhabitant of such district for the term 
 of one year immediately preceding the time of his election, for 
 one of the representatives of such State. 
 
 Done in Convention, at Poughkeepsie, in the county of Dutch- 
 ess, in the State of New York, the 26th day of July, in 
 the year of our Lord ] V88. 
 
 By order of the Convention. 
 
 John M'Kesson, 
 
 GEO. CLINTON, President. 
 
 Attested: TbTb.' B^nkee'^' } Secretaries. 
 
 STATE OF NORTH CAROLINA.— August 1, 1788. 
 
 In Convention, August 1, 1788. 
 JResolvcd, that a declaration of rights, nsserting and securing 
 from encroachments the great principles of civil and religious 
 liberty, and the unalienable rights of the people, together with 
 6a 
 
102 APPENDIX. 
 
 amendments to the most ambiguous and exceptionable parts of 
 the said Constitution of government, ought to be laid before 
 Congress, and the convention of the States that shall or may be 
 called for the purpose of amending the said Constitution, for 
 their said consideration, previous to the ratification of the Con- 
 stitution aforesaid on the part of the State of North Carolina. 
 
 SAM. JOHNSON. 
 By order. J. Hunt, Secretary. 
 
 On the 14th of July, 1788, the committee reported an act for 
 putting the constitution into operation, which was debated until 
 the 13th of September of the same year, when the following 
 resolution was adopted : 
 
 " Whereas the Convention assembled in Philadelphia, pur- 
 suant to the resolution of Congress of the 21st of February, 
 1787, did, on the 17th of September, in the same year, report to 
 the United States in Congress assembled a Constitution for the 
 people of the United States ; whereupon Congress, on the 28th 
 of the same September, did resolve, unanimously, ' That the 
 said rej)ort, with the resolutions and letter accompanying 
 the same, be transmitted to the several legislatures, in order to 
 be submitted to a convention of delegates, chosen in each state 
 by the people thereof, in conformity to the resolves of the Con- 
 vention made and provided in that case ;' and whereas the 
 Constitution so reported by the Convention, and by Congress 
 transmitted to the several legislatures, has been ratified in the 
 manner therein declared to be sufficient for the establishment 
 of the same, and such ratifications, duly authenticated, have 
 been received by Congress, and are filed in the office of the 
 secretary ; therefore, — 
 
 " Mesolved, That the first Wednesday in January next be 
 the day for appointing electors in the several states which, 
 before the said day, shall have ratified the said Constitution ; 
 that the first Wednesday in February next be the day for the 
 electors to assemble in their respective states, and vote for a 
 President ; and that the first Wednesday in March next be the 
 time, and the present seat of Congress the place, for com- 
 mencing proceedings under the said Constitution." 
 
 The elections of the several states were held conformably to 
 the above resolution. On Wednesday the 4th of March, 1789, 
 pi-oceedings commenced under the Constitution; and on the 
 30th of April, of the same year, Geoege Washington, elected 
 
APPENDIX. 103 
 
 by the unanimous suffrage of the electors, was inaugurated as 
 President of the United States. 
 
 On the 11th of January, 1790, the folloAving ratification of 
 the Constitution, by the state of North Carolina, was commu- 
 nicated by President Washington to both houses of Congress : 
 
 STATE OF NORTH CAROLINA.— November 21, 1789. 
 
 In Convention-. 
 Whereas the General Convention which met in Philadelphia, 
 in pursuance of a recommendation of Congress, did recommend 
 to the citizens of the United States a Constitution or form of 
 government in the following words, namely, — 
 
 " We, the people," &c. [Here follows the Constitution of 
 the United States, verbatim.'] 
 
 Hesolved, That this Convention, in behalf of the freemen, 
 citizens and inhabitants of tlie state of North Carolina, do 
 adopt and ratify the said Constitution and form of govern- 
 ment. 
 Done in Convention this 21st day of November, one thou- 
 sand seven hundred and eighty-nine. 
 
 (Signed) SAMUEL JOPINSON, 
 
 JPresident of the Convention. 
 
 jlMErTAYLOE, j- ^^<^^'^f^'^''- 
 
 RHODE ISLAND.— May 29, 1790. 
 
 [The Constitution of the United States of America precedes the 
 following ratification.] 
 
 Matification of the Constitution hy the Convention of the State 
 of Rhode Island and Providence Plantations. 
 We, the delegates of the people of the state of Rhode Island 
 and Providence Plantations, duly elected and met in Conven- 
 tion, having maturely considered the Constitution for the 
 United States of America, agreed to on the seventeenth day of 
 September, in the year one thousand seven hundred and eighty- 
 seven, by the Convention then assembled at Philadelphia, in 
 the commonwealth of Pennsylvania (a copy whereof precedes 
 these presents), and having also seriously and deliberately con- 
 sidered the present situation of this state, do declare and make 
 known, — 
 
104 APPENDIX. 
 
 I. That there are certain natural rights of Avhich men, when 
 they form a social comjjact, cannot deprive or divest their pos- 
 terity, — among which are the enjoyment of life and liberty, 
 with the means of acquiring, possessing, and pi'otecting prop- 
 erty, and pursuing and obtaining haj^piness and safety. 
 
 II. That all power is naturally vested in, and consequently 
 derived from, the peoj)le ; that magistrates, therefore, are their 
 trustees and agents, and at all times amenable to them. 
 
 III. That the poAvers of government may be reassumed by 
 the people whensoever it shall become necessary to their happi- 
 ness. That the rights of the states respectively to nominate 
 and appoint all state officers, and every other power, jurisdic- 
 tion, and right, which is not by the said Constitution clearly 
 delegated to the Congress ^f the United States, or to the 
 departments of government thereof, remain to the peoj)le of 
 the several states, or their respective state governments, to 
 whom they may have granted the same ; and that those clauses 
 in the Constitution which declare that Congress shall not have 
 or exercise certain powers, do not imply that Congress is 
 entitled to any powers not given by the said Constitution ; but 
 such clauses are to be construed as exceptions to certain 
 specified j)owers, or as inserted merely for greater caution. 
 
 IV. That religion, or the duty which we owe to our Creator, 
 and the manner of discharging it, can be directed only by 
 reason and conviction, and not by force and violence ; and 
 therefore all men have a natural, equal, and unalienable right 
 to the exercise of religion according to the dictates of con- 
 science ; and that no particular religious sect or society ought 
 to be favored or established, by law, in preference to others. 
 
 V. That the legislative, executive, and judiciary powers of 
 government should be separate and distinct ; and, that the 
 members of the two first may be restrained from oppression, 
 by feeling and participating the public burdens, they should, at 
 fixed periods, be reduced to a private station, returned into the 
 mass of the people, and the vacancies be supplied by certain 
 and regular elections, in which all or any part of the former 
 members to be eligible or ineligible, as the rules of the con- 
 stitution of government and the laws shall direct. 
 
 VI. That elections of representatives in legislature ought to 
 be free and frequent; and all men having sufficient evidence 
 of permanent common interest with, and attachment to, the 
 
APPENDIX. 105 
 
 community, ought to have the right of suffrnge ; and no aid, 
 charge, tax, or fee, can be set, rated, or levied, upon the people 
 without their own consent, or that of their representatives so 
 elected, nor can they be bound by any law to which they have 
 not in like manner consented for the public good. 
 
 VII. That all j^ower of suspending laws, or the execution of 
 laws, by any authority, without the consent of the repi-esent- 
 atives of the people in the legislature, is injurious to their 
 rights, and ought not to be exercised. 
 
 VIII. That, in all capital and criminal prosecutions, a nian 
 hath a right to demand the cause and nature of his accusation, 
 to be confronted with the accusers and Avitnesses, to call for 
 evidence, and be allowed counsel in his favor, and to a fair and 
 speedy trial by an impartial jury in his vicinage, without 
 whose unanimous consent he cannot be found guilty (except in 
 the government of the land and naval forces), nor can he be 
 compelled to give evidence against himself. 
 
 IX. That no freeman ought to be taken, imprisoned, or dis- 
 seized of his freehold, liberties, privileges, or franchises, or 
 outlawed, or exiled, or in any manner destroyed or deprived of 
 his life, liberty, or property, but by the trial by jury, or by the 
 law of the land. 
 
 X. That every freeman restrained of his liberty is entitled to 
 a remedy, to inquire into the lawfulness thereof, and to remove 
 the same if unlawful, and that such remedy ought not to be 
 denied or delayed. 
 
 XI. That in controversies respecting property, and in suits 
 between man and man, the ancient trial by jury, as hath been 
 exercised by us and our ancestors, from the time whereof the 
 memory of man is not to the contraiy is one of the greatest 
 securities to the rights of the jDCople, and ought to remain 
 sacred and inviolable, 
 
 XII. That every freeman ought to obtain right and justice, 
 freely and without sale, completely and without denial, promptly 
 and without delay; and that all establishments or regulations 
 contravening these rights are oppressive and unjust. 
 
 XIII. That excessive bail ought not to be required, nor exces- 
 sive fines imposed, nor cruel or unusual punishments inflicted. 
 
 XIV. That every person has a right to be secure from all 
 unreasonable searches and seizures of his person, his papers, or 
 his property • and therefore, that all warrants to search suspec- 
 
106 APPENDIX. 
 
 ted. places, to seize any person, his papers, or his property, with- 
 out information upon oath or affirmation of sufficient cause, are 
 grievous and oppressive ; and that all general warrants (or such 
 in which the place or person suspected are not particularly desig- 
 nated) are dangerous, and ought not to be granted. 
 
 XV. That the people have a right peaceably to assemble 
 together to consult for their common good, or to instruct their 
 representatives ; and that every person has a right to petition or 
 apply to the legislatui-e for redress of grievances. 
 
 XVI. That the people have a right to freedom of speech, and 
 of writing and publishing their sentiments. That freedom of the 
 press is one of the greatest bulwarks of liberty, and ought not 
 to be violated. 
 
 XVII. That the people have a right to keep and bear arms ; 
 that a. well-regulated militia, including the body of the people 
 capable of bearing arms, is the proper, natural, and safe defense 
 of a free state ; that the militia shall not be subject to martial 
 law, except in time of war, rebellion, or insurrection ; that stand- 
 ing armies in time of peace, are dangerous to liberty, and ought 
 not to be kept up, except in cases of necessity ; and that, at all 
 times, the military should be under strict subordination to the 
 civil power ; that in time of peace, no soldier ought to be quar- 
 tered in any house without the consent of the owner, and in time 
 of war only by the civil magistrates, in such manner as the law 
 directs. 
 
 XVIII. That any person religiously scrupulous of bearing 
 arms ought to be exempted upon payment of an equivalent to 
 employ another to bear arms in his stead. 
 
 Under these impressions, and declaring that the rights afore- 
 said cannot be abridged or violated, and that the explanations 
 aforesaid are consistent with the said Constitution, and in confi- 
 dence that the amendments hereafter mentioned will receive an 
 early and mature consideration, and conformably to the fifth 
 article of said Constitution, speedily become a part thereof, — 
 We, the said delegates, in the name and in the behalf of the peo- 
 ple of the state of Rhode Island and Providence Plantations, do, 
 by these presents, assent to and ratify the said Constitution. 
 In full confidence, nevertheless, that until the amendments here- 
 after proposed and undermentioned shall be agreed to and rati- 
 fied, pursuant to the aforesaid fifth article, the militia of this 
 state will not be continued in service out of this state, for a 
 
APPENDIX. 107 
 
 longer term than six Aveeks, without the consent of the legisla- 
 ture thereof; that the Congress will not make or alter any regu- 
 lation in this state respecting the times, places, and manner of 
 holding elections for senators or representatives, unless the 
 lesrislature of this state shall neglect or refuse to make laws or 
 regulations for the purpose, or, from any circumstance, be inca- 
 pable of making the same ; and that, in those cases, such power 
 will only be exercised until the legislature of this state shall 
 make provision in the premises ; that the Congress will not lay 
 direct taxes within this state, but when the moneys arising from 
 impost, tonnage, and excise, shall be insufficient for the public 
 exigencies, nor until the Congress shall have first made a requisi- 
 tion upon this state to assess, levy, and pay, the amount of such 
 requisition made agreeable to the census fixed in the said Con- 
 stitution, in such way and manner as the legislature of this 
 State shall judge best ; and that Congress will not lay any cap- 
 itation or poll-tax. 
 
 Done in Convention at Newport, in the county of Newport, 
 in the State of Rhode Island and Providence Plantations, 
 the twenty-ninth day of May, in the year of our Lord one 
 thousand seven hundred and ninety and in the fourteenth 
 year of the independence of the United States of America. 
 By order of the Convention. 
 
 (Signed) DANIEL OWEN, President. 
 
 Attest. Daniel Updike, Secretary. 
 
 And the Convention do, in the name and behalf of the people 
 of the State of Rhode Island and Providence Plantations, 
 enjoin it upon their senators and representative or representa- 
 tives, which may be elected to represent this State in Congress, 
 to exert all their influence, and use all reasonable means, to 
 obtain a ratification of the following amendments to the said 
 Constitution, in the manner prescribed therein ; and in all laws 
 to be passed by the Congi-ess in the mean time, to conform to 
 the spirit of the said amendments, as far as the Constitution will 
 admit. 
 
 AilENDMENTS. 
 
 I. The United States shall guaranty to each state its sover- 
 eignty, freedom and independence, and every power, jurisdiction, 
 and right, which is not by this Constitution expressly delega- 
 ted to the United States. 
 
108 APPENDIX. 
 
 II. That Congress shall not alter, modify, or interfere in, 
 the times, places or manner, of holding elections for senators 
 and representatives, or either of them, excei^t when the legisla- 
 latnre of any state shall neglect, refnse, or be disabled, by inva- 
 sion or rebellion, to prescribe the same, or in case when the pro- 
 vision made by the state is so imperfect as that no consequent 
 election is had, and then only until the legislature of such state 
 shall make provision in the premises. 
 
 III. It is declared by the Convention, that the judicial power 
 of the United States, in cases in which a state may be a party, 
 does not extend to criminal prosecutions, or to authorize any 
 suit by any person against a state ; but to remove all doubts 
 or controversies respecting the same, that it be especially 
 expressed, as a part of the Constitution of the United States, 
 that Congress shall not, directly or indirectly, either by them- 
 selves or through the judiciary, interfere with any one of the 
 States, in the redemption of paper money already emitted, and 
 now in circulation, or in liquidating and discharging the public 
 securties of any one state ; that each and every state shall have 
 exclusive right of making such laws and regulations for the 
 before mentioned purpose as they shall think proper. 
 
 IV. That no amendments to the Constitution of the United 
 States, hereafter to be made, pursuant to the fifth article, 
 shall take effect, or become a part of the Constitution of the 
 United States, after the year one thousand seven hundred and 
 ninety-three, without the consent of eleven of the States here- 
 tofoi'e united under the Confederation. 
 
 V. That the judicial powers of the United States shall extend 
 to no possible case Avhere the cause of action shall have origina- 
 ted before the ratification of this Constitution, except in dis- 
 putes between States about their territory, disputes between 
 persons claiming lands under grants of different States, and 
 debts due to the United States. 
 
 VI. That no person shall be compelled to do military duty 
 otherwise than by voluntary enlistment, except in cases of gen- 
 eral invasion ; anything in the second paragraph of the sixth 
 article of the Constitution, or any law made under the Con- 
 stitution, to the contrary notwithstanding. 
 
 VII. That no capitation or poll-tax shall ever be laid by Con- 
 gvess. 
 
APPENDIX. 109 
 
 VIII. In cases of direct taxes, Congress shall first make 
 requisitions on the several States to assess, levy, and pay, their 
 respective proportions of such requisitions, in such way and 
 manner as the legislatures of the several States shall judge 
 best ; and in case any State shall neglect or refuse to pay its 
 proportion, pursuant to such requisition, then Congress may 
 assess and levy such State's proportion, together with interest, 
 at the rate of six per cent per annum, from the time pre- 
 scribed in such requisition. 
 
 IX. That Congress shall lay no direct taxes without the con- 
 sent of the legislatures of three-fourths of the States in the 
 Union. 
 
 X. That the Journal of the pi-oceedings of the Senate and 
 House of Representatives shall be jDublished as soon as conveni- 
 ently may be, at least once in every year ; except such parts 
 thereof relating to treaties, alliances, or military operations, as 
 in their judgment require secrecy, 
 
 XL Tliat regular statements of the receipts and expenditures 
 of all public moneys shall be published at least once a year. . 
 
 XII. As standing armies, in time of peace, are dangerous to 
 liberty, and ought not to be kept up, except in cases of neces- 
 sity, and as, at all times, the military should be under strict 
 suboi'dination to the civil power, that, therefore, no standing 
 army or regular troops shall be raised or kept up in time of 
 peace. 
 
 XIII. That no moneys be borrowed, on the credit of the 
 United States, without the assent of two-thirds of the Senators 
 and Representatives present in each House. 
 
 XIV. That the Congress shall not declare war without the 
 concurrence of two-thirds of the Senators and Representatives 
 present in each House. 
 
 XV. That the words " without the consent of Congress," in 
 the seventh clause in the ninth section of the first article of 
 the Constitution be expunged. 
 
 XVI. That no judge of the Supreme Court of the United 
 States shall hold any other office under the United States, 
 or any of them; nor shall any officer appointed by Congress, or 
 by the President and Senate of the United States, be permitted 
 to hold any office under the appointment of any of the States. 
 
 XVII. As a traffic tending to establish or continue the slavery 
 of any part of the human species is disgraceful to the cause of 
 
 64 
 
110 APPENDIX. 
 
 liberty and humanity, that Congress shall, as soon as may be, 
 promote and establish such laws and regulations as may effectu- 
 ally prevent the importation of slaves of every description into 
 the United States. 
 
 XVIII. That the state legislatures have power to recall, 
 when they think it expedient, their federal senators, and to send 
 others in their stead. 
 
 XIX. That Congress have power to establish a uniform rule 
 of inhabitancy or settlement of the poor of the different states 
 throughout the United States. 
 
 XX. That Congress erect no company with exclusive advan- 
 tages of commerce. 
 
 XXI. That when two members shall move and call for the 
 ayes and nayes on any question, they shall be entered on the 
 Journals of the houses respectively. 
 
 Done in Convention, at ISTewport, in the county of Newport, 
 in the state of Rhode Island and Providence Plantations, 
 the twenty-ninth day of May, in the year of our Lord one 
 thousand seven hundred and ninety, and the 14th year of 
 the independence of the United States of America. 
 By order of the Convention. 
 (Signed) DANIEL OWEN, President. 
 
 Attest. Daniel Updike, Secretary. 
 
 On the 9th of February, 1791, the following acts of the state 
 of Vermont, relating to the Constitution, were communicated 
 to Congress : 
 
 STATE OF VERMONT. 
 An Act to authorize the People of this State to meet in Con- 
 vention^ to deliberate upon and agree to the Constitution 
 of the United States. 
 
 "Whereas, in the opinion of this legislature, the future interest 
 and Avelfire of this state render it necessary that the Con- 
 stitution of the United States of America, as agreed to by the 
 Convention at Philadelphia, on the seventeenth day of Septem- 
 ber, in the year of our Lord one thousand seven hundred and 
 eighty-seven, with the several amendments and alterations, as 
 the same has been established by the United States, should be 
 laid before the people of this state for their approbation, — 
 ■ It is hereby enacted, by the General Assembly of the state 
 of Vermont, That the first constable in each town shall wain 
 
APPENDIX. Ill 
 
 the inhabitants, who, by law, are entitled to vote for repre- 
 sentatives in General Assembly, in the same manner as they 
 warn freemen's meetings, to meet in their respective towns on 
 the first Tuesday of December next, at ten o'clock forenoon, 
 at the several places fixed by law for holding the annual elec- 
 tion ; and when so met they shall proceed, in the same manner 
 as in the election of representatives, to choose some suitable 
 person, from each town, to serve as a delegate in a state con- 
 vention, for the purpose of deliberating upon and agreeing to 
 the Constitution of the United States as now established; 
 and the said constable shall certify to the said convention the 
 person so chosen in the manner aforesaid. And, 
 
 It is hereby further enacted, by the authority aforesaid, 
 That the persons so elected to serve in State convention, as 
 aforesaid, do assemble and meet together on the first Thursday 
 of January next, at Bennington, then and there deliberate upon 
 the aforesaid Constitution of the United States, and if approved 
 of by them, finally to assent to and ratify the same, in behalf 
 and on the part of the people of this State, and make report 
 thereof to the governor of this State for the time being, to be by 
 him communicated to the President of the United States, and 
 the legislature of this State. 
 
 State of Vermont, Secretary's Office, 
 Bennington, January 21, 1791. 
 The preceding is a true copy of an act passed by the legisla- 
 ture of the State of Vermont, the twenty-seventh day of 
 October, in the year of our Lord one thousand seven hundred 
 
 nine y. j^qSWELL HOPKINS, Secretary of State. 
 
 In Convention of the Delegates of the People of the 
 State of Vermont. 
 
 Whereas, by an act of the commissioners of the State of New 
 York, done at New York, the seventeenth day of October, in 
 the fifteenth year of the independence of the United States of 
 America, one thousand seven hundred and ninety, every impedi- 
 ment, as well on the part of the State of New York as on the 
 part of the State of Vermont, to the admission of the State of 
 Vermont into the Union of the United States of America, is 
 removed ; in full faith and assurance that the same will stand 
 approved and ratified by congress. 
 
 This Convention having impartially deliberated upon the Con- 
 stitution of the United States of America, as now established. 
 
112 APPENDIX. 
 
 submitted to ns by an act of the General Assembly of the State 
 of Vermont, passed October the twenty-seventh, one thousand 
 seven hundred and ninety, — Do, in virtue of the power and 
 authority to us given for that purpose, fully and entirely 
 approve of, assent to, and ratify, the said Constitution ; and 
 declare that, immediately from and after this State shall be 
 admitted by the Congress into the Union, and to a full partici- 
 pation of the benefits of the government now enjoyed by the 
 States in the Union, the same shall be binding on us, and the 
 people of the State of Vermont forever. 
 
 Done at Bennington, in the county of Bennington, the tenth 
 day of Januarjr, in the fifteenth year of the independence 
 of the United States of America, one thousand seven hun- 
 dred and ninety-one. 
 In testimony whereof, we have hereunto subscribed our names. 
 
 (Signed) THOMAS CHITTENDEN, President. 
 
 Signed by one hundred and five members — dissented, four. 
 Attest. RoswELL Hopkins, Secretar}/ of Convention. 
 
 ]sro. 1-4. 
 
 At the first session of the first Congress under the Constitu- 
 tion, the following resolution was adopted: 
 
 Congress of the United States; 
 
 JSegun and held in the City of New Ybric, on Wednesday^ the 
 Uh of 3Iarch, 1V89. 
 
 " The conventions of a number of the States having, at the 
 time of their adopting of the Constitution, expressed a desire, in 
 order to prevent misconstruction or abuse of its powers, that 
 further declaratory and restrictive clauses should be added ; and 
 as extending the ground of public confidence in the government 
 will best insure the beneficent ends of its institution : 
 
 " Resolved hy the Senate a7id House of Hejyresentatives of the 
 United States of America, in Congress asseinhled, two-thirds of 
 both houses concurring, that the following articles be pro- 
 posed to the legislatures of the several States, as amendments 
 to the Constitution of the United States, all or any of which 
 articles, when ratified by three-fourths of the said legislatures, 
 to be valid, to all intents and purposes, as part of the said 
 Constitution, namely — 
 " Articles in addition to, and Amendment of the Constitution 
 
 of the United States of America^ proposed hy Congress, and 
 
APPENDIX. 113 
 
 ratified hy the Legislatures of the several States, pursuant to 
 
 the Fifth article of the original Constitution. 
 
 « Art. I. After the first enumeration required by the first 
 article of the Constitution, there shall be one representative for 
 every thirty thousand, until the number shall amount to one 
 hundred, after which the proportion shall be so regulated by 
 Congress, that there shall not be less than one hundred rep- 
 resentatives, nor less than one representative for every forty 
 thousand persons, until the number of .representatives shall 
 amount to two hundred, after which the proportion shall be so 
 reo-ulatedby Congress, that there shall not be less than two hun- 
 dred representatives, nor more than one representative for every 
 
 fifty thousand. 
 
 " Art. II. No law varying the compensation for services of 
 the senators and representatives shall take effect, until an 
 election of representatives shall have intervened. 
 
 " Art. III. Congress shall make no law respecting an estab- 
 lishment of religion, or prohibiting the free exercise thereof, or 
 abridging the freedom of speech, or of the press, or the right 
 of the people peaceably to assemble, and to petition the gov- 
 ernment for a redress of grievances. 
 
 " Art. IV. A well-regulated militia being necessary to the 
 seeurity of a free State, the right of the people to keep and 
 bear arms shall not be infringed. 
 
 "Art. V. No soldier shall, in time of peace, be quartered m 
 any house without the conseot of the owner, nor in time of war, 
 but in a manner prescribed by law. 
 
 " Art. VI. The right of the people to be secure in their 
 persons, houses, papei^, effects, against unreasonable searches 
 and seizures, shall not be violated ; and no warrants shall issue, 
 but upon principal cause, supported by oath or affirmation, and 
 particularly describing the place to be searched and the persons 
 or things to be seized. 
 
 " Art. VII. No person shall be held to answer for a capital 
 or otherwise infamous crime, unless on a presentment or indict- 
 ment of a grand jury, 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; nor shall any person be subject, for the 
 same offense, to be twice be put in jeopardy of life or limb ; nor 
 shall be compelled, in any criminal case, to be a witness 
 against himself; nor be deprived of life, liberty, or property. 
 
114 APPENDIX. 
 
 without due process of law ; nor shall private property be taken 
 for public use without just compensation. 
 
 " Art, VIII. In all criminal prosecutions, the accused shall 
 enjoy the right of a speedy and public trial, by an impartial 
 jury of the State and district wherein the crime shall have 
 been committed, which district shall have been previously ascer- 
 tained by law ; and to be informed of the nature and cause of 
 the accusation; to be confronted with the witnesses against 
 him ; to have compulsory process for obtaining witnesses in his 
 favor ; and to have the assistance of counsel for his defense. 
 
 " Art. IX. In suits at common law, where the value in con- 
 troversy shall exceed twenty dollars, the right of trial by jury 
 shall be preserved, and no fact tried by a jury shall be otherwise 
 re-examined in any court of the United States, than according 
 to the rules in common law. 
 
 " Art. X. Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel and unusual punishments inflicted. 
 
 " Art. XI. The enumeration in the Constitution, of certain 
 rights, shall not be construed to deny or disparage others 
 retained by the people. 
 
 "Art. XII. The powers not delegated to the United States 
 by the Constitution, nor prohibited by it to the States, are 
 reserved to the States, respectively, or to the people. 
 
 "FREDERICK AUGUSTUS MUHLENBERG, 
 
 Speaker of the Souse of Hepresentatwes. 
 
 "JOHN ADAMS, F^ce-P/•e5^c?6w^o/^Ae United States, 
 and President of the Senate.'''* 
 
 ]sro. 15. 
 
 Which, being transmitted to the several State legislatures, 
 were decided upon by them, according to the following returns : 
 
 JBy the State of New Hampshire. — Agreed to the whole of 
 the said amendments, except the 2d article. 
 
 JBy the State of New YorJc. — Agreed to the whole of the 
 said amendments, except the 2d article. 
 
 JSy the State of Pennsylvania. — Agreed to the 3d, 4th, 5th, 
 6th, 7th, 8th, 9th, 10th, 11th, and 12th articles of the said 
 amendments. 
 
 By the State of Delaware. — Agreed to the whole of the said 
 amendments except the 1st article. 
 
APPENDIX. 115 
 
 By the State of Maryland. — Agreed to the whole of the said 
 twelve amendments. 
 
 Hy the State of JVbrth Carolma. — Agreed to the whole of 
 the said twelve amendments. 
 
 -By the State of Hhode Island and Provide^ice Plantations. 
 — Agreed to the whole of the said twelve articles. 
 
 J8y the State of JVeio Jersey. — Agreed to the whole of the 
 said amendments except the 2d article. 
 
 J3y the State of Virginia. — Agreed to the whole of the said 
 twelve articles. 
 
 No returns were made by the States of Massachusetts, Con- 
 necticut, Georgia and Kentucky. 
 
 The amendments thus proposed became a part of the Con- 
 stitution, the first and second of them excepted, which were not 
 ratified by a sufficient number of the State legislatures. 
 
 At the first session of the third Congress, the following 
 amendment was proposed to the State legislatures : 
 United States in Congress Assembled. 
 
 " Resolved., by the Seixate and House of Pejjresentatives of 
 the United States of America hi Congress assembled., two- 
 thirds of both houses concurring, That the following article be 
 proposed to the legislatures of the several States, as an amend- 
 ment to the Constitiition of the United States ; which when 
 ratified by three-fourths of the said legislatures, shall be valid 
 as part of the said Constitution, namely, — 
 
 "The judicial power of the United States shall not be con- 
 strued to extend to any suit in laAV or equity, commenced 
 or prosecuted against one of the United States, by citizens or 
 subjects of any foreign State. 
 
 " FREDERICK AUGUSTUS MUHLENBERG, 
 
 Speaher of the Souse of Pepresentatives. 
 "JOHN ADAMS, Vice-President of the United States^ 
 and President of the Senate. 
 "Attest. J. Becklet, Clerk of the House of Pepresentatives. 
 Sam. a. Otis, Secretary of the Senate.'''' 
 
 From the Journals of the House of Representatives, at the 
 second session of the third Congress, it appears that returns 
 from the State legislatures, ratifying this amendment, were 
 received, as follows : — 
 
 From New York, Massachusetts, Vermont, New Hampshire, 
 Georgia, and Delaware. 
 
116 APPENDIX. 
 
 At the first session of the fourth Congress, further returns, 
 ratifjdng the same amendment, were received from Rhode 
 Island and North Carolina. 
 
 At the second session of the fourth Congress, on the 2d of 
 March, 1787, the following resolution was adoped : 
 
 "United States in Congkess Assembled. 
 ^^ Besolved, by the Senate and House of Bepresentatives of 
 the United States of America in Congress assembled^ That 
 the President be requested to adopt some speedy and effectual 
 means of obtaining information from the States of Connecticut, 
 New Jersey, Pennsylvania, Maryland, Virginia, Kentucky, 
 Tennessee, and South Carolina, whether they have ratified the 
 amendment proposed by Congress to the Constitution concern- 
 ing the suability of States ; if they have, to obtain the -proper 
 evidence thereof. 
 
 "JONATHAN DAYTON, 
 
 Speaker of the House of Mepresentatives. 
 
 "WILLIAM BINGHAM. 
 
 President^ pro tempore^ of the Senate. 
 Approved March 2, 1797. 
 
 " GEORGE WASHINGTON, 
 
 President of the United States.'''' 
 At the second session of the fifth Congress, the following 
 message from the President of the United States was transmit- 
 ted to both houses : 
 
 From a report of the Secretary of State, made under the 
 direction of President Adams, on the 28th December, 1797, it 
 appeared that the States of Connecticut, Maryland and Vir- 
 ginia, had ratified the amendment ; that New Jersey and Penn- 
 sylvania had not ratified it; South Carolina had not definitely 
 acted upon it. No answers had been received from Kentucky 
 and Tennessee. 
 
 MESSAGE. 
 
 '''■Gentlemen of the Senate^ and Gentlemen of the House of 
 
 Pepresentatives : — 
 
 " I have an opportunity of transmitting to Congress a report 
 of the Secretary of State, with a copy of an act of the legisla- 
 ture. of the State of Kentucky consenting to the ratification of 
 the amendment of the Constitution of the United States pro- 
 posed by Congress, in their resolution of the second day of 
 
APPENDIX. 117 
 
 December, 1793, relative to the suability of States. Thia 
 amendment having been adopted by three-fourths of the sev- 
 eral States, may now be declared to be a part of the Con- 
 stitution ol the United States. 
 
 " United States, January 8, 1798. JOHN ADAMS." 
 
 NO. 16. 
 
 " Eighth Congress of the United States. 
 At the First Session^ begun and held at the City of Washing- 
 ton^ in the Territory of Columbia, on 3Ionday, the seven- 
 teenth of October, one thousand eight hundred and three. 
 " Hesolved, by the Senate and House of Representatives of 
 the United States of America in Congress assembled, two- 
 thirds of both houses concui-ring, That, in lieu of the third para- 
 graph of the first section of the second article of the Constitu- 
 tion of the United States, — which, when ratified by three- 
 fourths of the legislatures of the several States, shall be valid 
 to all intents and purposes, as a part of the said Constitu- 
 tion, to wit, — 
 
 " ' 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 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 for President shall be the President, 
 if such number be a majority of the whole number of electors 
 appointed; and if no person have such a majority, then from 
 the persons having the highest numbers, not exceeding three, 
 on the list of those voted for as President, the House of Repre- 
 sentatives shall choose immediately, by ballot, the President. 
 But in choosing the President, the votes shall be taken by 
 states, the representations from each state having one vote ; a 
 65 
 
118 APPENDIX. 
 
 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 Represent- 
 atives 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 j^erson have a majority, then, from the two highest num- 
 bers on the list, the Senate shall choose the Vice-President. A 
 quorum for that purpose shall consist of two-thirds of the 
 whole number of the Senators, and a majority of the whole 
 number shall be necessary to a choice. 
 
 "'But no person constitutionally ineligible to the office of 
 President shall be eligible to that of Vice-President of the 
 United States.' 
 
 " Attest. John Beckley, 
 
 Clerh of the House of Representatives oftne if nited States. 
 "Sam. a. Otis, 
 
 Secretary to the Senate of the TInited States^ 
 
 At the same session, an act passed of which the following is 
 the 1st section: 
 
 *''' An act suppleinentary to an Act, entitled An Act relative to 
 the election of a President and Vice-President of the TInited 
 States, and declaring the Officer loho shall act as President, in 
 Case of Vacancies in the Offices both of President and Vice- 
 President. 
 
 " Pe if enacted, by the Senate and House of Representatives 
 of the United States of America in Congress assembled. That, 
 whenever the amendment proposed, during the present session 
 of Congress, to the Constitution of the United States, respecting 
 the manner of voting for President and Vice-President of the 
 United States, shall have been ratified by the legislatures of 
 three-fourths of the sevei-al states, the secretary of state shall 
 forthwith cause a notification thereof to be made to the execu- 
 tive of every state, and shall also cause the same to be published 
 in at least one of the newspapers printed in each state, in Avhich 
 the laws of the United States are annually published. The 
 
f APPENDIX. 1X9 
 
 executive authority of each state shall cause a transcript of the 
 said notification to be delivered to the electors appointed for 
 that purpose, who shall first thereafter meet in such state, for 
 the election of a President and Vice-President of the United 
 States ; and whenever the said electors shall have received the 
 said transcript of notification, or whenever they shall meet more 
 than five days subsequent to the publication of the above-men- 
 tioned amendment, in one of the newspapers of the state, by 
 the secretary of state, they shall vote for President and Vice- 
 President of the United States, respectively, in the manner 
 directed by the above-mentioned amendment ; and, having made 
 and signed three certificates of all the votes given by them, 
 each of which certificates shall contain two distinct lists — one, 
 of the votes given for President, and the other, of the votes 
 given for Vice-President— they shall seal up the said certificates, 
 certifying on each that lists of all the votes of such state given 
 for President, and of all the votes given for Vice-President, are 
 contained therein, and shall cause the said certificates to be 
 transmitted and disposed of, and in every other respect act in 
 conformity with the provisions of the act to which this is a 
 supplement. And every other provision of the act to which 
 this is a supplement, and which is not virtually repealed by this 
 act, shall extend and apply to every election of a President and 
 Vice-President of the United States, made in conformity to the 
 above-mentioned amendment to the Constitution of the United 
 States." 
 
 NO. 17. 
 
 And on the 25th of September, 1804, the following notice 
 in pursuance of the above provision, was issued from the state 
 department : 
 
 " -^.y James Madison, Secretary/ of State of the United States. 
 " Public notice is hereby given, in pursuance of the act of 
 Congress passed on the 26th March last, entitled 'An Act sup- 
 plementary to the Act entitled An Act relative to the Election 
 of a President and Vice-President of the United States, and 
 declaring the ofiicer who shall act as President, in case of 
 vacancies in the offices both of President and Vice-President,* 
 Tliat the amendment proposed, during the last session of Con- 
 gress, to the Constitution of the United States, respecting the 
 manner of voting for President and Vice-President of the 
 
120 APPENDIX. 
 
 United States, has been ratified by the legislatures of three- 
 fourths of the several states — to wit, by those of Vermont, 
 Rhode Island, New York, New Jersey, Pennsylvania, Maryland, 
 Virginia, Ohio, Kentucky, Tennessee, North Carolina, South 
 Carolina, and Georgia, and has thereby become valid as part of 
 the Constitution of the United States. 
 
 " Given under my hand, at the city of "Washington, this 
 twenty-fifth day of September, 1804. 
 
 (Signed) JAMES MADISON." 
 
 isro. 18. 
 
 LOUISIANA. 
 
 To illustrate the mode of investing the people of a territory 
 with the franchise of a political state in the Union, take the 
 history of Louisiana from the time of the cession of that ter- 
 ritory by France to the United States, until the state of 
 Louisiana was incorporated and her inhabitants enfranchised. 
 
 By an act of congress of October 31, 1803, the President of 
 the United States was authorized to take possession of, and to 
 occupy the territory ceded by France to the United States — 
 the Louisiana territory — and to maintain the authority of the 
 nation therein by the employment of the army and navy to any 
 extent necessary ; and, until the expiration of that session of 
 congress, unless a temporary government was sooner provided 
 the military, civil and judicial powers exercised by the ofiicers 
 of the existing government, were to be vested in such persons 
 as the president might appoint, for the purpose of maintaining 
 and protecting the inhabitants of the territory in the free 
 enjoyment of their liberty, property and religion. (2 United 
 States Statutes at Large, p. 245 ) 
 
 On the 26th March, 1804, by an act of congress of that date, 
 the country ceded by France to the United States under the 
 name of the Louisiana territory, was divided into two ter- 
 ritories ; and the lands south of the Mississippi territory was 
 denominated the territory of Orleans, and a territorial govern- 
 ment was organized therein. The executive power in the 
 territory was vested in a governor, who was to be appointed by 
 the president ; a secretary was to be appointed by the president, 
 whose duty it was, under the direction of the governor, to 
 record and preserve all the papers and proceedings of the 
 executive, and all the acts of the governor and legislative 
 counsels, and transmit authentic copies of the proceedings of 
 
APPENDIX. 121 
 
 the governor in his executive department, every six months, to 
 the president. 
 
 The legislative poAvers for the territory were vested in the 
 governor and a legislative coimcil to be appointed by the presi- 
 dent, consisting of thirteen of the most fit and discreet persons 
 of the territory. Their laws were to be laid before congress, 
 and if disapproved by them, they were to be of no force. This 
 act also provided for the establishment of a judiciary depart- 
 ment, the judges, marshals, and district attorney to be 
 appointed by the president. The governor and council were to 
 have no control over the primary disposition of the soil, nor 
 to tax the lands of the United States ; nor to decide upon any 
 interfering claims. The laws of the United States were to be 
 enforced in such territory. (2 United States Statutes at Large, 
 pp. 283, 284.) The residue of the Louisiana territory was to be 
 called the district of Louisiana, and Avas substantially, for politi- 
 cal or governmental purposes, annexed to the territory of 
 Indiana, to be under' the government of the officers of that ter- 
 ritory. (See 2 United States Statutes at Large, p. 287.) 
 
 By the act of congress of February 20, 1811, to enable the 
 people of the territory of Orleans to form a constitution and 
 state government, and for the admission of such state into the 
 Union on an equal footing with the original states, it was pro- 
 Tided, that the inhabitants of all that part of the territory 
 or country ceded under the name of Louisiana by the treaty 
 made at Paris, etc., between the United States and France, 
 contained within the limits therein described, etc., are hereby 
 authorized to form for themselves a constitution and state gov- 
 ernment, and to assume such name as they may deem proper 
 under the provisions, and upon the conditions therein mentioned. 
 Then followed the directions as to the persons who should par- 
 ticipate in the formation of the constitution and government, 
 and such other directions and conditions as congress saw fit to 
 impose upon them. (See 2 United States Statutes at Large, pp. 
 641, 642.) 
 
 Under this enabling act of congress, the authorized inhabit- 
 ants of that territory elected their delegates, held their 
 convention, prepared their constitution of state government, 
 and submitted the same to congress, which, on the 8th of 
 April, 1812, by preamble, reciting that the people of the ter- 
 ritory of Orleans, within the boundaries therein set forth, had, 
 
122 APPENDIX. 
 
 under the enabling act of February 20, 1811, formed a constitu- 
 tion and state government, and had submitted said constitution 
 to congress, which was approved. Therefore congress enacted 
 that the said State of Louisiana should be one, and it was 
 thereby declared to be one of the United States of America ; 
 and admitted into the Union on an equal footing with the 
 original states. (See 2 United States Statutes at Large, pp. 
 701, 702, 703,704.) 
 
 In tracing the legal and political history of the formation 
 and incoriDoration of the State of Louisiana into the Union, the 
 reader will find the substantial history of all the new states, 
 which have been created and admitted into political union with 
 the other states since the organization of the general govern- 
 ment. This of itself is a sufficient refutation of the theory of 
 the original and inherent sovereignty of the states as political 
 institutions. 
 
 MISSISSIPPI. 
 
 March 1, 1817, congress passed an act to enable the people 
 of the western part of the Mississippi territory to form a con- 
 stitution and a state government, and for the admission of such 
 state in the Union, on an equal footing with the original states. 
 (3 United States Statutes at Large, pp. 348, 349.) The people 
 of the territory having complied with the provisions of the 
 enabling act aforesaid, were admitted as a political corj)oration, 
 into the Union by a joint resolution of congress, Dec. 10, 1817. 
 (See 3 United States Statutes at Large, p. 472.) 
 
 The history of the incorporation and admission of neAV states 
 into the Union has always been by the authority of the United 
 States, and not by the authority of the states themselves. 
 
APPENDIX. 123 
 
 NO. 19. 
 SUPREME COURT OF THE UNITED STATES. 
 
 *Mx-partG : In the matter of A. H. Gaeland^ \ On motion for 
 
 of Arkansas, Petitioner. f leave to prac- 
 
 JEx-parte : In the matter of R. II. Maer, of ( tice as attor- 
 
 Louisiana, Petitioner, I neys, etc. 
 
 and 
 
 John A. Cummings, Plaintiff in Error ^ In error to the 
 
 V. > S. C. of the 
 
 The State of Missouri. ) State of Mo. 
 
 Mr. Justice Miller dissenting. f 
 
 I dissent from the opinion of the court just announced. * * 
 * * * * 'pjjg constitution of the United States makes 
 ample provision for the establishment of courts of justice to 
 administer her laws, and to protect and enforce the rights of her 
 citizens. Article III, Section I, of that instrument, says that 
 " the judicial power of the United States shall be vested in one 
 supreme court, and such inferior courts as the congress 
 may, from time to time, ordain and establish." Section 8, of 
 Article I, closes its enumeration of the powers conferred on 
 congress by the broad declaration that it shall have authority 
 "to make all laws which shall be necessary and jjroper for car- 
 rying into execution the foregoing powers, and all other pow- 
 ers, vested by the constitution in the government of the United 
 States, or in any department thei'eof." 
 
 Under these provisions congi-ess has ordained and established 
 circuit courts, district courts, and territorial courts, and has, by 
 various statutes, fixed the number of the judges of the supreme 
 court. It has limited and defined the jurisdiction of all these, 
 and determined the salaries of the judges who hold them. It has 
 provided for their necessary officers, as marshals, clerks, pros- 
 ecuting attorneys, bailifis, commissioners, and jurors. And by 
 the act of 1789, commonly called the judiciary act, passed by 
 the first congress assembled under the constitution, it is among 
 other things enacted, that " in all the courts of the United 
 States the parties may plead and manage their causes person- 
 ally or by the assistance of such counsel or attorneys-at-law as, 
 
 * December Term, 186G. 
 
 t Chief Justice Chase and Justices Swayne and Davis concurring. Want of 
 space prevents us from publislaing this interesting and valuable opinion at 
 length. We select from it such parts as relate to the position and duties of 
 attorneys, and to the definition of bills of attainder and expost facto laws. 
 
124 APPENDIX. 
 
 by the rules of the said courts respectively, shall be permitted 
 to manage and conduct causes therein." 
 
 It is believed that no civilized nation of modern times has 
 been without a class of men intimately connected with the 
 courts, and with the administration of justice, called, variously, 
 attorneys, counselors, solicitors, proctors, and other terms of 
 similar import. The enactment which we have just cited 
 recognizes this body of men, and their utility in the judicial 
 system of the United States, and imposes uj)on the courts the 
 duty of providing rules, by which persons entitled to become 
 members of this class may be permitted to exercise the privi- 
 lege of managing and conducting causes in these courts. They 
 are as essential to the successful working of the courts, as the 
 clerks, sheriffs, and marshals, and perhaps as the judges them- 
 selves, since no instance is known of a court of law without 
 a bar. 
 
 The right to practice law in the courts as a profession, is a 
 privilege granted by the law, under such limitations or condi- 
 tions in each state or government as the law-making power may 
 prescribe. It is a privilege and not an absolute right. The 
 distinction may be illustrated by the difference between the 
 right of a party to a suit in court to defend his own caused and 
 the right of another to appear and defend for him. The one, 
 like the right to life, liberty, and the pursuit of happiness, is 
 inalienable. The other is the privilege conferred by law on a 
 person who complies with the presci-ibed conditions. 
 
 Every state in the Union, and every civilized government, 
 has laws by which the right to practice in its courts may be 
 granted, and makes that right to depend on the good moral 
 character and professional skill of the party on whom the privi- 
 lege is conferred. This is not only true in reference to the first 
 grant of license to practice law, but the continuance of the 
 right is made, by these laAvs, to depend upon the continued pos- 
 session of those qualities. 
 
 Attorneys are often deprived of this right, upon evidence of 
 bad moral character, or specific acts of immorality and dishon- 
 esty which show that they no longer possess the requisite quali- 
 fications. 
 
 All this is done by law, either statutory or common ; and 
 whether the one or the other, equally the expression of legisla- 
 tive will, for the common law exists in this country only as it is 
 adopted or permitted by the legislatures, or by constitutions. 
 
APPENDIX. 125 
 
 No reason is perceived why this body of men, in their import- 
 ant relations to the courts of the nation, are not subject to the 
 action of congress, to the same extent that they are under legis- 
 lative control in the states, or in any other government ; and to 
 the same extent that the judges, clerks, marshals, and other 
 ofticei-s of the court are subject to congressional legislation. 
 Having the power to establish the courts, to provide for and 
 regulate the practice in those courts, to create their officers, 
 and prescribe their functions, can it be doubted that congress 
 has the full right to prescribe terms for the admission, rejection, 
 and expulsion of attorneys, and for requiring of them an oath, 
 to show whether they have the proper qualifications for the dis- 
 charge of their duties ?******* 
 
 The majority of this court, however, do not base their deci- 
 sions on the mere absence of authority in congress, and in the 
 states, to enact the laws which are the subject of consideration, 
 but insist that the constitution of the United States forbids, in 
 prohibitory terms, the passage of such laws, both to the congress 
 and to the States. The provisions of that instrument, relied on 
 to sustain this doctrine, are those which forbid Congress and the 
 states, respectively, from passing bills of attainder and ex post 
 facto laws. It is said that the act of congress, and the provi- 
 sion of the constitution of the state of Missouri under review, 
 are in conflict with both these prohibitions, and are therefore 
 void. 
 
 I will examine this proposition, in reference to these two 
 clauses of the constitution, in the order in which they occur in 
 that instrument. 
 
 1. In regard to bills of attainder, I am not aware of any 
 judicial decision by a court of federal jurisdiction which under- 
 takes to give a definition of that term. We are thei-efore com- 
 pelled to recur to the bills of attainder passed by the English 
 parliament, that we may learn so much of their peculiar char- 
 acteristics as will enable us to arrive at a sound conclusion, as 
 to what was intended to be prohibited by the constitution. 
 
 The word attainder is derived, by Sir Thomas Tomlins, in his 
 law dictionary, from the words attincta and attinctura, and is 
 defined to be " the stain or corruption of the blood of a criminal 
 capitally condemned ; the immediate inseparable consequence of 
 the common law, on the pronouncing the sentence of death." 
 The eflTect of this corruption of blood was, that the party attainted 
 66 
 
126 APPEITDIX. 
 
 lost all inheritable quality, and could neither receive nor trans- 
 mit any property or other rights by inheritance. 
 
 This attainder, or corruption of blood, as a consequence of 
 judicial sentence of death, continued to be the law of England, 
 in all cases of treason, to the time that ouir constitution was 
 framed, and, for aught that is known to me, is the law of that 
 country, on condemnation for treason, at this day. 
 
 Bills of attainder, therefore, or acts of attaindisr, as they were 
 called after they were passed into statutes, were laws which 
 declared certain persons attainted, and their blood corrupted so 
 that it had lost all heritable quality. Whether it declared other 
 punishment or not, it was an act of attainder if it declared this. 
 This also seems to have been the main feature at which the 
 authors of the constitution were directing their prohibition ; for 
 after having, in article I, prohibited the passage of bills of 
 attainder — in section nine, to congress, and in section ten, to the 
 states — there still remained to the judiciary the power of declar- 
 ing attainders. Therefore, to still further guard against this 
 odious form of punishment, it is provided, in section 3, of article 
 III, concerning the judiciary, that, while congress shall have 
 power to declare the punishment of treason, no attainder of 
 treason shall work corruption of blood or forfeiture, except 
 during the life of the person attainted, v. 
 
 This, however, while it was the chief, was not the only pecu- 
 liarity of bills of attainder Avhich was intended to be included 
 within the constitutional restriction. Upon an attentive 
 examination of the distinctive features of this kind of legislation, 
 I think it will be found that the following comprise those essen- 
 tial elements of bills of attainder, in addition to the one already 
 mentioned, which distinguish them from other legislation, and 
 which made them so obnoxious to the statesmen who organized 
 our government : 
 
 1. They were convictions and sentences pronounced by the 
 legislative department of the government, instead of the judicial. 
 
 2. The sentence pronounced and the punishment inflicted 
 were determined by no previous law or fixed rule. 
 
 3. The investigation into the guilt of the accused, if any such 
 were made, was not necessarily or generally conducted in his 
 presence, or that of his counsel, and no recognized rule of evi- 
 dence governed the inquiry. (See Story on the Constitution, 
 Sec. 1344.) 
 
APPENDIX. 127 
 
 It is no cause for wonder that men who had just passed suc- 
 cessfully through a desperate struggle in behalf of civil liberty 
 should feel a detestation for legislation of which these were the 
 prominent features. The framei's of our political system had a 
 full appreciation of the necessity of keeping separate and dis- 
 tinct the primary departments of the government. Mr. 
 Hamilton, in the seventy-eighth number of the Federalist, says 
 that he agrees with the maxim of Montesquieu, that " there is 
 no liberty if the power of judging be not separated from the 
 legislative and executive powers." And others of the ablest 
 numbers of that publication are devoted to the purpose of show- 
 ing that in our Constitution these powers are so justly balanced 
 and restrained that neither Avill probably be able to make much 
 encroachment upon the others. Nor was it less repugnant to 
 their views of the security of personal rights, that any person 
 should be condemned without a hearing, and punished without 
 a law previously prescribing the nature and extent of that 
 punishment. They therefore struck boldly at all this machinery 
 of legislative despotism, by forbidding the passage of bills of 
 attainder and ex post facto laws, both to congress and to the 
 states. 
 
 It remains to inquire whether, in the act of congress under 
 consideration (and the remarks apply with equal force to the 
 Missouri Constitution), there is found any one of these features 
 of bills of attainder, and if so, whether there is sufficient in the 
 act to bring it fairly within the description of that class of bills. 
 
 It is not claimed that the law works a corruption of blood. 
 It will therefore be conceded at once, that the act does not 
 contain this leading feature of bills of attainder. 
 
 Nor am I capable of seeing that it contains a conviction or 
 sentence, of any designated person or persons. It is said that 
 it is not necessary to a bill of attainder that the party to be 
 affected should be named in the act, and the attainder of the 
 Earl of Kildare and his associates is referred to as showing that 
 the act was aimed at a class. It is very true that bills of 
 attainder have been passed against persons by some description, 
 •when their names were unknown. But in such cases the law 
 leaves nothing to be done to render its operation effectual, but 
 to identify those persons. Their guilt, its nature, and its 
 punishment are fixed by the statute, and only their personal 
 identity remains to be made out. Such was the case alluded to. 
 
128 APPENDIX. 
 
 The act declared the guilt and punishment of the Earl of Kil- 
 dare, and all who were associated with him in his enterprise, 
 and all that was required to insure their punishment was to 
 prove that association. 
 
 If this were not so, then the act was mere hrutum fulmen^ 
 and the parties other than the earl could only be punished, not- 
 withstanding the act, by proof of their guilt before some 
 competent tribunal. 
 
 No person is pointed out in the act of congress, either by 
 name or by description, against whom it is to operate. The 
 oath is only required of those who j)ropose to accept an ofRce 
 or to practice law ; and as a pre-requisite to the exercise of the 
 functions of the lawyer, or the officer, it is demanded of all 
 jDcrsons alike. It is said to be directed as a class to those alone 
 who were engaged in the rebellion ; but this is manifestly 
 incorrect, as the oath is exacted alike from the loyal and the 
 disloyal, under the same circumstances, and none are compelled 
 to take it. Neither does the act declare any conviction, either 
 of persons or classes. If so, who are they, and of Avhat crime 
 are they declared to be guilty? Nor does it pronounce any 
 sentence or inflict any punishment. If by any possibility it can 
 be said to 2y>'ovide for conviction and sentence, though not found 
 in the act itself, it leaves the party himself to determine his 
 own guilt or innocence, and pronounce his own sentence. It is 
 not, then, the act of congress, but the party interested, that 
 tries and condemns. We shall see, when we come to the dis- 
 cussion of this act in its relation to ex post facto laws, that it 
 inflicts no punishment. 
 
 A statute, then, which designates no criminal, either by name 
 or description — which declares no guilt, pronounces no sentence^ 
 and inflicts no punishment — can in no sense be called a bill of 
 attainder. 
 
 2. Passing now to consider whether the statute is an ex post 
 facto law, we find that the meaning of that term as used in the 
 constitution is a matter which has been frequently before this 
 court, and it has been so well defined as to leave no room for 
 controversy. The only doubt which can arise is as to the char- 
 acter of the particular case claimed to come within the definition, 
 and not as to the definition of the phrase itself 
 
 All the cases agree that the term is to be applied to criminal 
 causes alone, and not to civil proceedings. In the language of 
 
APPENDIX. 129 
 
 Justice Stoey, in the case of Watson v. Mercer (8 Peters, 88), 
 " ex x>ost facto laws relate to penal and criminal proceedings, 
 which impose punishment and forfeiture, and not to civil pro- 
 ceedings, which affect private rights retrospectively." [Calder 
 V. JBull^ 3 Dallas, 386 ; Fletcher v. PecJc^ 6 Cranch, 8'/ ; Ogden v. 
 Saunders^ 12 Wheaton, 266; Satterlee v. Matthewson^ 2 Peters, 
 380.) 
 
 The first case on the subject is that of Calder v. JBull^ and it 
 is the one in which the doctrine concerning ex post facto laws is 
 most fully expounded. The court divides all laws which come 
 within the meaning of that clause of the constitution into four 
 classes — 
 
 1st. Every law that makes an action done before the passing 
 of the law, and which was innocent when done, criminal, and 
 punishes such action. 
 
 2d. Every law that aggravates a crime, or makes it greater 
 than it was Avhen committed. 
 
 3d. Every law that changes the punishment, and inflicts a 
 greater punishment than the law annexed to the crime when 
 committed. 
 
 4th. Every law that alters the rule of evidence, and receives 
 less or diffei-ent testimony than the law required at the time of 
 the commission of the offense to convict the offender. 
 
 Again, the court says, in the same opinion, that " the true 
 distinction is between ex post facto laws and retrospective 
 laws," and proceeds to show that, however unjust the latter 
 may be, they are not prohibited by the constitution, while the 
 former are. 
 
 This exposition of the nature of ex post facto laws has never 
 been denied, nor has any court or any commentator on the con- 
 stitution added to the classes of laws here set forth, as coraino- 
 within that clause of the organic law. In looking carefully at 
 these four classes of laws, two things strike the mind as com- 
 mon to them all — 
 
 1st. That they contemplate the trial of some person charged 
 with an offense. 
 
 2d. That they contemplate a punishment of the person found 
 guilty of such offense. 
 
 Now, it seems to me impossible to show that the law in ques- 
 tion contemplates either the trial of a person for an offense 
 committed before its passage, or the punishment of any person 
 
130 APPENDIX. 
 
 for such an offense. It is true that the act requiring an oath 
 provides a penalty for falsely taking it. But this provision is 
 prospective, as no one is supposed to take the oath until after 
 the passage of the law. This prospective penalty is the only 
 thing in the law which partakes of a criminal charactei*. It is 
 in all other respects a civil proceeding. It is simply an oath of 
 office, and it is required of all office-holders alike. As far as 1 
 am informed, this is the first time in the history of jurisprudence 
 that taking an oath of office has been called a criminal pro- 
 ceeding. If it is not a criminal proceeding, then, by all the 
 authorities, it is not an ex post facto law. 
 
 No trial of any person is contemplated by the act for any 
 past offense. Nor is any party supposed to be charged with 
 any offense in the only proceeding which the law provides. 
 
 A person proposing to appear in the court as an attorney is 
 asked to take a certain oath. There is no charge made against 
 him that he has been guilty of any of the crimes mentioned in 
 that oath. There is no prosecution. There is not even an 
 implication of guilt by reason of tendering him the oath, for it 
 is required of the man who has lost everything in defense of 
 the government, and whose loyalty is written in the honorable 
 scars which cover his body, the same as of the guiltiest traitor 
 in the land. His refusal to take the oath subjects him to no 
 prosecution. His taking it clears him of no guilt, and acquits 
 him of no charge. 
 
 Where, then, is this ex post facto law which tries and punishes 
 a man for a crime committed before it was passed ? It can only 
 be found in those elastic rules of construction which cramp the 
 powers of the federal government when they are to be exercised 
 in certain directions, and enlarges them when they are to be 
 exei'cised in others. No more striking example of this could be 
 given than the cases before us, in one of which the constitution 
 of the United States is held to confer no power on congress to 
 prevent traitors practicing in her courts, while in the other it is 
 held to confer power on this court to nullify a jsrovision of the 
 constitution of the state of Missouri, relating to a qualification 
 required of ministers of religion. 
 
 But the fatal vice in the reasoning of the majority is in the 
 meaning which they attach to the word punishment, in its 
 application to this law, and in its relation to the definitions 
 which have been given of the phrase, ex post facto laws. 
 
APPENDIX. 131 
 
 Webster's second definition of the word punish is this : " In 
 a loose sense, to afflict with punishment, etc., with a view to 
 amendment, to chasten." And it is in this loose sense that the 
 word is used by this court, as synonymous with chastisement, 
 correction, loss, or suffering to the party supposed to be pun- 
 ished, and not in the legal sense, which signifies a penalty 
 inflicted for the commission of a crime. 
 
 And so, in this sense, it is said that whereas persons who had 
 been guilty of the offenses mentioned in the oath were, by the 
 laws then in force, only liable to be punished with death and 
 confiscation of all their property, they are by a law passed since 
 these offenses were committed, made liable to the enormous 
 additional punishment of being deprived of the right to prac- 
 tice law ! 
 
 The law in question does not in reality deprive a person guilty 
 of the acts therein described of any right which he possessed 
 before ; for it is equally sound law, as it is the dictate of good 
 sense, that a person who, in the language of the act, has volun- 
 tarily borne arms against the government of the United States 
 while a citizen thereof, or who has voluntarily given aid, com- 
 fort, counsel, or encouragement to persons engaged in armed 
 hostility to the goverment, has, by doing those things, forfeited 
 his right to appear in her courts and take part in the adminis- 
 tration of her laws. Such a person has exhibited a trait of 
 character wliich, without the aid of the law in question, author- 
 izes the court to declare him unfit to practice before it, and to 
 strike his name from the roll of its attorneys if it be found 
 there. 
 
 I have already shoAvn that this act provides for no indictment 
 or other charge, that it contemplates and admits of no trial, and 
 I now proceed to show that even if the right of the court to 
 2:)revent an attorney, guilty of the acts mentioned, from appear- 
 ing in its forum, depended upon the statute, that still it inflicts 
 no punishment in the legal sense of that term. 
 
 Punishment, says Mr. Whaetoi^ in his Law Lexicon, is " the 
 penalty for transgressing the law;" and this is, perhaps, as 
 comprehensive, and at the same time as accurate a definition 
 as can be given. Now Avhat law is it whose transgression is 
 punished in the case before us ? None is referred to in the act, 
 and there is nothing on its face to show that it was intended as 
 an additional punishment for any offense described in any other 
 
132 APPENDIX. 
 
 act. A part of the matters of which the applicant is required 
 to purge himself on oath may amount to treason, but surely 
 there could be no intention or desire to inflict this small addi- 
 tional punishment for a crime whose penalty already was death 
 and confiscation of property. 
 
 In fact the word punishment is used by the court in a sense 
 which would make a great number of laws, partaking in no 
 sense of a criminal character, laws for punishment, and there- 
 fore ex post facto. 
 
 A law, for instance, which increased the facility for detecting 
 frauds by compelling a party to a civil proceeding to disclose 
 his transactions under oath would result in his punishment in 
 this sense, if it compelled him to pay an honest debt which 
 could not be coerced from him before. But this law comes 
 clearly within the class described by this court in Watson v. 
 Mercer, as civil proceedings which affect private rights retro- 
 spectively. 
 
 Again, let us suppose that several persons afflicted with a 
 form of insanity heretofore deemed harmless, shall be found all 
 at once to be dangerous to the lives of persons with whom they 
 associate. The state, therefore, passes a law that all persons so 
 affected shall be kept in close confinement until their recovery 
 is assured. Here is a case of punishment in the sense used by 
 the court for a matter existing before the passage of the law. 
 Is it an ex post facto law ? And if not, in what does it differ 
 from one ? Just in the same manner that the act of congress 
 does, namely, that the proceeding is civil and not criminal, and 
 that the imprisonment in the one case and the prohibition to 
 practice law in the other, are not punishments in the legal 
 meaning of that term. 
 
 The civil law maxim, "iVemo dehet his vexari, pro una et 
 eadein causa^'' has been long since adopted into the common 
 law as applicable both to civil and criminal proceedings, and 
 one of the amendments of the constitution incorporates this 
 principle into that instrument so far as punishment affects life 
 or limb. It results from this rule, that no man can be twice 
 lawfully punished for the same offense. We haive already seen 
 that the acts of which the party is required to purge himself 
 on oath constitute the crime of treason. Now if the judgment 
 of the court in the cases before us, instead of permitting the 
 parties to appear without taking the oath, had been the other 
 
APPENDIX. 133 
 
 W9J, here would have been the case of a person who, on the 
 reasoning of the majority, is j^unislied by the judgment of this 
 court for the same acts which constitute the crime of treason. 
 
 Yet, if the applicant here, should afterAvard be indicted for 
 treason on account of these same acts, no one will pretend that 
 the proceedings here could be successfully pleaded in bar of 
 that indictment. But why not? Simply because there is 
 here neither trial or punishment within the legal meaning of 
 these terms. 
 
 I maintain that the purpose of the act of congress was to 
 require loyalty as a qualification of all who practice law in the 
 national courts. The majority say that the purpose was to 
 impose a punishment for past acts of disloyalty. 
 
 In pressing this argument it is asserted by the majority that 
 no requirement can be justly said to be a qualification which is 
 not attainable to all, and that to demand a qualification not 
 attainable by all is a punishment. 
 
 The constitution of the United States provides as a qualifica- 
 tion for the offices of president and vice-president that the 
 person elected must be a native-born citizen. Is this a punish' 
 ijient to all those naturalized citizens who can never attain that 
 qualification ? The Constitution of nearly all the states require 
 as a qualification for voting that the voter shall be a white male 
 citizen. Is this a punishment for all the blacks who can never 
 become white ? 
 
 Again, it was a qualification required by some of the State 
 constitutions for the office of judge that the person should not 
 be over sixty years of age. To a very lai'ge number of the 
 ablest lawyers in any State this is a qualification to which they 
 can never attain, for every year removes them farther away 
 from the designated age. Is it a punishment? 
 
 The distinguished commentator on American law, and chan- 
 cellor of the state of New York, was deprived of that office by 
 this provision of the constitution of that state, and he was 
 thus, in the midst of his usefulness, not only turned out of office 
 but he was forever disqualified from holding it again by a law 
 passed after he had accepted the office. 
 
 This is a much stronger case than that of a disloyal attorney 
 forbid by law to practice in the courts, yet no one ever thought 
 the law was ex post facto in the sense of the constitution of the 
 United States. 
 67 
 
134 APPENDIX. 
 
 Illustrations of this kind could be multiplied indefinitely, 
 but they are unnecessary. 
 
 The history of the time when this statute was passed — the 
 darkest hour of our great struggle — the necessity for its exist- 
 ence, the humane character of the president who signed the 
 hill, and the face of the law itself, all show that it was purely a 
 qualification, exacted in self-defense, of all whcf took part in 
 administering the goverament in a.ny of its departments, and 
 that it was not passed for the purpose of inflicting punishment, 
 however merited, for past offenses. 
 
 I think I have now shown that the statu.te in question is within 
 the legislative power of congress in its control over the courts 
 and their officers, and that it was not void as being either a bill 
 of attainder or an ex post facto law. ***** 
 
 ]sro. 20. 
 
 CONSTITUTION OF THE UNITED STATES. 
 
 We the people of the United States, in order to form a more 
 perfect union, establish justice, insure domestic tranquillity, 
 provide for the common defense, promote the general wel- 
 fare, and secure the blessings of liberty to ourselves and our 
 posterity, do ordain and establish this constitution for the 
 United States of America. 
 
 ARTICLE I. 
 Section 1. All legislative powers herein granted shall be 
 vested in a congress of the United States, which shall consist 
 of a senate and house of representatives. 
 
 § 2. The house of representatives shall be composed of 
 members chosen every second year by the people of the several 
 states, and the electors in each state shall have the qualifica- 
 tions requisite for electors of the most numerous branch of the 
 state legislature. 
 
 No person shall be a representative who shall not have 
 attained to the age of twenty-five years, and been seven years a 
 citizen of the United States, and who shall not, when elected, 
 be an inhabitant of that state in which he shall be chosen. 
 
 Representatives and direct taxes shall be apportioned among 
 the several states which may be included within this union, 
 according to their respective numbers, which shall be determined 
 by adding to the whole number of free persons, including those 
 
APPENDIX. 135 
 
 bound to service for a term of years, and excluding Indians not 
 taxed, three-fifths of all other persons. The actual enumeration 
 shall be made within three years after the first meeting of the 
 congress of the United States, and Avithin every subsequent 
 term of ten years, in such manner as they shall by law direct. 
 The number of representatives shall not exceed one for every 
 thirty thousand, but each state shall have at least one repre- 
 sentative ; and until such enumeration shall be made, the state 
 of New Hampshire shall be entitled to choose three, Massa- 
 chusetts eight, Rhode Island and Providence Plantations one, 
 Connecticut five. New York six. New Jersey four, Pennsylvania 
 eight, Delaware one, Maryland six, Virginia ten, North Caro- 
 lina five. South Carolina five, and Georgia three. 
 
 When vacancies happen in the representation from any state, 
 the executive authority thereof shall issue writs of election to 
 fill such vacancies. 
 
 The house of representatives shall choose their speaker and 
 other oflicers; and shall have the sole power of impeachment. 
 
 § 3. The senate of the United States shall be composed of 
 two senators from each state, chosen by the legislature thereof, 
 for six years ; and each senator shall have one vote. 
 
 Immediately after they shall be assembled in consequence of 
 the first election, they shall be divided as equally as may be into 
 three classes. The seats of the senators of the first class shall 
 be vacated at the expiration of the second year, of the second 
 class at the expiration of the fourth year, and of the third class 
 at the expiration of the sixth year, so that one-third may be 
 chosen every second year ; and if vacancies happen by resigna- 
 tion, or otherwise, during the recess of the legislature of any 
 state, the executive thereof may make temporary aj)pointments 
 until the next meeting of the legislature, which shall then fill 
 such vacancies. 
 
 No person shall be a senator who shall not have attained to 
 the age of thirty years, and been nine years a citizen of the 
 United States, and who shall not when elected, be an inhabitant 
 of that state for Avhich he shall be chosen. 
 
 The vice-president of the United States shall be president of 
 the senate, but shall have no vote, unless they be equally divided. 
 
 The senate shall choose their other officers, and also a presi- 
 dent pro temjyore, in the absence of the vice-president, or when 
 he shall exercise the office of president of the United States. 
 
136 APPENDIX. 
 
 The senate shall have the sole power to try all impeachments. 
 When sitting for that purf)ose, they shall be on oath or affirma- 
 tion. When the president of the United States is tried, the 
 chief justice shall preside : and no person shall be convicted 
 without the concurrence of two-thirds of the members present. 
 
 Judgment in cases of impeachment shall not extend further 
 than to removal from office and disqualification to hold and 
 enjoy any office of honor, trust or profit under the United States ; 
 but the party convicted shall nevertheless be liable and subject 
 to indictment, trial, judgment and punishment, according to law. 
 
 § 4. The times, places and manner of holding elections for 
 senators and representatives shall be prescribed in each state 
 by the legislature thereof; but the congress may at any time 
 by law make or alter such regulations, except as to the places 
 of choosing senators. 
 
 The congress shall assemble at least once in every year, and 
 such meeting shall be on the first Monday in December, unless 
 they shall by law appoint a different day. 
 
 § 5. Each house shall be judge of the elections, returns and 
 qualifications of its own members, and a majority of each shall 
 constitute a quorum to do business ; but a smaller number may 
 adjourn from day to day, and may be authorized to compel the 
 attendance of absent members, in such manner and under such 
 penalties as each house may provide. 
 
 Each house may determine the rules of its proceedings, 
 punish its members for disorderly behavior, and, with the con- 
 currence of two-thirds, expel a member. 
 
 Each house shall keep a journal of its proceedings, and from 
 time to time publish the same, excepting such parts as may in 
 their judgment require secrecy, and the yeas and nays of the 
 members of either house on any question shall, at the desire of 
 one-fifth of those present, be entered on the journal. 
 
 Neither house, during the session of congress, shall, without 
 the consent of the other, adjourn for more than three days, nor 
 to any other place than that in which the two hovises shall be 
 sitting. 
 
 § 6. The senators and representatives shall receive a com- 
 pensation for their services, to be ascertained by law, and paid 
 out of the treasury of the United States. They shall in all 
 cases, except treason, felony and breach of the peace, be privi- 
 leged from arrest during their attendance at the session of their 
 
APPENDIX. 137 
 
 respective houses, and in going to and returning from the 
 same ; and for any speech or debate in either house, they shall 
 not be questioned in any other place. 
 
 No senator or representative shall, during the time for 
 which he was elected, be appointed to any civil office imder the 
 authority of the United States, which shall have been created, 
 or the emoluments whereof shall liave been increased during 
 such time ; and no person holding any office under the United 
 States, shall be a member of either house during his continu- 
 ance in office. 
 
 § 7. All bills for raising revenue shall originate in the house 
 of representatives ; but the senate may propose or concur with 
 amendments as on other bills. 
 
 Every bill which shall have passed the house of representa- 
 tives and the senate, shall, before it become a law, be presented 
 to the president of the United States ; if he approve he shall 
 sign it, but if not he shall return it, with his objections to that 
 house in which it shall have originated, who shall enter the 
 objections at large on their journal, and proceed to reconsider 
 it. If after such reconsideration two-thirds of that house shall 
 agree to pass the bill, it shall be sent, together with the objec- 
 tions, to the other house, by which it shall likewise be recon- 
 sidered, and if approved by two-thirds of that house, it shall 
 become a law. But in all such cases the votes of both houses 
 shall be determined by yeas and nays, and the names of the 
 persons voting for and against the bill shall be entered on the 
 journal of each house respectively. If any bill shall not be 
 returned by the president within ten days (Sundays excepted) 
 after it shall have been presented to him, the same shall be a 
 law, in like manner as if he had signed it, unless the congress 
 by their adjournment prevent its return, in which case it shall 
 not be a law. 
 
 Every order, resolution, or vote to which the concurrence of 
 the senate and house of representatives may be necessary 
 (except on a question of adjournment), shall be presented to the 
 president of the United States ; and before the same shall take 
 effect, shall be appi'oved by him, or being disapproved by him, 
 shall be repassed by two-thirds of the senate and house of rep- 
 resentatives, according to the rules and limitations prescribed 
 in the case of a bill. 
 
138 APPENDIX. 
 
 § 8. The congress shall have power 
 
 To lay and collect taxes, duties, imposts and excises, to pay 
 the debts and jDrovide for the common defense and general wel- 
 fare of the United States ; but all duties, imposts and excises 
 shall be uniform throughout the United States ; 
 
 To borrow money on the credit of the United States ; 
 
 To regulate commerce with foreign nations, and among the 
 several States, and with the Indian tribes ; 
 
 To establish an uniform rule of naturalization, and uniform 
 laws on the subject of bankruptcies throughout the United 
 States; 
 
 To coin money, regulate the value thereof, and of foreign 
 coin, and fix the standard of weights and measures; 
 
 To provide for the punishment of counterfeiting the secui'ities 
 and current coin of the United States ; 
 
 To establish post-ofiices and post-roads ; 
 
 To promote the progress of science and useful arts, by secur- 
 ing for limited times to authors and inventors the exclusive right 
 to their respective writings and discoveries ; 
 
 To constitute tribunals inferior to the supreme court ; 
 
 To define and punish piracies and felonies committed on the 
 high seas, and ofienses against the law of nations ; 
 
 To declare war, grant letters of marque and reprisal, and 
 make rules concerning captures on land and water ; 
 
 To raise and sujDport armies, but no appropriation of money 
 to that use shall be for a longer term than two years ; 
 
 To provide and maintain a navy ; 
 
 To make rules for the government and regulation of the land 
 and naval forces ; 
 
 To provide for calling forth the militia to execute the laws of 
 the union, suppress insurrections and repel invasions ; 
 
 To provide for organizing, arming and disciplining the militia, 
 and for governing such part of them as may be employed in the 
 service of the United States, reserving to the states respectively 
 the appointment of the officers, and the authority of training 
 the militia according to the discipline prescribed by congress ; 
 
 To exercise exclusive legislation in all cases whatsoever, over 
 such district (not exceeding ten miles square) as may, by cession 
 of particular states and the acceptance of congress, become the 
 seat of the government of the United States, and to exercise 
 like authority over all places purchased by the consent of the 
 
APPENDIX. 139 
 
 legislature of the state in winch the same shall be, for the erec- 
 tion of forts, magazines, arsenals, dock-yards, and other needful 
 buildings ; and 
 
 To make all laws which shall be necessary and proper for 
 carrying into execution the foregoing powers, and all other 
 powers vested by this constitution in the government of the 
 United States, or in any department or officer thereof. 
 
 § 9. The migration or importation of such persons as any of 
 the states now existing shall think proper to admit, shall not be 
 prohibited by the congress prior to the year one thousand eight 
 hundred and eight, but a tax or duty may be imposed on such 
 importation, not exceeding ten dollars for each person. 
 
 The privilege of the writ of habeas corpus shall not be sus- 
 pended, unless when in cases of rebellion or invasion the public 
 safety may require it. 
 
 No bill of attainder or ex post facto law shall be passed. 
 
 No capitation, or other direct, tax shall be laid, unless in 
 proportion to the census or enumeration herein before directed 
 to be taken. 
 
 No tax or duty shall be laid on articles exported from any state. 
 
 No preference shall be given by any regulation of commerce 
 or revenue to the ports of one state over those of another : nor 
 shall vessels bound to, or from, one state, be obliged to enter, 
 clear, or pay duties in another. 
 
 No money shall be drawn from the treasury, but in conse- 
 quence of appropriations made by law ; and a regular statement 
 and account of the receipts and expenditm-es of all public money 
 shall be published from time to time. 
 
 No title of nobility shall be granted by the TJnited States : 
 And no person holding any 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. 
 
 § 10. No state shall enter into any treaty, alliance or confed- 
 eration ; grant letters of marque and reprisal ; coin money ; emit 
 bills of credit ; make anything but gold and silver coin a tender 
 in payment of debts ; pass any bill of attainder, ex post facto 
 law, or law impairing the obligation of contracts, or grant any 
 title of nobility. 
 
 No state shall, without the consent of the congress, lay any 
 imposts or duties on imports or exports, except what may be 
 
140 APPENDIX. 
 
 absolutely necessary for executing its inspection laws ; and the 
 net produce of all duties and imposts, laid by any state on im- 
 ports or exj)orts, shall be for the use of the treasury of the 
 United States ; and all such laws shall be subject'to the revision 
 and control of the congress. 
 
 No state shall, without the consent of congress, lay any duty 
 of tonnage, keep troops or ships of war in time of j)eace, enter 
 into any agreement or compact with another state or with a 
 foreign power, or engage in war, unless actually invaded or in 
 such imminent danger as will not admit of delay. 
 
 ARTICLE II. 
 
 Section 1. The executive power shall be vested in a president 
 of the United States of America. He shall hold his office dur- 
 ing the term of four years, and, together with the vice-president, 
 chosen for the same term, be elected, as follows : 
 
 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 apjDointed an elector : 
 
 [* 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 of the 
 number of votes for each; which list they shall sign and certify, aiid transmit 
 sealed to the seat of the government of the United States, directed to the presi- 
 dent 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 the president, if such number be a majority of the whole number of electors 
 appointed; and if there be more than one who have such majority, and have 
 an equal number of votes, then the house of representatives shall immediately 
 choose by ballot one of them for 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 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. In every case, 
 after the choice of the president, the person having the greatest number of 
 votes of the electors shall be the 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.] 
 
 The congress may determine the time of choosing the elec- 
 tors, and the day on which they shall give their votes; which 
 day shall be the same throughout the United States. 
 
 * This clause witliin brackets has been superseded and annulled by the 12th 
 amendment. 
 
APPENDIX. 141 
 
 No person except a natural born citizen, or a citizen of the 
 United States, at the time of the adoption of this constitution, 
 shall be eligible to the office of president; neither shall any per- 
 son be eligible to that office Avho shall not have attained to the 
 age of thirty-five years, and been fourteen years a resident within 
 the United States. 
 
 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-presi- 
 dent, 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 presi- 
 dent, and such officer shall act accordingly, until the disability 
 be removed, or a president shall be elected. 
 
 The president shall, at stated times, receive for his services, a 
 compensation, which shall neither be increased nor diminished 
 during the period for which he shall have been elected, and he 
 shall not receive within that period any other emolument from 
 the United States, or any of them. 
 
 Before he enter on 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." 
 
 § 2. 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 ; 
 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 o^ces, and he shall have power to 
 o-rant reprieves and pardons for offianses against the United 
 States, except in cases of impeachment. 
 
 He shall have power, by and with the advice and consent of 
 the senate, to make treaties, provided two-thirds of the senators 
 present concur ; and he shall nominate, and by and with the 
 advice and consent of the senate, shall appoint embassadors, 
 other public ministers and consuls, judges of the supreme court 
 and all other officers of the United States, whose appointments 
 are not herein otherwise provided for, and which shall be estab- 
 lished by law ; but the congress may by law vest the appoiut- 
 68 
 
142 APPENDIX. 
 
 ment of sucli inferior officers as they think proper in the presi- 
 dent alone, in the courts of law, or in the heads of departments. 
 
 The president shall have power to fill up all vacancies that 
 may happen during the recess of the senate, by granting com- 
 missions which shall expire at the end of their next session. 
 
 § 3. He shall from time to time give to the congress informa- 
 tion of the state of the union, and recommend to their consid- 
 eration such measures as he shall judge necessary and expedient ; 
 he may, on extraordinary occasions, convene both houses, or 
 either of them, 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 ; he shall receive embassadors 
 and other public ministers ; he shall take care that the laws be 
 faithfully executed, and shall commission all the officers of the 
 United States. 
 
 § 4. 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. 
 
 ARTICLE III. 
 
 Section- 1. The judicial power of the United States, shall be 
 vested in one supreme court, and in such inferior courts as the 
 congress may from time to time ordain and establish. The 
 judges, both of the supreme and inferior courts, shall hold their 
 offices during good behavior, and shall, at stated times, receive 
 for their services, a compensation, which shall not be dimin- 
 ished during their continuance in office. 
 
 § 2. The judicial power shall extend to all cases, in law and 
 equity, arising under this constitution, the laws of the United 
 States, and treaties made, or which shall be made, under their 
 authority ; — to all cases affecting embassadors, other public 
 ministers, and consuls; — to all cases of admiralty and maritime 
 jurisdiction; — to controversies to which the United States 
 shall be a party ; — to controversies between two or more states ; 
 — between a state and citizens of another state; — between 
 citizens of different states, — between citizens of the same state 
 claiming lands under grants of different states, and between a 
 state, or the citizens thereof, and foreign states, citizens or 
 subjects. 
 
 In all cases affecting embassadors, other public ministers and 
 consuls, and those in which a state be party, the supreme court, 
 
APPENDIX. 143 
 
 shall have original jurisdiction. In all the other cases before 
 mentioned, the supreme court shall have appellate jurisdiction, 
 both as to law and fact, with such exceptions, and under such 
 regulations as the congress shall make. 
 
 The trial of all crimes, except in cases of impeachment, shall 
 be by jury ; and such trial shall be held in the state where the 
 said crimes shall have been committed ; but when not com- 
 mitted within any state, the trial shall be at such place or places 
 as the congress may by law have directed. 
 
 § 3. Treason against the United States, shall consist only in 
 levying Avar against them, or in adhering to their enemies, giv- 
 ing them aid and comfort. 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. 
 
 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. 
 
 ARTICLE IV. 
 
 Section 1. Full faith and credit shall be given in each state 
 to the public acts, records and judicial proceedings of every 
 other state. And the congress may by general laws prescribe 
 the manner in which such acts, records and proceedings shall be 
 proved, and the effect thereof. 
 
 § 2. The citizens of each state shall be entitled to all privi- 
 leges and immunities of citizens in the several states. 
 
 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 hav- 
 ing jurisdiction of the crime. 
 
 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. 
 
 § 3. New states may be admitted by the congress into this 
 union ; but no new state shall be formed or erected within the 
 jurisdiction of any other state ; nor any state be formed by 
 the junction of two or more states, or part of states, Avithout 
 
144 APPENDIX. 
 
 the consent of the legislature of the states concerned, as well 
 as of the congress. 
 
 The congress shall have power to dispose of and make all 
 needful rules and regulations respecting the territory or other 
 j)roperty belonging to the United States ; and nothing in this 
 constitution shall he so construed as to prejudice any claims of 
 the United States or any particular state. 
 
 § 4. The United States shall guarantee to every state in this 
 union a republican form of government, and shall protect each 
 of them against invasion ; and on application of the legislature, 
 or of the executive (when the legislature cannot be convened) 
 against domestic violence. 
 
 ARTICLE Y. 
 
 The congress, whenever two-thirds of both houses shall deem 
 it necessary, shall propose amendments tp 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 part 
 of this constitution, Avhen 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 pro- 
 posed by the congress ; 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 ; and that no state, without its 
 consent, shall be deprived of its equal suffi-age in the senate. 
 
 ARTICLE VI. 
 
 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. 
 
 This constitution, and the laws of the United States Avhich 
 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. 
 
 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 
 
APPENDIX. 145 
 
 constitution ; but no religious test shall ever be required as a 
 qualification to any office or public trust under the United 
 States. 
 
 ARTICLE VII. 
 The ratification of the convention of nine states, shall be suf- 
 ficient for the establishment of this constitution between the 
 states so ratifying the same. 
 
 Done in convention by the unanimous consent of the states 
 present, the seventeenth day of September, in the year of 
 our Lord, one thousand seven hundred and eighty-seven, 
 and of the independence of the United States the twelfth. 
 In witness whereof we have hereunto subscribed our 
 names. GEORG$: WASHINGTON, 
 
 JPresident and Deputy from Virginia.* 
 
 AMENDMENTS TO THE CONSTITUTION 
 
 OF THE UNITED STATES OF AMERICA. 
 
 Proposed hy Congress, and ratified by the Legislatures of the 
 several States, ^:)t<r5wan^ to the fifth article of the original 
 Constitution .\ 
 
 ARTICLE L 
 
 Congress shall make no law respecting an establishment of 
 religion, or prohibiting the free exercise thereof; or abridging 
 the freedom of speech, or of the press ; or the right of the peo- 
 ple peaceably to assemble, and to petition the government for a 
 redress of grievances. 
 
 * The constitution was adopted on the 17th September, 1787, by the conven- 
 tion appointed in pursuance of the resolution of the congress of the confedera- 
 tion, of the 21st February, 1787, and was ratified by the conventions of the sev- 
 eral states, as follows, viz. : 
 
 Delaware, December 7th, 1787. 
 
 Pennsylvania, December 12th, 1787. 
 
 New Jersey, December 18th, 1787. 
 
 Georgia, January 2d, 1788. 
 
 Connecticut, January 9th, 1788. 
 
 Massachusetts, February 6th, 1788. 
 
 Maryland, April 28th, 1788. 
 
 South Carolina, May 2.3d, 1788. 
 
 New Hampshire, June 21st, 1788. 
 
 Virginia June 26th, 1788. 
 
 New York, ..July 26th, 1788. 
 
 North Carolina,... November 21st, 1789. 
 Rhode Island May 29th, 1790. 
 
 t The first ten amendments to the federal constitution, were proposed by the 
 first congress; were ratified by the several states in 1789-91, and became valid, 
 December 15, 1791. There were two other amendments proposed, but not 
 adopted, viz. : 
 
 " 1. After the first enumeration required by the first article of the constitu- 
 tion, there shall be one representative for every thirty thousand, until the 
 number shall amount to one hundred, after which the proportion shall be so 
 regulated by congress, that there shall not be less than one hundred represen- 
 tatives, nor less than one representative for every forty thousand persons, until 
 the number of representatives shall amount to two hundred, after which the 
 proportion sball be so regulated by congress that there shall not be less than 
 two hundred representatives, nor more than one representative for every fifty 
 thousand persons. 
 
 "2. No law, varying the compensation for the services of the senators and rep- 
 resentatives, shall take eflect until an election -of representatives shall have 
 intervened." 
 
146 APPENDIX. 
 
 AKTICLE II. 
 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. 
 
 ARTICLE III. 
 
 No soldier shall, in time of peace be quartered in any house, 
 without the consent of the owner, nor in time of war, but in a 
 manner to be prescribed by law. 
 
 ARTICLE IV. 
 
 The right of the peoj)le to be secure in their persons, houses, 
 papers, and effects, against unreasonable searches and seizures, 
 shall not be violated, and no warrant shall issue, but upon 
 probable cause, supported by oath or affirmation, and particu- 
 larly describing the place to be searched, and person or things 
 to be seized. 
 
 ARTICLE V. 
 
 No person shall be held to answer for a capital, or otherwise 
 infamous crime, unless on a presentment or indictment of a 
 grand jury, 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 ; nor shall any person be subject for the same offense to 
 be twice put in jeopardy of life or limb ; nor shall be compelled 
 in any criminal case to be a witness against himself, nor be 
 deprived of life, liberty or property, without due process of law ; 
 nor shall private property be taken for public use, without just 
 compensation. 
 
 ARTICLE VL 
 
 In all criminal prosecutions, the accused shall enjoy the right 
 to a speedy and public trial, by an impartial jury of the state 
 and district wherein the crime shall have been committed, 
 which district shall have been previously ascertained by law, 
 and to be informed of the nature and cause of the accusation ; 
 to be confronted with the witnesses against him ; to have com- 
 pulsory process for obtaining witnesses in his favor, and to have 
 the assistance of counsel for his defense. 
 
 ARTICLE VIL 
 
 In suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be pre- 
 served, and no fact tried by a jury shall be otherwise re-exam- 
 
APPENDIX. 147 
 
 ined in any court of the United States, tlian according to the 
 rules of the common law. 
 
 ARTICLE VIII. 
 
 Excessive bail shall not be required, nor excessive fines 
 imposed, nor cruel and unusual punishment inflicted. 
 
 ARTICLE IX. 
 
 The enumeration in the constitution, of certain rights, shall 
 not be construed to deny or disparage others retained by the 
 people. 
 
 ARTICLE X. 
 
 The powers not delegated to the United States by the consti- 
 tution, nor i^rohibited by it to the states, are reserved to the 
 states respectively, or to the people. 
 
 ARTICLE XL* 
 
 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. 
 
 ARTICLE XILf 
 
 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 presi- 
 dent, 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 the 
 government of the United States, directed to the president of 
 the senate ; the president of the senate shall, in j)resence 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 the 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 representa- 
 tives shall choose immediately, by ballot, the president. But 
 
 * Recommended by the Third Congress, and became valid January 8, 1798. 
 t Recommended by the Eighth Congress, and became valid September 25, 1804. 
 
148 APPENDIX. 
 
 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 de- 
 volve 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-presi- 
 dent shall be the vice-president, if such number be a majority 
 of the whole number of electors appointed, and if no per- 
 son have a majority, then from the two highest numbers on the 
 list, the senate shall choose the vice-president ; a quorum for 
 the purj)ose 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 the 
 office of president shall be eligible to that of vice-president of 
 the United States. 
 
 ARTICLE XIII. * 
 
 Section" 1. l>reither slavery nor involuntary servitude, except 
 as a punishment for crime whereof the pai'ty shall have been 
 duly convicted, shall exist within the United States, or any 
 place subject to their jurisdiction. 
 
 § 2. Congress shall have power to enforce this article by 
 appropriate legislation. 
 
 Amendmeistts to the Constitution of the United States, recom- 
 inencUd hy Congress^ but not approved hy the required 
 number of States. 
 
 EECOMMENDED BY JOINT RESOLUTION OF CONGRESS, IN 1810. 
 
 " If any citizen of the United States shall accept, claim, 
 receive or retain any title of nobility or honor, or shall, without 
 the consent of congress, accept and retain any present, pen- 
 sion, office or emolument, of any kind whatever from any 
 emperor, king, prince or foreign power, such person shall 
 cease to be a citizen of the United States, and shall be incapa- 
 
 * Recomraended by joint resolution of Congress, February 1, 1865. and declared 
 a part of the constitution by a public declaration of the secretary of state, 
 December 18, 1865, it having been adopted by twenty-seven states, viz. : Illinois 
 Rhode Island, Michigan, Maryland, New York, West Virginia, Maine, Kansas, 
 Massachusetts, Pennsvlvania, Virginia, Ohio, Missouri, Nevada, Indiana, Lou- 
 isiana. Minnesota, Wisconsin, Vermont, Tennessee, Arkansas, Connecticut, 
 New Hampshire, South Carolina, Alabama, North Carolina and Georgia, in the 
 order here named. Oregon ratified the amendment on the 11th of November, 
 1865. 
 
APPENDIX. 149 
 
 ble of holding any office of trust or profit under them, or 
 either of them." 
 
 [Only twelve states adopted this amendment, viz. : Missouri, 
 Kentucky, Ohio, Delaware, Pennsylvania, New Jersey, Ver- 
 mont, Tennessee, Georgia, North Carolina, Massachusetts and 
 New Hampshire, in the order named. In New York and 
 Rhode Island it was rejected, and in Connecticut, South Caro- 
 lina and Vermont no definite action was taken. See State 
 Papers, 15th Cong., vol. iv. No. 76.] 
 
 KECOJIMENDED BY JOINT RESOLUTION OP CONGRESS, MARCH, 18G1. 
 
 ARTICLE XIII. 
 
 "No amendment shall be made to the constitution which 
 will authorize or give to congress the power to abolish or 
 interfere, within any state, Avith the domestic institutions 
 thereof, including that of persons held to labor or service by 
 the laws of said state." 
 
 AMENDMENT NOW PENDING FOR ADOPTION.* 
 
 RECOMMENDED BY JOINT RESOLUTION OP CONGRESS, JUNE 16, 1866. 
 
 ARTICLE XIV., 
 
 Section 1. All persons born or naturalized in the United 
 States, and subject to the jurisdiction thereof, are citizens of 
 the United States and of the State wherein they reside. No 
 state shall make or enforce any law which shall abridge the 
 privileges or immunities of the citizens of the United States ; 
 nor shall any state deprive any person of life, liberty or prop- 
 erty without due process of law, nor deny to any person within 
 its jurisdiction the equal protection of the law. 
 
 § 2. Representatives shall be apportioned among the several 
 States according to their respective numbers, counting the whole 
 number of persons in each state, excluding Indians not taxed. 
 But when the right to vote at any election for the choice of 
 electors for president and vice-president of the United States, 
 representatives in congress, the executive and judicial officers 
 of a state, or the members of the legislature thereof, is denied to 
 any of the male inhabitants of such state, being twenty-one 
 
 * A certificate from the department of state, dated April 2ith, 1.S67, shows that 
 twenty states had, on that date, notified their acceptance of tliis amendment, 
 VIZ.: Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, 
 New Yorlc, Ohio, lUmois, West Virginia. Kansas, Nevada, Missouri, Indiana, 
 Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan and Massa- 
 chusetts. 
 
 69 
 
150 APPENDIX. 
 
 years of age, and citizens of the United States, or in any \vay 
 abridged, except for participation in rebellion or other crime, 
 the basis of representation therein shall be reduced in the pro- 
 portion which the number of such male citizens shall bear to the 
 whole number of male citizens twenty-one years of age in such 
 state. 
 
 § 3. "No person shall be a senator or representative in con- 
 gress, or elector of president, vice-president, or hold any office, 
 civil or military, under the United States, or under any state, 
 who, having previously taken an oath, as a member of congress, 
 or as an officer of the United States, or as a member of any 
 state legislature, or as an executive or judicial officer of any 
 state, to support the constitution of the United States, shall 
 have engaged in insurrection or rebellion against the same, or 
 given aid or comfort to the enemies thereof: but congress may 
 by a vote of two-thirds of each house remove such disability. 
 
 § 4. The validity of the public debt of the United States, 
 authorized by law, including debts incurred for payment of 
 pensions and bounties for services in suppressing insurrection 
 or rebellion, shall not be questioned. But neither the United 
 States, nor any state, shall assume or pay any debt or obligation 
 incurred in aid of insurrection or rebellion against the United 
 States, or any claim for the loss or emancipation of any slave ; 
 but all such debts, obligations and claims shall be held illegal 
 and void. 
 
 § 5. The congress shall have power to enforce, by appropriate 
 legislation, the provisions of this article. 
 
INDEX. 
 
 ADMINISTRATIOiT. page. 
 
 Divers administrations but one authority, 102 
 
 Democratic principle of, 128 
 
 Questions of administrative right, not of authority, 129 
 
 May be parceled out among several, 129 
 
 State governments used as national agencies in internal administration,. . 129 
 
 Discussions of administration of state and national government, 140 
 
 Civil and military, contemplated by the constitutiou, 258 
 
 "When such is appropriate, 259 
 
 Both constitutional and necessary, 258, 259 
 
 Not the same in peace and war, 277 
 
 ADMIRALTY. 
 
 Courts of, under the confederacy, 92 
 
 Defects in respect to, 92 
 
 ALIENS. 
 The introduction of aliens under any regulation, etc., is a regulation of 
 
 commerce, 19G 
 
 Naturalization of (see naturalization), 204-214 
 
 Rights of property in aliens regulated by states, 207, 203 
 
 ALLEGIANCE. 
 
 Defeasible and indefeasible allegiance discussed, 208-212 
 
 Theory of allegiance in England, 208-210 
 
 Theory in United States discussed, 210, 211 
 
 Indefeasible allegiance incompatible with American theory, 211 
 
 Comments upon the opinion of Mr. Rawle, 212 
 
 Theory of subject's obligatory allegiance, etc., 212, 213 
 
 In respect to naturalized and native born subjects 214 
 
 AMENDMENTS OF THE CONSTITUTION. 
 
 How to be made, 387, 383 
 
 Effect of, etc., 389 
 
 Denies sovereignty in states, 389 
 
 Most of amendments in nature of bills of right, 390 
 
 The abolition of slavery 397 
 
 AMNESTY PROCLAMATION. 
 
 See note to page, 325 
 
 Authorized by act of congress, 325 
 
 The several classes excepted from its operations, 325 
 
152 INDEX. 
 
 APPELLATE JURISDICTION. pass. 
 
 Of the suprems court, 366 
 
 Element of appellate jurisdictiou, 365 
 
 Modes of appeal, 365 
 
 APPORTIONMENT. 
 
 Of representation among the people, 126 
 
 Ratio of representation — principle of, 127 
 
 ATTAINDER, BILLS OF. 
 
 Prohibited, 21& 
 
 Defined as judicial legislation, 2'?8 
 
 Bills of pains and penalties, what, . . . ■ 218 
 
 ATTAINDER OP TREASON. 
 
 "What is the meaning of attainder, 285-287 
 
 A state or condition incident to judgment, etc., 285 
 
 Forfeiture and corruption of blood incident to attainder, 286 
 
 Difference between conviction and judgment, 289 
 
 The constitution framed to do away some of these hardships ... 287 
 
 Three classes of construction considered, 288-292 
 
 ATTORNEY-GENERAL. 
 
 As an officer of the administration, 330 
 
 AUTHORS AND INVENTORS. 
 
 To be secured in the use of their writings and inventions, 237 
 
 AUTHORITY. 
 
 By which the American colonies declared their independence, 1 
 
 The foundation of the same declared 2 
 
 Asserted by the people of the colonies, 1 
 
 Of civil governments, 22 
 
 The public authority consists in what, 28 
 
 Governments instituted to exercise it, 29 
 
 Where it emanates — its element, 29 
 
 Highest public authority is that of the nation, 30 
 
 Sovereignty the supreme authority, 31 
 
 Governmental authority from the people, 4.3-50 
 
 Authority of government and of people sometimes confounded (note), . . 47 
 
 BANKING. 
 
 Authority of states to permit private banking, 228 
 
 Their notes may circulate as money, 228 
 
 But are not legal tender, 228 
 
 BANK PAPER. 
 
 Congress may authorize the issuing of, as currency, 227 
 
 See currency, money, etc. 220-232 
 
INDEX. 153 
 
 BANKRUPTCY. page. 
 
 Vlhy the power in respect to was given to congress, 214, 215 
 
 "Webster's discussion in Ogden v. Saunders (12 "Wheat., 247), 215 
 
 General object of the law of banlcruptcy, 215 
 
 Authority involved (absolving legal obligations), 216 
 
 Not possessed by mere local governments, etc., 216 
 
 Power committed to congress, 211 
 
 Limitation of state authority in respect to, 218 
 
 BILLS — to he enacted. 
 
 Each house of congress can originate bills, 162 
 
 Except revenue bills, 162 
 
 President to approve and sign bills before they become law, 1 63 
 
 Or to return them with his objections, 163 
 
 Bills of attainder, what — discussed, 27S 
 
 BILL OF RIGHTS. 
 
 Amendments of constitution, in the nature of, 390 
 
 Bill of rights defined, 391 
 
 Not so applicable to democracies, 391 
 
 Religious freedom not to be interfered with, 391 
 
 Right of the people to keep and bear arms not to be infringed, 394 
 
 Right to be secure in house, person and papers, not to be violated, 395 
 
 Rights in prosecutions for crimes, etc., enumerated, 395 
 
 BOOKS, "WRITERS OF, Etc. 
 
 Authors of, to be secured by copyright, etc., 23t 
 
 CABINET OFFICERS. 
 
 Of the president, 329 
 
 CAPITATION AND DIRECT TAXES. 
 
 To be laid in proportion to the census or enumeration, 292 
 
 CASE. 
 "What constitutes a case, giving the supreme court jurisdiction, etc., dis- 
 cussed, 360-363 
 
 To all cases of law and equity, 364 
 
 CITIZENS. 
 
 State citizens as such have no national status, 79 
 
 State authority subordinate, etc., 51 
 
 Double citizenship, 80 
 
 Interests of state and national, not adverse 80 
 
 Unite in same individuals, ■ 80 
 
 Every state citizen is likewise a national one, 194, 37 1 
 
 Is politically and potentially present in every state, etc., 194 
 
 Entitled to all privileges and immunities of a citizen, etc., 194 
 
 Two classes of citizens in United States, 204 
 
 Naturalization of aliens, 204 
 
 Citizens of the state are citizens of the nation, 371 
 
 And are to have privileges and immunites etc., 371-372 
 
154 INDEX. 
 
 CHIEF JUSTICE. page. 
 
 To preside over the senate on trial of impeachment of president, 153 
 
 COIN". 
 
 See money — coining money, etc., 220 
 
 COININa MONEY. 
 
 The power of, is in congress, , 220 
 
 In what the act consists, 221-223 
 
 May select any substance to receive the stamp, 221 
 
 Value of, depends upon the authority, etc 221,222 
 
 Power of United States as a nation to coin money, 223 
 
 Conferred upon congress plenary autliority to coin money, 224 
 
 The object of this grant of power to coin money, 225 
 
 COLONIES. 
 
 People of, claim nationality througli Great Britain (note), 44 
 
 The people, in declaring their independence, acted in virtue of their author- 
 ity as men, 44 
 
 Acquired a united, not a separate nationality, 46 
 
 COMMANDER-IN-CHIEF. 
 
 The president as, 252 
 
 Powers incidental thereto, 253 254 
 
 Not increased by attaching to the presidential oEfice, 255 
 
 Exigency powers of, 256 
 
 When justified in the proclamation of martial law, 262 
 
 European law on the subject, 262 
 
 May suspend the privileges of habeas corpus 275 
 
 President as commander-in-chief, 340 
 
 Derives no additional strength from his executive office, 340 
 
 As commander-in-chief he is amenable to law 341 
 
 His authority to re-adjust the political relations of the rebellious states, 
 
 discussed, 341-344 
 
 His authority questioned, 342 
 
 COMMERCE. 
 
 Power of congress over commerce , 186-193 
 
 Meaning and extent of the term commerce, 186 
 
 What the power conferred embraces, 186, 187 
 
 Basis of the right to regulate commerce, 187 
 
 Its duty in respect thereto, 187, 188 
 
 The regulations of commerce extends to every species of intercourse, etc., 189 
 
 Among the several states, 189 
 
 Defined as including what, 190 
 
 The nature and effect thereof, 190 
 
 What not included, etc., 190 
 
 This power is exclusive in congress, 191 
 
 See authorities in note, 191 
 
 Right of states in respect to masters of vessels, discussed, 192 
 
 City of New York v. Miln, (11 Pet., S. C. Rep., 102), 192 
 
INDEX. 155 
 
 COlili^RCE— Continued. page. 
 
 Certain fallacies of tlio court, etc, 193, 194 
 
 Test of what a state may do, etc., 194 
 
 If one slate may prevent immigration all may, 194 
 
 This principle illustrated by history (note), 195 
 
 Introduction of aliens or citizens as commerce, 196 
 
 Discussion of the Passenger case (7 How., 2S3), 196-199 
 
 Obstruction of a navigable stream by a state, 199 
 
 What constitutes a navigable stream -withia the requirements of com- 
 merce, 199, 200 
 
 Extends to regulation of navigation, 201 
 
 See authorities enumerated 201 
 
 Also seamen, 201 
 
 With Indian tribes 202, 203 
 
 COMPROMISES OP THE CONSTITUTION. 
 
 In what they consist, 1^2 
 
 Migration clause, a compromise, 267 
 
 CONCURRENT POWERS. 
 
 See powers, T3 
 
 CONFEDERATION. 
 
 Defects of (notes), 90, 91 
 
 Lack of power to execute, etc., 91 
 
 Could exercise no authority (note), 91 
 
 Could not execute justice 92 
 
 In respect to prize tribunals, 92 
 
 In respect to fulfillment of treaties, 93 
 
 Or payment of public creditors " 93 
 
 Inter-state difficulties, 93 
 
 CONGRESS. 
 
 As the legislative authority of the nation, 119 
 
 How constituted, 119 
 
 Times, places and manner of holding elections, 120 
 
 Powers in such respects, 120 
 
 Qualification of members of the house, 124 
 
 Power of, to prescribe qualification of electors, ] 23 
 
 To prescribe the time and place for holding elections 123 
 
 To hold local agencies of administration accountable, 123 
 
 To assemble every year, 153 
 
 Each house of, independent of the other, 153 
 
 Eacli house judge of the returns and qualification of its own members,. . 153 
 
 Power to punish for contempts, 153 
 
 Times, places and manner of holding elections may be determined by 
 
 congress, 154: 
 
 Each house to keep a journal, etc., 154 
 
 Compensation for their services, 154 
 
 Legislative powers and duties of, etc., 155 
 
 Has the supervision of the other departments, 156 
 
156 IITDEX. 
 
 CONGRESS— Confewed pagk. 
 
 Express powers of, ITI 
 
 To lay and collect taxes, etc., 171-180 
 
 To borrow money, 185 
 
 To regulate commerce, , 186-193 
 
 Naturalization, power of congress, etc., 204-214 
 
 Power in respect to bankruptcies, 214-220 
 
 Power of, to coin money, 220-232 
 
 To punish counterfeiting, 229 
 
 To fix standard of weights and measures, 228 
 
 To establish post-offices, etc., ' 232 
 
 "War powers of, 244 
 
 CONSCIENCE. 
 In matters of conscience nations must act upon their individual responsi- 
 bility, 38 
 
 CONSTITUTION. 
 
 What forms the constitution of government, 28 
 
 Preamble of, considered 53-83 
 
 How formed and ratified (see note), 54 
 
 Government instituted by it, 54. 
 
 Preamble — " we the people," 83 
 
 " More perfect union," discussed, 86-90 
 
 "What was implied therein, 87, 88 
 
 " To establish justice," discussed, 90 
 
 Each of the objects named in the preamble, 86-104 
 
 Constitution of the United States enumerates subjects of general juris- 
 diction, and why, .• 175-179 
 
 Gives general government full powers over enumerated subjects, 179 
 
 Over the power of general taxation, 190-182 
 
 Mode of administration in peace and war not the same under the consti- 
 
 tu,tion, 277 
 
 CONSTRUCTION. 
 
 See interpretation, rules of, 65-75 
 
 Remarks on construction of power to lay and collect taxes, etc, 171-180 
 
 Construction from the prohibitions of the constitution, 266 
 
 CONTEMPTS. 
 
 Each house has authority to punish for, 153 
 
 See Anderson v. Dunn (note), 153 
 
 CORNING, ERASTUS, AND OTHERS. 
 To President Lincoln respecting Vallandigham, 271 
 
 CORPORATIONS. 
 
 States as political corporations, 36 
 
 United States as a corporate nation, 41,42 
 
 COUNTERFEITING. 
 
 Congress may provide for punishing for, 229 
 
 This power is exclusive in congress, 230 
 
INDEX. 157 
 
 COUNTERFEITING— Confmwecf. page. 
 
 But states may punish for the cheat, 231 
 
 Coimterfeitiug an offense against both state and national administration, 232 
 
 CREDITORS. 
 Pubhc creditors under the confederation, 93 
 
 CRIMES. 
 Committed on the high seas, 23t 
 
 CURRENCY. 
 
 Power of congress over, etc., , 220-232 
 
 See money — coin — coining money, etc., 220 
 
 Necessity for, in time of great public expenditures, 223, 224 
 
 Congress has plenary power over the subject, 225 
 
 DEMOCRACY. 
 
 Authority is from the people 46 
 
 United States a democracy 46, 41 
 
 Sovereignty inherent i:i the people, 47 
 
 Authority of government confounded with the authority of the people 
 
 (note), 47 
 
 The democratic principle in state and national administration (also note), 102-128 
 
 Equality of representation a principle of, 127 
 
 In the source and administration of governmental authority, 300 
 
 In source — people are sovereign, 300 
 
 In administration — those administer who are to be affected by it, 300 
 
 DEPARTMENTS. 
 
 Of government, legislative, executive, and judicial, 60-63 
 
 Each act in virtue of the sariie sovereign authority, 63 
 
 The limitations of each, 63 
 
 The sphere of each (see note), 62-64 
 
 Definition by Webster (see note), 62 
 
 Legislative department of United States, 105-137 
 
 On the several departments, 105 
 
 Distinction between legislative and judicial, 106 
 
 Constitution of the legislative, 106 
 
 Constitution of the judicial, 107 
 
 Character of each, 1 06, 107 
 
 DIRECT TAXES. 
 
 Must be apportioned according to census returns, 180 
 
 Indirect taxes must be uniform, etc., 180 
 
 DISABILITY. 
 
 Of the president discussed, 354-356 
 
 What amounts to, should be determined by law, 354 
 
 DUTIES. 
 
 Power of congress to lay and collect, 171 
 
 Por what purpose, etc., 171 
 
 70 
 
158 INDEX. 
 
 ELECTIONS. PAGE. 
 
 Of members of house, 113 
 
 Qualifications of, how determined 113 
 
 National government should determine the qualifications, etc., 113 
 
 Political rights of, etc., how determined, 114 
 
 ELEMENT. 
 
 Constituent element of the imion, 53 
 
 A constituent element — what (note), 53 
 
 EXCISES. 
 
 Power of congress to lay and collect ITI 
 
 Difierent constructions as to the objects, 172 
 
 EQUALITY. 
 
 The natural equality of all men defined and supported, 11-16 
 
 Natural equality of nations, 30-36 
 
 EXECUTIVE OFFICE. 
 
 Sovereignty therein — what, 62 
 
 EXIGENCY POWERS. 
 
 Of the commander-in-chief, 25G 
 
 Theiir character, 25G 
 
 EXPORTATIONS. 
 
 No tax or duty to be laid upon, discussed, 292 
 
 EX POST FACTO LAW. 
 
 Prohibited by constitution, 27S 
 
 "What is meant by, 270 
 
 EXPRESS POWERS 
 
 Of congress, 171 
 
 To lay and collect taxes, etc., 171-180 
 
 To borrow money, etc., 1S5 
 
 Theory upon which the general powers of the government are to bo 
 
 discussed, 1S8 
 
 EXTERNAL SOVEREIGNTY. 
 
 Incident to nationality, 60 
 
 The sphere of its exercise, 60 
 
 What pertains to, 76 
 
 Intention of the people inferred, 76 
 
 See also note, 76 
 
 FEDERAL. 
 
 Our government not federal, 145 
 
 In no sense a union of political governments, 145 
 
 No inherent authority in the states, 146 
 
 States as political institutions have no voice In general governments 146 
 
 FELONIES. 
 
 Committed on the high seas 237 
 
INDEX. 
 
 159 
 
 FOREIGN JUDGMENTS. page. 
 
 Effect of, etc., discussed 270 
 
 FRANCHISE. 
 Political franchise, discussed, 114-119 
 
 FUGITIVES FROM JUSTICE. 
 To be delivered up on demand of the executive, etc 372 
 
 FUGITIVES FROM SERVICE OR LABOR. 
 
 Construction of that clause discussed, STS-BTS 
 
 Decision of Supreme Court in Pennsylvania against Prigg, examined,. .STS-STg 
 
 GENERAL AND STATE GOVERNMENTS. 
 
 Over same territory and people, 80 
 
 Their relation, and the structure of each 80-81 
 
 Decision of subjects of jurisdiction, gi 
 
 How distinguislied (see note), 81 
 
 Why tiiey were tluis distinguished, 81 
 
 Neither primary in respect to the other, 82 
 
 Structure of each, 82 
 
 Necessity for, to secure the objects named in the preamble of the consti- 
 
 tution. 
 
 .86-104 
 
 Parts of the same national system, 103 111 
 
 Discussions respecting, j^q 
 
 Both parties desired same tiling, 141 
 
 Reason for embarrassments, etc., ... 141 
 
 Supposed incompatibility of tlie two classes of governments not real, . . . 141 
 
 Same people to administer both, 142 
 
 Same authority to be administered, 142 
 
 Same interests to be promoted and protected, 142 
 
 Neitlicr centralization on one hand, nor diffusion on the other, 142 
 
 Jurisdiction of each, 140 
 
 Not partly federal and partly national, I45 
 
 States administer by national authority 17g 
 
 GOVERNMENT. 
 
 An institution of society for administering the public authority, 22-29 
 
 Tlie basis of its authority, 93 
 
 Originate in necessity, ^ 93 
 
 An institution of civil society, 28 
 
 Distinction between government and society 29 
 
 The nature of governments and their rights, 29 
 
 Different forms of — determined by society, 30 
 
 Government is an institution of the people, 47 
 
 Has no inherent autliority (55 note), 47 
 
 Has only authority of administration, 43 
 
 Subject to the authority of the people, 43 
 
 United States as a government, 53 
 
 Definition of government of United States, 54 
 
 Distinction between the goveniment and the nation, 64 
 
160 INDEX. 
 
 GOVERNMENT— Continued. page. 
 
 See also note on same, 54 
 
 Authority derived from the people, 55 
 
 Instituted for their use to the people, etc. (note), 55 
 
 How it exercises supreme authority, 56 
 
 National government designed to be permanent, 56 
 
 Powers of, sufficient for national purposes, 57 
 
 Instituted by sovereign authority, 58 
 
 General and state, parts of same system 103 
 
 Have only admiuistrative authority, 143 
 
 Corporate instruments for the admistratiou of the public authority,. . . . 143 
 
 States administer by national authority, 176 
 
 GOVERNMENT OP THE UNITED STATES. 
 
 A body corporate and politic, 58 
 
 IIow created, 58 
 
 In what it consists, 58 
 
 Supreme within its sphere, 5D 
 
 Origin of, considered, 83 
 
 Neither a consolidated government or a confederacy, 85 
 
 A national government of the people, 85 
 
 Necessary to establish justice, 91 
 
 Prior to, had no national tribunal (note), 94 
 
 Necessary to secure objects named in preamble, 86-104 
 
 Necessarily independent of other governments, 122 
 
 In what sense it is one of delegated powers, 175-177 
 
 In what sense the states have residuary powers, 175 
 
 Has full powers over subjects committed to its jurisdiction, 175 
 
 Powers of the general government to be executed by the nation, 175 
 
 People of the nation present in the general government, 176 
 
 Why the subjects of jurisdiction were enumerated, 177 
 
 Theory upon which its general powers are to be discussed, 183 
 
 "War powers of, 244-266 
 
 Exclusive jurisdiction over territories, etc., 264 
 
 GOVERNOR, PROVISIONAL. 
 
 Appointed by president, 342 
 
 Military, most proper, 343 
 
 . HABEAS CORPUS. 
 
 "Writ of, when and by whom to be suspended, discussed, 256-257 
 
 Not to be suspended except when, 269 
 
 President Lincola to Erastus Corning and others, 271, 272 
 
 Manifesto of the war department on the subject, 272 
 
 Opinion, of Judge Stewart, on application of Vallandighani for writ — note, 274 
 
 "When to be suspended by commander-in-chief, 275 
 
 "When by congress, 275 
 
 HAPPINESS. 
 
 Man's right to pursue after happiness, 19 
 
 In what happiness must consist, 19-21 
 
INDEX. 161 
 
 HOLDEIvr, WILLIAM W. page. 
 
 Made provisional governor of North Carolina (see note), 324-342 
 
 HOUSE OF REPRESENTATIVES. 
 
 How composed, etc., 113 
 
 An independent branch of the legislature, 103 
 
 Its character, etc., 108 
 
 "What it represents, 109 
 
 Qualification of electors of, 113 
 
 Qualiflcalion of members, 124 
 
 Constilulion of house, represents all trades, etc., 124 
 
 Unfavorable to judicious or wise legislation, 124 
 
 For what constituted, 124 
 
 The mass of people have not the culture or discipline necessary for wise 
 
 legislation, 125 
 
 People interested in wise legislation more than in the question, who admin- 
 ister, 126 
 
 Presence of tlie people in, 126 
 
 The apportionment of representatives, 126 
 
 Has sole power of impeachment, 130 
 
 IMPEACHMENT. 
 
 House has sole power of, 130 
 
 The nature of, 130 
 
 Impeachments must be tried, 131 
 
 Apply to public characters alone, 131 
 
 Term " impeachment " is one of known definition 131 
 
 Senate have sole power to try impeachment, 147 
 
 When president is tried, chief justice to preside 152 
 
 General powers in respect to, discussed, 132, 354,-5 
 
 Constitution is silent as to mode of trial, and congress can provide for 
 
 the same by law, 354 
 
 IMPOSTS. 
 
 Power of congress to lay imposts, 171 
 
 Different constructions as to the objects, etc., 172 
 
 See note on tliis subject, 172 
 
 No importance to be attached to the one or the other of these theories^. 172-174 
 
 INDEPENDENCE. 
 
 Effect of the declaration of, etc., 42 
 
 By the people of the colonies (note), 41, 42 
 
 INDIAN TRIBES. 
 
 Regulation of commerce with, 202 
 
 How considered under British government, 202 
 
 Under the confederation ' 202 
 
 Their property in the soil, remarks upon, 202. 203 
 
 Their prospects, etc., 203 
 
 INDIRECT TAXES. 
 Must be uniform throughout the United States, 180, 181 
 
162 INDEX. 
 
 INTERNAL SOYEREIGNTT. page. 
 
 Incident to a nation, its police power, 60 
 
 The sphere of its exercise 60 
 
 Does not pertain to the government (note), 60 
 
 But to tlie people, etc. (note), 60 
 
 Three departments of administration, 61 
 
 Legislative, judicial and executive, •. 61 
 
 INTERNATIONAL. 
 
 Duties and powers of the president, 64 
 
 INTER-STATE ADMINISTATION. 
 
 Full faith and credit to be given to the public acts, etc., of each state, . . . 369 
 
 Validity of judgments, etc., discussed, 370 
 
 Rights of citizens in each state, 371 
 
 Fugitives from justice, 372 
 
 INTERPRETATION. 
 
 Rules of, 65-75 
 
 Meaning of the constitution, how to be ascertained. 65 
 
 Maxims of interpretation, 6G 
 
 Not to interpret where interpretation is not needed, 66 
 
 End sought by interpretation, 67 
 
 Follow natural meaning of language if possible, 67 
 
 "When this can be done, 67 
 
 Where it leaves the intent doubtful, 67 
 
 How doubtful words and expressions to be understood, 68 
 
 What circumstances to be consulted, 68 
 
 Of strict and liberal construction 69 
 
 Close and free construction, 69 
 
 Application of these principles, 70-72 
 
 Remarks on construction of power to lay taxes, etc., 171-180 
 
 Construe a power so as to obtain the end proposed 180 
 
 JEFFERSON, THOMAS. 
 
 On the purchase of the Louisiana Territory, p. 35, note 251, 313 
 
 JUDGE. 
 
 Judge should not be selected on the principle of representation, 148 
 
 He belongs to the commonwealth, 151 
 
 Limitation of his duty, ... 158 
 
 His duties and powers discussed, 356 
 
 Of the supreme and inferior courts, how appointed, ^i . . 358 
 
 Tenure of office, what, 358 
 
 Congress may abolish court and thus, in effect, remove judges from office, 
 
 etc., 358 
 
 Judges of inferior courts do not include judges of territorial courts 
 
 (note), 359 
 
 JUDGMENTS. 
 
 Full faith and credit to be given in the several states, 369, 370 
 
 Are to have the same effect in each state as where rendered, ......... 371 
 
INDEX. 163 
 
 JUDICIAL POWERS. PAGE. 
 
 Tested in certain courts, 356 
 
 Definition of judicial powers 356, 357 
 
 Jus dicere, non jus dare, 357 
 
 Compared witli legislative, 357, 358 
 
 Judges of supreme and inferior courts, how appointed, 358 
 
 Tenure of their oflBce, 358 
 
 Eemoved by repealing law establishing court, etc., 358 
 
 Extend to cases arising under constitution, etc., 300 
 
 "What constitutes a case, discussed. 360 
 
 JUDICIAL OFFICE. 
 
 Sovereignty in that department, what, Gl 
 
 What pertains to tlie judiciary, CI 
 
 Separate from legislative and executive, 105 
 
 Reasons for separation, 106 
 
 Constitution of the judicial ofiBce, 107 
 
 Discussed, 356-362 
 
 JURY. 
 
 Trials of all crimes to be by jury, 366 
 
 Except impeachments 366 
 
 Except under martial law, 366 
 
 Right of trial by, bulwark of liberty, 367 
 
 Remarks of Justice Smith upon province of jury, 367 
 
 JURISDICTION. 
 
 Over same terrritory and people, 80 
 
 State and untioual governments, 81 
 
 Neither primary in respect to the otlier, 82 
 
 Jurisdiction of each government, 143 
 
 Of congress, etc., 160 
 
 General government funds, its jurisdiction in subjects enumerated, 185 
 
 State government in subjects not enumerated, 175 
 
 Why subjects of general jurisdiction enumerated, 177, 178 
 
 Reply to Judge Story thereon, 178 
 
 Over the territories, arsenals, dock yards, etc., of the United States, 264 
 
 General jurisdiction of national judiciary, 360 
 
 In wliat cases, 360 
 
 What constitutes a case, 360, 361 and note. 
 
 As explained by Chief Justice Jay, 363 
 
 To all cases in law and equity 364 
 
 Appellate jurisdiction of supreme court, 366 
 
 LEGAL OBLIGATIONS. 
 
 What constitute legal obligations, 226 
 
 How they may be discharged, 226 
 
 DiTferonce between legal and moral, , 216 
 
164 INDEX. 
 
 LEGAL TElsTDER. page. 
 
 Import of the term (see note), 22S 
 
 Sovereignty determines what shall discharge legal obhgations (note),. . . 226 
 
 Prohibition upon the states, 228 
 
 LEGISLATIVE DEPARTMENT. 
 
 Of the general government 105 
 
 The independence thereof, 106 
 
 Divided into two distinct branches, 1 08 
 
 The reason for such division, 109 
 
 "What the house represents, 109 
 
 What the senate represents, 109 
 
 Both houses subject to their own laws, 110 
 
 Each house, how composed, 109 
 
 Senate does not represent state government, Ill, 112 
 
 Not a representative (popular) body, 112 
 
 Congress the national legislature, 119 
 
 Legislative powers and duties of congress 155 
 
 Sovereignty present in the legislative department, 156 
 
 True mission thereof, 156 
 
 Its large discretion and duty, 15t 
 
 Reasons therefor not applicable to other departments, 157 
 
 Supremacy of this department, 158 
 
 This authority belongs to the people 159 
 
 Has plenary authority over subjects committed to its jurisdiction, 159 
 
 Has unhmited discretion over Such subjects, 160 
 
 No danger from this department, 161 
 
 "Why it will not abuse its authoritj'-, 161 
 
 Each house of congress has equal authority in making laws, 162 
 
 Revenue bills to originate in the house, 162 
 
 LEGISLATURE. 
 
 The legislative office, what, 61 
 
 Sovereignty therein, what, 61 
 
 LA"W OP NATIONS. 
 
 Crimes against, punishable, etc., 241 
 
 Offenses against, considered, 241-244 
 
 LETTERS OP MARQUE. 
 
 Congress have power to grant, 244 
 
 Defined, 263 
 
 LETTERS OP REPRISAL. 
 
 Congress have power to issue, - 244 
 
 Defined, 263 
 
 LIBERTY. 
 
 Liberty defined, 18 
 
 The extent thereof, hov/ ascertained, 18 
 
 "What this right implies, IS, 19 
 
 Civil liberty defined, 26, 27 
 
 See notes on this point, 26, 27 
 
INDEX 165 
 
 LIMITATION OF POWER. PAGE. 
 
 "What is meant by special and residuary powers, 175 
 
 Subjects of general jurisdiction enumerated 175 
 
 Remainder, etc., left to states, 175 
 
 LINCOLN, PRESIDENT. 
 
 To Hon. Erastus Corning and others, 271, 276 
 
 See note, 276 
 
 LIVINGSTON, MINISTER TO FRANCE. 
 On the Louisiana Territory 35, 250, 251 
 
 LOUISIANA TERRITORY. 
 The purchase of, 35, 250, 313 
 
 MAN. 
 
 All men are created equal — in what sense, 11-13 
 
 Natural rights indicated by natural necessities, 11 
 
 Doctrine of natural equality of all men — what implied, 15 
 
 Life, liberty and the right of property belong to all, 16 
 
 The argument by whicli it is maintained, 16-22 
 
 ' Natural liberty defined, 18 
 
 What is implied in man's right to the enjoyment of perfect liberty, 18 
 
 His right to tlie pursuit of happiness, 19 
 
 Iq what his happiness must consist, , 19-21 
 
 See note, 20 
 
 His right to property indicated, 20 
 
 Constituted for society, 23 
 
 MARTIAL LAW. 
 
 How proclaimed, and for what cause, 258 
 
 Different mode of administering, etc., 258 
 
 To be adopted when the civil mode is inadequate, 258 
 
 It is a constitutional administration, -258 
 
 Constitution contemplates it, 258, 259 
 
 MARSHALS. 
 
 How appointed, 330 
 
 Act under special warrants, etc., 330 
 
 MIGRATION AND IMPORTATION. 
 
 Of certain persons not to be prohibited, etc., 2G6 
 
 Construction of the clause to regulate commerce, 2G7 
 
 Meaning of migration as applied to the States, 267, 2G8 
 
 The clause a compromise, etc., 267 
 
 MONET. 
 
 Power of congress to borrow money, 185 
 
 Power of congress to coin money, 220-233 
 
 To regulate the value of money, 221 
 
 What constitutes money and its value, 221 
 
 Currency value ig in the stamp, 221 
 
 71 
 
166 INDEX. 
 
 liOH^EY-^ Continued. page. 
 
 Difference between money and commodity, 221 
 
 The power to coin money involves tlie exercise of sovereign powers,. . . . 222 
 
 Gold, silver, copper and paper money, 222 
 
 Money as a need of society, should be provided, . . . ; 223 
 
 See note to page, , 225 
 
 NATION. 
 
 The largest civil society, 30 
 
 The higliest public authority, 30 
 
 Their natural independence and necessary sovereignty, 31 
 
 Essentials to the right of nationality, 32 
 
 .The limitation of such right, 33 
 
 Should be so located and estabhshed as to secure permanence and safety, 33 
 
 President Lincoln's observations (note), 34 
 
 Duty of self-preservation, etc., 35 
 
 Jefferson's position (note), 35 
 
 Webster's ditto 35 
 
 Independence of nations, 38 
 
 Obligations — perfect and imperfect (note), 38, 39 
 
 Treaty stipulations, rights in respect to, 39 
 
 The United States as a nation, 41 
 
 "When it became a nation, 42 
 
 Authority to institute a government, 43, 44 
 
 But one sovereignty in, etc., 103 
 
 NATIONAL GOYERNMENT. 
 
 General powers of, etc., 65 
 
 Powers delegated by ihe people, not by the states, "TO 
 
 People committed all national interests to the general government, *ll 
 
 Instituted the government complete in all its parts, 11 
 
 Invested it with authority to administer in every department, • . . . 11 
 
 The sole agency for international intercourse, 18 
 
 Exercise of external sovereignty "76-79 
 
 Also internal sovereignty, '79-81 
 
 Necessary to secure objects named in preamble, 86-104 
 
 NATURAL RIGHTS. 
 
 Indicated by natural necessities, 11 
 
 To life, liberty, property, the argument, 16-22 
 
 To the pursuit of happiness, 19 
 
 To government, 22 
 
 Surrender of, on coming into society, 24 
 
 Such doctrine discussed, 24-28 
 
 NATURALIZATION. 
 
 Power of congress in respect to, discussed, 214-214 
 
 "Why the power given to congress, 204 
 
 How under the confederation 204 
 
 Effect of naturalization, 205 
 
INDEX. 167 
 
 ^A.TJJB.ALlZk.TIO'S— Continued. page. 
 
 "What rules should be adopted in respect to, 205 
 
 Opiuious in respect to, discussed, 206 
 
 Is a mode by whicli an alien becomes a citizen, 207 
 
 Indefeasible allegiance discussed, 201 
 
 NAVIGATION. 
 Included in the regulation of commerce, 201 
 
 NECESSITIES. 
 
 Natural necessities indicate natural riglits, 11, 12 
 
 Evidence of man's right to exist and enjoy, etc., 11, 12 
 
 For civil governments, 22 
 
 For iiationalitj', '. 32, 33 
 
 NEW ORLEANS. 
 
 Ifartial law proclaimed by General Jackson 262 
 
 Territory of, purchased from France during Jefferson's administration,. . 
 
 pp., 35, 250, 313 
 
 NOBILITY. 
 No titles of, to be granted, 297 
 
 NORTH CAROLINA. 
 William W. Holdea made provisional governer of, 234-342 
 
 OBLIGATIONS (LEGAL.) 
 
 Perfect and imperfect obligations, 38 
 
 Created by law, may be modified, etc., 216 
 
 Distinction between legal and moral obligations 216 
 
 Rule in respect to legal obligations, 217 
 
 Congress can make uniform laws on subject of bankruptcj^, 217 
 
 State can make no law impairing the obligation of contracts, 217 
 
 Tins subject discussed etc., 217-220 
 
 Limits of state authority in respect to, etc., 218 
 
 OFFICES. 
 
 Of the government-a corporation, 53 
 
 Incidents of office, 58 
 
 Autiiority of ofBcers are incidents of office, 59 
 
 Like the King, " they never die",. 59 
 
 Duties and powers of o£5ce and trusts, 59 
 
 IIow to be executed, 59 
 
 Mal-admiuistration in, a crime, etc., 59 
 
 Presidential office, etc., 326 
 
 Duties and powers pertaining to the same, 326-356 
 
 Appointments to office by the president, 348 
 
 Vacancies in, how filled during recess of senate, 349 
 
 Removals from office by the president, discussed, 350 
 
 Congress may regtilat^e its exercises, 350 
 
 Report of a congressional committee upon removal, etc. (note), 351 
 
 PAINS AND PENALTIES— BILLS OF. 
 Distinct from bills of attainder, 278 
 
1C8 INDEX. 
 
 PAEDONS AND EEPRIEVES. page. 
 
 Power of the president to grant, discussed, 332-340 
 
 Policy of pardons discussed, 333 
 
 Extent of the power of the president, 333 
 
 Mr. Justice Wayne in ex parte Wells, 334 
 
 Chief Justice. Marshall in United States v. Wilson, 334 
 
 Does not extend to impeachments, 339 
 
 Nor to contempts of either house, etc., 340 
 
 PEOPLE OF THE UNITED STATES. 
 
 Who are included, etc., 86 
 
 The purpose of their union, 86 
 
 When they became a nation, • 41 
 
 The democratic principle in state and national administration (see also 
 
 note), 102 
 
 Authority of, as a nation, 159 
 
 People of the nation, and of the states the same, 17S 
 
 Their interests the same, 178 
 
 PERFECT OBLIGATIONS. 
 
 The nature of (note), 38 
 
 What are perfect obligations, 226 
 
 To be enforced in all civilized countries, 226 
 
 PIRACY. 
 
 Power of congress to punish, , 237 
 
 Definition of, etc., 238 
 
 What amounts to piracy 238, 239 
 
 Can it be committed by subjects of states at war. 239 
 
 Pirates deemed to be out of protection of society, 240 
 
 PIRATES. 
 
 Who are pirates, 238, 239 
 
 Out of protection of society, 240 
 
 POLITICAL RIGHTS. 
 
 Nature and origin of, - H^ 
 
 Distinguished from civil rights, 114 
 
 Source of political franchises, c 114 
 
 Right conferred by the government, 115 
 
 Rests in discretion, ■ 1^5 
 
 No government is for unlimited suffrage 116 
 
 Belong to society, 116 
 
 By whom originally determined, 115 
 
 Of state citizens, as such, 312-316 
 
 Are derivative, and not inherent, 314 
 
 Their origin or source, 214 
 
 How conferred ^^^ 
 
 Liable to forfeiture, • • •'^1'^ 
 
 How forfeited— for what cause, 316 
 
 Treason is political death, 316 
 
INDEX. 169 
 
 POLITICAL niGUTS— Continued. page. 
 
 Condition of a political corporation which has repudiated its allegiance,. 316 
 Political rights have their existence only in loyalty to the enfranchising 
 
 power, 324 
 
 PORTS IN THE SEVERAL STATES. 
 
 No preference to be given to, by any regulation of congress, 296 
 
 The object of this provision, 296 
 
 POST-OFFICES, POST-ROADS. 
 
 Power of congress to establish, 232-236 
 
 Yiews of President Monroe, considered, 232 
 
 Construction of such power, 233-235 
 
 The question of authority stated, .■ 236 
 
 POWERS. 
 Powers of the general government conferred by the people (note p. 71), 70-tl 
 
 To be considered co-extensive with the terms of the grant, 12 
 
 Doubtful words in a power, how to be construed, '?2 
 
 When susceptible of two interpretations, '?2 
 
 Concurrent powers of state and national governments, 73 
 
 When exclusive in general government, * . 74 
 
 Incompatability or repugnancy, 74 
 
 Specification of particular powers does not exclude those not specified,. . 75 
 
 Inferred power as a rule, etc., 75 
 
 All national, etc., committed to general government, 75 
 
 Special and residuary powers of tlie two governments, 175 
 
 General government has full powers over the subjects enumerated, 175 
 
 Why subjects of general jurisdiction, enumerated, 177 
 
 Powers of general government not enumerated, 178 
 
 Reply to Judge Story thereon (to lay taxes, etc.), 178 
 
 To borrow money on the credit of the United States, 185 
 
 To regulate commerce, 186-193 
 
 In respect to naturalization, 204-214 
 
 In respect to banlvruptcies, 214-220 
 
 To coin money, 220, 232 
 
 To fix standard of weights and measures, 228 
 
 Of congress to provide for punishing counterfeiting, etc., 230-233 
 
 To establish post-offices and post-roads 232-236 
 
 War powers of general government, 244-206 
 
 Of president of the United States, 252 
 
 As commander-in-chief, 253,254 
 
 As executive liead, etc., 253 
 
 Exigency powers of the president, 256 
 
 Civil and military administer the same authority, 258 
 
 Only different mode of administration, 258 
 
 PREAMBLE. 
 
 Of the constitution considered 53-83 
 
 " We, the people of the United States," 83-85 
 
 " To form a more perfect Uuiou," discussed 86 
 
170 INDEX. 
 
 TRKAUBLE— Continued. page. 
 
 To establish justice, 90 
 
 To insure domestic tranquillity, 94 
 
 To provide for the common defense, 96 
 
 To promote the general welfare, 97 
 
 To secure the blessings of liberty, 99 
 
 PREROGATIVE AUTHORITY. 
 
 President has no prerogative authority, 323 
 
 What is crerogative (see note), . .328-337 
 
 PRESIDENT OF UNITED STATES. 
 
 Bills to be presented to him for his approval 1 63 
 
 His veto power considered, 1 64-1 69 
 
 This power is liable to abuse, 170 
 
 War powers of, considered, 252-260' 
 
 As commander-in-chief, , 252 
 
 As executive head of nation, 253 
 
 Term of office, 326 
 
 How elected, 326 
 
 Time for electing determined by congress, 327 
 
 Constitutional qualifications, 327 
 
 When vice-pi'esident serves as president 327 
 
 When congress provides by law who shall discharge the duties of, 327,328 
 
 Oath of office, 328 
 
 Duties and powers which attach to the office, 328 
 
 He is chief executive of the nation, 328 
 
 Has no prerogative authority (note), 328-331 
 
 His duties and powers as chief executive, 329 
 
 His cabinet officers ■ • • • 229 
 
 Attorney-general and marshals 330 
 
 Intrusted with executive administration, 330 
 
 Is only an officer of the law, in the civil department, 331 
 
 Is siibject to the law in his office, 331 
 
 Cannot lawfully impose a policy upon the nation, 332 
 
 His power to grant reprieves and pardons discussed, 332-340 
 
 How to construe presidential powers discussed, 335 
 
 Not to confound his powers with the prerogative powers of the king, 335 
 
 As a mere executive he can reprieve or pardou only after conviction, 
 
 discussed, 335. 330 
 
 See as to power of king (note), 336-339 
 
 Power does not extend to impeachments 339 
 
 Nor to contempt of tlie house or senate, 340 
 
 As commander-in-chief, 340 
 
 His authority to reconstruct the rebel states, discussed 341-344 
 
 His treaty-making authority, 344 
 
 His appointing power, 348, 349 
 
 His power of removals from office, discussed, 350 
 
 Eia general duties and powers, * 351 
 
INDEX. 171 
 
 PRESIDENT OF UNITED STATES,— Cordinued. page, 
 
 Eequired to receive embassadors, etc., 353 
 
 May be impeached by the house, etc., 354 
 
 Wliat amounts to disability, discussed, 354 
 
 PRESIDENTIAL. 
 
 Duties and powers as such, 64 
 
 Pertaining to the office, discussed, 326-356 
 
 His cabinet officers, etc., 329 
 
 PRINCIPLES. 
 
 Fundamental, as the basis of American independence, 9 
 
 Set forth by tlie declaration of independence, 9, 10 
 
 All men created equal, what implied, 11-13 
 
 Natural necessities are indications of natural rights, 11-13 
 
 Doctrine of natural rights maintained, 16-22 
 
 Origin and necessity for civil governments, 22 
 
 Doctrine of surrender of natural rights on coming into society, discussed, 24 
 
 Sucli doctrine defined, 24 
 
 National sovereigutj' essential, etc., 31 
 
 Highest authority is tJiat of the nation, 30 
 
 Fundamental principles of national existence and administration, 3^-40 
 
 Matters of judgment and conscience, 33 
 
 Perfect and imperfect obligations (note), 38-39 
 
 Democratic principle in state and national government, 102 
 
 PROHIBITIONS AND RESTRCTIONS. 
 
 Upon the general and state governments 266-297 
 
 Important as manifesting llie understanding of those framing the consti- 
 tution, 266 
 
 Respecting the migration and importation of persons, 266 
 
 Privileges of habeas corpus not to be suspended, 269 
 
 No bills of attainder or ex post facto laws to be passed, 278 
 
 In respect to capitation and direct taxes, 292 
 
 Taxes on exportation, 292 
 
 No preference to be given to particular state ports, 296 
 
 Money must be drawn from the treasury only in consequence of appro- 
 priations, etc., 297 
 
 No titles of nobihty to be granted, 297 
 
 PROPERTY. 
 
 The right to property indicated, 20 
 
 The philosophy of such right (note), 21 
 
 PROTECTIVE TARIFF. 
 See tariff, 180-184 
 
 PROVISIONAL GOVERNORS. 
 
 Appointed by the president, 342 
 
 His authoritj questioned 342 
 
172 INDEX. 
 
 RATIO. PAGE. 
 
 Of representation among the states, 127 
 
 Equality of, not exact, 127 
 
 Not to infer state sovereignty therefrom, 128 
 
 EEBELS. 
 
 Unpardoned rebels have no political rights (see note), ■ 324 
 
 Treason is political death, 324 
 
 Any act proclaiming the treason of a political body proclaims the for- 
 feiture, 324 
 
 EEBELLIOX. 
 
 Effect of, upon the status of states, etc., discussed, 316-322 
 
 Governor Seymour's remarks, 277 
 
 Erastus Corning and others, letter to President Lincoln, 271 
 
 Protection against rebellion, etc., 386 
 
 RELIGION, 
 
 Congress to make no law respecting the estabhshment of religion, 391 
 
 The question discussed, 391-394 
 
 REPRESENTATIVES. 
 
 In congress, how elected, 113 
 
 For how long elected, 134 
 
 Reasons for such limitation, 135 
 
 Duty to re-elect faithful public officers, 136 
 
 Qualifications of, 137 
 
 REPRESENTATION. 
 
 Equality of, an essential feature in a democracy, 127 
 
 Applied to the states, not exactly equal, 127 
 
 Principle of, not applicable to senate and bench 148 
 
 REPRIEVES AND PARDONS. 
 See pardons, 332-340 
 
 REPUBLICAN FORM OF GOVERNMENT. 
 
 The guaranty of the constitution discussed 383 
 
 Tlie guaranty construed in the light of the American theory, 383 
 
 Not to the states as political corporationp, but to the people, 384 
 
 The term " renublican " in the constitution a perfect guarantj', 385 
 
 RESIDUARY POWRRS. 
 
 In what sense the states possess residuary powers, 175 
 
 RESTRICTIONS. 
 
 Upon the authority of congress, 160 
 
 Bill of rights, 160 
 
 REVENUE. 
 
 Bills to raise a revenue to originate in the house, 162 
 
 The reason therefor, 162 
 
 Senate may amend such bills, 163 
 
INDEX. 173 
 
 EIGHTS. PAGE. 
 
 Natural rigliti?, how indicated, 11 
 
 To vvliat applicable, 16-22 
 
 Perfect rights or obligations (note), 38, 3D 
 
 Imperfect rights or obligations (note), 38, 3D 
 
 SCIENCE AND ART, 
 Congress to promote, by securing to authors and inventors their inven- 
 tions and writings, etc., 23T 
 
 SEAMEN. 
 Regulation of commerce, extends to government of seamen on board of 
 vessels, etc., 201 
 
 SECESSION. 
 
 The right of, considered, : 320 
 
 Tlie forcible attempt by a state, effect of, 320 
 
 Forfeiture of its political life, 320, 321 
 
 Cannot afiect the authority of the nation, but can forfeit its own, 320 
 
 SENATE. • 
 
 Branch of the legislature, 103 
 
 Its general character, 109-138 
 
 What it represents, lOD 
 
 Does not represent the states as political institutions, 112 
 
 For how long a term chosen, 138 
 
 How classified, etc., 138 
 
 Not a representative body 133 
 
 Is continuous, 138 
 
 Does not represent the states as poHtical bodies, 139 
 
 Discussion upon the subject, 139 
 
 Reasons for diversity of opinions, 140 
 
 In what sense the senate represents the states, 143 144. 
 
 Difference in the house, 1 44 
 
 Its office as a branch' of the legislature, I44 
 
 Represents the dignity, wisdom, etc., of state, 145 
 
 Not federal in any sense 14g 
 
 Wiiy the senate was chosen by the state legislatures HG, 147 
 
 To try impeachments, make treaties, etc 147 
 
 Principles of popular representation not applicable to senate, U7, 143 
 
 Qualilications of senators, ! I49 152 
 
 Number of senators, ^ ] 50 
 
 Character of senate, 151 
 
 Duration of term of ofSce, 151 
 
 President of tlie senate, 152 
 
 Semi-judicial body. 152 
 
 To try all impeachments, 152 
 
 SEYMOUR, GOVERNOR. 
 Remarks at a public meeting in Albany on the arrest of Vallandigham 
 
 (note) 211 
 
 72 
 
174 INDEX. 
 
 SLA.VEIIY AND SLAVES. page. 
 The importation and migration of slaves not to be prohibited by con- 
 gress prior to the year 1 808, 2G7 
 
 The fugitive clause considered, 374 
 
 Abolished by an amendment of the constitution, 39Y 
 
 SOCIETY. 
 
 Must establish its foundations in natural justice, 2G 
 
 Must not abridge tlie natural liberty of its members 26 
 
 lias no rights not in harmony with the rights of its individual members,. 27 
 
 Civil government as a necessity of, 28 
 
 Must establish a public authority, 28 
 
 Largest society called nation, ." . . 30 
 
 Wliat society entitled to rank as a nation, 32 
 
 What essential to its moral right to nationality, 32 
 
 The limitation of such right, 32 
 
 SOVEREIGNTY. 
 
 The supreme authority by which a state is governed 31-48 et seq. 
 
 As an attribute of civil government, what, 31 
 
 Internal and external sovereignty (note), 32 
 
 Inherent in all nations as an essential attribute, 44-53 
 
 It only attaches to the people as an entire society, 48 
 
 Cannot be delegated, ,.,.... 48-49 
 
 States in the United States not sovereign, 50 
 
 People of a state or territory not sovereign, 5 L 
 
 May exercise sovereign aulhoritj', etc., 52 
 
 External and internal sovereignty, GO 
 
 What pertains to each, 76-79 
 
 But one sovereignty in nation, 103 
 
 Idea of separate sovereignties dangerous, • 104 
 
 All governmental authority is rooted and grounded on sovereignty 29!) 
 
 As essential to a democracy as a monarcliy, 300 
 
 But one sovereignty, and lliat is in tlie nation 300 
 
 Questions of administration belong to sovereignty 302 
 
 The existing states took their future political existence subject to the 
 
 general authority, 304 
 
 SPECIAL DELEGATED POWERS. 
 
 Tliat is, subjects of jurisdiction enumerated, 1 75 
 
 Residuary powers — meaning non-enumerated powers, 175 
 
 STATE CITIZENS. 
 
 now created, 306-303 
 
 Is created by state enfranchisement, 321 
 
 Must abide the political condition of the state, 322, 323 
 
 Is carried into rebellion politically by the rebellion of the state, 323 
 
 Political rights cease without any inquiry into individual loyalty, 323 
 
 STATE— DoiiESTic Corporation. 
 
 Government of, derives its authority from the nation, 52 
 
 Are national institutions, ^ • •. ^2 
 
INDEX. 175 
 
 STATE— Continued. PAOB. 
 
 Exercise national authority in local and domestic matters, 52 
 
 Not elements of the union, 52, 53 
 
 Conduct under the confederation, 90-93 
 
 Domestic tranquillity among tiiem, 94 
 
 Condition before the revolution, 95, 96 
 
 Tlieir political character, 9G 
 
 Their administrative authority, etc., 102 
 
 Instruments of internal administration, 129 
 
 AVliy they were employed as such, 130 
 
 Cannot regulate inter-state commerce, 192-1 9(5 
 
 City of New York v. Miln, discussed; certain fallacies, 192-196 
 
 Pass no law impairing tiie obligation of contracts, 214 
 
 Limitation of state authority in that respect, 218 
 
 Of the state, as a political corporation; its office, duties and powers, 
 
 discussed, 298-326 
 
 STATE— National. 
 
 Definition of, 35 
 
 A body corporate and politic, 36 
 
 As members of the national family, 36 
 
 Essentials to a sovereign state (note),.. . . , 36 
 
 Laws fundamental to, etc., 37 
 
 Governed by tlie law of nature, etc., 37 
 
 Rights of — when perfect, 38 
 
 Of the United States as a nation, 42 
 
 STATE RIGHTS. 
 The rights and authority of the people of the states to administer, etc., . . 143 
 The question discussed, 298-326 
 
 (THE) STATES AS POLITICAL ORGANIZATIONS. 
 
 As political corporations they have no original or inherent authority,... . 293 
 
 As political corporations are instruments of administration, 298 
 
 All governmental powers are trusts 298 
 
 Tlie autliority by which they administer belongs to the public 298 
 
 Are a corporation of offices 299 
 
 All governmental authority is vested in sovereignty, 299 
 
 Sovereignty may delegate powers of administration, 299 
 
 As essential to a democracy as a raonarcliy, 300 
 
 But one sovereignty, many modes of administration — illustrated, 300 
 
 Sovereigntj' in the nation alone, 301 
 
 Questions of governmental administration belongs to sovereignty, 302 
 
 Tlie authority to institute, determines by whom it shall be administered, 303 
 
 Subordination of state institutions to the national sovereignty 304 
 
 Authority of nation over the territories, 304 
 
 Source and foundation of tliis authority, 305 
 
 States created by the incorporating and enfranchising act of the nation, . 306 
 
 The effect of such national act, 307 
 
 "What constitutes a political state iu the union 307 
 
176 INDEX. 
 
 STATES AS POLITICAL ORGANIZATIONS— C^onimwec?. 
 
 PAaK, 
 
 The authority which creates the state, assigns to it its limits 309 
 
 Difference between state and national administrative authority, 309, 310 
 
 National autliority of every citizen extends throughout the nation, 310 
 
 Extent of the authority of general government, 311 
 
 Autliority of a state citizen, 311 
 
 Subordination of state authority by the institution of a national govern- 
 ment, 312 
 
 The state never had the prerogative powers as a nation, 313 
 
 Illustrated by Mr. Jefferson in his demand tipon France, 313 
 
 Effect of rebellion upon, 314, 317 
 
 State of a political corporation, after losing its franchises, or its functions, 3lT 
 
 Treason is political death, 316 
 
 The state of Louisiana as an illustration, 317 
 
 Tlie state as a political corporation, no part of the union or nation, 319 
 
 National unity does not depend upon the political existence of states,. . . 319 
 
 The creation or extinction of a state does not affect the nation, 319 
 
 State is a political corporation, created for purpose of internal adminis-_ 
 
 tration, 520-321 
 
 It can acquire no rights as against the nation 320 
 
 As political corporations all are equal, 321 
 
 Each state has the same political status, 322 
 
 A state may forfeit her status as sucli, .314-322 
 
 People of a state taking their political status through the state, must fol- 
 low its conditions, 321, 322 
 
 When the nation proclaimed the rebellion, it proclaimed the political 
 
 death of state, etc., 324 
 
 Divers theories upon the subject, 324 
 
 All acknowledge the same result practically, 324 
 
 Amnesty proclamation (note), • . • . 324 
 
 STEWART, JUDGE. 
 
 Remarks on application of Vallandigham for writ of habeas corpus (note), 274 
 
 SUFFRAGE. 
 
 Right of, political and not civil, 114 
 
 Conferred by society, not inherited, 114 
 
 Political rights are powers, etc., 115 
 
 Riglit to, rests in discretion, , 115 
 
 Universal, not partial, 116 
 
 Essential qualifications for, 116 
 
 Government confers right to, upon classes, 117 
 
 Disfranchises by classes, 117 
 
 SUMNER, CHARLES. 
 
 His views of the war power expressed in the United States senate, 257 
 
 SUPREME COURT. 
 
 To be one supreme court, 356 
 
 Judges thereof, how appointed,... 358 
 
INDEX. 177 
 
 SUPREME COURT— Continued. page. 
 
 Tenure of office 358 
 
 Jurisdiction, 360-365 
 
 Appellate jurisdiction, 366 
 
 TARIFF— Protectivk. 
 
 Authority of congress to create, 182-184 
 
 Does the general welfare require it, -183 
 
 Pliilosophy of protection, 183 
 
 No danger of domestic monopoly while free competition exists at home,. 184 
 
 Necessary to protect American labor. against foreign pauper labor, 134 
 
 Essential to au industrial and commercial independence, 184 
 
 See also remarks on page, 188 
 
 TANEY, ROGER B., CH. J. 
 Habeas corpus. In re Merryman, 259, 260 
 
 TAXES. 
 
 Power of congress to lay and collect, etc., I'Jl 
 
 For what purpose considered, IVl, 112 
 
 See note on tliis subject, 1*12 
 
 Term "taxes" defined, 180 
 
 Taxes are direct or indirect, 180 
 
 "What are direct taxes, etc. (see note), 180 
 
 Congress has plenary power to tax every species of property (see i 
 
 authority), 1 80, 1 81 
 
 For what objects taxes may be laid and collected, 181, 182 
 
 TENURE. 
 
 Of the real property in England discussed, 208 
 
 Effect on doctrine of indefeasible allegiance, 208-2 11 
 
 Illustrated by history, etc., 209 
 
 TERRITORY. 
 
 Right to acquire, as a war power, etc., 250 
 
 Necessarily incident to national sovereignty, 250 
 
 Mr. Jefferson acquires Louisiana territory 250, 251 
 
 Absurdity of the strict construction doctrine, illustrated, 251 
 
 Authority of nation over, etc 308, 381-384 
 
 Source and foundation of this authority, 305 
 
 Authority to acquire, etc., 380 
 
 Authority to legislate for, discussed, 382 
 
 TREASON. 
 
 In what treason against the United States consists, 280 
 
 Under the British constitution, 281 
 
 Different species of treason, 281, 282 
 
 Secretary of state to Mr. Hinchmau on the subject of, 283 
 
 Evils of the British system discussed, 281-285 
 
 Attainder of treason, what, 285-287 
 
 Effect of, 286 
 
 Corruption of blood and forfeiture, 287, 288 
 
 Trials for, where they may be had, 368 
 
 0< 
 
178 INDEX. 
 
 TREASURY NOTES. page. 
 
 Issued under the war powers, etc., 248 
 
 One of the necessary means, 247 
 
 Power incident to sovereignty, 247 
 
 The argument therefor, 243, 249 
 
 TREATIES. 
 
 Defects of confederation in respect to 93 
 
 Power to make treaties under the constitution, 344 
 
 Subject of treaties discussed, 344-348 
 
 Practice in making treaties, 346-348 
 
 TRIALS. 
 
 By impeachment, etc., 131 
 
 "Why the house tlie proper body to impeach, 132 
 
 Character of tlie trial, ] 32, 133 
 
 Effect of failure to convict on public morals, 133 
 
 Courts of impeachment necessary, T 133 
 
 Unfaithfulness on the part of public ofHcers, 134 
 
 For treason, where they may be had, 368 
 
 UNITED STATES. 
 
 As a nation, 41 
 
 When they became a nation, , 42 
 
 Declaration of independence, effect of, 42 
 
 Proclaimed by the authority of the people (note), 42 
 
 As a civil government, 53 
 
 VACANCIES IN OFFICE. 
 
 How filled by president in vacation, 349 
 
 Can he create vacancies by removals, discussed, 34D 
 
 Can he create an office and appoint an officer during recess, 349 
 
 VALLANDIGHAM, CLEMENT L. 
 
 Application for writ of habeas corpus 274 
 
 Remarks of Judge Stewart on such application (note), 274 
 
 Nominated for governor of Ohio by the democratic party (note), 278 
 
 VENUE. 
 The place of trial for crimes must be in the state when the crime was 
 
 committed, 368 
 
 Crime of treason committed in several states and territories, 368 
 
 Might try traitors where the act was committed 368 
 
 If committed in the territories, in any state congress might by law pro- 
 vide for, 368, 369 
 
 VETO. 
 
 The veto power of the president, 163 
 
 Qualified veto power, 164 
 
 Theory of the exercise of this power considered, 165 
 
 Source and application of this power, in the king and in the president,.. 165 
 
 King and president compared, 166 
 
 J4AY4-1950 
 
INDEX. 179 
 
 YETO— Continued. PAGE. 
 
 The principle not applicable in the United States i 168 
 
 Reasons for the existence of tliis qualified veto power in the president,. 169 
 
 Not applicable on such grounds (note), ' 170 
 
 And is liable to abuse, 170 
 
 VICE-PRESIDENT OP UNITED STATES. 
 
 President of the senate, ex officio, 152 
 
 Term of office, 326 
 
 How elected, 326 
 
 Time of electing determined by congress, 327 
 
 Constitutional qualifications, 327 
 
 WAR. 
 
 "Wliat is a public war, 244 
 
 Offensive war, what, 245 
 
 Defensive war, what, 245 
 
 Riglit to declare war in congress, 244 
 
 Causes for war to be determined by congress, 245-250 
 
 For what causes allowable, 246 
 
 For what purpose, 246 
 
 May bo general or partial, 246 
 
 Power to levy troops incident to war, 246 
 
 Also power to command the means to carry it on 247 
 
 To issue paper currency — treasury notes, 248 
 
 WAR DEPARTMENT. 
 Manifesto on the suspension of civil authority, 372, 273 
 
 "WAR POWERS. 
 
 Of the general government, 244-266 
 
 Congress has power to declare war, etc., 244- 
 
 Enumeration of war powers, 244 
 
 Implied war powers, 246-249 
 
 War powers of the president, 253 
 
 As commander-in-chief, 252 
 
 As executive head of the nation, 253 
 
 WEIGHTS AND MEASURES. 
 
 Congress to fix the standard of, 228 
 
 Tliis authority slill exercised by the states, 223 
 
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